Respondents Brief — Johnson v. Montana

No. 83-1625 |

In The -

Supreme Court of the United States

October Term, 1984

UNITED STATES OF AMERICA,

Petitioner,

LYLE GERALD JOINS, et al.

Ri sponds wits.

()—-—-

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—_——_— --— —- —__ - -(j- __+_-—_ - —_ -—— -~

BRIEF FOR RESPONDENTS

——_- — ————__—— ( ) —_—__—_—_—_—_—_——_—_—_

WILLIAM G. WALKER MICHAEL L. PICCARRETA

BERTRAM POLIS 2730 East Broadway

P.O. Box 3017 Tucson, Arizona 85716

Tucson, Arizona 85702 (602) 881-4984

(602) 792-2781 Attorney for Respondent Johns

Attorneys for Respondents

Gomez. Redmond and Soto PETER KELLER

NANCY G. POSTERO

ROBERT J}. HIRSH 111 W. Washington Street

L. ANTHONY FINES Tucson, Arizona 85716

12C West Broadway (602) 622-3909

Tucson, Arizona 85701 Attorneys for Respondent Leon

(602) 884-9630

Attorneys for Respondent

Duarte

WALTER B. NASH, Ill

P.O. Box 2310

Tucson, Arizona 85702

(602) 792-1613

Attorney for Respondent

Hearron

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

1. Whether the automobile exception to the warrant

requirement should be extended to allow the warrantless

search of packages found in an automobile three days

after their seizure when the focus of the police investiga-

tion was on the packages and there was no automobile

search in progress at the time of their seizure.

2. Whether the automobile exception to the warrant

requirement should be extended to allow searches not

justified by the reasons that support the exception.

ii

TABLE OF CONTENTS

Pages

Statement | | 1

Introduction and Summary of Argument 4

Argument I[

The warrantless search of packages three

days after their seizure from vehicles, not

the focus of searches themselves, violated the

Fourth Amendment 10

Argument II

The reasons supporting the Ross exception to

the Warrant Clause do not justify this search 15

Argument LIT

The other reasons advanced by the petitioner

do not justify reversing the Court of Ap-

peals 30

Conclusion . 40

TABLE OF AUTHORITIES

CasEs:

Agnelio v. United States, 269 U.S. 20, 30 (1925) ............ 39

Arkansas v. Sanders, 442 U.S. 753, 764-65 (1979)....9, 21, 34,

35, 37

Cady v. Dombrowski, 413 U.S. 433, 439 (1973) ................ 17, 20

Cardwell v. Lewis, 417 U.S. 583, 590 (1974) 20

Carroll v. United States, 267 U.S. 132, 153 (1925).....19, 20

Chambers v. Maroney, 399 U.S. 42, 61 (1970)......17, 19, 28, 37

Chimel v. California, 395 U.S. 752, 760, 768 (1969) ..9, 18,

23, 26, 27, 36, 37

Coolidge v. New Hampshire, 403 U.S. 443, 459-60

(RTE) aceceeensceeeessxevssasesssesssstssonmeneee 20, 28, 37

ili

TABLE OF AUTHORITIES—Continued

Pages

Cooper v. California, 386 U.S. 58, 62 (1967) 00 36

Ex parte Jackson, 96 U.S. 727 (1878) eee 12, 21

Florida v. Meyers, no. 83-1279 (Apr. 23, 1984) _6, 14, 15, 19

G.M. Leasing Corp. v. United States, 429 U.S. 338

itil eens _18, 19, 20, 23, 24, 27, 29

Illinois v. Lafayette, No. 81-1859 (June 20, 1983) ........... 37

Katz v. United States, 389 U.S. 347, 351-52 (1967) ..16, 17

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) ............... 37

Michigan v. Thomas, 458 U.S. 259, 261-62 & n. 2

a till 6, 20, 26

ae © Clifford, No. 82-357 (Jan. 11, “a

atc : 17, 18, 23, 27

Michigan v. Tyler, 436 U.S. 499, 511 (1978)........7, 18, 20, 23,

24, 26, 27, 29, 34

Mincey v. Arizona, 437 U.S. 385, 390 (1978)........... 5, 17, 18, 20,

23, 24, 27, 32

New York v. Belton, 453 U.S. 454, 457 (1981)........... 5, 7, 26, 39

Preston v. United States, 376 U.S. 364, 368 (1964) —18, 23

Rakas v. Illinois, 489 U.S. 128, 139 (1978) . . 16

Robbins v. California, 453 U.S. 420 (1981) —9, 10, 22, 33, 34

Segura v. United States, No. 82-5298 (July 5, 1984) —17, 31,

32

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

1983), cert. granted on other issues, No. 83-529

(June 18, 1984) oor i, ae

Smith v. Maryland, 442 U.S. 735, 740 (1979) .. —

South Dakota v. Opperman, 428 U.S. 364, 381

CC 17, 20, 36, 37

Terry v. Ohio, 392 U.S. 1, 19 (V9G7) nnnencccccceceneennennemeee 17, 23

iv

TABLE OF AUTHORITIES—Continued

Pages

Texas v. Brown, No. 81-419 (Apr. 19, 1983) 0. 17, 28

Texas v. White, 423 U.S. 67, 68 (1975) . 20

United States v. Chadwick, 433 U.S. 2 (1977) — passim

United States v. Edwards, 415 U.S. 800 (1974). 37, 39

United States v. Jacobsen, No. 82-1167 (Apr. 2, 1984) 21

United States v. Leon, No. 82-1771 (July 5, 1984) 26

United States v. Place, No. 81-1617 (June 20, 1983)

21, 28, 31, 32

United States v. Rabinowitz, 339 U.S. 56 (1950) —9, 26, 36

United States v. Rivera, 654 F.2d 1048, on reh’g.,

864 F.2d 308 (5th Cir. 1982) 0... = ey

United States v. Ross, 456 U.S. 798 (1982) 000. pace

United States v. United States District Court, 407

U.S. 297, 318 (1972) : sinless 17, 36, 37

United States v. Van Leeuwen, 397 U.S. 249 (1970) .. 12

Walter v. United States, 447 U.S. 447 U.S. 649

Weeks v. United States, 232 U.S. 383, 392 (1914) 39

OrgeR AUTHORITIES:

Fed.R.Crim.P. 41(c¢) (1)

Amsterdam, Perspectives on the Fourth Amend-

ment, 58 Minn.L.Rev. 349, 410-11 (1974) 000 17

Stewart, The Road to Mapp v. Ohio and Beyond:

The Origins, Development and Future of the

Exclusionary Rule in Search and Seizure Cases,

83 Colum.L.Rev., 1365, 1397 (1983) 000000 26, 37

The Fourth Amendment, U.S. Constitution —... passim

STATEMENT

Respondents adopt the statement of Petitioner in the

BRIEF OF THE UNITED STATES (hereinafter Pet.

Br.) with the following additions and corrections.

1. In Pet. Br. 3, the Petitioner recites that Customs

officers maintained surveillance of the two trucks as they

travelled one hundred miles to a private airstrip near

Bowie, Arizona. While enroute to Bowie, the vehicles

were stopped by Arizona state authorities who were in the

process of monitoring highway traffic. Upon noticing the

stop, surveilling Customs officers requested by radio that

the occupants of the trucks be identified. Customs offi-

cers thereafter learned the identity of the occupants of the

trucks. They also were told by the state police that the

occupants of the vehicles stated that they were en route to

Bowie to pick up an old auto which had broken down, but

upon examination of the trucks, the police could not detect

any towing equipment, bars, ropes, ete. They further

learned that one officer, upon examination, detected a toy

derringer in one of the vehicles. 11/9/81 Tr. 64, 208.

2. In Pet. Br. 4, Petitioner indicates that as the Cus-

toms officers approached the trucks to investigate, they

detected the odor of marijuana and then saw Respondents

throw a blanket over the contents of one of the trucks. Pe-

titioner then alleges that “[{i]n the trucks, the officers

found some 40 square packages wrapped in plastic and

dark green trash bags secured with tape.”

This recitation is both cursory and not fully supported

by the record. The first officer on the scene (Officer

Eshelman) noticed two trucks parked back to back as he

approached the vehicles. When the officer got within

1

about 30 yards of the vehicles, he noticed several indi-

viduals covering up plastic garbage bags in the rear end

of one of the trucks (a Chevrolet). He then exited his

vehicle, ordered the Respondents to come out from behind

the trucks, and approached the trucks. As he approached,

he smelled the odor of marijuana. He approached the

Chevrolet, opened the rear cargo door, which had just been

closed, and observed the packages which he had seen as he

exited his automobile some 30 yards away. He then

looked into the back of the other truck (the GMC), which

was open, and noticed similar packages there. 11/9/81

Tr. 212-16. The packages seen in each vehicle were of

two types: some were cardboard boxes wrapped in heavy,

double-ply green garbage bags which were taped with

heavy masking tape, and others were in two thicknesses

of heavy bags taped with masking tape. The packages

in each vehicle were partially covered by blankets, but

visible to the officer as he approached the vehicles. 11/9/81

Tr. 134.

As the first officer exited his vehicle, a second officer

(Officer Young) pulled up behind him. He exited his ve-

hiele and, as the officers approached the trucks together,

he smelled the odor of marijuana and saw the packages in

the open GMC truck simultaneously from a distance of ap-

proximately 15 to 20 feet. 11/9/81 Tr. 126-28. Both of-

ficers, at this point, believed the packagvs to contain mari-

juana based on the odor, their experience with smuggling

operations of this type, and the fact that marijuana was

commonly wrapped in packages of the sort they observed

as they approached. 11/9/81 Tr. 128, 216. The Respond-

ents were then placed under arrest. Officer Eshelman ad-

vised Officer Young that they had ‘‘two trucks loaded

with marijuana.” The trucks were transported to the

Drug Enforcement Administration headquarters in Tuc-

son and the packages stored in a warehouse for three

days.' Thereafter, the packages were opened and core

samples removed.? No searches of the trucks were done

at the scene or at any time thereafter. 11/9/81 Tr. 129,

215-17.

3. In the trial court and on appeal to the United

States Court of Appeals for the Ninth Circuit, the Peti-

tioner initially argued that the search of the packages was

permissible because the packages were discovered in plain

view and not as the result of any search of the vehicles.

Brief of Appellant, Ct. App. 5, 10-11.

The Petitioner's allegation, Pet. Br. 4, that “the officers

found some 40 square packages” in the trucks at the scene is

not supported by the record. There is no evidence that the of-

ficers did anything at the scene other than take a “quick look”

at the packages and then transport them to the Drug Enforce-

ment Administration headquarters. 11/9/81 Tr. 135. Neither

vehicle was searched at the scene. 11/9/81 Tr. 129. In his

statement of facts in support of his MEMORANDUM OF DE-

CISION AND ORDER, the trial court found only that the of-

ficers “view[ed] the sealed containers.” No search of the

vehicles or counting of the containers is to be found in the

record. Pet. App. 21a.

Petitioner's citations of authority for the allegation that

the packages were counted at the scene is not supported by

the one In fact, one citation given by Petitioner, 12/11/81

Tr. 35, indicates that when the packages were counted, at the

warehouse, there were “approximately” 44 sacks. There is no

indication from that citation that the packages of marijuana

were counted at the scene, or given anything other than a

cursory glance.

There is no evidence in the record to indicate how the

samples were removed from the packages, how much was taken

from each package of marijuana, or from which packages of

marijuana samples were taken.

4

INTRODUCTION AND SUMMARY OF ARGUMENT

This case presents two related but independent issues

with respect to the application of the automobile excep-

tion to the warrant requirement and its relationship to

package searches; (1) whether the automobile exception

to the warrant requirement should be extended to allow

the warrantless search of packages found in an automobile

three days after their seizure when the focus of the police

investigation was on the packages and there was no auto-

mobile search in progress at the time of their seizure; and

(2) whether the automobile exception to the warrant re-

quirement should be extended to allow searches not justi-

fied by the reasons in support of the exception.

Petitioner contends that the search of the packages

of marijuana performed at the station house three days

after the seizure of the packages was permissible because

of an “initial, concededly lawful search of the trucks” at

the scene. Pet. Br. 9-10. Petitioner reasons that since the

packages could have been lawfully searched there, that

they could lawfully be searched later pursuant to this

Court’s decision in United States v. Ross, 456 U.S. 798

(1282).

Ross, however, is not controlling given the facts of

this case. Ross applies only to situations where police

officers are engaged in a legitimate vehicle search and

need to search packages which are found during the

course of the search to finish the search. No vehicle

search was ever conducted in this case. Hence, pursuant

to this Court’s opinion in United States v. Chadwick, 433

U.S. 2 (1977), a warrant was required for the search of

the packages.

Even assuming that there was a legitimate vehicle

search at the scene, Ross should not be extended to cover

this case, because to so extend Ross would be to extend the

automobile «xception to the warrant requirement beyond

the reasons for the exception.

A. This case is not controlled by Ross because the

packages seized in this case were not seized as a part of an

ongoing vehicle search. Rather, they were seized

when the foeus of a police investigation was exclu-

sively on the packages at a time moments after they were

placed in the rear compartment of two pickup trucks.

There is no evidence in the record that the officers in this

case ever conducted a search of the vehicles in which the

packages were found or ever focused their investigation on

the vehicles. Therefore, the automobile exception to the

werrant requirement does not apply in this case. This

case must be governed by the general rule that packages

may be searched only with a warrant issued by a neutral

and detached magistrate.

B. Even if the Customs officers had lawfully

searched the trucks, they would not have been able to

search the packages three days later at the D.E.A. ware-

house without a warrant. All warrantless searches are

per se unreasonable, subject to a few, well-delineated ex-

ceptions. Mincey v. Arizona, 437 U.S. 385, 390 (1978).

These exceptions are no broader than the reasons that

gave rise to them. /d. at 405; New York v. Belton, 453

U.S. 454, 457 (1981). Most of these exceptions permit

warrantless searches only when it would be impracticable

to obtain a warrant. United States v. United States Dis-

trict Court, 407 U.S. 297, 318 (1972).

The presumption in favor of warrants does not apply

to automobiles. Florida v. Meyers, no. 83-1279 (Apr. 23,

1984), slip op. 3. The reason the presumption does not

apply is that since the time that the Fourth Amendment

was enacted, it has been understood that transportation

vehicles can be searched without a warrant. United States

v. Ross, 456 U.S. at 805-06. Therefore, the prac-

ticability of obtaining a warrant does not affect the right

to search an automobile. See M’chigan v. Thomas, 458

U.S, 259, 261-62 & n. 2 (1982). If the police have probable

cause, they can conduct a warrantless search of an auto-

mobile where it is found on the highway, or days later, af-

ter it has been impounded at the police station. Jd.

The presumption in favor of warrants does apply to

packages. United States v. Chadwick, 433 U.S. at 7. An

exception to this warrant requirement oecurs when the

packages are found inside an automobile during the course

of a lawful automobile search. United States v. Ross,

455 U.S. at 824-25. As part of the automobile search, the

police may conduct a warrantless search of the packages

if the object of their search might be found inside the

packages. /d.

Two reasons support this exception to the warrant

requirement. First, requiring the police who are conduct-

ing a lawful warrantless search of an automobile to stop

their scarch and apply for a wariunt any time a package

is found would unduly hinder the completion of the auto-

mobile search. The police would never be sure they had

completed the automobile search until they had obtained a

warrant to scarch every package found inside the automo-

bile. /d. at 820, 822, n. 28. This would undermine the ra-

tionale that permits the warrantless search of automobiles.

Second, the police and the lower courts need a bright line

rule that will tell them when a warrantless search is per-

missible and when it is not. Jd. at 803-04. This excep-

tion, which tells them that they may conduct a warrantless

search of packages as part of a lawful automobile search,

provides that bright line rule.

This exception to the warrant requirement, like its

other exceptions, should not be any broader than the

reasons that gave rise to it. The reasons behind this

exception do not justify its application to this case.

First, the search of the packages was delayed for

three business days. The agents had ample opportunity

to obtain a warrant during those three days. If they had

obtained a warrant, the search of the pickups would not

have been de!ayed or hampered in any way. The rationale

behind the automobile exception would not have been un-

dermined. Second, in drawing any bright line, the first

principle of Fourth Amendment jurisprudence, that all

warrantless searches are per se unreasonable, should be

emphasized. New York v. Belton, 453 U.S. at 457. Stress-

ing this principle, the Ross court drew the line so that

automobile scarches would not be made impractical by a

requirement that the police obtain a warrant every time a

package is found during an automobile search. Requir-

ing the police to obtain a warrant to search the packages

in this case would not have hindered or impeded the

search of the pickups. As this Court has done in the past,

the bright line should be drawn where it became prac-

ticable to get a warrant. M?chigan v. Tyler, 436 U.S. 499,

511 (1978), United States v. Chadwick, 433 U.S. at 15-16.

The Petitioner’s reliance on the various cases that

allow the warrantless search of automobiles days after

they have been impounded at the police station is mis-

placed. None of these cases involved the searches of

packages; they involved the searches of automobiles.

Since warrants are virtually never required to search an

automobile, the practicability of obtaining a warrant be-

fore the search is irrelevant. The same is not true of

packages. Warrants are normally required to search

packages. ‘Therefore, warrantless searches of packages

should not be allowed unless it was not practical to obtain

a warrant. If the police find a package in the course of a

lawful automobile search, it would be impractical to re-

quire them to obtain a warrant before they could complete

the automobile search by looking into the package. It is

not impractical, however, to require them to obtain a war-

rant days after the automobile search has been completed

and the packages have been secured in a government ware-

house.

C. The other reasons advanced by the Petitioner do

not justify reversing the Court of Appeals. Contrary to

the Petitioner’s argument, the statement in Ross, that the

warrantless search of an automobile may be as thorough

as a magisrate could authorize in a warrant (456 U.S. at

800), does not support this search. The Respondents do

not complain about the thoroughness of the search. Rath-

er, the Respondents complain that the packages were se-

cured for three days before they were searched without a

warrant.

The Petitioner also argues that the fact that the nov-

elty of Respondents’ position illuminates the ‘‘profession’s

9

understanding” that the position does not have merit. Be-

fore Ross, most litigants would have relied on Robbins v.

California, 453 U.S. 420 (1981). Only two years have

elapsed since Ross was decided. That is not enough time

to illuminate the profession’s understanding. Next, the

Petitioner argues that in most automobile searches, pack-

ages and other containers will be removed from the auto-

mobile before they are searched. The Respondents’ argu-

mentment is not based on the mere separation of the pack-

ages from the trucks. Rather, Respondents’ position is

that the focus of the investigation was limited to the pack-

ages and that their search was not part of any on-going

vehicle search.

Finally, the Petitioner argues that the Respondents

had a diminshed expectation of privacy in their packages

which would allow a warrantless search. To the extent

this argument is based on a claim that the packages could

not support any reasonable expectation of privacy be-

cause, by their very nature, they announced their contents,

Arkansas v. Sanders, 442 U.S. 753, 764-65, n. 13 (1979), it is

untenable. The District Court, after hearing all the evi-

dence, rejected this argument, finding that neither the

shape, nor any other characteristic of the packages, made

their contents readily ascertainable. Pet. App. 28a. Nev-

ertheless, Petitioner argues, relying on United States v.

Rabinowitz, 339 U.S. 56 (1950), that the searches were rea-

sonable. The Petitioner omits that Rab nowttz was over-

ruled by Chimel v. California, 395 U.S. 752, 760, 768

(1969). The search was not reasonable because it was a

search of packages without a warrant and because the

search was not done as part of an automobile search, but

was done three days later when the packages had been se-

cured at the D.E.A. warehouse. |

10

ARGUMENT

I.

The Warrantless Search Of Packages Three Days

After Their Seizure From Vehicles Not The Focus

Of Searches Themselves, Violated The Fourth

Amendment.

Prior to United States v. Ross, 456 U.S. 798 (1982),

this Court held that packages found in the course of a

lawful automobile search could be seized but not searched

themselves except pursuant to a legally obtained search

warrant. Robbins v. California, 453 U.S. 420 (1981). In

Ross, however, this Court overruled Robbins, holding that

the automobile search exception to the warrant require-

ment applies to all “containers and packages” found in-

side the vehicle during a lawful vehicle search. 456 U.S.

at 824-25.

In Ross, the police had information from a reliable

informant who told them that a subject would be ecarry-

ing nareotics in the trunk of his car. The informant,

who had been proven reliable in the past, gave a de-

tailed deseription of the driver and the automobile.

Upon seeing a vehicle and driver matching the deserip-

tions given, police officers stopped the vehicle and

began a thorough search of the interior of the vehicle.

They searched the entire interior of the car, including the

glove compartment. They then took the driver’s keys,

opened the trunk and found a closed brown paper bag.

The bag was opened, disclosing a number of glassine bags

containing a white powder, which the police believed to

be a nareotic drug. The police replaced the bag, closed

the trunk, and drove the car to headquarters.

At the station, they searched the car again, discover-

ing a zippered pouch in the trunk containing a large sum

11

of cash. A later laboratory analysis determined that the

powder in the paper bag was a narcotic.

Despite the fact that no warrant was obtained for

either the search of the brown paper bag during the first

search of the automobile or the search of the red zippered

pouch at the station house, this Court held that the searches

of both packages were legal pursuant to the automobile

exception of the warrant requirement.

Essential to this Court’s holding in Ross was the fact

that both the paper bag and the zippered pouch were found

“in the course of a legitimate warrantless search of an

automobile.” 456 U.S. at 817.

In Ross, this Court stressed practical considerations

that justify a warrantless search of the package found

in the course of a warrantless automobile search.

“When a legitimate search is underway, .. . nice dis-

tinctions between . . . glove compartments, uphol-

stered seats, trunks, and wrapped packages . . . must”

give way to the interest in the prompt and efficient

completion of the task at hand.” 456 U.S. at 821.

(emphasis added)

This Court’s holding in Ross was grounded in the

practical need of police officers to complete a search of

a vehicle wherein they suspect contraband might be found

when the locus of the contraband is undetermined. In

such a ease, this Court reasoned that to allow less than

a search of the entire automobile would be to frustrate

the purpose of the automobile exception to the warrant

requirement.

“The practical considerations that justify the war-

rantless search of an automobile continue to apply

12

until the entire search of the automobile and its con-

tents has been completed.” Jd. at 821, n. 28.

The Court’s decision in Ross, which allows the war-

rantless search of the package found during the course

of a legitimate automobile search must be contrasted with

the general rule that police officers must obtain a warrant

to search a package, even if the package is found in an

automobile, whea the focus of the investigation is net on

the automobile, but rather on the package.

In United States v. Chadwick, 433 U.S. 1 (1977), this

Court considered the search of a footlocker which agents

had probable cause to believe contained nareoties which

had been loaded into the trunk of a vehicle. In determining

that a warrant was required to search the footlocker even

though it had been lawfully seized from an automobile, this

Court reaffirmed the historical principle that sealed pack-

ages are included in the reach of the Warrant Clause. 433

U.S. at 10. Cf. United States v. Van Lecuwen, 397 U.S. 249

(1970); Ex parte Jackson, 96 U.S. 727 (1878).

This Court explicitly recognized in Ross that Chad-

wick still applies. But the contrasting facts in Ross and

Jhadwick provide the basis for the distinction between

when packages may or may not be searched without a war-

rant. As in Ross, packages may legally be searched with-

out a warrant if they are seized during the course of a

legitimate automobile search in which the focus of the

search is on the automobile and whatever contents the au-

tomobile contains. Packages may be searched only with

a warrant where the focus of the investigation is on the

packages themselves and not on the entirety of the ve-

hicle in which they are placed.

13

The facts of this case require the issuance of a war-

rant prior to the search of the packages themselves. The

following are facts from which one must conclude that the

focus of the police investigation at the time of the seizure

of these packages was on the packages themselves, not

on the vehicles:

1. At the scene of the seizure, no search of either of

the vehicles was performed. In fact, when asked whether

he performed any search, Officer Young indicated that he

did not. 11/9/81 Tr. 129. In its MEMORANDUM OF

DECISION AND ORDER, the trial court found only that

the police officers’ “view[ed] the sealed containers” before

they handeuffed and arrested the Respondents and took

the containers to a warehouse. Pet. App. 21a.

2. There is nothing in the record to establish that a

search of the vehicles was performed at any time subse-

quent to the vehicles being removed from the scene of the

seizure.

3. All indications in the record are that the police

officers focused their attention exclusively on the pack-

ages from the moment they arrived on the scene. Both

officers testified at trial that they believed that marijuana

was in the boxes because, in their common experience, mari-

juana was “commonly” packaged in a like manner. They

further knew that prior to their seizure of the packages,

there had been no odor of marijuana eminating from the

trucks and no packages in the trucks when they were

stopped a short time earlier by Arizona state police on

the highway.

An additional indication that the focus of the investi-

gation was directed at the packages and not the automobile

14

is the position of the Petitioner before the trial court and

the United States Court of Appeals for the Ninth Circuit

prior to this Court’s decision in Ross. Before both lower

lower courts, Petitioner’s initial position was that the

search of the packages at issue was justified without a

warrant on the grounds that they were seized, not pur-

suant to any search, but because they announced their

contents by being within the plain view of the officers as

they approached the trucks.’ Indeed, the focus of the po-

lice investigation on these packages began, not during a

legitimate warrantless search of a vehicle pursuant to the

automobile exception, but while the police officers were

approaching the Respondents from a distance of 15-30

feet.

Petitioner argues that a line of cases upholding sta-

tion house automobile searches after some delay supports

the search of the packages in this case. Pet. Br. 18-21.

Those cases provide no help in determining the legitimacy

of the search in this ease. In each of those cases, although

there was a delay in the search at issue, the subsequent

search which the police conducted at the station house was

an automobile search with the focus of the investigation

on the automobile as a whole and its contents, whatever

they might be. For example, in Florida v. Myers, No. 83-

1726 (Apr. 23, 1984), the defendant’s car had initially been

searched when he was arrested. His car was then im-

pounded and searched a second time without a warrant

3While it is clear from the trial court’s Order and the Opin-

ion of the Court of Appeals that the facts of the case did not

put the marijuana in “plain view”, the position of Petitioner

that the packages were not seized pursuant to a search of the

vehicles is a clear indication that the focus of the officers was

on the packages.

15

at which time additional evidence was discovered. When

the Florida District Court of Appeal ruled that the evi-

dence found during the second search should have been

suppressed, this Court summarily reversed, finding that

the second search was subject to the automobile exception.

In this case, unlike Meyers, there is no evidence of a later

vehicle search to which the automobile exception can apply.

In this case, the focus was always on the packages.

Juxtaposing this Court’s holdings in Chadwick and

Ross, it is clear that the difference between those two

decisions is that in Chadwick, the focus was on the foot-

locker, whereas in Ross, the focus was on the automobile

and the police searched the packages as part of an on-

going vehicle search. In this case, the focus of the police

officers, by their testimony and by their actions, was on

the packages and not on the vehicles. No legitimate ve-

hicle search was in progress when the packages were

seized. Consequently, this case must be governed by the

law of package searches, which requires a warrant, and

not by the automobile exception to the warrant require-

ment.

II.

The Reasons Supporting The Ross Exception To

The Warrant Clause Do Not Justify This Search.

Even if the Customs officials had conducted a law-

ful warrantless search of the trucks, they would not have

been able to open the packages three days later at the

D.E.A. warehouse in Tucson without a warrant. Under

normal circumstances, a warrant is required to search

packages. An exception to that requirement occurs when

the packages are found in an automobile in the course

16

of a lawful automobile search. Well-established Fourth

Amendment principles prohibit the search of these pack-

ages, because the reasons that would justify an exception

to the warrant requirement if the packages had been

search: d contemporaneously with the trucks no longer ap-

plied when the packages had been secured at the D.E.A.

warehouse.

The applicable principles.

The threshold question in any Fourth Amendment

analysis is whether a person has a reasonable expecta-

tion of privacy in the house, paper or effect that has been

seized or searched. Katz v. United States, 389 U.S. 347,

351-52 (1967); Rakas v. Illinois, 439 U.S. 128, 139 (1978).

Unless such a reasonable expectation of privacy exists,

the Fourth Amendment inquiry is at an end. Jd. at 139-

40. The expectation of privacy that is necessary to

trigger the protection of the Fourth Amendment was

separated into two components by Justice Harlan. First,

ths person must have an actual, subjective expec-

tation of privacy. Second, that subjective expectation of

privacy must be one that society is prepared to recog-

nize as reasonable. Katz v. United States, 389 U.S. at

361 (Harlan, J., coneurring). The second component is

virtually always met if the person’s subjective expecta-

tion is objectively justifiable under the cireumstances.

Smith v. Maryland, 442 U.S. 735, 740 (1979). Justice

Harlan’s analysis has been adopted by this Court. /d.

If the subjective expectation is recognized, the Fourth

Amendment creates a strong presumption in favor of war-

17

rants. Mincey v. Arizona, 437 U.S. at 390 (1978).4 The

few exceptions that have been created to this rule have

been specifically established and well-delineated. Jd. In

keeping with the presumption in favor of warrants, these

exceptions are no broader than necessary to satisfy the

reasons that gave rise to them.’ This is especially true

when an exception allows the search of an area that is

normally protected by the warrant requirement. ‘T'ypical-

ly, these exceptions are allowed because the immediate

objective requirements of the situation make it impractic-

able to get a warrant. See United States v. United States

District Court, 407 U.S. 297, 318 (1972). This Court has

‘The Mincey court unanimously held that warrantless

searches are per se unreasonable. 437 U.S. at 390, 405 (Rehn-

quist, J., concurring in part and dissenting in part). This ‘first

principle of Fourth Amendment jurisprudence”, New York v.

Belton, 453 U.S. 454, 457 (1981), enjoys a long history of sup-

port in this Court. See Ross v. United States, 456 U.S. at 824-

25; G.M. Leasing Corp. v. United States, 429 U.S. 338, 352-

53 (1977); South Dakota v. —. aang 428 U.S. 364, 381 (1976)

(Powell, J., concurring); Chambers v. Maroney, 399 U.S. 42, 61

(1970) (Harlan, J., concurring in part and dissenting in part);

Katz v. United States, 389 U.S. at 356-57; United States v. Rabin-

owitz, 339 U.S. 56, 70-71 (Frankfurter, J., dissenting); see Mich-

igan v. Clifford, No. 82-357 (Jan. 11, 1984), slip op. 4 (plurality

opinion); Cady v. Dombrowski, 413 U.S. 433, 439 (1973); Am-

sterdam, Perspectives on the Fourth Amendment, 58 Minn.L.

Rev. 349, 410-11 (1974).

‘Segura v. United States, No. 82-5298 (july 5, 1984), slip

op. 7-8 (Stevens, J., joined by Brennan, Marshall & Blackmun

j.J., dissenting); New York v. Belton, 453 U.S. at 457 (majority

opinion), 464 (Brennan, J., joined by Marshall, J., dissenting);

Mincey v. Arizona, 437 U.S. at 393, 405 (unanimous opinion);

Chambers v. Maroney, 399 U.S. at 61-62 (Harlan, J., concurrin

in part and dissenting in part); Terry v. Ohio, 392 U.S. 1, 1

(1967); United States v. Rabinowitz, 339 U.S. at 70-71 (Frank-

furter, }., WO —) ~ see Texas v. Brown, No. 81-419, slip op. 2

(Powell, J., joined by Blackmun, J., concurring in the judgment).

18

repeatedly rejected attempts by prosecutors to justify

searches under these exceptions when the search, which

would have been initially permissible without a warrant,

has been delayed for sufficient time to make obtaining a

warrant practicable. See e.g., Michigan v. Clifford, No.

82-357 (Jan. 11, 1984); Michigan v. Tyler, 436 U.S. 499

(1978); G.M. Leasing Corp. v. United States, 429 U.S. 338

(1977); United States v. Chadwick, 433 U.S. 1 (1977); ef.

Mincey v. Arizona, 437 U.S. at 393-94; Chimel v. Califor-

nia, 395 U.S. 752, 762-63 (1969).

For example, this Court has permitted arresting of-

ficers to search any item, including a package, that is in

the immediate control of an arrestee. An immediate war-

rantless search is permissible because there is always

some danger that the person arrested may seize and de-

stroy evidence from an area in his immediate control or

because he might gain possession of a weapon that could

be used against the arresting officers. Chimel v. Califor-

nia, 395 U.S. at 763. In Chadwick, this Court held that the

search incident to arrest exception did not apply to the

search of a footlocker that had been taken from the area

within the immediate control of the arrestee but not

searched until after a delay of one hour when it was se-

cured at a government warehouse. The exception did not

apply because once the footlocker was in the exclusive

possession of the police, there was no longer any danger

that the arrestee might gain access to it to seize a weapon

or destroy evidence. It was once again practicable to get

a warrant. United States v. Chadwick, 433 U.S. at 15; see

also Preston v. United States, 376 U.S. 364, 368 (1964).

Similarly, in Michigan v. Tyler, this Court held that

investigators may make an immediate warrantless entry

19

into a building after a fire has been extinguished to deter-

mine its cause and to ensure that it does not reignite. If

they want to enter the building days after the fire has

been extinguished, however, they must obtain a warrant.

436 U.S. at 511. Accord G.M. Leasing Corp. v. United

States, 429 U.S. at 361 (Burger, C.J., coneurring) (an

exigency which would have permitted an immediate war-

rantless search of a building did not support a warrant-

less search two days later when it would have been prac-

ticable to obtain a warrant).

The principles applied to automobiles.

The Fourth Amendment rule, that a warrant is vir-

tually always required before a person’s reasonable ex-

pectation of privacy can be invaded by a search, does not

apply to automobiles. If police officers have probable

cause, they can execute a warrantless search of an auto-

mobile where it is found on the street or, if they choose,

long afterwards, when it has been impounded at the police

station... Florida v. Meyers, No. 83-1279 (Apr. 23, 1984),

slip op.8; Chambers v. Maroney, 399 U.S. at 51-52. More-

over, if the object of the search might be secreted within

the upholstery of an automobile, the police do not need a

warrant to rip apart that upholstery to find the evidence

or contraband. Carroll v. United States, 267 U.S. 132, 153

(1925); see United States v. Ross, 456 U.S. at 804-05 &

818.

The reason that society is not prepared to recognize

any subjective expectation that automobiles will be free

from warrantless searches is that the very same Congress

that ratified the Fourth Amendment also enacted a statute

20

that permitted the warrantless searches of ships, but not

the warrantless searches of homes. /d. at 805-06. Since

the same persons who enacted the Fourth Amencment did

not believe that it prevented the warrantless probable

cause searches of the predecessors of automobiles, a ma-

jority of this Court has reasoned that the Fourth Amend-

ment did not create a guarantee that automobiles can only

be searched with the protection of a warrant. Jd.°

Unlike those exceptions which permit a search where

a warrant would normally be required, the automobile ex-

ception is not limited by the practicability of obtaining a

warrant. See Michigan v. Thomas, 458 U.S. 259, 261-62

& n.2 (1982); Texas v. White, 423 U.S. 67, 68 (1975). Com-

pare Michigan v. Tyler, 486 U.S. at 51); G.M. Leasing

Corp. v. United States, 429 U.S. at 361; United States v.

Chadwick, 433 U.S. at 15; Mincey v. Arizona, 437 U.S. at

393-94. Sinee a warrant is virtually never required to

search an automobile, the practicability of obtaining a war-

rant before searching an automobile is not relevant.

*In addition to this historical reason, various other reasons

have been advanced to justify warrantless automobile searches.

Among those are that automobiles are subject to heavy reg-

ulation and inspection and that an automobile’s main function

is transportation, not the repository of personal effects. See

South Dakota v. Opperman, 428 U.S. 364, 367-68 (1976); Card-

well v. Lewis, 417 U.S. 583, 590 (1974); Cady v. Dombrowski,

413 U.S. 433, 441-42 (1973). Additionally, on some occasions,

the Court has noted that an exigency is created because the

mobility of an automobile would allow it to leave the jurisdic-

tion before a warrant could be obtained. Coolidge v. New

Hampshire, 403 U.S. 443, 459-60 (1971); Carroll v. United

States, 267 U.S. at 153. Since those cases, however, a majority

of this Court has held that an automobile can be searched with-

out a warrant, apart trom any exigency that may be created

by its mobility. See Michigan v. Thomas, 458 U.S. at 261-62

n.2; Texas v. White, 423 U.S. at 68.

21

The principles applied to packages.

In United States v. Chadwick, the government at-

tempted to use the same arguments that had persuaded

this Court to allow the warrantless search of automobiles

to allow the warrantless search of packages. 433 U.S. at 7.

With respect to packages, however, the argument did not

have the same impressive historical pedigree. One hun-

dred years earlier, this Court had decided Ex parte Jack-

son, 96 U.S. 727 (1878), wherein it was stated that the

Warrant Clause applied to packages. Jd. at 733. The

Jhadwick court followed Jackson and held that packages

enjoy the full protection of the Warrant Clause. 433 U.S.

at 10-11. Sinee Chadwick was decided, this Court has re-

peatedly stated that the presumption of the Fourth Amend-

ment that all searches be conducted pursuant to a warrant

is applicable to packages. See e.g. United States v. Jacob-

sen, No. 82-1167 (Apr. 2, 1984), slip op. 4; United States

v. Plece, No. 81-1617 (June 20, 1983), slip op. 5 & n.3;

Walter v. United States, 447 U.S. 649 (1980); United

States v. Ross, 456 U.S. at 812. Moreover, this Court has

refused to draw a distinction between worthy and un-

worthy containers. United States v. Ross, 456 U.S. at 822.

Instead, this Court has held that all containers, unless their

outward appearance announces their contents, manifest

a subjective expectation of privacy that society is pre-

pared to recognize and accord the protection of the War-

rant Clause. Jd. at 811-12, 822.

While this Court touched upon the apparent tension

that exists between the principles that allow a warrant-

less search of automobiles and those which do not permit

the warrantless search of packages, in United States v.

Chadwick, 443 U.S. 1 (1977) and Arkansas v. Sanders,

22

449 U.S. 753 (1979), that conflict was not addressed until

the Court decided Robbins v. California, 453 U.S. 420

(1981). A plurai:ty in Robbins held that packages found

inside an automobile which was subject to a probable

cause search could not be opened and searched without a

warrant. Jd. at 428. Justice Powell concurred, but noted

that the dissenters had a strong argument that the right

of the police to conduct a warrantless search of the auto-

mobile created an exigency as to the packages that would

also allow them to search the packages without a warrant.

Id. at 435 (Powell, J., concurring in the judgment). Jus-

tice Powell, however, did not believe that the posture of

the Robbins case permitted that argument to be addressed,

and he therefore concurred in the plurality’s judgment.

United States v. Ross, 456 U.S. at 815-17.

In United States v. Ross, the argument was addressed.

The Ross majority quoted with approval that portion of

Justice Powell’s opinion suggesting that the automobile

exception created an exigency as to the packages. Jd. at

816. Overruling Robbins, the Court went on to hold that

if the police have probable cause to believe that contra-

hand or evidence is secreted in some unidentified portion

of an automobile, they may search every part of the auto-

mobile, without a warrant, including any cofitainer found

therein that might conceal the object of the search. Jd.

at 824-25.

This Court advanced two reasons to justfy this excep-

tion to the normal rule that packages cannot be searched

without’ a warrant. First, the Court reasoned that there

is a need for a bright line rule which will clearly tell the

police and the lower courts when a warrantless search is

23

permissible and when it is not. Jd. at 803-04, 825 (Black-

mun, J., concurring), 826 (Powell, J., coneurring). Sec-

ond, the Court noted that the practical considerations in-

volved in an automobile seach would be defeated if pack-

ages found inside the automobile could not be searched

without a warrant. If a package could not be searched

without a warrant, the warrantless search of the automo-

bile would be delayed until a warrant for the package

was obtained since, until the package was opened, the

police could never be certain that the object of their

search was not secreted in a yet-undiscovered portion of

the vehicle. That result would be directly inconsistent

with the Carroll rationale. United States v. Ross, 456

U.S. at 820 & 822, n.28. In satisfaction of these practical

considerations, the Ross Court held that the scope of the

search is no broader or narrower than what a magistrate

could legimately authorize by a warrant. Id. at 825.

Therefore, while the Ross Court recognized that pack-

ages normally cannot be searched without a warrant, it

held that the objective circumstances of an automobile

search create an exigency that justifies an exception to

that rule. This exception to the Warrant Clause, like its

other exceptions, should he “strictly limited by the exig-

encies which justify its initiation.” Mincey v. Arizona, 437

U.S. at 393, quoting Terry v. Ohio, 392 U.S. at 25-26. See

Michigan v. Clifford, No. 82-357, slip op. 6-7; Michigan

v. Tyler, 486 U.S. at 511; G.M. Leasing Corp. v. United

States, 429 U.S. at 361 (Burger, C.J., coneurring) ; United

States v. Chadwick, 433 U.S. at 15; Chimel v. California,

395 U.S. at 762-63; Preston v. United States, 376 U.S. at

367.

24

The principles applied to this search.

The packages searched in this case were found in

trucks near Bowie, Arizona. The packages were not opened

or searched until three days later, after the packages had

been removed from the trucks and secured at the D.E.A.

warehouse in Tucson.

In attempting to justify this search, the Petitioner

begins by explaining that packages found in an automobile

may be searched without a warrant as part of an automo-

bile search. Pet.Br. 15-16. The Petitioner thereafter al-

most exclusively relies on the various cases which hold

that warrantless automobile searches may be conducted

immediately on the scene where the automobile is found,

or days later, after it has been secured at the police sta-

tion. Id. at 16-27. None of these cases involve the war-

rantless search of packages at a government warehouse

days after the packages had been removed from an auto-

mobile.

There is a strong presumption in favor of search

warrants. The few exceptions to this rule are no broader

than the reasons that gave rise to them. When an ex-

ception permits a search which would normally require

a warrant (like the search of a package), the exception

is limited by the practicability of obtaining a warrant.

Once it becomes practicable to obtain a warrant, one must

be obtained before a search will be permitted. See e.g.,

Michigan v. Tyler, 436 U.S. at 511; G.M. Leasing Corp.

v. United States, 429 U.S. at 361 (Burger, C.J., coneur-

ring); United States v. Chadwick, 433 U.S. at 15-16; Min-

cey v. Arizona, 437 U.S. at 393-94.

25

Two reasons support the exception that allows the

warrantless search of packages found in an automobile

subject to a warrantless search. First, forcing the police

to obtain a warrant to search the packages would unneces-

sarily delay and impede the automobile search, thus un-

dereutting the judgment of the drafters of the Fourth

Amendment that vehicles can be searched without a war-

rant. Second, the police and the lower courts need a

bright line dividing when warrantless searches are allowed

and when they are not. United States v. Ross, 456 U.S.

at 803-04, 820-22.

Neither reason supports the search of these pack-

ages. First, the search was delayed for three business

days. Pet.App. 2a. The agents had ample opportunity

to obtain a warrant during those three days. If the agents

had obtained a warrant during that period, the search

of the trucks themselves would not have been further

delayed or impeded. The rationale supporting Carroll

would not have been undermined. Indeed, it appears

that by the time the packages were searched, any search

of the urucks had long since been completed. Undoubt-

edly, this is because the focus of the investigation, right

from the beginning, was on the packages, not on the

trucks. The first reason for the exception does not offer

any support whatsoever for this search.

Second, police and the lower courts need rules of easy

application as to when warrants are required. The Peti-

tioner argues that any such bright line rule should allow

the search that occurred here. Vet.Br. 23-25, 27 & n.i3.

But, in formulating any rule that allows a warrantless

search where a warrant would normally be required, the

first principle of l’ourth Amendment jurisprudence, that

26

there is a heavy presumption in favor of warrants,’

should be remembered. Any bright line rule should not

stray far from this principle. See Chimel v. California,

395 U.S. at 765-66; United States v. Rabinowitz, 339 U.S.

56, 79-81 (1950) (Frankfurter, J., dissenting). See also

Stewart, The Road to Mapp v. Ohio and Beyond: The

Origins, Development and Future of the Exclusionary

Rule in Search and Seizure Cases, 83 Colum.L.Rev., 1365,

1397 (1983).

Surely, fire investigators need a bright line that will

tell them when they can enter a building to determine

the cause of a recently extinguished fire. This Court

has allowed such an entry immediately after the fire has

been extinguished and even a few hours later, if condi-

tions ake an immediate investigation impossible. But

a warrantless entry a few days later is not permitted.

Michigan v. Tyler, 436 U.S. at 511. In accordance with

the Fourth Amendment presumption in favor of warrants,

the bright line was drawn where it became practicable

to get a warrant. Accord United States v. Chadwick, 433

U.S. at 15-16. Thus, while other pressing law enforce-

ment duties may have permitted a delay of the search

ot these packages for a few hours, the bright line should

be drawn where it became practicable to obtain a war-

rant. The Petitioner, however, complains that a line

7New York v. Belton, 453 U.S. at 457; see Ross v. United

States, 456 U.S. at 824-25; Mincey v. Arizona, 437 US. at 393,

405 (unanimous opinion).

8This would be consistent with United States v. Leon, No.

82-1771 (July 5, 1984). After Leon, police officers will be en-

couraged to always obtain the warrant, as that will insulate

them from both civil liability and the Exclusionary Rule. Af-

firming the Court of Appeals will even further encourage the

police to obtain a warrant whenever practicable.

27

which closely adheres to the Fourth Amendment presump-

tion in favor of warrants will unduly inconvenience law

enforcement officials in the completion of their duties.

Pet.Br. 25. But the inconvenience to law enforcement

officials is never a sufficient reason to dispense with the

warrant requirement. Mincey v. Arizona, 437 U.S. at 393.

As the Court of Appeals recognized, Pet.App. la-

12a, the reasons that underlie the Ross exception do ‘not

support this search. To apply the exception would be

contrary to the long line of cases which have refused to

expand exceptions to the warrant clause beyond the rea-

sons that gave rise to the exeeptions.? Given that the

reasons for the exception do not apply, Chief Justice

Burger’s statements for the Court in United States r.

Chadwick are equally applicable here:

“Even though on this record the issuance of a war-

rant by a judicial officer was reasonably predictable,

a line must be drawn. 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 [packages] to be searched come[ ] under the ex-

elusive dominion of police authority. Respondents

were therefore entitled to the protection of the War-

rant Clause with the evaluation of a neutral magis-

trate, before their privacy interests in the contents of

the | packages] were invaded.” 433 U.S. at 15-16.

Nonetheless, the Petitioner argues that this case should

be governed by the cases which permit a delayed warrant-

less search of an automobile, Pet.Br. 16. Since the time

*Michigan v. Clifford, No. 82-357, slip op. 9; Michigan v.

Tyler, 436 U.S. at 511; Mincey v. Arizona, 437 U.S. at 393-94;

United States v. Chadwick, 433 U.S. at 15-16; G.M. Leasing

Corp. v. United States, 429 U.S. at 361 (Burger, C.)., concurring);

Chimel v. California, 395 U.S. at 762-63.

28

the Fourth Amendment was enacted, automobiles (or their

predecessors) have not been protected by the Warrant

Clause.’ In delineating the scope of the automobile ex-

ception, therefore, the practicability of obtaining a war-

rant is not relevant. The same is not true of packages.

Packages normally are protected by the Warrant Clause.

Therefore, like other areas that .re protected by the clause,

the scope of any exception that allows their search should

be delineated by the practicability of obtaining a warrant.

The confusion of these principles by the Petitioner

is illustrated by its discussion of Chambers v. Maroney.

See Pet.Br. 16. The Petitioner quotes that portion of

the Chambers opinion where this Court stated that if there’

is probable cause to search an automobile on the road,

“that probable cause factor still obtain[s] at the station

house.” Chambers v. Maroney, 399 U.S. at 52. The Peti-

tioner ignores the next sentence of the Chambers opinion

where the Court states: “there is little to choose in terms

of practical consequences between an immediate search

without a warrant and the car’s impoundment until a war-

rant is obtained”. Jd. While this may be true of automo-

mobiles, it is clearly not true of packages. This Court

has repeatedly stated that there is an important differ-

ence between impounding a package in anticipation of

obtaining a warrant and the warrantless search of a pack-

age. United States v. Place, No. 81-1617 (June 20, 1983),

slip op. 4-5; Texas v. Brown, No. 81-419 (Apr. 19, 1983),

slip op. 2 (Stevens, J., coneurring in the judgment) ; Walter

United Stattes v. Ross, 456 U.S. at 805-06. But see Cool-

idge v. New Hampshire, 403 U.S. 443, 458-64 (1971).

v. United States, 447 U.S. at 654. The Warrant Clause

permits the former, but prohibits the latter. Jd. There-

fore, the opening of these packages implicated Fourth

Amendment rights that were not touched upon by their

mere seizure.

The Petitioner also argues that since the packages

could have been searched at the time they were seized, the

Respondents had no legitimate expectation of privacy that

they would not be searched a few days later. Pet.Br. 23-

24. A legitimate expectation of privacy has two com-

ponents. The District Court found that the Respond-

ents had manifested a subjective expectation of pri-

vacy in the packages. See Pet.App. 26a, see also 11/

10/81 Tr. 40-41. If the packages had been found dur-

ing the course of a lawful search of the trucks, a warrant-

less search could have been conducted of them as part of

the truck searches. The objective circumstances of the on-

going truck searches would have made it unreasonable to

fully recognize the Respondents’ subjective expectation of

privacy. Once the packages had been secured at the D.E.A.

warehouse, the objective cireumstances had changed. There

was no on-going search of the trucks. It was again prac-

ticable to obtain a warrant. The Respondents’ subjective

expectations of privacy should have been fully recognized

even though, at some previous time, the packages may have

been subject to a warrantless search. See Michigan v.

Tyler, 436 U.S. at 511; United States v. Chadwick, 433 U.S.

at 15-16; G.M. Leasing Corp. v. United States, 429 U.S. at

361 (Burger, C.J., concurring)."'

"The Petitioner makes a similar ment in Argument C

of its Brief. There, Petitioner argues t since the packages

(Continued on next page)

30

ITI.

The Other Reasons Advanced By The Petitioner

Do Not Justify Reversing The Court of Appeals.”

1) The Court's ruling in Ross that the scope of a warrant-

less automobile search is as broad as a search that could

be authorized by a magistrate should not affect the out-

come of this case.

In Ross, this Court held that the warrantless search

of an automobile could be “as thorough as a magistrate

could authorize in a warrant.” 456 U.S. at 800. From

this holding, the Petitioner argues that the search of the

packages was clearly permissible. Pet.Br. 28-30. But, as

explained above, the Respondents do not complain of the

thoroughness of the search. If the agents were allowed

to search the trucks, they were also allowed to contempo-

raneously search the packages. United States v. Ross, 456

(Continued from previous page)

have been opened at the airstrip near Bowie, the Re-

— ts had a reduced expectation ot privacy that would

allow the packages to be opened three days later. Pet.Br. 36-

37. An expectation of privacy has two components. First, the

defendant must have an actual subjective expectation of pri-

vacy. Second, that expectation must be objectively reasonable

a the circumstances. While the objective ot ou of the

expectation of privacy may have been sufficiently diminished

when the packages were at the airfield to allow a warrantless

search, that does not mean that objective circumstances do

not change. Later, when the packages had been secured, un-

, for three days at the D.£.A. warehouse in Tucson, the

jective circumstances had changed. It was practicable to

get a warrant. The Respondents’ reasonable expectation of

privacy was complete.

'2$ome of the arguments made in this section of the Pe-

titioner’s Brief are very similar to arguments made in other

portions of the brief. Answers to those arguments were made

above and will not be repeated here.

31

U.S. at 824-25. Rather, the Respondents’ complaint is that

the packages were secured for three days in the D.E.A.

warehouse before they were opened without a warrant.

When this Court said that a warrantless search could be

as thorough as a search authorized by a warrant, it was

speaking about the instrusiveness of the search, not the

length of time that packages could be held without con-

ducting any search whatsoever.

Nevertheless, if the issue were presented, it is doubtful

that any magistrate would authorize the seizure of these

packages for three days, without their being opened, ab-

sent some substantial justification. See Segura v. United

States, No. 82-5298 (July 5, 1984), slip op. 7-9 (Stevens, J.,

dissenting). In Segura, it was recognized that the police

may, under certain circumstances, seize an item in antici-

pation of obtaining a search warrant. Id. at 10-14 (Burger,

C.J., joined by O’Connor, J.). The purpose of the seizure,

however, is to give the police the opportunity to obtain

a warrant. Jd. Any seizure that is longer than what is

longer than what is reasonably necessary to obtain a war-

rant would be unreasonable. Jd. at 8-10 (Stevens, J., dis-

senting). United States v. Place, No. 81-1617 (June 20,

1983) is illustrative. There, on reasonable suspicion, the

police were permitted to seize a suitease so that a trained

dog could sniff it to determine if it contained contraband.

This Court, however, held that the 90-minute detention

of the suitease (which incidentally caused the detention

of its owner) was unreasonable, because that was longer

than what was necessary to have a dog smell the suitcase.

Id. at 12-13. See Segura at 8 (Stevens, J., dissenting). If

the 90-minute detention in Place was too long, undoubtedly

a magistrate would not have authorized a three day delay

in this case.

32

The government’s citation of Fed.R.Crim.P. 41(¢)(1),

Pet.Br. 30, does not help the government’s position. That

rule gives the magistrate authority to issue a warrant that

athorizes a search “within a specified time period not to

exceed ten days” (emphasis added). The rule does not

mean that all searches may take place within ten days

after a warrant is issued. It only states the maximum

allowable time period that a magistrate can authorize. In

compliance with the reasonableness requirement of the

Fourth Amendment, a magistrate might prescribe a shorter

period of time. A magistrate would be especially likely

to do so if the police had already seized the item to be

searched. C/. United States v. Place, supra. The amount

of time that would be reasonable under the circumstances

is a judyuient that should be made by a magistrate, rather

than police ofiieers.. See Mincey v. Arizona, 437 U.S. at

390.

\8The Petitioner admits that the delay of a search of seized

property may sometimes interfere with a person’s possessory

(as distinguished from privacy) interest in the property. Pet.Br.

24 n.13. The Petitioner argues, however, that the Respondents

cannot make that claim here because there was probable cause

to seize the packages and because the Respondents never as-

serted a possessory interest in the packages. /d. Contrary to

the government's argument, a seizure of property, in antici-

pation of a search, even based on probable cause, may become

unreasonable if the search of the property is unnecessarily de-

layed. See Segura v. United States, No. 82-5298, slip op. 8-10

(Stevens, J., dissenting). Moreover, the seizure of a —-

will often be the basis for its owner's arrest. If contents of t

—-s turn out to be innocent, the owner will usually be re-

ea and the package returned to him. Therefore, an unrea-

sonable delay in searching a package may cause an unreason-

ably lengthy detention of its owner. Cf. United States v. Place,

No. 81-1617, slip op. 12-13 (the ninety minute detention of

an airport passenger’s suitcase was unreasonable in part be-

cause it forced the passenger to stay at the airport with his

suitcase). Finally, the Petitioner's assertion that the Respond-

ents never asserted a possessory interest in the packages is

contrary to the record. 11/10/81 Tr. 37, 41-43, 45-47.

ee een

33

2) The fact that this argument is presented for the first

time in this case is no basis for rejecting it.

The Petitioner argues that the fact that this issue has

not been litigated before illuminates the legal profession’s

understanding that this search was permissible without a

warrant (citing United States v. Ross, 456 U.S. at 819).

Pet.Br. 31, n.16. In support of the “profession’s under-

standing”, the Petitioner relies on two cases'* where the

facts presented this issue, but it was not litigated, and on

the fact that the Respondent did not raise this issue below.

Id. When the motion to svppress was litigated below,

Ross had not yet been decided. In granting the motion to

suppress, the District Court relied on Robbins v. Califor-

nia, 453 U.S. 420 (1981). Pet.App. 23a. When the parties

filed their briefs in the Court of Appeals, Ross still had

not been decided, and both sides argued the applicability

of Robbins. Appellant’s Br. 9; Appellee’s Br. 23-32. Fin-

ally, when Kioss was decided, the Respondents filed a mo-

tion with the Court of Appeals to file an additional brief.'*

That motion was denied.

“United States v. Rivera, 654 F.2d 1048, on reh’g. 684 F.2d

308 (5th Cir. 1982); Sharpe v. United States, 712 F.2d 65 (4th

Cir. 1983), cert. granted on other issues, No. 83-529 (June 18,

1984). The other cases cited by the government did not in-

volve package searches.

'SWhile the ndents did not specifically request _

mission to address the issue raised by the delay, they did re-

quest permission to file an additional brief because the exact

boundaries of distinction drawn by Ross were not yet known.

Opposition to Motion to Submit Briefs/Motion to File Addi-

tional Briefs (filed July 30, 1982) 16-17.

34

The issue raised in this case springs from the differ-

ent interpretations of Ross. See Pet.App. lla-13a; Pet.

21. Prior to Ross, most litigants were probably satisfied

to rely on Robbins and the dicta in Arkansas v. San-

ders, 442 U.S. at 763-65 that was rejected by Ross. 456

U.S. at 824. It should not be surprising, therefore, that

the Respondents and other litigants did not raise this

issue before Ross was decided. This Court in Ross relied

on fifty years of Fourth Amendment litigation to “illumi-

nate{ ] the profession’s understanding”. 456 U.S. at

818-19. The Petitioner’s citation of two cases decided in

the two year period following Ross and its truncated his-

tory of the litigation in this case are not comparable. In

short, there simply has not been sufficient development

of the Ross doctrine to illuminate the profession’s under-

standing one way or another.

3) The fact that in most automobile searches the police

will remove packages from the automobiles before opening

them does not justify this search.

The Petitioner notes that in most automobile searches,

packages and other containers will be removed from the

automobile hefore they are searched. From this, the Pe-

titioner argues that to the extent the Court of Appeals

decision is based on the mere separation of the packages

from the trucks before the search, it is untenable. Pet.

Br. 33. But, the Respondents’ argument is not based on

the mere separation of the packages from the trucks. The

police may decide for themselves the order of the search

and its mechanies. Cf. Michigan v. Tyler, 436 U.S. at 510-

11 (officials investigating the cause of a fire may leave

the building for a short while if conditions make investiga-

tion unduly difficult). Rather, both the Court of Appeals

35

(Pet.App. 9a-13a) and the Respondents interpreted Ross

in accordance with the well-established principle that ex-

ceptions to the Warrant Clause should be no broader than

the reasons that justify the exceptions. The reasons that

justify the Ross exception to the rule that packages can

only be searched under the authority of a warrant do not

obtain when the packages have been removed from the

automobiles and stored in a government warehouse for

several days before they are searched. The fact of the

packages’ removal, by itself, is not significant.

4) The Respondents did not have a diminished expecta-

tion of privacy in their packages that would justify this

search.

The Petitioner argues that the warrantless search of

the packages was justifiable because the Respondents had

a diminished expectation of privacy in their packages.

Pet.Br. 36-41. In support of this argument, the Petitioner

states that since the officers “were justifiably confident

that they already knew precisely what they had found”,

it was reasonable to open the packages without a warrant.

Pet.Br. 37-38. The Petitioner appears to be relitigating

their claim that these packages could not support any

reasonable expectation of privacy because by their very

nature they announced their contents. Arkansas v. San-

ders, 442 U.S. at 764-65, n.13. The District Court, after

hearing all the evidence, rejected this argument, finding

that “neither the shape nor any other characteristic of the

seized containers made their contents readily ascertain-

able.” Pet.App. 28a. This finding was affirmed by the

Court of Appeals. Pet.App. 4a-5a. The Petitioner did

36

not seek review on this issue. Pet. 20. The issue should

not be litigated again."

The Petitioner appears to acknowledge this, but

nevertheless argues that this warrantless search should

be permitted because it was reasonable. Pet.Br. 37-38.

In support of this argument, the government relies on the

portion of Cooper v. California, 386 U.S. 58, 62 (1967),

which quotes United States v. Rabinowitz, 339 U.S. 56

(1950). The quoted portion of the Rabinowitz opinion

states the issue is not whether a warrant could have been

obtained, but only whether the search was reasonable. /d.

at 66. That very portion of Rabinowitz was overruled by

this Court in Chimel v. € ‘alifornia, 395 U.S. 752, 760 & 768

(1969), which was decided after Cooper. In Chimel, this

Court reasoned that it is not enough to require that war-

rantless searches be reasonable. There must be some

criteria by which to judge their reasonableness. /d. at

765. At least where an exception permits a search for

criminal evidence that would normally require a warrant,

that criteria is supplied by the Warrant Clause. See

South Dakota v. Opperman, 428 U.S. 364, 381 (1976) (Pow-

ell, J., concurring); United States v. United States Dist.

Ct., 407 U.S. at 315-16 & n.16. Such a warrantless search

is reasonable only if there is a good reason for not obtain-

ing a warrant. United States v. Rabinowitz, 339 U.S. at

‘The district court's finding that the packages manifested

a reasonable expectation of privacy was at least in part based

on its rejection, on credibility grounds, of the testimony of

one of the Customs agents. Pet.App. 20a-22a n.2. The uncer-

tain credibility of the testimony offered by the government

below should also preclude the relitigation of this factual issue.

37

83-84 (Frankfurter, J., dissenting). See Chimel v. Cal-

ifornia, 394 U.S. at 762-65.”

The Petitioner also argues that the diminished expec-

tation of privacy which surrounds automobiles should

inure to these packages. Pet.Br. 41. But “the word auto-

mobile is not a talisman in whose presence the Fourth

Amendment fades away and disappears”. Arkansas v.

Sanders, 442 U.S. at 761 n.7, quoting Coolidge v. New

Hampshire, 403 U.S. 443, 461-62 (1971). While it is true

that there is a lesser expectation of privacy in automo-

biles, the same is not true of packages. United States v.

Ross, 456 U.S. at 811-12; United States v. Chadwick, 433

U.S. at 11. Unlike automobiles, packages manifest a full

reasonable expectation of privacy. Id. The fact that at

some earlier time these packages were momentarily in

trucks should not mean that they are forever tainted hy

the diminished expectation of privacy that surrounds the

A different rule may sometimes apply if the search is not

for evidence of a crime or does not normally require a warrant.

See e.g., Illinois v. Lafayette, No. 81-1859 (June 20, 1983) (inven-

tory search and search of an arrestee); United States v. Ed-

wards, 415 U.S. 800 (1974) (search of an arrestee); Chambers

v. Maroney, 399 U.S. 42 (1970) (automobile search); see South

Dakota v. Opperman, 428 U.S. at 381-84 (Powell, J., concur-

ring); but see also Marshall v. Barlow’s Inc., 436 U.S. 307 (1978)

(administrative warrant needed for OSHA inspection). Any

rule of “reasonableness”, however, unconfine by the War-

rant Clause, which would allow warrantless searches for evi-

dence of a crime of areas normally protected by the warrant

requirement, would rapidly lead to the evaporation of the pro-

tections the clause was designed to protect. Chimel v. Cali-

fornia, 395 U.S. at 764-65; see United States v. United States

Dist.Ct., 407 U.S. at 316-18; Katz v. United States, 389 U.S.

at 356-57; Stewart, The Road to Mapp v. Ohio and Beyond:

The Origins, Development and Future of th Exclusionary Rule

in Search-and-Seizure Cases, 83 Colum.L.Rev. at 1397.

38

automobile. Rather, as explained above, a person’s rea-

sonable expectation of privacy in a package should be fully

recognized unless some objective eircumstance, such as an

ongoing automobile search, makes it reasonable to invade

that privacy without a warrant."*

Finally, the Petitioner criticizes the Court of Appeals’

analogy to searches incident to arrest. Pet.Br. 42-43.

Whatever an arrestee’s subjective expectation of privacy

\8The Petitioner also argues that this case should be re-

versed because the core sampling technique involved only a

de minimis invasion of privacy and that the contents of the

packages, if not marijuana, was some meg ape commodity

of low privacy value. Pet.Br. 38 n.19. There is absolutely no

basis in the record to support the Petitioner's argument. At

the beginning of the motion to suppress, the parties stipulated

that core samples were removed from the packages. 11/9/81

Tr. 5. There is no evidence on how large the core samples were

or on the process by which they were taken. Nor is there any

evidence on whether the a technique employed by the

government would have revealed the identity of the substance

if it were not marijuana. See United States v. Jacobsen, sli

op. 12-14. In short, there is no basis to compare this searc

with the testing of the white powder in Jacobsen. Additional-

ly, to the extent that the Petitioner's argument is based on the

allegedly low-privacy value of agricultural commodities, it is

falacious. As Justice Stewart pointed out in Robbins v. Cali-

fornia: The Fourth “Amendment protects people and their ef-

fects, and it protects those effects whether they are ‘personal’

or ‘impersonal’... . Once placed in . . . a container, a diary

and a dishpan are equally protected by the Fourth Amend-

ment.” 453 U.S. at 426. (Citations omitted). That portion of the

Robbins opinion was left undisturbed by Ross. See 456 U.S.

at 822 & n.29. Moreover, these packages were described by

the District Court as cardboard boxes or double, opaque, green

bags that were sealed with a thick tape. Pet.App. 26a. Other

than the testimony that there was the odor 0 marijuana in

and around the area where the trucks were found, 11/9/81

Tr. 127-28, 215, there was no evidence whatsoever which

would support a finding that the packages, from their appear-

ance, weight or feel revealed that their contents was some

sort of agricultural product.

39

might be, it has long since been recognized that his person

can be searched without a warrant. Weeks v. United

States, 232 U.S. 383, 392 (1914); Agnello v. United States

269 U.S. 20, 30 (1925). Like automobiles, an nestea"s

person may be searched immediately upon arrest, or many

hours later, when the arrestee is incarcerated in a jail

United States v. Edwards, 415 U.S. 800, 808-09 ( 1969).

Similarly, a package that is within the area under the

arrestee’s control when he is arrested may be searched

without a warrant. New York v. Belton, 453 U.S. at 460

(1981). Regardless of any subjective expectation of priv-

acy that the arrestee might have in the package, the ob-

jective circumstance of the arrest makes it permissible to

search the package without a warrant. Jd. That objec-

tive circumstance no longer obtains, however, if the nolles

elect not to open and search the package on the scene, but

instead transport it to the police station where it ‘“ se-

cured. Once the package is safely secured at the police

station, the police may not open it without first obtaining

the approval of a magistrate. United S

, 2a States v. Ch ;

433 U.S. at 15. Y. aint

The analogy to the instant case is compelling. If

the police had lawfully searched the trucks, they were

also entitled to contemporaneously conduct a warrant-

less search of the packages found within the trucks. As in

Chadwick, however, when the agents elected instead to

transport the packages to Tucson and store the packages

in the D.E.A. warehouse for three days, they could no

longer search them without a warrant. The Petitioner’s

reliance on United States v. Edwards (see Pet.Br. 43 n.21)

is misplaced. Edwards permitted the warrantless seizure

40

and search of an arrestee’s clothing hours after he had

been arrested and incarcerated at the local jail. 415 U.S.

at 808-09. It did not purport to allow the search of a

package that was in the control of the arrestee when he

was arrested but not searched until it was secured at a

government warehouse. As explained above, that situa-

tion, like this case, is governed by Chadwick and requires

a search warrant.

o

CONCLUSION

For all of the above reasons, it is respectfully urged

that.the decision of the Court of Appeals be affirmed.

Respectfully submitted,

William G. Walker and

Bertram Polis

Counsel for Respondents Gomez,

Soto, and Redmond

Robert J. Hirsh and

L. Anthony Fines

Counsel for Respondent Duarte

Michael L. Picearreta

Counsel for Respondent Johns

Peter Keller and

Nancy Postero

Counsel for Respondent Leon

Walter B. Nash, IIT

Counsel for Respondent Hearron