Petitioners Brief — California v. Acevedo

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

CHARLES STEVEN ACEVEDO,

Respondent.

BRIEF ON THE MERITS

JOHN K. VAN DE KAMP, Attorney General

of the State of California

RICHARD B. IGLEHART, Chief Assistant

Attorney General

HARLEY D. MAYFIELD, Senior Assistant

Attorney General

FREDERICK R. MILLAR, Supervising Deputy

Attorney General

*ROBERT M. FOSTER, Supervising Deputy

Attorney General

110 West A Street, Suite 700

San Diego, California 92101-3786

Telephone: (619) 237-7852

Attorneys for Petitioner

*Counsel of Record

1. Under the Fourth Amendment

principles set forth in United States v.

Ross, 456 U.S (1982) 798, is an officer

who has probable cause to believe that

there is contraband in a specific

container within a vehicle required to

obtain a search warrant for that container

or may the officer search the container

for the contraband without a warrant?

2. Relatedly, did this Court’s

opinion in United States v. Ross, supra,

overrule or limit the decision in United

States v. Chadwick 433 U.S. 1 (1977)?

QUESTIONS PRESENTED

OPINION BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

A.

SUMMARY OF ARGUMENT

ARGUMENT

The Procedural History

The Facts Of The Crime

» £4. «

41 = & & YD FF E

~

uo

SINCE THE OFFICERS HAD PROBABLE

CAUSE TO BELIEVE THE PAPER BAG

FOUND IN THE TRUNK OF

RESPONDENT'S VEHICLE CONTAINED

ILLEGAL DRUGS, THEY DID NOT NEED

A SEARCH WARRANT TO OPEN THE BAG

AND SEARCH IT 15

A.

The Inherent Mobility Associated

With A Vehicle Justifies A

Complete Search If There Is

Probable Cause 17

The Lesser Expectation Of

Privacy Given To A Vehicle

Also Justifies The Search

Of The Bag Of Illegal Drugs

Found Within the Vehicle 22

The Rule Announced In Ross

Should Apply To This Case 27

CONCLUSION

= iii. =

Even If Chadwick Still Has

Some Validity, The Search

Of Mr. Acevedo’s Vehicle

Was Nevertheless Valid

45

48

- iv. -

ZABLE OF AUTHORITIES

Cases Page

Ss Vv

442 U.S. 753 (1979) 20, 32

California v. Carney

471 U.S. 386 (1985) 17, et passim

Carroll _v. United States |

267 U.S. 132 (1925) 17, 18

Chambers v. Maroney

399 U.S. 42 (1970) 19, 37

Colorado v. Bertine

479 U.S. 367 (1987) 46

Dunaway v. New York

442 U.S. 200 (1979) 34

Florida v. Meyers

466 U.S. 380 (per curiam 1984) 31

Florida v. Royer

460 U.S. 491 (1983) 38

illinois v. Lafayette

462 U.S. 640 (1983) 46

Market Street Railroad Co. v.

324 U.s. 548 (1944) 3

Michigan v. Thomas

458 U.S. 259 (per curiam 1982) 31

New_York v. Belton

453 U.S. 454 (1981) 34

New York v. Class

475 U.S. 106 (1986) 22-24

People v. Acevedo

216 Cal.App.3d 586 (1989)

265 Cal.Rptr. 23 33

People v. Miranda

44 Cal.3d 57 (1987)

241 Cal.Rptr. 594

744 P.2d 1127 46

Robbins _ v. California

) k Vv. n

428 U.S. 364 (1976) 19, 23

State v. Borotz

654 S.W.2d 111 (Mo. App. 1983) 42

Sv.

433 U.S 1 (1977) 27

d tes v. wick

532 F.2d 773 (lst Cir. 1976) 12, et passim

United States v. Johns

469 U.S. 478 (1985) 30-32

tes v. ne

782 F.2d 757 (7th Cir. 1986) 39

United States v. Place

462 U.S. 696 (1983) 32

Vv. &

456 U.S. 798 (1982) 11, et passim

United States v. Salazar

805 F.2d 1394 (9th Cir. 1986) 42

United States v. Shepherd

714 F.2d 316 (4th Cir. 1983) 40

- vi. -

Statutes

California Health and Safety Code

§ 11360

Other Authorities

LaFave, Search and Seizure, Second

Edition, Section 7.2(d) (1987)

45

33

sit o

OPINION BELOW

The opinion of the California Court

of Appeal, Fourth Appellate District,

Division Three reversing the judgment of

the California Superior Court in and for

the County of Orange is reported in People

v. Acevedo, 216 Cal.App.3d 586, 265

Cal.Rptr. 23 (1989), and appears as

Appendix A to the petition for writ of

certiorari at pages A-1 through A-21.

The first order modifying the

concurring opinion is also reported at 216

Cal.App.3d 586, 265 Cal.Rptr. 23, and

appears as Appendix B to the petition for

writ of certiorari at pages A-23 through

A-25.

The first order modifying the

majority opinion is also reported at 216

Cal.App.3d 586, 265 Cal.Rptr. 23, and

appears as Appendix C to the petition for

writ of certiorari at pages A-27 through

A-28.

» 2.«

The second order modifying the

concurring opinion is also reported at 216

Cal.App.3d 586 and 265 Cal.Rptr. 23, and

appears as Appendix D to the petition for

writ of certiorari at pages A-30 through

A-31.

The unpublished order of the Supreme

Court of California denying petitioner's

petition for review on direct appeal was

entered in the Official Minutes of that

court and reported in the Official Advance

Sheets of the California Supreme Court.

The minute entry is reproduced in Appendix

E to the petition for writ of certiorari

at page A-33.

STATEMENT OF JURISDICTION

Petitioner invokes the jurisdiction

of this Court, under Title 28, United

States Code, section 1257(3) to review a

judgment of the California Court of

Appeal, Fourth Appellate District,

Division Three, which was entered on

— a

December 12, 1989. The California Supreme

Court denied review in this case on

March 15, 1990. The petition for writ of

certiorari was filed within the required

60 day period following the final entry of

judgment. The judgment of the Court of

Appeal became final for the purposes of

this Court with the denial of review by

the California Supreme Court on

March 15, 1990. (Market Street Railroad

Co. v. Railroad Commission, 324 U.S. 548,

550-552 (1944).) Thus, the instant

judgment is a final decision rendered by

the highest court of the State of

California interpreting rights under the

United States Constitution. The petition

for writ of certiorari was granted on

October 1, 1990.

, Tih i

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment

IV:

“The right of the people to be

secure in their persons, houses,

papers and effects, against

unreasonable searches and

seizures, shall not be violated,

and no warrants shall issue, but

upon probable cause, supported

by oath or affirmation, and

particularly describing the

place to be searched, and the

persons or things to be seized.”

STATEMENT OF THE CASE

A.__The Procedural History

In an information filed by the

District Attorney of Orange County,

California, on June 24, 1988, respondent

and a co-defendant were charged with one

count of possession of marijuana for sale

in violation of California Health and

Safety Code section 11359. (CT 2; JA l-

2.)+/

1. The designation “JA” refers to

the joint appendix. The designation

“CT” refers to the Clerk’s Transcript of

the trial court's documents and orders.

The designation “RT” refers to the

ite

» 6. «

On this same date, respondent was

arraigned in the Orange County Superior

Court and entered a plea of not guilty to

the charge. (CT 1.) Respondent’s motions

to suppress evidence and to dismiss the

charges pursuant to California Penal Code

sections 995 and 1538.5 were heard and

denied on October 7, 1988. (CT 77; JA 19-

20.)

On October 12, 1988, as part of a

plea bargain, the information was amended

to add a second count, charging possession

of marijuana in violation of California

Health and Safety Code section 11357,

subdivision (c). Respondent then entered

a plea of guilty to both counts. (CT 78;

JA 21-27; RT 40-41.)

reporter's transcript of the trial court

proceedings. The clerk's and reporter's

transcripts were both included as part

of the official record before the

California Court of Appeal and

California Supreme Court.

» 6. «

On this same date, respondent was

granted probation on certain terms and

conditions, including 30 days in custody

and a $100 fine. (CT 79; JA 21-27.)

Respondent’s notice of appeal was

filed on November 10, 1988. (CT 83.) In

a published decision filed on

December 12, 1989, the Court of Appeal,

Fourth Appellate District, Division Three,

reversed with directions the judgment of

the Superior Court and held that the

search of the paper bag violated the

Fourth Amendment. (Ptn., Exh. A.)

Modifications to the opinion that did not

change the result were issued on

December 20 and 29, 1989, and January 3,

1990. (Ptn., Exhs. B, C and D.) On

March 15, 1990, the California Supreme

Court denied petitioner's petition for

review. (Ptn., Exh. E.)

/

/

On October 28, 1987, Investigator

Don Coleman of the Santa Ana Police

Department received a telephone call from

United States Drug Enforcement Agent

John McCarthy from Hawaii. Agent McCarthy

_ informed Investigator Coleman that Agent

McCarthy had seized a package containing a

picnic cooler. Inside the cooler the

agent had found nine clear bags of

marijuana. The bags were approximately

12” by 4” by 3” and each contained about

two pounds of marijuana. The package was

addressed to a J.R. Daza at 805 West

Stevens Avenue, Santa Ana, California.

The package was to have been sent to the

Federal Express Office at 700 East Alton

in Santa Ana. McCarthy told Coleman that

the agent would send the package to

Coleman instead. The intent of the

officers was to arrest the person who

» 6. «

picked up the marijuana. (CT 64, 71; JA

4, 13-14; RT 20.)

McCarthy sent the package to Coleman,

who received it on October 29, 1987.

Coleman opened the package and found the

marijuana in the manner Agent McCarthy had

described. Investigator Coleman

repackaged the box. He then contac ced

Mike Cole, the Senior Operations Manager

at the Federal Express Office. Coleman

told Cole that Coleman wanted to leave the

package at Federal Express and then arrest

the person who picked it up. Cole took

the package and kept it under lock. (CT

64, 71; JA 4, 14; RT 20.)

The next day, October 30, 1987,

Investigator Coleman went back to the

Federal Express Office. He examined the

package containing marijuana. The package

was still under lock. It had not been

tampered with. The wrapping was the same.

A small mark Coleman had placed on the

» 9. «

package was still there. (CT 64, 71; JA

14; RT 20.)

A telephone number, apparently on the

delivery instructions from the shipper,

was checked through the Santa Ana Police

Department facilities and found to belong

to a Jamie R. Daza at 807 West Stevens,

Apartment #12 in Santa Ana. A check of

Daza’'s California driver's license

confirmed this same address. On

October 30, 1987, at about 10:30 a.m., a

man who identified himself as Jamie Daza

went to the Federal Express Office and

picked up the package. Daza placed the

package into his vehicle and drove to his

apartment on West Stevens. He carried the

package into the apartment. (CT 64, 71;

JA 5, 15-16; RT 20.)

Around 11:45 a.m., surveilling

officers saw Daza exit his apartment and

drop the paper and box that had contained

the marijuana into a trash bin. (CT 65;

- 10. -

JA 5; RT 3.) At this time Investigator

Coleman left the scene to get a search

warrant. (CT 65; JA 5; RT 3.)

Around 12:10 p.m., co-defendant

St. George was seen by officers exiting

the residence wearing a blue knapsack.

The knapsack appeared to be half full.

Fearing the loss of evidence, the officers

stopped and detained him after he had left

the apartment as he tried to drive out of

the complex. The knapsack was searched

and 1 and 1/2 pounds of marijuana was

found. (CT 65; JA 5; RT 4.)

Around 12:30 p.m., respondent arrived

at the scene. He walked to apartment 12

and entered. Respondent had nothing in

his hands. He exited about ten minutes

later carrying a brown lunch bag that

appeared to be full and of the appropriate

size of the wrapped marijuana packages

that Agent McCarthy had seen. Respondent

was then observed to leave the apartment

- ll. -

and walk to a silver Honda in the parking

lot. He placed the brown lunch bag into

the trunk of the Honda and then attempted

to leave. In order to prevent the

possible loss of evidence from the

apartment under surveillance, respondent's

vehicle was stopped by a marked police

car. The trunk was opened, as was the

bag, and inside the brown bag the officers

found 1/4 to 1/2 pound of marijuana. (CT

65; JA 6-7.)

The search warrant issued at 12:40

p.m. (JA 12.) Shortly thereafter

Investigator Coleman returned with a

search warrant. The apartment was

searched and numerous bags of marijuana

were found. (CT 71, 74.)

/

— = >

— 12. =

In United States v. Ross, 456 U.S.

798, 823 (1982), the Court specifically

held that under the Fourth Amendment, once

probable cause exists to believe that

somewhere in a vehicle there is

contraband, the entire vehicle may be

searched without a warrant and the

"scope of a warrantless search

based on probable cause is no

narrower--and no broader--than

the scope of a search authorized

by a warrant supported by

probable cause.”

v. Ross, Supra, at 823.)

Even closed containers found in a vehicle

in such a search may be seized and

searched. (Id.) However, in the case at

bar, the California Court of Appeal,

relying on United States v. Chadwick 433

U.S. 1 (1977), held that since the

officers had particularized probable cause

relating to a closed container before that

container was placed into the vehicle, the

officers had the right to seize the bag

- 13. -

but needed a search warrant to open it.

Such a ruling cannot be justified in light

of the Court’s holding in Ross.

In Ross the Court recognized two

related policy considerations were

involved in every vehicle search: The

inherent mobility of a vehicle, and a

lesser expectation of privacy that

surrounds a vehicle and its contents

because the vehicle is subject to

pervasive and continuing governmental

regulation. Both of these rationales

fully apply in the case at bar. When

Mr. Acevedo placed the bag of drugs in the

vehicle it attained the same degree of

mobility as the vehicle and was in an area

subject to a lesser expectation of

privacy. As such, given probable cause to

believe that the vehicle contained a bag

and that bag contained illegal drugs, the

officers could seize it and search it

without a warrant. The rules promulgated

- 14. -

by the Court in Ross should fully cover

the case at bar. No distinction should be

made based on whether there was

preexisting probable cause as to the

container before it was placed into the

vehicle.

Adoption of such a bright line rule

is necessary to resolve the overly

confused and complex situation now faced

by police officers who are forced to

determine if they have particularized or

unparticularized probable cause in dealing

with a container found in a lawfully

stopped vehicle thought to be involved in

transportation of narcotics, illegal drugs

or other contraband.

ee Oe ee. ee |

In United States v. Ross, 456 U.S.

798, 823 (1982), the Court specifically

held that under the Fourth Amendment, once

probable cause exists to believe that

somewhere in a vehicle there is

contraband, the entire vehicle may be

searched without a warrant and the

“scope of a warrantless search

based on probable cause is no

narrower--and no broader--than

the scope of a search authorized

by a@ warrant supported by

probable cause.” (]Id., at 823.)

Thus, even closed containers found in a

vehicle in such a search may be seized and

searched. (Id.)

No separate rule should apply simply

because the probable cause centered on one

of the closed containers before it was

placed into the car. Once the closed

|

- 16. -

container was placed into the vehicle it

attained the same degree of mobility as

the vehicle itself. Additionally, by

placing the bag into an area subject to a

lesser expectation of privacy, respondent

relinquished any expectation of privacy he

had concerning the contents of the bag.

The Court’s decisions make clear that

given the mobility of the bag in the

vehicle and given the reduced expectation

of privacy surrounding the vehicle, the

probable cause justified a search of the

bag without 4 warrant.

The Court has repeatedly recognized

two intertwined rationales that are

involved in every vehicle search: The

inherent mobility of the vehicle and a

lesser expectation of privacy that

surrounds that vehicle and its contents

because the vehicle is subject to

pervasive and continuing governmental

regulation. The development of these two

ely -

- 17. -

concepts dates from the earliest vehicle

search cases decided by the Court. Both

of these rationales existed and applied to

Mr. Acevedo's vehicle and it's contents,

and fully supported the warrantless search

of the bag of contraband that Mr. Acevedo

had placed into the trunk of his car.

A. The Inherent Mobility Associated

With A Vehicle Justifies A

Complete Search If There Is

Probable Cause

Acknowledging an indisputable need

for clarification in the law of vehicle

searches, in United States v. Ross, supra,

456 U.S. 798 and California v. Carney, 471

U.S. 386 (1985), the Court traced the

Origins of the vehicle exception and

carefully examined the basis for the

exception.

In particular, the Court examined the

decision in Carroll v. United States, 267

U.S. 132 (1925), and its historical

background. (United States v. Ross,

Supra, at 804-809.) The court in Ross

ee ee ee

- 18. -

found that it is consistent with the

Fourth Amendment's concerns for preserving

the public interests as well as the rights

of the individual to allow the warrantless

search of a motor vehicle, when the search

is undertaken with probable cause to

believe the vehicle contains that which is

subject to seizure. (United States v.

Ross, supra, 456 U.S. at 805; Carroll v.

United States, supra, 267 U.S. at 149.)

The Court has repeatedly made it clear

that the vehicle exception announced in

Carroll is based in large part upon the

inherent and obvious difference between an

vehicle and a structure--the ability to

move. In Carney, the Court recognized

that a vehicle's

“capacity to be ‘quickly moved’

was Clearly the basis of the

holding in Carroll, and our

cases have consistently

recognized ready mobility as one

of the principal bases of the

automobile exception.”

( , Supra,

471 U.S. at 390.)

- 19. -

In Chambers v. Maroney, 399 U.S. 42, 51

(1970), the Court commented on the

rationale for the vehicle exception to the

Fourth Amendment by noting that “the

opportunity to search is fleeting since a

car is readily mobile.” (]Id.) Later, in

South Dakota v. Opperman, 428 U.S. 364,

367 (1976), the Court noted that this

inherent mobility of automobiles “creates

circumstances of such exigency that, as a

practical necessity rigorous enforcement

of the warrant requirement is impossible.”

(Id.) More recently, in Ross the Court

held that an immediate intrusion was

justified because of “the nature of an

automobile in transit...” (United

States v. Ross, supra, 456 U.S. at 806.)

Finally, in Carney the Court noted that

this potential for mobility generates the

problem that “Absent the prompt search and

seizure, [the vehicle] could have readily

been moved beyond the reach of the

- 20. -

police.” (California v. Carney, supra,

471 U.S. at 393.) Thus, the Court

concluded that the vehicle exception to

the Fourth Amendment's warrant requirement

historically turned on the ready mobility

of the vehicle and on the presence of the

vehicle in a setting that objectively

indicated that the vehicle was being used

for transportation. (Id., at 394.)

In the case at bar, once the bag

filled with contraband was placed into the

automobile, it acquired the same degree of

mobility as the vehicle itself. Once

placed in the car, it had the same ability

to be rapidly moved away from the area as

much as any other item inside of or

attached to the car. Indeed, it had the

same exact degree of mobility as the

Closed brown bag found in the trunk of the

defendant's vehicle in Ross. As noted by

Justice Blackmun in his cissent in

Arkansas v. Sanders, 442 U.S. 753, 769

- 21. -

(1979), “The luggage, like the automobile

transporting it, is mobile.” Respondent's

independent and intentional action of

placing the bag into the vehicle showed an

intent to move the bag from its original

location. His act of driving the vehicle

was a demonstration of the precise

mobility that justified the searches in

Ross and Carroll. Given such a clear

demonstration of mobility, the exigent

circumstances of mobility encompassed the

bag itself and no search warrant was

required.

“The rationale justifying a

warrantless search of an

automobile that is believed to

be transporting contraband

arguably applies with equal

force to any movable container

that is believed to be carrying

an illicit substance.”

United

States v. Ross, supra, 456 U.S.

at 809.)

Therefore, once Mr. Acevedo placed

the paper bag into the trunk of the

vehicle it attained the same degree of

mobility as the vehicle itself. Like the

et) ee Ae

7

- 22. -

vehicle, it had the potential for

mobility, the potential to rapidly move

beyond the reach of law enforcement. Like

the bag in the trunk of the vehicle in

Ross, since there was probable cause to

believe it contained illegal drugs, the

officers did not need a warrant to search

it.

B. The Lesser Expectation Of

Privacy Given To A Vehicle Also

Justifies The Search Of The Bag

Of Illegal Drugs Found Within

the Veh.cle

The ability of the police to conduct

a probable cause based search of a vehicle

is not limited to the fact of its

mobility.

The Court has also noted that since

moving vehicles are “justifiably the

subject of pervasive regulation by the

State” there is a lesser expectation of

privacy for the occupant. (New York v.

Class, 475 U.S. 106, 113 (1986);

California vy. Carney, Supra, 471 U.S. at

- 23. -

391.) The reduced expectation of privacy

derives not so much from the fact that

portions of the vehicle may be in plain

view as from the pervasive regulation of

vehicles by the government. (California

y. Carney, supra, 471 U.S. at 392.)

In South Dakota v. Opperman, supra,

428 U.S. at 368, the Court held that this

pervasive regulation of vehicles covers

hundreds of aspects of the vehicle's

physical structure as well as its

operation. As a result of these laws, it

is a common everyday occurrence that

police stop and examine vehicles to

ascertain compliance with the myriad of

regulations. (]d.) The extent of the

regulation is so great, the Court has

referred to it as a “web of pervasive

regulation.” (New York vy. Class, supra,

475 U.S. at 112.)

So well known is the regulatory

scheme, thet the Court has stated, “The

- 24. -

public is fully aware that it is accorded

less privacy in its automobiles. .. .”

(California v. Carney, supra, 471 U.S. at

392; accord New York v. Class, supra, 475

U.S. at 113.) Moreover, because of these

regulations, individuals have always been

on notice that a movable vehicle may be

stopped and searched on facts giving rise

to probable cause that the vehicle

contains contraband, without the

protection afforded by a magistrates's

prior evaluation of those facts. (United

States v. Ross, supra, 456 U.S. at 806,

fn. 8.)

Moreover, the Court has noted that

given the existence of probable cause to

believe a vehicle contains contraband, any

expectation of privacy is even further

diminished.

“In the same manner, an

individual's expectation of

privacy in a vehicle and its

contents may not survive if

probable cause is given to

believe that the vehicle is

- 25.-

transporting contraband.

Certainly the privacy interests

in a car's trunk or glove

compartment may be no less than

those in a movable conteiner.”

eos oe 823.) ,

Thus, in the case at bar, when

Mr. Acevedo placed the paper bag filled

with contraband into the trunk of the car,

he was on notice and aware that he was

placing the bag into an area involving a

reduced expectation of privacy. Whatever

privacy concerns he may have subjectively

evidenced by placing the contraband into a

bag were dissipated by his act of placing

the bag into an area involving a known

reduced expectation of privacy. Once the

bag was placed in the car, it was subject

to the rules set forth by the Court in

Ross. Indeed, Mr. Acevedo’s paper bag was

in the same position as the paper bag in

the trunk of the vehicle in Ross in

respect to the key factors of mobility and

privacy.

- 26. -

The factors of mobility and a lesser

expectation of privacy both apply to the

bag of illegal drugs that Mr. Acevedo had

placed into his trunk. Mr. Acevedo's act

of driving the vehicle was the precise

mobility that justified the searches in

Ross and Carroll. By placing the bag into

the vehicle, Mr. Acevedo had subjected it

to a lesser expectation of privacy as in

Ross and Carney. Given the exigent

circumstance of mobility that encomp2ssed

the bag itself and given the lesser

expectations of privacy that were

involved, no search warrant was required.

The bag was in the same position as each

of the closed containers searched in Ross.

“The rationale justifying a

warrantless search of an

automobile that is believed to

be transporting contraband

arguably applies with equal

force to any movable container

that is believed to be carrying

an illicit substance.” (United

, Supra, 56 U.S.

at 809.)

- 27. -

c. The Rule Announced In Ross

Should Apply To This Case

The Court’s holding in United States

vy. Chadwick, 433 U.S. 1 (1977) was

premised on policy determinations now

rejected by the Court in vehicle search

cases. As such, the interpretation of the

Fourth Amendment announced in Ross should

apply to the search of the closed

container of drugs in this case.

The California Court of Appeal in the

case at bar held that a warrant war needed

for the search of the closed container

based on this Court’s holding in United

States v. Chadwick, supra, 433 U.S. at

pages 13-16. It is, of course, true that

in Chadwick, this Court invalidated the

search of a 200 pound footlocker that had

been placed into a vehicle’s trunk.

However, Chadwick is readily

distinguishable as it was not argued or

decided as a vehicle search case. The

basis of the ruling was a rejection of the

- 28. -

government’s claim that since the

footlocker itself could be moved, it

always had the same inherent mobility as a

motorized vehicle. (United States vy.

Chadwick, supra, 433 U.S. at 13.) There

was no argument that the search of the

footlocker was justifiable because it had

been placed into a vehicle by its owners.

(Id., at 11-12.) It is important to note

that at the first suppression hearing in

the Federal District Court in Chadwick the

federal government had argued “that as the

vehicle itself could have been searched

without a warrant, so also could the

footlocker, as part of its contents.”

| (United States v. Chadwick, 532 F.2d 773,

778 (lst Cir. 1976).) The government did

not pursue that theory upon petitioning

the district court for reconsideration,

before the Court of Appeals, or before

this Court. Indeed, this Court ©

specifically noted in its opinion that,

= 29. -

"The Government does not

contend that the footlocker’s

brief contact with Chadwick's

car makes this an automobile

search. .. ." (United States

» Supra, 4 U.S. at

11-12.)

Thus, the result in Chadwick is

distinguishable because in this case the

State of California has contended from the

beginning that Mr. Acevedo’s act of

putting the bag in the trunk of the

vehicle subjected the bag to the vehicle

exception to the Fourth Amendment.

Moreover, the rationale for the

decision in Chadwick has been undercut by

the subsequent holdings of the Court. In

Chadwick, the Court's opinion turned on

the expectation of privacy in the closed

container and on the fact that once the

government had seized the footlocker, it

was unreasonable not to obtain 4 warrant.

(Id., at 13-16.) But in Rogs, the Court

recognized that even if a citizen

exhibited a reasonable subjective

- 30. -

expectation of privacy in a closed

container, that expectation dissipated

when the container was placed in a vehicle

and there is probable cause to believe

there is contraband in the container.

(United Stetes vy. Ross, supra, 456 U.S. at

823: accord United States vy. Johns, 469

U.S. 478, 484 (1985).) ‘Thus, the first

underpinning of Chadwick is no longer good

law as to a closed container that is

placed inside a vehicle, as it is based

upon policy considerations now rejected by

the Court.

Additionally, in recent years, the

Court has repeatedly rejected the

assertion that when police have probable

cause to search a closed container in a

vehicle, once they seize that container

and take it into their possession

nullifying its ability for movement, they

must then obtain a warrant before opening

it. (United States v. Johns, supra, 469

- 31. -

U.S. at 486-487; Michigan v. Thomas, 458

U.S. 259, 261 (per curiam 1982); Florida

vy. Meyers, 466 U.S. 380, 382 (per curiam

1984).) As the Court stated, “the

justification to conduct such a

warrantless search does not vanish once

the car has been immobilized.” (Florida

vy. Meyers, supra, at 382.) Thus, the

second and only remaining underpinning of

Chadwick is also based on policy

considerations no longer accepted by the

Court. Therefore, the holding in Chadwick

should have no application to the case at

bar. Chadwick was not an automobile

search case at all. It was never argued

or decided as such. Moreover, the policy

considerations supporting the decision in

Chadwick have since been rejected by the

Court. Thus, no aspect of the decision in

;

:

}

:

;

:

- 32. -

Chadwick should affect the outcome in this

case.

It is not rational to make the

distinction between whether a search

warrant should be obtained based upon

whether or not the officers had sufficient

knowledge that the contraband was in a

specific container in a specific part of

the vehicle as opposed to being in the

vehicle generally. As Professor LaFave

2. Similarly, the Court's

decision in Arkansas v. Sanders, supra,

442 U.S. 753, was premised both on

Chadwick and on a finding that a

suitcase, after its seizure from a

vehicle but before its search, no longer

had any mobility. (]Id., at 762 and

763.) However, since then the Court has

rejected such an analysis, holding that

the essential factors are the mobility

and decreased expectation of privacy at

the moment of the seizure. (United

States v. Ross, supra, 456 U.S. at 807

fn. 9 and 809-817; United States v.

Johns, supra 478 U.S. at 487-488.)

Thus, although the Court has indicated

in a footnote that has survived

Ross ( , 462 U.S.

696, 701 fn. 3 (1983)), such an aside,

devoid of any analysis, is not s rted

by a careful examination of the policy

considerations in Ross in respect to

vehicle searches.

- 33. -

has noted, such a holding would mean that

police officers may actually be able to

broaden their power to make warrantless

searches by limiting their accumulation of

probable cause. (LaFave, Search and

Seizure, Second Edition, Section 7.2(d),

page 58 (1987).) Indeed, even the

California Court of Appeal recognized the

“anomalous nature of the Ross-Chadwick

dichotomy; ... .” (People v. Acevedo,

216 Cal.App.3d 586, 592, 265 Cal.Rptr. 23

(1989).) The California court noted that

it was creating an “incentive for police

officers to withhold evidence related to

probable cause in order to fit within the

more generous confines of Ross.” (Id., at

592) The purpose of the exclusionary rule

is to encourage future police conformance

with the dictates of the Fourth Amendment,

not to reward them for creative avoidance.

Yet a holding that more particularized

- 34. -

probable cause requires a warrant

encourages such inappropriate behavior.

Such a rule not only flies in the

face of logic but is also clearly contrary

of the stated desire of the Court to

formulate straightforward, workable rules

regarding the searches of vehicles, s0

that police officers can make proper

decisions regarding the search of

vehicles. (New York v. Belton, 453 U.S.

454, 458 (1981).) The Court has held

that,

““a single familiar standard is

essential to guide police

officers, who have only limited

time and expertise to reflect on

and balance the social and

individual interests involved in

the specific circumstances they

confront.'" (Id., at 458,

quoting Dunaway v. New York, 442

U.S. 200, 213-214 (1979).)

The need for straightforward and

predictable rules is in the interest of

both the police and the citizens who may

be subjected to police activity. (]d., at

459-460.)

- 35. -

The rule formulated in Ross is clear,

logical and should be applied to the

situation in the case at bar. A rule

requiring 4 warrant when there is

particularized probable cause will further

cloud what the Court described in Rogs as

“this troubled area.” (United States yv.

Ross, supra, 456 U.S. at 817.) Instead of

the straightforward rule of Ross, which

looks to the overall existence of probable

cause to search the vehicle and its

contents, endless litigation over whether

the officer knew of the location and

container of the contraband will be

inevitable. A far more workable rule is

the holding in Ross that if

“probable cause justifies the

search of a lawfully stopped

vehicle, it justified the search

of every part of the vehicle and

its contents that may concea

the ob of the ©

( £upre,

at -)

Such a rule establishes the exact:type of

“bright line” the Court has sought to

= - 36. -

assist peace officers in their difficult

tasks. Thus, the Court's earlier decision

in United States v. Chadwick, supra, 433

U.S. 1, should be held to be inconsistent

with and to have been overruled by Ross in

situations such as the one in the case at

bar.

Moreover, adherence to the Ross-

Chadwick dichotomy as was attempted by the

California Court of Appeal in the case at

bar, creates severe difficulties for peace

officers in the performance of their

duties. In a situation where officers

have sufficient justification to stop 4

vehicle for transporting narcotics or

other illegal drugs in a particular

container within that vehicle, what are

the officers to do with the citizens while

they go through the often lengthy and

laborious task of obtaining @ warrant?

The officers could assume that since they

have probable cause to believe that there

- 37. -

are illegal drugs in the container, they

also have probable cause to arrest the

Griver. But such a course of action

forces the officers to immediately commit

themselves to a significant intrusion into

a citizen's personal privacy, an arrest.

In the alternative, the officers could

decide to withhold the decision on the

arrest until the bag is opened with the

warrant. However, that course of action

inherently includes a different

significant intrusion into the citizen's

personal privacy rights. It would require

a long detention of the citizen as well as

the container and the vehicle.” One of

the problems with such a lengthy detention

is that at some point the detention

meres sean,

sed that if an officer

has the ri to seize = wehhehs and

hold it is a search warrant is

obtained, the officer ay ~ a,

immediately search the

warrant as well.

- 38. -

becomes an arrest. (Florida vy. Royer, 460

U.S. 491, 501-502 (1983).) Thus, while

the officers are trying to obtain a

warrant they may run the very real risk of

inadvertently arresting a citizen before

the contraband is actually found. Thus,

the existing rule leaves the officers the

Hobson's choice of doing nothing or taking

action that amounts to a significant

intrusion into a citizen's personal rights

of privacy. Allowing the officers to

search the closed container at the scene,

allows a speedy resolution of the

situation with only a minor intrusion in

the citizen's persona’ orivacy rights, a

brief delay and a quick limited search.

The holding in Ross is a far better rule.

Officers can quickly resolve the

situation, promptly arresting criminals

while speedily allowing law abiding

citizens to proceed on their way. The

rule created by Chadwick-Sanders will

- 39. -

ensnare officers and citizens in time

consuming and unnecessary waits for the

procuring of warrants or in unneeded,

perhaps premature arrests.

In Ross the Court recognized that

delaying the opening of a container found

in a vehicle raised “practical

considerations” as to what to do with the

vehicle itself while the search warrant

was obtained. (United States v. Ross, ‘'

supra, 456 U.S. at 822.) That same

practical problem exists in the case at

bar. If the suspected container turns out

to have drugs or other contraband in it,

then the vehicle itself has been used for

transportation of that contraband and is

seizable as well. If the officers have

reason to believe a specific container in

the vehicle contains contraband, it is

reasonable for them to believe that a full

search may turn up more than just what is

in the closed container. (United States

- 40. -

vy. Mazzone, 782 F.2d 757, 761 (7th Cir.

1986); United States v. Shepherd, 714 F.2d

316, 319-320 (4th Cir. 1983).) But if the

officers decide to delay arrest until the

container is opened, the police may have

to hold the vehicle in some safe and

appropriate manner until the warrant has

been obtained, served and executed. Thus,

not only will the citizens have to be

detained but so will their vehicles.

Moreover, the officers guardirg the

citizens, the officers guarding the

vehicle and the officers off seeking the

warrant will be unavailable for any other

form of police work. As Justice Powell

noted in his concurring opinion in Robbins

v. California, 453 U.S. 420, 433-434

(1981),

“Expenditure of such time and

effort, drawn from the public's

limited resources for detecting

or preventing crimes, is

justified when it protects an

individual's reasonable privacy

interests. .. . The aggregate

burden of procuring warrants

- 41. -

whenever an officer has probable

cause to search the most trivial

container may be heavy and will

not be compensated by the

advancement of important Fourth

Amendment values. * (Robbins vy.

California, supra, at 433-434.)

As already discussed, given the presence

of the bag in the vehicle and given the

existence of probable cause, there is no

reasonable privacy interest involved in

the search in the case at bar. Thus,

given the practical considerations

including the loss of scarce law

enforcement resources and the storage

problems created both by the detained

vehicles and closed containers, the Court

should not require a warrant simply

because the probable cause arose before

the closed container was placed into the

car. The Court should hold that the rules

announced in Ross govern and uphold the

warrantless search of Mr. Acevedo's drug

filled bag.

- 42. -

Failure to reject the implications of

Chadwick leaves an almost imponderable

task to police officers in the field

confronting rapidly changing situations.

An officer must decide whether he or she

has unparticularized probable cause as to

an entire vehicle or particularized

probable cause as to a container within

the vehicle. While such determinations

may be the delight of seasoned appellate

attorneys, police officers have neither

the legal background nor the requisite

time to ponder such involved and

complicated questions. Given the fact

that courts may reach opposite conclusions

on virtually identical fact patterns

(compare State v. Borotz, 654 S.W.2d 111,

113, and 115-117 (Mo. App. 1983) with

United States v. Salazar, 805 F.2d 1394,

1397 (9th Cir. 1986)), how can a police

officer be expected to make a proper

- 43. -

determination in the field as events are

rapidly unfolding?

Moreover, as Justice Blackmun noted

in his dissent in United States v.

Chadwick, Supra, 433 U.S. at page 20,

requiring officers to obtain a warrant in

such a situation does nothing to protect

traditional “Fourth Amendment values.”

Since there is no question probable cause

exists to believe there is contraband in a

closed container, in virtually all cases a

search warrant will be issued.

“I therefore doubt that

requiring the authorities to go

through the formality of

obtaining a warrant in this

situation would have much

practical effect in protecting

Fourth Amendment values.

[Footnote omitted.]” (United

, Supra, 433

U.S. at 20.)

The point is particularly true since this

case involves a location where there is a

sharply lower expectation of privacy.

Forcing the officers to obtain a warrant

would seem more of an overall detriment to

- 44. -

society since those officers will be

unavailable for other law enforcement

purposes for significant periods of time.

Since the facts of this case reveal

that there was probable cause to believe

that respondent’s vehicle contained

contraband, the rationale of Ross should

apply. That decision flatly supports the

validity of a search of every part of the

vehicle, including any closed containers

in the car. When the closed container was

placed into the vehicle by the respondent,

it became as moveable as the vehicle and

subject to the lesser expectations of

privacy surrounding cars. Thus, the

exigent circumstances covering the vehicle

applied to the paper lunch bag as well.

Thus, the California Court of Appeal erred

in failing to uphold the search of the bag

without a warrant.

.

- 45. -

D. Even If Chadwick Still Has Some

Validity, The Search Of Mr.

Acevedo’'s Vehicle Was

Nevertheless Valid

Even assuming arguendo that Chadwick

somehow still has some measure of

validity, the warrantless search of the

bag in this case was still valid. Once

Mr. Acevedo placed the bag into the trunk

of his vehicle and once he had commenced

movement of his vehicle, the officers had

probable cause to believe that Mr. Acevedo

was using his vehicle to commit the felony

crime of transportation of contraband.

(Cal. Health & Saf. Code, § 11360.) The

vehicle itself was evidence of this new

crime and could be searched under Ross.

Moreover, since respondent had been

involved in the felony of transportation

of drugs, he was going to be taken into

actual custody. The vehicle would have

been either seized as evidence or

impounded. Following the seizure the bag

would inevitably have been searched during

- 46. -

the inventory search lawfully conducted by

the police. (Colorado v. Bertine, 479

U.S. 367, 371-376 (1987); Illinois v.

Lafayette, 462 U.S. 640, 643-648 (1983);

People v. Miranda, 44 Cal.3d 57, 80-82,

241 Cal.Rptr. 594, 744 P.2d 1127 (1987).)

This case presents the scenario predicted

by Justice Blackmun in his dissent in

Chadwick.

"But if the agents had postponed

the arrest just a few minutes

longer until the respondents

started to drive away, then the

car could have been seized,

taken to the agents’ office, and

all its contents--including the

footlocker--searched without a

warrant. [Footnote omitted. ]”

(United States v. Chadwick,

Supra, 433 U.S. at 22-23.)

The problem with utilizing such a limited

formulation for future cases is that it

unnecessarily puts both police and

innocent bystanders at risk because it

delays the ability of the police to react

until criminals have been given a means

and an actual opportunity to begin to flee

- 47. -

in a vehicle. Such a situation encourages

attempts to evade arrest and will often

lead to high speed chases, horribly

dangerous to all participants. (Id., at

24, fn. 6.) To avoid such a life

threatening result, the Court should hold

that the act of placing the closed

container into the car, under

circumstances making it appear that the

vehicle is about to be driven off, gives

rise to probable cause to believe the

vehicle is being used for transportation

of contraband. At that point, the vehicle

itself becomes evidence of the crime and

can be seized and searched as discussed

above.

— a ——_— > SS iy

> 48. _

The Court should adopt a bright line

rule that will finally put to rest nearly

65 years of litigation involving the

search of vehicles. If there is probable

cause to believe there is contraband in a

vehicle, or probable cause to believe that

there is contraband in a particular

container within a vehicle, then a search

without a warrant is proper. The two

controlling principles the Court has

identified as being involved in every

vehicle search were fully present for the

search of Mr. Acevedo’s vehicle: The

mobility of the vehicle and its contents

and the diminished expectation of privacy

surrounding a vehicle. The mere fact that

the probable cause centered only on one

closed container before it went into the

car does not diminish the scope and effect

of either of these key variables.

- 49. -

The Court should hold that the Fourth

Amendment principles it set forth in Ross

and Carney govern the search of the car in

the case at bar and no search warrant was

required. Such a bright line rule will

give needed guidance to police officers in

the performance of their law enforcement

functions and at the same time protect

individual rights.

For the foregoing reasons, the

judgment of the California Court of

Appeal, Fourth Appellate District,

Division Three, should be reversed.

DATED: November 8, 1990.

JOHN K. VAN DE KAMP, Attorney General

of the State of California

RICHARD B. IGLEHART, Chief Assistant

Attorney General

HARLEY D. MAYFIELD, Senior Assistant

Attorney General

FREDERICK R. MILLAR, Supervising

Deputy Attorney General

CLLR MM. 4s

ROBERT M. FOSTER, Supervising Deputy

Attorney General

Attorney for Petitioner

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