# Petitioners Brief — Oklahoma v. Castleberry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0794%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1984 - **Citation:** 469 U.S. 979 ## Text is a No. soctaail INTHE ~~~ we on te SUPREME COURT OF THE UNITED STATES ~~~ ~- OCTOBER TERM, 1983 THE STATE OF OKLAHOMA Petitioner, Vv. TIMOTHY R. CASTLEBERRY and NICHOLAS RAINERI Respondents. ON WRIT OF CERTIORARI TO THE OKLAHOMA COURT OF CRIMINAL APPEALS BRIEF OF PETITIONER . MICHAEL C. TURPEN ATTORNEY GENERAL OF OKLAHOMA DAVID W. LEE* ASSISTANT ATTORNEY GENERAL CHIEF, CRIMINAL AND FEDERAL DIVISIONS HUGH A. MANNING ASSISTANT ATTORNEY GENERAL 112 State Capitol Building Oklahoma City, Oklahoma 73105 (405) 521-3921 ATTORNEYS FOR PETITIONER *Counsel of Record — @, ec i QUESTIONS PRESENTED FOR REVIEW 1. Whether, under the Fourth Amend- ment principles set forth in United States v. Ross, 456 U.S. 798 (1982), when an of- ficer has probable cause to believe that there is contraband in a specific contain- er in a vehicle, and probable cause exists to support a search of the entire vehicle, he is required to obtain a search warrant for the vehicle and the compartments and containers therein. 2. Whether, when officers arrest a suspect on probable cause, and the sus- pect, who is standing next to the vehicle, is able to place a container inside a vehicle, the police may search the con- tainer as a search incident to arrest or pursuant to the automobile exception rule. ii TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW... OPINION BELOW. . . «© «© «© © © «© © «© « JURISD ICTION s 7 e * oe * s eo o * * * RELEVANT CONSTITUTIONAL PROVISIONS e s s s oe eo o * . . * . @ STATEMENT OF THE CASE. ....... SUMMARY OF ARGUMENT. . . .« «© «© «© « « ARGUMENT PROPOSITION I TH” SEARCH OF THE SUITCASES IN THE TRUNK OF THE VEHICLE WAS JUSTIFIED UNDER THE AUTO- MOBILE EXCEPTION PRINCIPLE BECAUSE A MAGISTRATE WOULD HAVE BEEN JUSTIFIED IN ISSU- ING A SEARCH WARRANT AUTHOR- IZING THE SEARCH OF THE ENTIRE VEHICLE SINCE PROBABLE CAUSE WOULD SUPPORT THE BELIEF THAT THE VEHICLE CONTAINED CONTRA- BAND e @ @ s @ s e o s © s * s s 10 14 iii TABLE OF CONTENTS PROPOSITION II THE SEARCH OF THE BAND-AID BOX FOUND IN THE FRONT SEAT OF THE VEHICLE WAS JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION PRINCIPLE AND AS A SEARCH INCIDENT TO A LAWFUL ARREST . . «© «© «© © «© « «@ 58 CONCLUSION . . * . ° ° ° * sd . . . ° 63 iv TABLE OF AUTHORITIES Cases: Arkansas v. Sanders, 442 U.S. 753 (1979). . . . « © «© © 11,12,13,15 22,23,35,36 49,50,54,59 Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 38 Tid71 ). e s es e ® @ ° * . eo ® * 34 Carroll v. United States, 267 U.s. 132 (1925)... + « o21,24,53 castlepery v. Oklahoma, 678 P. Cr. . J @ & o 1 Chambers v. Maroney, 399 ewe e e e e e e 25,41,44,56 Colorado v. Bannister, 449 U.S. 1 (1980) oe @ eo e@ e@ _ e ee eo 23,24 cuRe v. Murphy, 412 U.S. 291 @ e@ e @ oo e @ o oe o @ eo @ 41 Davis v. Mississippi, 394 eo eo s @ ® @ _ @ eo @ 40 Delaware v. Prouse, 440 U.S. Teuate @ e©eee0e80e¢e 36 Dunaway v. New York, 442 U.S. ee... Florida v. Meyers, 104 S.Ct. st ¢- & & & & @& @& ©€@ 57 Vv TABLE OF AUTHORITIES Cases: Illinois v. Gates, 103 S.Ct. Be¢6@¢ee6& © @ She eeoateoae Illinois v. Ltt aa 103 o t. eo o eo J >. o oe 40,47 I.N.S. V. popes enna 104 a t. 4). e e © e ° © 34 Kirby v. Illinois, 406 U.S. Srv tt ee CA jzenagen v. Thomas, 458 e eo @o J J @ oe e 7 oe 56 New York v. Belton, 453 U.S. © © © © © ec 0 30,31,41,62,63 Oliver v. United States, 104 S.Ct. 1735 (1984) ......e. 48,61 Payton v. New York, 445 U.S. ). e ° © ° e e@ e e @ ° 37 Robbins v. California, 453 U.s. 420 (1981) 7 eo e J o oe oe — 38 Schmerber v. California, 384 U.s. 757 (1966) eo s @ °° © ° °° s 51 Segura v. United States, 104 Ste. 3380 (1984) . ....-s + 37,44 vi TABLE OF AUTHORITIES Cases: Page South Dakota v. Opperman, 428 ewe 2. .6@ 7-8 -¢ . . 41,44 Spinelli v. United States, >. > ) >. . >. >. . 28 Stone v. Powell, 428 U.S. >. >. >. 7 > 7. > . >. _ 34 Texas v. Brown, 460 U.S. . > >. > >. >. >. > -24,28,36 Texas v. White, 423 U.S. >. >. >. . > > > >. >. >. 24,57 United States v. Calandra, qi4 U.s. 330 (1974) >. >. >. . >. 34 United States v. Chadwick, . . . . . . 11,13,15,22 23,36,49,50,59 United States v. Cortez, >. >. > i . >. >. 28 United States v. Edwards, 415 0.s. 800 T1974) >. > > > >. * > 40 United States v. Jacobsen, 104 S.ct. 1652 T1964) . . . . -35,37,50 United States v. Janis, 428 0.s. 33 Tid76) _ >. >. > >. > >. 34 vii TABLE OF AUTHORITIES Page Cases: United States v. Johns, 707 F.2d 1093 (9th Cir. 1983)... 51 United States v. Leon, 104 S.ct. 3405 (1984) -_ © * -32,33,3° United States v. Mendenhall, _ >. 7. >. >. > > > 43 United States v. Nigro, 727 F.2d 100 (oth Cir. +584). eee 57 United States v. Place, 103 S.Ct. 2637 (1983) : = 2 ©@ ¢ -35,43,50 United States v. Robinson, Se ) « «© « « «40,47,60 United States v. Ross, 456 U.S. 798 (1902)... . i,10,11,15,16 23,25,26,30,49 54,56,59,60 United States v. Sheposrs: 714 _ Ir. >. >. a. >. 52 United States v. Watson, 423 . . . . . . * . . . 39 Warden v. Hayden, 387 U.S. > >. >. > >. >. . >. 7 >. >. 55 Welsh v. Wisconsin, 104 S.ct. 2091 (1584) - >. 7 > 7 >. 37 viii TABLE OF AUTHORITIES Statutes: 28 U.S.C Federal « § 125713) . « « « State Okla. Stat. Ann., tit. 63, § 2-401 Okla. Stat. Ann., tit. 63, § 2-402 Other Author- ities Cited: LaFave, Search and Seizure, § 7.2 (Supp. 1984). - @ Be © 31 No. 83-2126 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 THE STATE OF OKLAHOMA Petitioner, Vv. TIMOTHY R. CASTLEBERRY and NICHOLAS RAINERI Respondents. BRIEF OF PETITIONER OPINION BELOW The decision of the Oklahoma Court of Criminal Appeals from which the certiorari is sought is reported as Castleberry v. Oklahoma, 678 P.2d 720 (Okl.Cr. 1984). This Opinion was filed on January 23, 1984, and the State of Oklahoma's (herein- after referred to as “the State") Petition for Rehearing was denied on April 5, 1984. The Court's mandate was issued on April 11, 1984. 2 JURISDICTION The jurisdiction of this Court is in- voked pursuant to 28 U.S.C. § 1257(3). RELEVANT CONSTITUTIONAL PROVISIONS The Fourth Amendment to the Constitu- tion of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unrea- sonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affir- mation, and particularly describing the place to be searched, and the persons or things to be seized." STATEMFNT OF THE CASE Nicholas Raineri (hereinafter refer- red to as the “Defendant Raineri"™) and Timothy R. Castleberry (hereinafter refer- red to as the “Defendant Castleberry"), were both convicted after a jury trial on two counts of Possession of a Controlled Dangerous Substance With Intent to Distri- 3 bute, Okia. Stat. Ann., tit. 63, § 2-401 in the District Court of Oklahoma County, State of Oklahoma. The Defendant Castle- berry was also convicted in a subsequent jury trial for the offense of Possession of a Controlled Dangerous Substance, Okla. Stat. Ann., tit. 63, § 2-402. The Defendant Raineri was sentenced to nine years imprisonment and a $5,000.00 fine on Count 1 and seven years imprison- ment and a $5,000.00 suspended fine on Count 2. The Defendant Castleberry was sentenced to ten years imprisonment and a $5,000.00 fine on Count 1 and seven years imprisonment and a $5,000.00 suspended fine on Count 2. The Defendant Castleber- ry was sentenced to eight years imprison- ment on the separate charge of Possession of a Contcolled Dangerous Substance. The two cases were consolidated on appeal and the convictions of both Defen- 4 dants were reversed in a decision of the Oklahoma Court of Criminal Appeals report- ed at 678 P.2d 720 (Okl.Cr. 1984) (A. 27). The facts presented at trial revealed that at approximately noontime on June 9, 1981 (Tr. I, 6),> Officer R.D. Taylor of the Oklahoma City Police Department, Nar- cotics Division (Tr. I, 5), received a telephone call from an informant, previ- ously unknown to him but referred by a fellow police officer (Tr. I, 18). The informant advised him that the informant had seen a large quantity of marijuana, some cocaine, and white pills in Room i113 at the Southgate Inn, a motel located on Interstate 35 in Oklahoma City. The 2 The following transcript designa- tions will be used: Tr. I - Transcript of proceedings held on September 1-2, 1981 (F-82-227) (trial of the Defendants Cast- leberry and Raineri}; Tr. II - Transcript of trial proceedings held on September 23-24, 1981 (F-82-228) (trial of the De- fendant Castleberry). 5 informant told Taylor that he or she had been in the room within the past ten hours (Tr. I, 18). The informant gave _ the officer a description of the men in the room and of the suitcase containing some of the narcotics. The informant also told the officer that one of the men was Tim Castleberry and the other was named Nick. The officer was also informed that they were driving a 1980 or 1981 blue Thunder- bird with Florida license plates (Tr. I, 6-7). Officer Taylor immediately drove to the location. He drove through the park- ing lot and observed a blue 1980 or 1981 Thunderbird with Florida license plates parked immediately in front of Room 113. Taylor parked his vehicle approximately five parking spaces away from the Thun- derbird and went to see the desk clerk. After advising her that he was a police 6 officer, he inquired as to who was staying in Room 113 (Tr. I, 7). The desk clerk stated that it was registered to a Tim Castleberry, that he had paid only for the previous night and that checkout time was at 1:00 p.m. (Tr. I, 8). It was approxi- mately 12:50 p.m. at this time (Tr. I, 18). The officer returned to his car and waited (Tr. I, 8). He had previously cal’ ad for assistance (Tr. I, 7). After waiting five or ten minutes, Officer Taylor observed the Defendant Castleberry exit the motel room carrying a baby blue leather suitcase (Tr. I, 8), and place it in the trunk of the car. This suitcase matched the description of one given by the informant which the informant stated contained some of the drugs (Tr. I, 6,8, 12,26). 7 Castleberry left the trunk open and the Defendant Raineri came out carrying two plaid suitcases, which were also placed in the trunk. Then a young male came out and went to a red car parked next to the Thunderbird. The Defendant Cast- leberry returned with another blue suit- case, which he placed in the backseat of his vehicie. After inquiring about his backup, Of- ficer Taylor approached the car while the door and the trunk were still open (Tr. I, 9). Taylor testified that he could detect the smell of marijuana coming from the trunk (Tr. I, 11). All three men were standing outside. He held his badge in one hand and his service revolver in the other, auvised the men he was a police officer, and ordered them to place their hands on the car. 8 The Defendant Raineri placed his hands on the vehicle as ordered (Tr. I, 10), but the Defendant Castleberry, after closing the trunk of the car, reached behind his back. The officer asked him twice to place his hands on the car but Castleberry refused to do so. Finally, the Defendant Castleberry threw something from behind his back into the car (Tr. I, 11). Officer Taylor then attempted to physically force the Defendant Castleberry to place his hands on the car, but even- tually had to wrestle him to the ground. While on the ground, the Defendant Castleberry reached up, locked the car door, and closed it. The car keys re- mained in the car door. At this time, with the situation under control, Officer Taylor's partner, Officer Bill Citty arrived. Officer Tay- lor gave Officer Citty the car keys, told 9 him he had smelled marijuana coming from the trunk, and asked him to open the trunk. The Defendant Raineri was at the passenger side of the car with his hands on top, and the Defendant Castleberry was laying on the ground with his head next to the left rear tire (Tr. I, 21). Officer Citty opened the trunk and also smelled "a very strong odor” of marijuana (Tr. I, 26). Officer Citty opened the plaid suit- cases and found that they were filled with marijuana (Tr. I, 12,26). Officer Taylor then advised the men that they were under arrest (Tr. I, 12,26). Taylor then told cCitty that’ the informant had told him that “there was a large amount of powder" in the blue suit- case and that he wanted Citty to check it (Tr. I, 26). Officer Citty then broke open the blue leather suitcase and found that it contained a large sum of cash and 10 a clear plastic baggy containing approxi- mately ten ounces of white powder (Tr. I, 12,27). The powder was later determined to be methaquaalone powder (Tr. I, 37). Officer Citty then opened the car door and searched the interior (Tr. II, 13). In that search, he found a white Band-Aid box on the dashboard of the vehicle which contained approximately an ounce of white powder (Tr. II, 14,5960). This white powder was later determined to be cocaine (Tr. II, 68). SUMMARY OF ARGUMENT In the present case, it the facts known to Officer Taylor when he approached the Defendants had been presented to a magistrate, a search warrant based upon probable cause would have been issued for the search of the automobile. Therefore, under the principles of United States v. 11 Ross, 456 U.S. 798 (1982), all containers and compartments in the vehicle could have been searched withous a search warrant pursuant to the “automobile exception” rule. This search would include the luggage in the trunk and the Band-Aid box an the passenger compartment. The fact that the officers knew of the specific location of some of the pnar- cotis should not mean that they wer: re- quired to obtain a search warrant for the containers or compartments concealing such. A rule such as this would inject a great amount of uncertainty into what is at the present time a workable, straight- forward rule regarding searches of automo- biles. The present case differs from that in Arkansas v. Sanders, 442 U.S. 753 (1979) and United States v. Chadwick, 433 9.S. 1 (1977) in that in those cases the only 12 potential location of the narcotics was the suitcase and footlocker, and not a vehicle which might have been transporting such. In Arkansas v. Sanders, supra, there was no reason to believe that the taxicab which was carrying the suitcase was a possible repository for naarcotics and therefore, the fact that the suitcase was merely resting in the automobile taxicab did not give rise to the “automo- bile exception" justification for the search. In the present case, however, there was probable cause to believe that drugs had been moved from the motel room where they had been seen by an informant to the vehicle parked outside the motel room. The fact that information provided by the informant was that he or she had seen "some" of the drugs in a suitcase (imply- ing that the rest of the drugs were in 13 other places in the room), that the Defen- dants' were in the process of loading their automobile at check-out time, that the automobile had Florida licenses plates on it, that the Defendants wee staying at a motel located on a major interstate highway, that the Defendant Castleberry threw an object into the car when ap- proached by Officer Taylor and subsequent- ly locked the car, is part of the evidence which supports the view that the vehicle, as a whole, was the “suspected locus" of the object of the search. The relation- ship between the objection of the search and the vehicle in Sanders and Chadwick was purely coincidental. Here, the rela- tionship between the vehicle and the object of the search is apparent. The additional intrusions into the contents of the luggage and the Band-Aid box were minimal when viewed in the con- 14 text of the right of the police to arrest and search the person and effects of the Defendants and impound and search their vehicle. The interests of the public in clear rules and efficiency in the alloca- tion of police resources are also consid- erations when determining whether a search warrant should have been obtained in the present case. ARCUMENT PROPOSITION I THE SEARCH OF THE SUITCASES IN THE TRUNK OF THE VEHICLE WAS JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION PRIW- CIPLE BECAUSE A MAGISTRATE WOULD HAVE BEEN JUSTIFIED IN ISSUING A SEARCH WARRANT AUTHORIZING THE SEARCH OF THE ENTIRE VEHICLE SINCE PROBABLE CAUSE WOULD SUPPORT THE BELIEF THAT THE VEHICLE CONTAINED CONTRABAND . The Oklahoma Court of Criminal Ap- peals held that the officers illegally searched the suitcases found in the trunk of the vehicle, finding that the search 15 fell within the dictates of Arkansas v. Sanders, 442 U.S. 753 (1979) and United States v. Chadwick, 433 U.S. 1 (1977), rather than those of United States v. Ross, 456 U.S. 798 (1982). One of the pertinent parts of the Opinion of the Oklahoma Court of Criminal Appeals in this regard is as follows: "If the officer has probable cause to believe there is contraband some- where in the car, but he does not know exactly where, he may search the entire car as well as any con- tainers found therein. [Citations omitted] . . . If, on the other hand, the officer has only probable cause to believe there is contraband in a specific container in the car, he must obtain the container and delay his search until a search war- rant is obtained.” 678 P.2d at 724; A. 34. The Court held that since the suit- cases and the Band-Aid box were the “sus- pected locations” of the contraband, "[t)he officer should have detained the containers until a search warrant had been obtained." 678 P.2d at 724; A. 36. 16 The State contends that the ruling of the Oklahoma Court of Criminal Appeals is at odds with that of this Court in United States v. Ross, supra. In Ross, the Supreme Court specifically held that once probable cause is found, a vehicle may be searched without a warrant and "(t]he scope of a warrantless search based on probable cause is no narrower--and no broader--than the scope of the search authorized by a warrant supported by pro- bable cause." 456 U.S. at 823. The facts of the present case are such that a magistrate would have issued a search warrant for the search of the Defendants' entire vehicle. Officer Taylor had been advised that a man named Tim Castleberry and another man named Nick were in possession of a large quantity of marijuana, some cocaine and “some other white pills" (Tr. I, 6). The informant 17 had been in the room within the past ten hours (Tr. I, 18). Officer Taylor was given a physical description of the Defen- dants, the motel and room number where they were staying, and of the suitcase that “some of the narcotics [were] in" (Tr. I, 6). The informant also told him that the Defendants were driving a late model 1980 or 1981 blue Thunderbird with Florida tags (Tr. I, 5-6). The information was fully corrobcrat- ed when Officer Taylor arrived at the motel. When he drove through the parking lot he observed a blue 1980 or 1981 Thun- derbird with Florida license plates parked “immediately” in front of the room speci- fied by the informant (Tr. I, 7). The motel clerk confirmed that the room re- ferred to by the informant was registered to a Tim Castleberry (Tr. I, 7-8). 18 After returning to his car and wait- ing appropriately five or ten ninutes, Taylor observed Defendant Castleberry leave the motel room carrying a blue suit- case which matched the description of the suitcase that the informant had stated contained “some” of the narcotics (Tr. I, 6,6,12,26). Castleberry placed this suitcase in the trunk of the Thunderbird. The Defendant Raineri loaded two plaid suitcases into the trunk and Castleberry returned with another blue suitcase, which he placed in the backseat of the car (Tr. I,9). Officer Taylor had also been advised by the motel clerk that the Defendant Castleberry had paid for only one night and that check-out time was 1:00 p.m. Taylor arrived at the motel at approxi- mately 12:50 p.m. (Tr. I, 18). 19 Armed with this information, Officer Taylor approached the Defendants with his gun drawn and his badge displayed, advis- ing them that he was a police officer and to put their hands on the car (Tr. I, 10). As he approached the trunk he could detect the odor of marijuana (Tr. I, 11). The Defendant Raineri complied with this command, but Castleberry, after closing the trunk, placed his hands behind his back and ignored two requests from Taylor to take his hands from behind his back and place them on the car (Tr. I, 11). Cas- tleberry then threw an object into the car (Tr. I, 11). Officer Taylor then atteapt- ed to force Castleberry to place his hands on the car, and in the process had to wrestle him to the ground. Castleberry then reached up, locked the car door and closed it (Tr. I, 11). 20 The State submits that, based upon this information, a magistrate would have found probable cause to believe that the vehicle contained contraband and would have been justified in issuing a search warrant allowing the police to search the entire car. The evidence points to the fact that the vehicle was a repository for narco- tics. Officer Taylor observed the car being loaded with luggage when he arrived. Check out time was at hand. The informant had seen various types of drugs in Room 113, including marijuana, cocaine and what were described as “white pills" (Tr. I, 6). At least one of the suitcases matched the description of one which contained "some" of the drugs (Tr. I, 6,8,12,26). Other facts known to Officer Taylor axe also important. Defendant Castleberry threw an object into the car when ap- 21 proached by a law enforcement officer. The car was parked at a motel located on a major interstate highway and was display- 2 All of this ing Florida license plates. would lead a reasonable person to conclude that drugs were being removed from the motel room to the car. Certainly a magi- strate would find that, at the very least, probable cause existed to believe that narcotics were being “concealed" in the vehicle. Carroll v. United States, 267 U.S. 132, 153 (1925). It is significant that the informant had advised Officer Taylor that “sonme" of the narcotics had been in a blue suitcase. — ilinois v. Cates, 103 s.ct. 2317, 2334 { preme Court stated that the fact that the defendants’ automo- bile traveled from Florida to Illinois supported the belief that it contained drugs, noting that “Florida is well-known as a source of narcotics and other illegal drugs." 22 Therefore, this case is distinguishable from the situations in Arkansas v. San- ders, 442 U.S. 753 (1979) and United States v. Chadwick, 433 U.S. 1 (1977), where the information indicated that all of the contraband was in one container. In the present case, contraband could have been concealed in any of the suitcases, the object thrown into the car, or any other containers or compartments in the vehicle where drugs could have been placed after their removal from the motel room. It is also important to remember that Officer Taylor testified that he detected the odor of marijuana coming from the trunk as he walked up to the vehicle, which means that marijuana could have been stored in any compartment or container in the trunk. As previously noted, the Oklahoma Court of Criminal Appeals based their 23 holding on the reasoning that if officers know specifically in what container con- traband may be located, a search warrant must be issued before the container is searched. The State believes that this was an incorrect and narrow reading of United States v. Ross, supra, Arkansas v. Sanders, supra, and United States v. Chad- wick, supra, and is inconsistent with other Supreme Court cases dealing with the automobile exception as well. In Ross the police were told by the informant the specific location where the drugs were located, i.e., the trunk. 456 U.S. at 800. Despite that fact, this Court did not require that the police ob- tain a search warrant for the trunk. In Colorado v. Bannister, 449 U.S. 1 (1980) the police obviously knew of the exact location of items which they seized, lug nuts and lug wrenches, since 24 the police observed those items in plain view in the glove compartment and on the floorboard of the back seat. This Court held that the Colorado Supreme Court was incorrect in holding that a search warrant should have been obtained, applying the automobile exception principles of Car- roll. See also Texas v. Brown, 460 U.S. 730 (1983) where facts similar to Ban- nister existed although the warrantless seizure and subsequent search was upheld under the plain view doctrine. In Texas v. White, 423 U.S. 67 (1975) the police knew of the location of the items they were seeking since a bank em- ployee observed the defendant “stuff some- thing" between the seats of his automo- bile. Nothing in the Court's opinion sug- gested that the police should have ob- tained a search warrant for the location where the suspected fruits or instrumen- talities of the crime were hidden. 25 In Chambers v. Maroney, 399 U.S. 42 (1970) this Court upheld the warrantless search of a glove found in an automobile even though they presumably may have known that the glove contained change taken dur- ing a robbery since one of the robbers had directed the victim to place coins in the glove. Obviously, the Court did not hold that the police should have obtained a search warrant for the glove. The clear holding of United States Vv. Ross, supra, is that "[i)f 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 conceal the object of the search." 456 U.S. at 825. If the police have an idea that certain compartments or con- \iners conceal items they are searching for (in this case the blue suitcase) they should not be required to obtain a search 26 warrant for an automobile if probable cause exists to believe that contraband may be hidden in other parts of the auto- mobile. In Ross, the Court stated that "[a] warrant to support a search of the vehicle would support a search of every part of the vehicle that might contain the object of the search." 456 U.S. at 821. It is the State's view that Officers Taylor and Citty had probable cause to believe that contraband could be concealed in the automobile generally and that the "automobile exception" rule should apply in the present case. The fact that the informant had not been used by Officer Taylor previously (although the informant had been referred to him by another police officer) is merely a factor to be weighed in the “totality of circumstances." See Illinois v. Gates, supra, where an anony- mous letter was sufficiently corroborated 27 by other police information. In the present case, the State has previously mentioned the observations of Officer Taylor which corroborated the informant's information, as well as the fact that the vehicle possessed Florida tags and was parked at a motel located on Interstate Highway 35. Furthermore, the refusal of Castle- berry to cooperate with the officer's commands, (which were issued with the assistance of a drawn gun), followed by Castleberry's disposing and locking up of an object he was hiding behind his back, surely reflect a consciousness of guilt. In a concurring opinion in Illinois v. Gates, supra, Justice White stated that "the proper focus should be on whether the actions of the suspects, whatever their motive, give rise to an inference that the informant is credible and obtained his 28 information in a credible manner." 103 S.Ct. at 2348. Justice White also noted in his concurring opinion in Spinelli v. United States, 393 U.S. 410, 427 (1969): "Because an informant is right about some things, he is more probably right about other facts." In Texas v. Brown, supra, the Supreme Court observed that "probable cause is a flexible, common-sense standard" and that "it does not cemand any showing that such a belief be correct or more likely true than false.” 460 U.S. at 742. It was further noted that "[a] ‘practical, non- technical’ probability that incriminating evidence is involved is all that is re- quired.’ Brinegar v. United States, 338 U.S. 160, 176 (1949)." The Court then quoted from United States v. Cortez, 449 U.S. 411, 448 (1981), as follows: "The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities 29 was articulated as such, practical people formulated certain common- sense conclusions about human behav- ior; jurors as factfinders are per- mitted to do the same-and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as under- stood by those versed in the field of law enforcement." In Illinois v. Gates, supra, it was stated: "As these comments illustrate, pro- bable cause is a fluid concept-- turning on the assessment of proba- bilities in particular factual contexts-not readily, or even use- fully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. .. . ‘Informants' tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diver- sity. ‘One simple rule will not cover every situation.'" (Citation omitted). 103 S.Ct. at 2328-2329. A rule that would require police to obtain a warrant when they knew of the locality of the object in an automobile 30 would cause mugh confusion in an area which the Court in Ross referred to as "this troubled area." 456 U.S. at 817. Instead of the straight-forward rule of Ross, which looks to the overall existence of probable cause to search a vehicle and its compartments and containers, endless litigation over whether the officer knew cf the location of the contraband or fruits or instrumentalities of a crime would be inevitable. This Court has repeatedly stressed the need for rules that are clear and are therefore, easy to apply uniformly. United States v. Ross, supra, 456 U.S. at 803-804. In New York v. Belton, 453 U.S. 454 (1981) the Supreme Court quoted Duna- way v. New York, 442 U.S. 200, 213-214 (1979) as follows: ""fa) single, familiar standard is essential to guide police officers, who have only limited time and ex- pertise to reflect on and balance 31 the social and individual interests involved in the specific circun- stances they confront.'" 453 U.S. at 458. The need for straightforward and predic- table rules is in the interest of both the police and the citizens who may be sub- jected to police activity. New York v. Belton, supra, 453 U.S. at 459-460. Further evidence of the inappropri- ateness of a rule permitting an automobile container or compartment search depending upon whether the officer knew the specific location within the automobile of the ob- ject of the search is the fact that it holds the potential for a police officer to be able to broaden his or her authority to make warrantless searches by revealing less than all of their probable cause in- formation. See LaFave, Search and Sei- zure, § 7.2, p. 200 (Supp. 1984). 32 The exclusionary rule already has several built-in aspects that are in opposition to a system of crjminal justice supposediy based upon a search for truth in the assigning of guilt or innocence: (1) the suppression of evidence that is directly relevant to the guilt of the person accused of an offense against society; (2) the fact that police who lie with regard to where evidence was found are rewarded with the admission of the evidence whereas those officers whc tell the truth are punished by the suppression of the evidence and possibly the release of the criminal; and (3) the award of freedom to a criminal based upon conduct 3 In United States v. Leon, 104 S. Ct. 3405, 3409 (1984) the Court noted that there existed a tension between the exclu- Ssionary rule and procedures “under which criminal defendants are ‘acquitted or con- victed on the basis of all of the evidence which exposes the truth.‘'" 33 of an officer and not upon the free will decision of an individual to commit or not to commit the crime, in other words, the separation of the relationship between choice, and responsibility for’ that choice. If the reasoning of the Court of Criminal Appeals is upheld, therefore, another mechanism at odds with the search for the truth would exist, as an officer who withholds facts which give him know- ledge of the exact location of the object of the search would be rewarded by being allowed \ to search the entire vehicle without search warrant whereas full dis- closure of his knowledge would mean that he would be required to take the time and trouble to acquire one. | The disadvantages of the exclusionary rule generally have been thoroughly dis- cussed by this Court. United States v. 34 Leon, 104 S.Ct. 3405, 3412-3416 (1984); Stone v. Powell, 428 U.S. 465 (1976); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 412-421 (1971). (Bur- ger, C.J. dissenting). The applicability of the rule varies with the interests of the individual in a particular type of case and the interests of the public. (1984); United States v. Janis, 428 U.S. 433 (1976); Stone v. Powell, supra; United States v. Calandra, 414 U.S. 338 (1974). Whether the exclusionary sanction is appropriately imposed in a particular case generally “must be resolved by weighing the costs and benefits of preventing the use in the prosecutor's case-in-chief of inherently trustworthy tangible evidence pure oe” United States v. Leon, supra, 104 S.Ct. at 3412. Exceptions to the gen- eral rule requiring search warrants exist 35 because the Court has found that "societal costs of obtaining a warrant ... out- weigh the reasons for prior recourse to a neutral magistrate." Arkansas v. Sanders, supra, 442 U.S. at 759. In United States v. Place, 103 S.Ct. 2637, 2642 (1983) the Court stated that it was necessary to “balance the nature and quality of the intrusion on the individu- al's Fourth Amendment interests against the importance of the governmental inter- ests alleged to justify the intrusion." In United States v. Jacobsen, 104 S.Ct. 1652, 1661 (1984) the Supreme Court found that the “additional intrusion" occasioned by a field test of cocaine after a container had previously been opened by private persons did not violate the Fourth Amend- ment. The Court has held that there is a "“dimmished expectation of privacy” when 36 one places his or her personal effects into an automobile. United States v. Chadwick, 433 U.S. 1, 12 (1977). For example, the "configuation, use and regu- lation of automobile often may dilute the reasonable expectation of privacy that exists with respect to differently situ- ated property." Arkansas v. Sanders, supra, 442 U.S. at 761. Furthermore, when a person leaves the privacy of his or her home and transports items of personal property in an automo- bile, constitutional protections cannot be expected to be the same. One who travels in an automobile is subject to being stopped for an infinite number of reasons. Delaware v. Prouse, 440 U.S. 648 (1979); Texas v. Brown, supra, 460 U.S. at 733. Additionally, activities undertaken in an automobile are not generally private in 37 nature. As was observed in Segura v. United States, 104 S.Ct. 3380, 3389 (1984): "But the home is sacred in Fourth Amendment terms not primarily be- cause of the occupants ' possessory interests in the premises, but be- cause of their privacy interests in the acitivities within." (Emphasis original). While the Fourth Amendment is obvi- ously designed to protect against in- fringements upon personal freedom in the form of both invasions into expectations of privacy and interference with property interests, see United States v. Jacobsen, 104 §.Ct. 1652, 1656 (1984), the balancing of these interests against the requirement that a police officer be required to ob- tain a search warrant from a magistrate ‘ Cf. Welsh v. Wisconsin, 104 S.Ct. 2091, 2094 (1984) and Payton v. New York, 445 U.S. 573, 578 (1980) where police in- vasions of residences intruded upon indi- viduals while they were in personal cir- cumstances. 38 prior to searching containers located in an automibile demands that the entire cir- cumstances of a particular case be exam- ined. Obviously, administrative consid- erations are relevant to this determina- tion. In Robbins v. California, 453 U.S. 420, 433-434 (1981). Justice Powell ob- served in his concurring opinion: "Confronted with a cigarbox or a Dixie cup in the course of a proba- ble-cause search of an automobile for narcotics, the conscientious policeman would be required to take the object to a magistrate, fill out the appropriate forms, await the de- cision, and finally obtain the war- rant. Suspects or vehicles normally will be detained while the warrant is sought. This process may take hours, removing the officer from his normal police duties. Expenditure of such time and effort, drawn from the public's limited resources for detecting or preventing crimes, is justified when it protects an indi- vidual's reasonable privacy § in- terests. In my view, the plurali-~ ty's requirement cannot be so just- ified. The aggregate burden of pro- curing warrants 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." 39 The State contends that in the pre- sent case, the additional intrusion into the Defendants’ privacy interests caused by the immediate search of the luggage found in the automobile is outweighed by the need for clear rules governing search- es of automobiles and the freedom from the practical inconvenience necessitated by the warrant procedure every time justifi- cation exists for the search of a contain- er or compartment in a vehicle. This is particularly true in light of the restraints and invasions an individual who is driving an automobi-e is subjected to when there is probable cause to believe that a container or compartment within such is concealing contraband or the fruits or instrumentalities of a crime. That person can be immediately and public- c ly arrested without a warrant. He can S United States v. Watson, 423 U.S. 411 (1976). 40 then be handcuffed, placed in a police car, and taken to the police station. He can then be mugged, fingerprinted, ° and booked. He can be subjected to a complete search of his person’ and any personal effects carried with him can be fully searched, examined and inventoried. His clothing can be taken from him, searched, and kept in “official custody."” In appropriate cases, his fingernails can be 6 (1969). 7 United States v. Robinson, 414 U.S. 218 (1978). 8 Illinois v. Lafayette, 103 S.Ct. 2605 (1983). 9 Davis v. Mississippi, 394 U.S. 721 United States v. Edwards, 415 U.S. 800 (1974). 41 10 11 his blood can be taken 12 scraped, and he can be placed in a lineup. With regard to his automobile, the entire passenger compartment can 0be 13 and the car can be seized, 14 searched towed-in, and impounded, If undertaken pursuant to standard police procedure, the entire automobile and its contents can be searched and inventoried.*> 10 Cupp v. Murphy, 412 U.S. 291 (1973). 11 Schmerber v. California, 384 U.S. 757 (1966). 12 Kirby v. Illinois, 406 U.S. 682 (1972). 13 New York v. Belton, 453 U.S. 454 (1981). 14 Chambers v. Maroney, 399 U.S. 42, 51 (1970). 15 South Dakota v. Opperman, 428 U. S. 364 (1976). \ 42 Therefore, in this context, the "additional intrusion" into an indivi- dual's privacy and property interests is outweighed by the previously mentioned public interests-clear search and seizure guidelines for the protection of the police and public alike, the efficient use of police resources which would be diluted by the requirement of a search warrant, and the compelling reasons why a criminal proceeding should be allowed to receive evidence directly related to the truth. At this point a defendant's privacy inter- ests are minimal and the only function of the warrant requirement is to remove police from their crime prevention and detection responsibilities and to provide defense attorneys with a tool to thwart the admission of evidence constituting the most conclusive proof of the defendant's guilt. 43 Furthermore, it has previously point- ed out that "[t]he public has a compelling interest in detecting those who would — in deadly drugs for _ personal profit." United States v. Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J., concur- ring). In United States v. Place, supra, 104 S.Ct. at 2643, the Court stated that it would weigh the "strong governmental interest" in preventing the flow of narco- tics into distribution channels “against the nature and extent of the intrusion upon the individual's Fourth Amendment sights. . . .* Additionally, if the police are al- lowed to make an immediate search of the containers in a vehicle, the guilt or innocence of the person under suspicion is quickly determined. Instead of being sub- jected to an arrest and the attendant in- dignities pending the obtaining of a 44 search wafrant, a suspect whose baggage is searched on the scene and found not to possess objects of the search can be imme- diately released, his effects promptly returned, and the impoundment of his automobile avoidea.® Further evidence of the gamesmanship inherent in juggling the various theories used to justify a search of an automobile is that, in the present case, if Officers Taylor and Citty had merely termed their search an “inventory” search, it presuma- bly could have been upheld on this basis if undertaken pursuant to an established police policy. South Dakota v. Opperman, supra. It is difficult to imagine how privacy interests in the contents of the 16 In Segura v. United States, supra, 104 S.Ct. at 3387, the Court noted that in Chambers v. Maroney, supra, “it was reasonable to seize and impound an automobile, on the basis of probable cause, for ‘whatever period is necessary to obtrain a warrant for the search.'" 45 luggage can be viewed as being important if they are dependent solely upon the particular label selected by the police which defines their state of mind at the start of the search. Additionally, scen- arios which have results dependent upon semantics such as this cannot help but increase public and police cynicism toward the entire process and undermine respect for the law, which is supposedly based upon reason. The State contends that the mix of do's and don'ts confronting Officer Taylor places him and other officers, whose primary justification for existence is to protect the rest of us from physical harn, in an unfairly complex position. Officer Taylor found himself confronted by two suspected and unknown drug distributors at a moment when both had been caught in possession of a quantity of drugs which 46 would send them to prison for many years. One of the suspects refused to remove his hands from behind his back after repeated commands. The suspect made aéie sudden movement to throw an object into the car. Officer Taylor had to forceably wrestled him to the ground while worrying about the other suspect, who had his hands on the car. During the struggle, Officer Taylor, who was still waiting for his backup to arrive, was bitten by the Defendant's dog (Tr. I, 8). When Officer Citty arrived they tken had to make an instant decision concerning principles which judges, scholars and law- yers have debated for decades. The offi- cers had to decide whether to make a search, and what name to assign to that search. Are they to make an “inventory search," a “search incident to arrest," an "automobile exception search,” a “plain 47 view search" or an “exigent circumstances search"? These decisions had to be made immediately after Officer Taylor had been confronted with a situation in which great danger could have been involved. This case, therefore, presents facts which support the statements of this Court mentioned previously which reject the step-by-step analysis concerning search and seizure rules, and which are under- standable by the police and the public. In Illinois v. Lafayette, 103 S.Ct. 2605 (1983) the Court drew from its opin- ion in United States v. Robinson, 414 U.S. 218, 235 (1974) and reiterated: ""A police officer's determination as to how and where to search the person of a suspect whom he has ar- rested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.'"* 103 S. Ct. at 2609. 48 In Oliver v. United States, 104 S&S. Ct. 1735 (1984) the Court refused to apply the open fields doctrine on a case-by-case basis, stating: "Nor would a case-by-case approach provide a workable accommodation be- tween the needs of law enforcement and the interests protected by the Fourth Amendment. Under this ap- proach police officers would have to guess before every search whether landowners had erected fences suffi- ciently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy. The lawfulness of a search would turn on ‘[a] highly sophisti- cated set of rules, qualified by all sorts of ifs, ands, and buts and re- quiring the drawing of subtle nuances and hairline distinctions . - « «* New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 2863, 69 L.Ed.2d 768 (1981) (quoting LaFave, "Case-By-Case Adjudication" versus "Standardized Procedure": The Robinson Dilemma, 1974 S&.Ct.Rev. 127, 142. This Court repeatedly has acknowledged the difficulties crea- ted for courts, police and citizens by an ad hoc, case-by-case defini- tion of Fourth Amendment standards to be applied in differing factual circumstances. See Belton, supra, at 458-460, 101 S.Ct., at 2863- ; Robbins v. California, 453 U.S. 420, 49 430, 101 S.Ct. 2841, 2847, 69 L.Ed. 24 744 (1981) (POWELL, J., concur- ring); Dunaway v. New York, 442 U.S. 200, 213-214, 99 S.Ct. 2248, 2257- 2258, 60 L.Ed.2d 824 (1979); United States v. Robinson, 414 U.S. ’ ’ Ct. , 476, 38 L.Ed.2d 427 (1973). The ad hoc approach not only makes it difficult for the policeman to discern the scope of his authority, Belton, supra, 453 U.S., at 460, 101 B.Cte, at 4; it also creates a danger that constitu- tional rights will be arbitrarily and inequitably enforced." 104 S. Ct. 1742-1743. The State also contends that, as stated previously, the search of the luggage was justified since probable cause existed to search the Defendants’ entire automobile. In United States v. Ross, supra, 456 U.S. at 814, this Court observed that "in neither Chadwick or Sanders did the police have probable cause to search the vehicle or anything within it except the footlock- er in the former case and the green suit- case in the later." It is settled that 50 while law enforcement officers may some- times seize containers and packages, even with less than probable cause, United States v. Place, Supra, 103 S.Ct. at 2641, "the mere existence of probable cause to believe that a container Or package con- tains contraband plainly cannot justify a warrantless examination of its contents," United States v. Jacobsen, supra, 104 S.Ct. at 1665 (White, J., concurring). However, this case and other similar cases differ from Arkansas v. Sanders, supra, and United States v. Chadwick, Supra, in that in the latter cases pro- bable cause did not exist to support the belief that evidence relevant to the criminal offense in guestion could have been in any location other than inside of the footlocker in Chadwick and the suit- case in Sanders. In Sanders there was no reason to believe that the taxicab in 51 which the defendant was riding contained any contraband. The suitcase was the only possible location of any contraband. In United States v. Johns, 707 F.2d 1093, 1097-1098 (9th Cir. 1983) the Ninth Circuit rejected the defendants’ conten- tion that a search warrant should have been obtained for the search of containers in two trunks which were seized, although the search was held to be invalid due to a three day delay in opening the containers. The Court stated: "The officers had probable cause to search both vehicles, not just the new-discovered bales. Their suspi- cions did not focus solely on the packages; it was not obvious that all the contraband would be in the bales. The appellees could have easily secrete other drugs elsewhere in the vehicles. In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.24a 538 (1977), the police officers had all the facts giving them probable cause to believe that contraband was in the footlocker and the suitcases before those containers were placed 52 in the trunks of the cars. Placing the containers in the car did not give the officers probable cause to search the entire vehicle. In Ross and in this case, the officers’ suspicions were not so specific. They did not know the exact nature and packaging of the contraband transferred from the airplanes to the trucks before arriving on the scene. The officers had probable cause to search both trucks. Under Ross, they also could have opened e packages as part of that search. In United States v. Shepherd, 714 F.2d 316 (4th Cir. 1983) a case with facts similar to those in the present one, the Fourth Circuit upheld the warrantless opening of jugs of moonshine removed from the trunk of a parked automobile. The Court noted: "We believe that the case before us is more akin to Ross than to Chad- wick and Sanders. Here the object of the agents’ search was not direc- ted solely to the interior of a few jugs which were seen loaded into the trunk of Shepherd's car. The agents .ad good reason to suspect, based on the inrormation they had gathered as well as what they had seen with their own eyes, that the car was an instrumentality of Shep- 53 herd's illegal whiskey enterprise, and that a search of the vehicle would disclose additional evidence. As it turned out, this hypothesis proved correct: upon opening the trunk the agents found thirty-eight gallons of illegal liquor, far more than they had observed from their hiding place. Under Ross, once the officers had probable cause to search the vehicle, they also ac- quired the authority to open any of the closed containers found there- in." 714 F.2d at 323. In the present case, the entire automobile could have been a hideaway for drugs. Drugs could have been placed in the glove compartment under the seat, in the dashboard, over the sunvisor, in the upholstery, in the trunk, under the hub- caps or in the ashtrays. As stated pre- viously, the mere fact that the police knew of the location of “some” of the durgs should not have prevented an intense police search of the entire automobile without a warrant. In Carroll v. United States, supra, the police were allowed to 54 tear open the seat cushion in the search for contraband. Here the entire car was the “suspect- ed locus" of possible contraband and the relationship between the automobile and the contraband was obviously more than "purely coincidental." Arkansas v. San- ders, supra, 442 U.S. at 767 (Burger, C. J., concurring in the judgment). Since a magistrate would have issued a search war- rant for the entire vehicle, “every part of the vehicle and its contents that may conceal the subject of the search" could be searched. United States v. Ross, supra, 456 U.S. at 825. A hypothetical may illustrate a sit- uation in which police should be allowed to search an entire vehicle even though they know of the location of some of the objects of the search. Assume a robber wearing a mask forced a bank teller at 55 gunpoint to place money in a suitcase. The bank's employees observe the robber run outside and place the suitcase in the trunk. After driving a few blocks the robber is stopped by the police and they remove the suitcase from the trunk. The robber does not have either the gun or the mask. Should not the police be allowed to search the suitcase and all containers and compartments in the car without a warrant? Ever though the “suspected locus" of the ok ct of part of the search is the suit- case, other parts of the vehicle may contain other of evidentiary items, such as the gun or the ski mask. Warden v. Hayden, 387 U.S. 294 (1967). Also, it is possible the robber could have stopped be- tween the time he robbed the bank and the time he was stopped and removed some of the money from the suitcase. The critical point is that since the entire vehicle may : b : q 56 be a repository for fruits or instru- mentalities, pursuant to the dictates of Ross, the police should be allowed to search the entire vehicle, and its com- partments and containers, including the luggage. The facts of Chambers v. Maron- ey, supra, provide a similar scenario and demand a similar holding. The fact that the automobile was not moving in the present case is irrelevant. In Michigan v. Thomas, 458 U.S. 259 (1982), this Court again rejected the argument that because a vehicle has been immobilized and the occupants are in cus- tody the police are required to obtain a search warrant for the contents. The holding of the Court should apply to the present cae: "In Chambers v. Mar , 339 US 42 (1976), we held that when police officers have probable cause to be- lieve there is contraband inside an automobile that has been stopped on the road, the officers may conduct a 57 warrantless search of the vehicle, even after it has been impounded and is in police custody. We firmly re- iterated this holding in Texas v. White, 423 US 67 (1975). See also United States v. Ross, 456 US 798, » Re S - it is thus clear that the justification to conduct such a warrantless search does not valish once the car has been immo- bilized; nor does it depend upon a reviewing court's assessment of the liklihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.” 458 U.S. at 261. See also Florida v. Meyers, 104 S.Ct. 1852 (1984); Texas v. White, supra, 423 U.S. 67 (1975); and United States v. Nigro, 727 F.2d 100, 104-107 (6th Cir. 1984). For the reasons stated, the State submits that all evidence found in the Defendants’ automobile was obtained as a result of a constitutionally permissible search since there was probable cause to believe that contraband drugs could have been concealed in various parts of the 58 automobile and a magistrate would have issued a search warrant for the entire vehicle, PROPOSITION II THE SEARCH OF THE BAND-AID BOX FOUND IN THE FRONT SEAT OF THE VEHICLE WAS JUSTIFIED UNDER THE AUTOMOBILE ExX- CEPTION PRINCIPLE AND AS A SEARCH INCIDENT TO A LAWFUL ARREST. The Oklahoma Court of Criminal Ap- peals found that the search of the Band- Aid box, which had been thrown into the vehicle by the Defendant Castleberry as the officer approached with his badge, was illegal and the evidence found in that container should also have been suppres- sed. The Court stated that since the "suspected locations of the contraband were the suitcases and the Band-Aid box which Castleberry threw in the car" the officers “should have detained these con- tainers until a search warrant had been 59 obtained.” 678 P.2d at 724; A.35-37. As noted previously, the Court stated that, under their interpretation of Ross, Arkansas v. Sanders, and United States v. Chadwick, supra, if an officer has proba- ble cause to believe there is contraband in a specific container in a car, he must detain the container and delay his search until a warrant is obtained. 678 P.2d at 724. For the reasons stated in Proposition I, the State contends that the holding of this Court in United States v. Ross, supra, is in conflict with this reasoning under the automobile exception principle. If the luggage in the trunk was validly searched under this rule, then certainly there was probable cause to search other containers in the automobile, particularly after drugs were discovered in the suit- cases. The Court in Ross specifically 60 held that the rule allowing the search of the automobile applied “equally to all cortainers.” 456 U.S. a. 822. The facts of the present case support the search of the Band-Aid box, which was thrown into the vehicle as the police approached. The fact that Castleberry was able to lock the car after he had thrown the box inside shculd make no difference with regard to the legality of the search. In Ross, the detective, after arresting and handcuffing the defendant, took the de- fendant's keys and opened the trunk where the sack containing the contraband was found. 456 U.S. at 801. Furthermore, under the principles of United States v. Robinson, supra, 414 U.S. 218, since Officer Taylor had probable cause to arrest Castleberry, he could have searched the box as incident to the cust- odial arrest. The fact that Castleberry 61 was able to throw the box into the car after the officer approached him should not prevent the seizure and search of the box. In Oliver v. United States, supra, ES States 104 S. Ct. 1735, 1743, this Court rejected the contention that the defendants’ ac- tions in erecting fences and signs “in order to conceal their criminal activity," should provide a right to an expectation of privacy in the premises, stating that: "The test is not whether the indi- vidual chooses to conceal assertedly ‘private’ activity. Rather, the correct inquiry is whether the gov- ernment’'s intrusion infringes upon the personal and societal values protected by the Pourth Amendment." Therefore, the State contends that the action of the Defendant Castleberry in throwing the Band-Aid box into he car when the police approached should not serve to immunize it from a justified search. This search of the interior of the automobile, including the Band-Aid box, =< 62 should also be upheld based on the search incident to lawful arrest principle of the Fourth Amendment. In New York v. Belton, supra, this Court upheld the search of a jacket found in the backseat of a vehicle belonging to a defendant, who along with his three companions, were in custody and outside the vehicle at the time of the search. This Court specifically held: "(w)hen a policeman has made a law- ful custodial arrest of the occu- pants of an automobile, he may, as a contemporaneous incident o that arrest, search the possenger com- partment of that automobile. It follows from this conclusion that the police may also examine the con- tents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach." 453 U.S. at 460. The facts of this case parallel those in Belton, supra. The evidence reveals that Defendant Castleberry was standing next to the vehicle door when he threw the 63 box inside. Therefore, the area was ob- viously within his control at the time of his arrest. Cf., New York v. Belton, supra, (coat found in backseat of vehi- cle). CONCLUSION For the reasons stated, it is re- spectfully requested that this Court re- verse the judgment of the Oklahoma Court of Criminal Appeals in this case. Respectfully submitted, MICHAEL C. TURPEN ATTORNEY CENERAL OF OKLAHOMA DAVID W. LEE ASSISTANT ATTORNEY CENERAL CHIEF, CRIMINAL AND FEDERAL DIVISIONS HUGH A. MANNING ASSISTANT ATTORNEY CENERAL 112 State Capitol Building Oklahoma City, OK 73105 (405) 521-3921 COUNSEL FOR PETITIONER --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0794%3A04. Public record. Not legal advice.