Opposition Brief — Johnson v. Montana

- & & be A i

MAY 29 1964

ALEXANDER L. SEEMAB

NO. 83-1625 cumnet

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

UNITED STATES OF AMERICA,

V.

LYLE GERALD JOHNS, ET AL.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM G. WALKER

120 W. Broadway, Tucson, Arizona 85701

602-792-2781

Counsel for Respondents Redmond, Soto,

and Gomez

ROBERT J. HIRSH

120 W. Broadway, Tucson, Arizona 85701

602-884-9630

Counsel for Respondent Duarte

PETER KELLER

111 W. Washington, Tucson, Arizona 85701

602-622-3909

Counsel for Respondent Leon

MICHAEL PICCARRETA

2730 E. Broadway, Tucson, Arizona 85716

602-881-4984

Counsel for Respondent Johns

WALTER NASH

120 W. Broadway, Tucson, Arizona 85701

602-792-1613

Counsel for Respondent Hearron

i

"BEST AVAILABLE COPY |

QUESTION PRESENTED

May packages which have been seized

but not opened from pick-up trucks’ during

a warrantless’ probable cause search,

and immediately stored in a government

warehouse, be searched without a warrant

several days after their seizure?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iii

STATEMENT 1

REASONS FOR DENYING THE PETITION

I. The decision by the Court of

Appeals was correct.

a. General principles. 4

b. The applicability of Ross. 12

c. Other reasons that support the

decision by the Court of Appeals. 23

II. Additional reasons that the Court

should deny the Petition.

a. The decision below is not in

conflict with the decisions of other

circuits. 33

b. The decision in this case is

not one which is likely to affect a

significant number of future cases. 35

CONCLUSION 39

ii

TABLE OF AUTHORITIES

Cases Page

Arkansas v. Sanders,

442 U.S. 753 (1979) 4

Avco Corp. v. Aero Lodge 735,

390 U.S. 557 (1968) 34

Cady v. Dombrowski,

413 U.S. 433 (1973) 8, 31

Cardwell v. Lewis,

417 U.S. 583 (1974) ; 7, & @

Carroll v. United States,

267 U.S. 132 (1925) 1 Se Fo

Chambers v. Maroney,

399 U.S. 42 (1970) passim

Chimel v. California,

395 U.S. 752 (1962) 17

Coolidge v. New Hampshire,

403 U.S. 443 (1971) 7

Cooper v. California,

386 U.S. 58 (1967) Lp oe

G.M. Leasing Corp. v. United States,

429 U.S. 338 (1977) 27, 28

Illinois v. Andreas,

U.S. , 103 §.Ct. 3319

1983) 25, 26, 37

iii

Cases (Continued) Page

Katz v. United States,

389 U.S. 347 (1967) 5, 21

Layne & Bowler Corp. v.

Western Well Works,

261 U.S. 387 (1923) 36

:

Michigan v. Clifford,

U.S. , 104 S.Ct. 641 (1984) 28, 29

Michigan v. Tyler, my,

436 U.S. 499 (1978) 27, 29

Mincey v. Arizona,

437 U.S. 385 (1978) passim

New York v. Belton,

458 U.S. 259 (1981) —

Northeastern National Bank v.

United States,

387 U.S. 213 (1967) 34

| Preston v. United States,

' 376 U.S. 364 (1964) 18, 27, 29

Rice v. Sioux City Cemetary,

Sharp v. United States,

712 F.2d 65 (4th Cir. 1983) 33, 34

South Dakota v. Opperman,

428 U.S. 364 (1976) 31

Terry v. Ohio,

392 U.S. 1, 29 (1968) 6, 21, 22

iv

ee 8 Me ee ee

Cases (Continued) Page

Texas v. Brown,

U.S. , 103 S.Ct. 1535

(1983) passim

Texas v. White,

423 U.S. 67 (1975) 7, 16

Walter v. United States,

447 U.S. 649 (1980) g

United States v. Chadwick,

433 U.S. 1 (1977) passim

United States v. Edwards,

415 U.S. 800 (1974) passim

United States v. Jacobsen,

U.S. » No. 82-1167

(April 2, 1984) 10, 15

United States v. Place,

U.S. , 103 S.Ct. 2637

(1983) 9, ll, 23, 24

United States v. Rabinowitz,

339 U.S. 56 (1950) 6, 21, 22

United States v. Rivera,

684 F.2d 308 (5th Cir. 1982) 33, 34

United States v. Ross,

456 U.S. 798, 807 (1982) passim

United States v. Schecter,

717 F.2d 864 (3d Cir. 1983, 33

Constitutional Provisions

U.S.Const., Amend.IV passim

Other Authority Page

Mr. Justice Harlan, Some Aspects

of the Judicial Process in the

Supreme Court of the United

States, 33 Australian L.J.

109 (1959) 35

Stern & Gressman, Supreme Court

Practice, §4.11, pp.284-285 (1978) 36

vi

ee

STATEMENT

In its Petition for a Writ of Certior-

ari, the government attempts to charac-

terize the search below as no more than a

routine automobile search which should be

governed solely by the principles estab-

lished by this Court in cases such as

Chambers v. Maroney, 399 U.S. 42 (1970),

Cooper v. California, 386 U.S. 58 (1967)

and Carroll v. United States, 267 U.S. 132

(1925). A brief clarification of the

facts set forth in the Petition will be

helpful to the consideration of the

government's argument.

After an investigation, Customs offi-

cers arrested Respondents Duarte, Gomez,

Leon, Redmond and Soto at an airstrip

located near a picnic area in a remote

area of Arizona. Appendix to Petition

(hereinafter App.) at 19a-22a. The offi-

cers had previously surveilled two small

—

airplanes landing on the airstrip. The

planes were met by pick-up trucks with

camper shells that were driven by the

above-named respondents. Id. Both of the

trucks were loaded with square boxes

wrapped in dark plastic and sealed with

tape. Id. at 20a. As the officers ap-

proached the trucks, they detected the

odor of marijuana in the area. Id. at

20a, 27a. Contrary to the Petition,

however, the officers never testified that

the odor of marijuana emanated from the

packages themselves. Compare Petition at

20.

The government strongly suggests, but

does not argue, that the nature of the

packages could not support a sufficiently

reasonable expectation of privacy to

trigger the warrant requirement. See

Petition at 20. Both the trial court and

the Court of Appeals rejected*this plain

o i «

view argument. App. at 3a-6a, 26a-28a.

The trial court rejected the plain view

argument after finding that nothing about

the shape or other characteristics of the

packages made their contents readily

ascertainable, id. at 27a-28a. The trial

court also found that some of the testi-

mony offered by the government about the

nature of the packages was not credible,

id. at 20a-22a, n.2. Surely, under these

circumstances, any suggestion by the

government that the packages did not

manifest a reasonable expectation of

privacy should be rejected.

After the arrests, the seized packages

were transported to the Drug Enforcement

Administration warehouse in Tucson, Ari-

zona. Id. at 2a, 22a. Three days later,

without obtaining a search warrant, feder-

al agents opened the packages and took

core samples of the contents. A labora-

= 2

tory analysis proved that the packages

contained marijuana. 1a.

REASONS FOR DENYING THE PETITION

I. The decision by the Court of

Appeals was correct.

a. General principles.

On the merits, the operative question

is whether the search below was a package

search which could therefore only be

conducted under the authority of a war-

rant, see Arkansas v. Sanders, 442 U.S.

753 (1979) and United States v. Chadwick,

433 U.S. 1 (1977), or whether it was an

automobile search and therefore permissi-

ble without a warrant. See United States

1the government contends that the record

does not support the three-day delay. Pe-

tition at 20-21, n.14. The government

first made this contention in a Petition

for Rehearing in the Court of Appeals.

That Petition was denied. In this Court,

however, the government does not contest

the finding by the Court of Appeals that

the search occurred three days after the

seizure. Petition at 21, n.14.

o &«

v. Ross, 456 U.S. 798 (1982) and Carroll

v. United States, 267 U.S. 132 (1925). A

comparison of the rules governing automo-

bile searches and those governing package

searches will demonstrate that the ruling

below was correct.

The starting point is in the analysis

of the presumption in favor of warrants.

All searches conducted without a warrant

are per se unreasonable, subject only to a

few specifically established and well-

delineated exceptions. Mincey v. Arizona,

437 U.S. 385, 390 (1978); Katz v. United

States, 389 U.S. 347, 357 (1967). If the

government seeks to carve out a new

exception, the government bears the burden

of demonstrating why the—situation is so

unusual as to justify dispensing with the

presumptive protection of a warrant.

Mincey, supra at 391. The exceptions that

have been created are generally no broader

— 2

than is necessitated by the circumstances

that gave rise to the exception. Chambers

v. Maroney, 399 U.S. 42, 61 (1970), Terry

v. Ohio, 392 U.S. 1, 29 (1968), see United

States v. Rabinowitz, 339 U.S. 56, 70

(1950) (Frankfurter, J., dissenting).

This general rule (that an exception to

the search warrant requirement can be no

broader than what is required by the

exigencies that gave rise to it) has not

been applied to automobile searches.” At

first, warrantless searches of automobiles

were permitted on the theory that automo-

biles are mobile and therefore it would be

impracticable to obtain a warrant before

2only the warrantless searches of auto-

mobiles and the persons of arrestees ap-

pear to be exempt from the rule that ex-

ceptions to the Warrant Clause can be no

broader than is necessitated by the cir-

cumstances that geve rise to the excep-

tion. See Texas v. Brown, U.S. » 103

S.Ct. 1535, 1544, n.1 (1983) (Powell, J.,

concurring), United States v. Edwards, 415

U.S. 800 (1974).

the automobile moved to another jurisdic-

tion. Coolidge v. New Hampshire, 403 U.S.

443, 459-60; Carroll v. United States, 267

U.S. at 153. Subsequently, however,

warrantiess searches of automobiles, based

upon probable cause, were allowed long

after the automobile had been secured or

impounded at the police station. Texas v.

White, 423 U.S. 67 (1975); Chambers Vv.

Maroney, 399 U.S. 42 (1970). Clearly, the

exigency that was created - the mobility

of the automobile was not sufficient to

justify those warrantless searches.

The searches were upheld because the

Courts reasoned that people enjoy a lesser

expectation of privacy in their automo-

biles and that a search warrant is

therefore not required before an automo-

bile can be searched. United States v.

Chadwick, 433 U.S. at 12-13; Cardwell v.

oF S

Lewis, 417 U.S. 583, 590 (1974) (plurality

opinion); Cady v.: Dombrowski, 413 U.S.

433, 441 (1973). The lesser expectation

of privacy is in part founded on the fact

that automobiles seldom serve as_ the

repository of personal effects. Cardwell

v. Lewis, 417 U.S. at 590. Perhaps

because automobiles do not serve as

repositories for personal effects, there

is no difference between seizing an auto-

mobile to conduct a subsequent search and

immediately searching the automobile where

it is found. United States v. Ross, 456

U.S. 798, 807, n.9; Chambers v. Maroney,

399 U.S. at 52. Either way, no search

warrant is required. Id.

Packages, however, are different. The

general rule that warrants are required

prior to a search applies fully to

packages. The Court has reasoned that,

unlike automobiles, whose primary function

— 2

is transportation, packages usually serve

as repositories for personal effects.

Consequently, a person's expectation of

privacy in a package is’ substantially

greater than that in an_ automobile.

United States v. Ross, 456 U.S. at 8ll,

United States v. Chadwick, 433 U.S. at 13.

Accordingly, the Court has recognized a

difference of constitutional dimension be-

tween temporarily seizing a package and

actually searching the package by opening

it and examining its contents. United

States v. Place, U.S. , £05 8.68.

2637, 2641 (1983); Texas v. Brown, U.S.

__, 103 S.Ct. 1535, 1546 (1983); Walter v.

United States, 447 U.S. 649, 654 (1980).

Compare Chambers v. Maroney, United States

v. Ross, supra (no such distinction is

made for automobiles). Therefore, if

police officers find a movable package in

plain view and have probable cause to

os De

believe it contains contraband, they may

seize the package temporarily pending the

issuance of a search warrant. Texas v.

Brown, U.S. at », 103 S.Ct. at 1547

(Stevens, J., concurring in the judgment).

This point is critical, unlike the rule

that governs automobiles, the fact that

the police are allowed to seize a package

does not also allow them to search it

without a warrant. United States v.

Jacobsen, U.S. _, No. 82-1167 (April

2, 1984). Before a seized container may

be searched, the police officers must

obtain a warrant. As this Court stated in

United States v. Chadwick, supra:

In our view, when no exigency

is shown to support the need for

an immediate search, the Warrant

Clause places the line at the

point where the property to be

searched comes under the exclusive

dominion of police authority.

Respondents were therefore’ en-

titled to the protection of the

Warrant Clause with the evaluation

of a neutral magistrate, before

~~

their privacy interests in the

contents of the footlocker were

invaded.

The fact that the police have lawfully

seized the package, however, does not

entitle them to hold it indefinitely

pending the issuance of a warrant. As

Justice Stevens stated in Texas v. Brown,

officers are only entitled to seize the

package temporarily. 103 S.Ct. at 1547

(emphasis supplied). An analogous case is

United States v. Place, U.S. > a

S.Ct. 2637 (1983). In Place, this Court

held that a traveler's luggage, could be

briefly detained, based on reasonable

suspicion, to investigate the circumstan-

ces that aroused the suspicion. 103 S.Ct.

at 2644 (emphasis supplied). In Place, a

90-minute detention of a traveler's lug-

gage was deemed unreasonable. Id. at

2646.

e Sh «

b. The applicability of Ross.

The seemingly conflicting principles of

Fourth Amendment law that apply to the

searches of automobiles . and packages

converged in United States v. Ross, supra.

In Ross, this Court held that if there is

probable cause to search an automobile for

contraband, the entire automobile, includ-

ing any packages found in the automobile,

may be searched without a warrant. 456

U.S. at 824. After noting that packages

are presumptively protected by the Warrant

Clause of the Fourth Amendment, the Court

nevertheless held that packages could be

searched without a warrant as part of a

general automobile search. Various rea-

sons were advanced for carving out this

exception to the normal protection afford-

ed packages. First, the Court recognized

that persons' expectations of privacy, as

protected by the Fourth Amendment, vary in

» &i «

different settings. ‘For example, the

Court reasoned, the package carried at the

time of arrest may be searched without a

warrant regardless of the subjective

expectation of privacy that the arrestee

might have in the package. Id. at 823.

The Court also noted that a contrary

rule would be unnecessarily inconsistent

with the rationale supporting the automo-

bile search. Id. at 822, n.2°%, If the

police were prohibited from immediately

—e

opening a package found in an automobile,

they would be forced to secure the

automobile until a warrant could be

obtained to open the package, as_ the

police could never be sure that the

contraband was not secreted in some yet

undiscovered location in the automobile,

thus delaying the release of the automo-

bile if in fact no contraband were found.

Id. Finally, it was noted that the rule

oe £28 «

announced in Ross established a bright

line between searches that must be con-

ducted with a warrant and those which can

be conducted uttheut a warrant, giving

much needed guidance to the police and

courts. Id. at 825 (Blackmun, Jes

concurring); Id. at 826, (Powell, J.,

concurring).

In the instant case, the packages were

not searched when the trucks were

searched. Rather, the packages were

removed from the trucks and securely

placed in the D.E.A. warehouse in Tucson,

Arizona. Three days later, without a

warrant, they were opened and samples of

the contents removed. The application of

the above principles to the instant case

will establish that the Court of Appeals

was correct when it ruled that the

packages could not be opened without a

warrant.

Initially, it must be remembered that

packages, unlike automobiles, cannot nor-

mally be searched without a warrant.

United States v. Ross, United States v.

Chadwick, United States v. Jacobsen,

supra. This is because packages, unlike

automobiles, are often repositories for

personal effects. Ross, Chadwick, supra.

Nevertheless, if a package is found in an

automobile, and there is probable cause to

search the automobile, the package may

also be searched, without a warrant, as

part of the automobile search. Simply

stated, the fact that the package is found

in an automobile creates an exception to

the normal rule that a warrant is neces-

sary to search the package.

This result is in part justified by

analogizing automobile searches to search-

es incident to an arrest. If a person in

possession of a package is arrested, that

- 1§ -

package, even ‘though it is’ normally

protected by the Warrant Clause, may be

searched incident to the arrest without

the warrant. New York v. Belton, 458 U.S.

259 (1981). The analogy is well taken.

Like automobiles, arrestees enjoy a lesser

expectation of privacy in their persons.

Mincey v. Arizona, 437 U.S. at 391; United

States v. Edwards, 415 U.S. 800, 808-809

(1974). Consequently, an arrestee's person

may be searched without a warrant long

after his or her arrest and incarceration.

United States v. Edwards, supra. Similar-

ly, an automobile may be searched without

a warrant long after it has been impounded

by the police. Texas v. White, supra.

The application of the above principles

does not dictate, however, that packages

found on a person at the time of arrest

may be searched long after they have been

removed from the possession or control of

~ Sh «

the arrestee. Nor should it follow that

packages found in a car that is subject to

search may be searched long after they

have been removed from the car. Illus-

trative is United States v. Chadwick,

Supra.

When Chadwick was arrested, he was in

the process of lifting his footlocker into

the trunk of a car. 433 U.S. at 4.

Presumably, the footlocker could have been

seized and searched immediately pursuant

to Chadwick's arrest. New York v. Belton,

supra, Chimel v. California, 395 U.S. 752,

763 (1969). The arresting police offi-

cers, however, declined to exercise their

right to conduct an immediate search of

the footlocker and elected instead to

transport it to the federal building where

it was secured under the exclusive control

of law enforcement authorities. Since the

footlocker was no longer’ immediately

- 17 «-

associated with the person of the arres-

tee, the reasons that would have allowed

a warrantless search no longer applied

and this Court held that a warrant had

to be obtained before the footlocker

could be searched. 433 U.S. at 15.

Accord Preston v. United States, 376

U.S. 364 (1964).

In Ross, the sole reason the packages

could be searched was that they were

found in an automobile that was subject

to a warrantless’ search. Similarly,

the footlocker in Chadwick was subject

to search at the time of arrest solely

because it was in the possession or con-

trol of the person arrested. Once the

police declined to exercise their right

to conduct an immediate search, and elect-

ed instead to remove the footlocker to

a law enforcement warehouse, the reasons

that would have permitted an immediate

search of the footlocker no longer existed.

o i « :

The lesser expectation of privacy that

society recognizes in an arrested person

no longer applied to the footlocker. The

presumptive protections of the Warrant

Clause applied again. | By the same

reasoning, once the Customs agents in this

case declined to exercise the right to

search the packages as part of the

automobile search and elected instead to

store the packages at the D.E.A. warehouse

for several days, no right to conduct a

warrantless search existed. When the

packages were in the exclusive control of

the D.E.A., there was no longer’ the

critical nexus between the trucks and the

packages. The lesser expectation of

privacy that society recognizes in automo-

biles no longer applied to the packages.

The Warrant Clause of the Fourth Amendment

once again demanded that the officers

obtain a warrant before the packages could

- 19 -

be searched. United States v. Chadwick,

433 U.S. at 13, 15-16.

The other reasons advanced by the

Ross court in support of warrantless

package searches also do not apply here.

The Ross court noted that requiring a

warrant to search a package found in

an automobile would unnecessarily delay

the search of the automobile, thus under-

cutting the rationale of Carroll and

Chambers, which authorize the immediate

search of an automobile. In this case,

the search of the packages was delayed

by the action of law enforcement officers

for three days. Certainly, if the offi-

cers had obtained a warrant to search

those packages during the three days,

the search of the trucks would not have

been further delayed. The rationale

of Carroll and Chambers simply does not

apply here.

Another virtue of Ross is that it gives

« * «

police and courts a bright and clear rule

about when packages may be searched

without a warrant. There is no brighter

and clearer rule in Fourth Amendment

jurisprudence, however, than the rule that

all searches conducted without a warrant

are per se _ unreasonable. Mincey v.

Arizona, 437 U.S. at 390; Katz v. United

States, 389 U.S. at 357. Any exception to

this first rule of Fourth Amendment

jurisprudence should be no broader than

the circumstances that give rise to it.

Chambers v. Maroney, 399 U.S. at 61; Terry

v. Ohio, 392 U.S. at 29; United States v.

Rabinowitz, 399 U.S. at 70 (Frankfurter,

J., dissenting).

In this case, the reasons that justify

the warrantless search of a package found

during the course of a legal automobile

search certainly do not justify a search

of the package three days after it has

—— a

been stored in a law enforcement ware-

house. Consequently, the Ross exception

should not be extended to govern. the

instant situation. Chambers v. Maroney,

399 U.S. at 61, Terry v. Ohio, 392 U.S. at

29, United States v. Rabinowitz, 399 U.S.

at 70 (Frankfurter, Ber dissenting),

supra. The government has not been able

to demonstrate why this situation is so

unique to justify dispensing with the

protection of a warrant. Mincey Vv.

Arizona, 437 U.S. at 391. Consequently,

the only bright line rule that the police

should be instructed to follow in a

Situation such as this is that, absent

exigent circumstances, they must obtain a

warrant before opening the package. See

United States v. Chadwick, 433 U.S. at 13,

15-16.

=

Cc. Other reasons that support the

decision by the Court of Appeals.

Packages are not normally seized be-

cause they, in and of themselves, are

contraband or evidence of ae crime.

Rather, they are seized because it is

believed that they contain contraband or

evidence. It is clear that without a

warrant, such packages can be temporarily

seized in anticipation of obtaining a

warrant. Texas v. Brown, U.S. , 103

S.Ct. at 1547 (Stevens, J., concurring in

the judgment). They can only be temporar-

ily seized, however, because to secure

them for an unreasonable period of time

without examining the contents would un-

doubtedly violate the Fourth Amendment.

Cf. United States v. Place, U.S. at

, 103 S.Ct. at 2647 (a 90-minute

detention, based on reasonable suspicion,

—

of a traveler's luggage was unreasonably

long).

In this case, had the police searched

the packages immediately and found that

they contained innocent items, the packa-

ges could have been immediately returned

to the respondents and no unconstitutional

seizure would have occurred. Texas v.

Brown, (Stevens, J., concurring in the

judgment), United States v. Place, supra.

If the 90-minute delay in Place was deemed

unreasonable because this Court reasoned

that the investigation of the luggage

should not have taken so long, certainly

the three-day period in this case was far

longer than what was necessary to obtain a

warrant. The three-day delay was an

unnecessary invasion of a person's right

to possession of packages. United States

v. Place, supra.

Nonetheless, the government argues that

—

since the packages could have been

searched when they were seized at the

Bowie airstrip, the respondents had no

recognizable expectation of privacy that

the contents would remain secret in the

future. In support of this proposition,

the government cites Illinois v. Andreas,

_U.S.__, 103 S.Ct. 3319 (1983) and

United States v. Edwards, 415 U.S. 800

(1974). Neither case supports the govern-

ment's argument.

In Illinois v. Andreas, a container

arriving from Calcutta, India was searched

by a Customs inspector at O'Hare Interna-

tional Airport. Contraband was’ found

within the container. A controlled deli-

very was then made to Andreas' apartment.

A few minutes later, when Andreas attempt-

ed to leave the apartment with the con-

tainer, he was arrested. Id. at 3322. The

container was taken to the police station

» £8 e«

where it was opened without a warrant.

Id. As the container had already been

legally opened by the government during

‘the Customs search, this Court held that

Andreas did not have any expectation of

privacy that the container would not again

be opened by police officers at the police

station. Id. at 3324-25. Unlike the

situation in Andreas, the instant packages

were opened for the first time after the

packages had been stored in the D.E.A.

warehouse for three days. Clearly there-

fore, Andreas does not apply to the

instant situation.

United States v. Edwards does not help

the government either. In Edwards, this

Court upheld the warrantless seizure of a

suspect's clothing several hours after he

had been arrested and jailed. 415 U.S. at

808-09. Edwards does not support the

government's argument because, like auto-

e MS «

vy

mobiles, arrestees have lesser expecta-

tions of privacy in their persons. Mincey

v. Arizona, 437 U.S. at 391. Consequent-

;

;

H

§

;

é

:

:

ly, an arrestee's person and his clothing

can be searched without a warrant. There

is no such lesser expectation of privacy

in packages. Consequently, Chadwick, dis-

cussed above, is much more applicable to

the instant situation than is Edwards.

While the cases cited by the government

do not support its argument, the rationale

of other decisions of this Court support

the decision of the Court of Appeals. See

Michigan v. Tyler, 436 U.S. 499 (1978),

United States v. Chadwick, 433 U.S. 1

(1977) (discussed above), G.M. Leasing

Corp. v. United States, 429 U.S. 338

(1977), Preston v. United States, 376 U.S.

364 (1964).

For example, in Michigan v. Tyler this

Court held that after extinguishing a fire

o «

in a building, officials may remain in the

building for a reasonable time to investi-

gate the cause of the fire. No warrant is

necessary for this investigation. 436

U.S. at 510. The fact that a warrantless

investigation is immediately permissible,

however, does not give officials the right

to return to the building days later to

conduct the inspection. If the inspection

is to be conducted days after tne exigency

of the fire has ended, the officials must

obtain a warrant before the building can

be entered. Id. at . Accord Michigan

v. Clifford, ¥.8. , 806 8.6. CAA,

648-49 (1984) (plurality opinion). Clear-

ly, the principle that the officials could

immediately inspect the building did not

result in a diminished expectation of

privacy days later when the officials

sought to conduct a subsequent inspection.

In G.M. Leasing Corp., supra, the

«- 28 «

gn Lt RO BE ge RENT my

evidence showed that law - enforcement

officials could have entered a building

without a warrant because exigent circum-

stances were present. 429 U.S. at 361-62

(Burger, C.J., concurring). Rather than

acting immediateiy, however, the ages

chose to wait two days before entering the

building. Id. This Court held that the

agents' delay prohibited them from enter-

ing the building without a warrant. Ild.,

429 U.S. at 358. Like the defendants in

Chadwick, Preston, Tyler and Clifford, the

defendant had a diminished expectation of

privacy in his building when law enforce-

ment officers were immediately entitled to

search the building without a warrant.

When the officers instead elected to delay

the search, the diminished expectation of

privacy did not continue. Rather, the

presumptive protection of the Warrant

Clause once again asserted itself and a

o SS «

warrant became necessary before the build-

ing could be entered. The common thread

in all these cases is that police were no

longer allowed to search without a warrant

when delay had undercut the reasons that

initially would have allowed such a

search. Any diminished expectation of

privacy that was created by an exception

to the warrant requirement was coterminous

with the reasons that gave rise to the

exception.

Similarly, in this case, the respon-

dents undoubtedly had a diminished expec-

tation of privacy in their packages when

the officers were entitled to search the

packages, without a warrant, as part of an

automobile search. When the officers

elected not to search the packages,

however, and instead transported them to

the D.E.A. warehouse in Tucson, the

respondents' expectation of privacy in

« 20 «

their packages was no longer diminished.

Rather, as in the above cases, the Warrant

Clause again demanded that the officers

obtain a warrant before inspecting the

packages. Again, a warrant was required

because the delay had undercut the reasons

which initially would have allowed a

warrantless search.

The balance of the cases cited by the

government simply do not apply to the

instant situation. Virtually all of those

cases involve the searches of automobiles.

For various reasons, this Court has

allowed the searches of automobiles long

after they have been immobilized by

impoundment at a law enforcement ware-

house. See e.g., Cooper v. California,

386 U.S. 58 (1967), Cady v. Dombrowski,

413 U.S. 433 (1973), Cardwell v. Lewis,

417 U.S. 583 (1974), South Dakota v.

Opperman, 428 U.S. 364 (1976). None of

» SA «

these cases involved the searches of

packages days after the packages had been

removed from automobiles. Consequently,

for the reasons discussed above, none of

these cases are applicable to the instant

situation.

= i «

“

II. Additional reasons that the Court

should deny the Petition.

EON Ma ONE AIT ILE OEE AE IO DGGE GE = OE

In addition to the merits of the issue

presented, respondents offer the following

additional reasons that this Court should

deny the Petition.

a. The decision below is not in

conflict with the decisions of other

circuits.

Petitioner argues to this Court that

the decision below is in conflict with

United States v. Rivera, 684 F.2d 308 (5th

Cir. 1982), United States v. Schecter, 717

F.2d 864 (3rd Cir., 1983), and Sharp v.

United States, 712 F.2d 65 (4th Cir.

1983). An examination of those cases,

however, reveals no such conflict.

United States v. Schecter, supra, did

not even involve the search of a package.

Consequently, it cannot be in conflict

with the decision below. In both United

— oe

States _v. Rivera, supra, and Sharp v.

United States, supra, searches of packages

found in automobiles were conducted about

two days after the packages had been

removed from automobiles. In neither

case, however, was the issue presented in

this case ruled on. Rather, in Rivera and

Sharp, the litigants never argued that the

delay in opening the packages rendered the

automobile exception inapplicable. There-

fore, the conflict asserted by the govern-

ment does not, in fact, exist.

In order to consider a conflict between

decisions of courts of appeals as a reason

for granting a petition, this Court

ordinarily requires a square and irrecon-

cilable conflict between the lower courts.

See, e.g., Avco Corp. v. Aero Lodge 735,

390 U.S. 557, 559 (1968); Northeastern

National Bank v. United States, 387 U.S.

213, 217 (1967). It has been suggested

— oe

that a conflict in decisions between

various circuits should be relied upon as

a ground for certiorari only in instances

where it is clear that the conflict is

evident and that it can be effectively

resolved only by the prompt action of this

Court alone. Mr. Justice Harlan, Some

Aspects of the Judicial Process in the

Supreme Court of the United States, 33

Australian L.J. 109 (1959).

No such irreconcilable conflict exists

here, since the circuit courts cited by

Petitioner have not even addressed the

issue upon which the lower court decision

was based in this case.

b. The decision in this case is not

one which is likely to affect a signi-

ficant number of future cases.

In determining whether or not to grant

a given petition, this Court has always

considered of paramount importance whether

» 28 «

or not the decision of the lower court

will have a significant impact on future

cases. See Stern and Gressman, Supreme

Court Practice, §4.11, pp.284-285 (1978).

The concept of importance relates, of

course, to the importance of the issues

"to the public as distinguished from"

importance to the particular "parties"

involved. Layne & Bowler Corp. v. Western

Well Works, 261 U.S. 387, 393 (1923); Rice

v. Sioux City Cemetary, 349 U.S. 70, 79

(1955).

The facts which give rise to this case

are not facts which should recur to any

Significant extent. In most cases where

officers arrest suspects in situations

akin to this one, they will have a clear

right to search packages found in an

automobile at the scene. This right, in

most contexts, is derived from several

well-established constitutional prece-

=

dents.

In United States v. Ross, 456 J.S. 798

(1982), this Court approved of an immedi-

ate search of items resting in an automo-

bile pursuant to the "automobile excep-

tion" to the warrant requirement. Like-

wise, in future cases, where immediate

searches are conducted with probable cause

at the time of the seizure of the

automobile, there will be no difficulty in

lower courts applying the Ross doctrine so

as to validate the searches.

Additionally, in jurisdictions’ which

allow inventory searches upon the seizure

of a_ vehicle, subsequent warrantless

searches of packages can be upheld based

on the inventory search rationale approved

by this Court in Illinois v. Andreas,

U.S. » 203 8.68. BBa0 (30638). The

"inventory search" rationale was never

argued in this case as a rationale for the

o BD «

government's warrantless search of the

packages, either before the District Court

or the circuit Court of Appeals.

Finally, in many cases where warrant-

less searches of packages found in an

automobile are made subsequent to lawful

arrests, warrantless package searches can

be justified as incident to the arrest of

these persons taken into custody. See,

e.g., New York v. Belton, 458 U.S. 259

(1981).

The issue presented for decision before

this Court is not likely to recur with any

frequency. Given the clear justifications

which will usually allow police officers

to search packages found in an automobile

at the scene of an arrest, delays of the

length which existed in this case will be

rare. Consequently, a decision by this

Court, given the peculiar circumstances of

this case, will not have any overriding

- 38 -

impact on the system.

CONCLUSION

There are various reasons the Petition

should be denied. First, the decision of

the Court of Appeals was correct on the

merits. All searches conducted without a

warrant are per se unreasonable, subject

to only a few limited exceptions. Gener-

ally, the exceptions are no broader than

is necessitated by the circumstances that

gave rise to the exceptions. For example,

after extinguishing a fire, authorities

are allowed to remain on the premises

without a warrant to investigate the cause

of the fire, and to ensure that it does

not reignite. If the investigation is

delayed, however, and the authorities seek

to investigate the cause days later, a

warrant is needed. Only when the authori-

ties are searching automobiles and the

persons of arrestees may the search be

=~

conducted without a warrant even after it

would be practicable to get one. This is

because there is lesser expectation of

privacy in the persons of arrestees and in

automobiles.

No such lesser expectation of privacy

exists in packages. Consequently, any

exception to the warrant requirement that

allows the warrantless search of packages

should be no broader than the circumstan-

ces that gave rise to the exception.

Packages may be searched without a warrant

when they are found in an automobile that

is subject to warrantless search. This is

allowed to facilitate the search of

automobiles for which no warrant is

needed. If, however, a package found in

an automobile is not searched as part of

the automobile search, but instead is

secured for several days in a government

warehouse, the reasons for allowing a

warrantless search no longer apply. The

reasons for allowing a warrantless search

of the automobile will not be advanced by

allowing a warrantless search of the

package. Consequently, a warrant should

be required before the package can be

opened. For the above reasons, it is

submitted that the decision of the Court

of Appeals was correct and should not be

disturbed by this Court.

The Petition should also be denied

because the decision below is not in

conflict with the decisions of other cir-

cuits of the Court of Appeals.

Finally, and perhaps most importantly,

the decision below should not have a

significant impact on future cases. In

Similar factual situations, the police

will be able to search the packages with-

out a warrant pursuant to other exceptions

to the Warrant Clause. Factual situations

—\ =

Similar to the instant one are unlikely to 3

recur with frequency.

For all of the above reasons, it is

respectfully requested that the Petition

be denied.

RESPECTFULLY SUBMITTED this 29th day of

Mey, 1984.

We AL

WILLIAM G. WAL

Ceuns or Respondents Redmond,

me

Sdato,

i 7

~~

ROBERT J. HIRSH

"cE. GE.

PETER KELLER

Counsel fo

fent Leon

MIGHAEL PICCARRETA

Counsel f dent Johns

WALTER NASH Za

Counsel for Respondent Hearron

o 68 a