Amicus Curiae Brief — Maryland v. Pringle

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02-809

—_— JuL | 8 293

Supreme Court of the United States

—_—

STATE OF MARYLAND,

Petitioner,

—

JOSEPH JERMAINE PRINGLE,

Respondent.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

BRIEF AMICI CURIAE OF THE AMERICAN

CIVIL LIBERTIES UNION, THE ACLU OF MARYLAND,

AND THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS, IN SUPPORT OF RESPONDENT

Tracey Maclin

Counsel of Record

Boston University School of Law

765 Commonwealth Avenue

Boston, Massachusetts 02215

(617) 353-4688

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Lisa Kemler

Zwerling & Kemler, P.C.

108 North Alfred Street

Alexandria, Virginia 22314

(703) 684-8006

TABLE OF CONTENTS

CORRS IU FE CREE esc ire snccecnaccsscosossnosovenscscesseesees iil

Ie CE Ma snistiitinalipcansivnaciianeiinsciiiinnnmnnsinia l

DEAT RETS CE COUNT CAB ccnccccsccsccnserccsesccoseronesceseeesees l

AFG S OE AIUIIEIIIGE ccc cccccsccscrvesceccccsesscosssonsensnees 3

IIT ncisethsitsinicnienticincsinntanimtinentgianenieieiisiaanmunial 5

I. INDIVIDUALIZED OR PARTICULARIZED

SUSPICION IS AN ESSENTIAL ELEMENT OF

Pa ances svcstionssctesonisesanenhininininsieiehdanee 5

A. This Court’s Precedents Establish That Particul-

arized Suspicion is a Necessary Element of

RTT EER I My Mee Sore es ROS A pee es 7

1. Probable Cause to Arrest or Search Requires

Particularized Suspicion Directed at the

Target of the mtrusion................s0000cccccrceecceees 8

Il. THERE WAS NO PROBABLE CAUSE TO

ARREST RESPONDENT ON THE FACTS OF

I ii icinniniiscdsnnsiateinenneibiesdsinbiidicateniahibibodapida 16

A. The Discovery of Drugs Hidden Inside a Vehicle

Does Not Provide Probable Cause to Arrest All

i cisericseretscediidecboneiniimmnintividdstadsl 19

B. Petitioner’s Rule Extends Beyond Cars, and

Would Effectively Overrule Ybarra and Di Re........ 22

C. Rulings Since Di Re Have Not Undermined the

Validity of Di Re; Rather, These Rulings Support

the Conclusion That, Under the Facts, There Was

No Probable Cause to Arrest Respondent................ 27

SUPE iiinipdvsiddotsiniadssnatekenstinasensisiivbdcesedeisecoceseneses 30

TABLE OF AUTHORITIES

Cases

Alabama v. Shelton, 535 U.S. 654 (2002) .........cccccccceceeeeeeees 29

Ashwander v. Tennessee Valley Authority,

lai naricnaaatetnnnmennncsnes 29

Atwater v. Lago Vista, 532 U.S. 318 (2001).........ccccccees 29

| ee 26

Beckwith v. Philby, 108 Eng. Rep. 585 (1827)............cccc08 7

Brinegar v. United States, 338 U.S. 160 (1949)... 8.9

Carroll v. United States, 267 U.S. 132 (1925) ........c0000006. 8,9

County Court of Ulster County v. Allen,

ERE Ce 20, 27, 29

Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)... 7

Illinois v. Gates, 462 U.S. 213 (1983) .......cccccccccceees 4,9, 21

Illinois v. McArthur, 531 U.S. 326 (2001 ).......ccccccccccccceeeees 26

Johnson v. United States, 333 U.S. 10 (1948).......... 11, 12,14

Mallory v. United States, 354 U.S. 449 (1957) ........cc00 12

Ornelas v. United States, 517 U.S. 690 (1996) .........006 21

Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850) ................... 7

Russell v. Shuster, 8 Watts & Serg. 308 (Pa. 1844) ............... 7

ill

Sibron v. New York, 392 U.S. 40 (1968) ........cccccceceeees 24, 25

a Gg Oe 16

United States v. Connolly, 479 F.2d 930 (9th Cir. 1973).....23

United States v. Di Re, 332 U.S. 581 (1948)................ passim

United States v. Watson, 423 U.S. 411 (1976) .......ccccceceeees 29

Vernonia Sch. Dist. 47J v. Acton,

gt EE eee eee oe 3, 4,6

Wong Sun v. United States, 371 U.S. 471 (1963).....12, 13, 14

Wyoming v. Houghton, 526 U.S. 295 (1999)................ passim

Ybarra v. Illinois, 444 U.S. 85 (1979) .....cccccceeseeeeesees passim

Statutes

Fe is OF IE cenncstsnnicmesienaminssinninnsiitinincniapaiiuiniiitnit 26

Mid. Code Amm., § 9-SO1 (2002) .........ccccscsccsssossssessseeesssseeees 26

Other Authorities

The Abell Foundation, The Pretrial Release Project:

A Study of Maryland's Pretrial Release and Bail System

SES Enh Cele IEE wisnrtrshnecereiatnitadimebnaialenianiiiiaiieaspiamemlaameeatnads 23

Douglas L. Colbert, For Want of a Lawyer, Many Do Time;

60% of Defendants Spend Weeks in Jail, but Never go to

Trial, Baltimore Sun, April 7, 1996...................cccccceeceeeees 23

———

William Cuddihy, The Fourth Amendment: Origins and

Original Meaning (1990) (unpublished Ph.D. Dissertation,

Ciapammeet Gorntinate SERGE) ......cccccccccccccccsccssccceccscsesecosseses 6

Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. REV. 547 (1999) ............00. 5, 6, 7

Caitlin Francke, Police Powers of Arrest Under Study;

Judges Favor Shifting Authority to Prosecutors, Baltimore

SD, CCROED Bi, Ge venesntensersenesmnensenenneensmnes 23

Wayne R. LaFave, SEARCH AND SEIZURE (3d ed. 1996)

Karl I. Moline & Faye S. Taxman, Pretrial Processing in

Baltimore City, MD: A Status Report, Bureau of

Governmental Research (Final Draft, March 2003)........ 23

INTEREST OF AMICI'

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

approximately 400,000 members dedicated to the principles

of liberty and equality embodied in the Bill of Rights. The

ACLU of Maryland is one of its statewide affiliates. Since its

founding in 1920, the ACLU has frequently appeared before

this Court, both as direct counsel and as amicus curiae. In

particular, the ACLU has participated in cases addressing the

proper scope of the Fourth Amendment.

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit corporation founded in

1958 to ensure justice and due process for persons accused of

crime; to foster integrity, independence, and expertise of the —

criminal defense bar; and to promote the fair administration

of criminal justice. NACDL strives to defend the liberties

guaranteed by the Bill of Rights, and is recognized by the

American Bar Association as an affiliate organization.

STATEMENT OF THE CASE

On August 7, 1999, at 3:16 a.m., Officer Jeffrey

Snyder of the Baltimore County Police Department stopped a

car for speeding and for the driver’s failure to wear a seatbelt.

Inside the vehicle were: Donte Partlow, the driver and owner

of the car; respondent Joseph Pringle, who was seated in the

front passenger seat; and Otis Smith, who was seated in the

backseat. When Partlow opened the glove compartment to

retrieve his registration, the officer noticed a large roll of

money. After determining that there were no outstanding

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, counsel

for amici states that no counsel for a party authored this brief in whole or

in part and no person, other than amici, its members or its counse! made a

monetary contribution to the preparation or submission of this brief.

violations or warrants for Partlow, the officer gave Partlow,

who was standing outside the vehicle, a verbal warning.

Officer Snyder then asked for and received Partlow’s

consent to search the car. All three men were frisked, and

asked to sit on the curb. The search disclosed $763 from the

glove compartment and five glassine plastic baggies

containing cocaine that were hidden from view in the

backseat armrest. JA 33, 40-41. Officer Snyder questioned

the men separately about the drugs and told them that unless

he was told who possessed the drugs, “you are all going to

get arrested.” JA 47. None of the men offered any

information regarding the money or drugs, and all were

arrested. Two hours later at the police station, respondent

confessed to owning the cocaine. Respondent told Officer

Snyder that Partlow and Smith did not know or have

anything to do with the money or drugs. JA 25. Partlow and

Smith were later released.

Respondent was charged with possession of cocaine

and with possession with intent to distribute cocaine. The

trial court denied his motion to suppress, and the Maryland

Court of Special Appeals affirmed. The Maryland Court of

Appeals reversed the appellate court’s ruling, and held there

was no probable cause to arrest respondent. The court

explained that the facts did not show that respondent had

knowledge and dominion or control over the drugs. Pet. App.

2la. Accordingly, the court held that “a police officer’s

discovery of money in a closed glove compartment and

cocaine concealed behind the rear armrest of a car is

insufficient to establish probable cause for an arrest of a front

seat passenger, who is not the owner or person in control of

the vehicle, for possession of the cocaine.” /d. at 23a.

This Court granted certiorari to decide the following

question: Where drugs and a roll of cash are found in the

passenger compartment of a car with multiple occupants, and

all deny ownership of those items, is there probable cause to

arrest all occupants of the car?

SUMMARY OF ARGUMENT

“Individualized” or “particularized” suspicion

targeting a place, person or thing, is an essential component

of probable cause. Probable cause to arrest exists when an

officer has an individualized suspicion that singles out a

person or persons for arrest. Officer Snyder did not hr e

probable cause to arrest respondent. His testimony reveals

that after he found the hidden cocaine, he separately

questioned the men to determine who owned the cocaine.

After the interrogations failed to identify who owned the

cocaine, the officer told the men that unless he was informed

about “whose drugs these are,” “you are all going to get

arrested.” JA 45, 47. When this strategy failed, the officer

arrested everybody. Although Officer Snyder may have

thought that arresting everyone was a neutral response since

he could not determine who owned the cocaine, “evenhanded

treatment was no substitute for the individualized suspicion

requirement.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 668 (1995) (O’Connor, J., dissenting).

The individualized or particularized suspicion

requirement “has a legal pedigree as old as the Fourth

Amendment itself.” /d. at 678 (O’Connor, J., dissenting).

During the pre-Revolutionary era, individualized suspicion

was an essential ingredient of a lawful search or seizure

because without it, officers would have the discretion to

intrude at will. Before the Fourth Amendment was ratified, a

particularized suspicion requirement was inherent in the

operative common-law rule for warrantless arrests. For a

felony not committed in his presence, a constable could

justify an arrest only upon proof that a “felony in fact” had

occurred, and that there was probable cause of suspicion to

think that a particular person, the arrestee, committed the

offense.

This Court has also recognized the constitutional

status of “individualized probable cause.” In most cases, the

individualized suspicion requirement is satisfied, and the

existence of probable cause turns on other factors. See, e.g.,

Illinois v. Gates, 462 U.S. 213 (1983) (anonymous letter

naming suspects and specifying their modus operandi for

transporting drugs provided particularized suspicion for

focusing on suspects). Occasionally, however, probable

cause for a search or arrest does not exist due to the absence

of individualized suspicion. See Ybarra v. Illinois, 444 U.S.

85 (1979); United States v. Di Re, 332 U.S. 581 (1948). In

these cases, mere presence with others independently

suspected of criminality does not, by itself, provide probable

cause for a search or arrest. “Where the standard is probable

cause, a search or seizure of a person must be supported by

probable cause particularized with respect to that person.”

Ybarra, 444 U.S. at 91 (emphasis added).

In this case, respondent's mere presence as a

passenger in a car that contained hidden drugs did not

provide sufficient information to arrest respondent.

Respondent made no gestures indicative of criminal conduct,

made no furtive movements suggesting an attempt to conceal

or destroy contraband, and made no suspicious comments to

Officer Snyder. Under these circumstances, a dragnet arrest

“was no. substitute for the individualized suspicion

requirement.” Acton, 515 U.S. at 668 (O°’Connor, J.,

dissenting).

Petitioner's argument that “when multiple occupants

are present in a car containing illegal drugs, a common sense

inference can be drawn that any or all of the occupants have

knowledge of the drugs in the car,” Br. Pet. 17, is unsound

for several reasons. First, it ignores the critical fact that the

drugs found by Officer Snyder were nor in the plain view of

the officer or the occupants of the vehicle. Second,

petitioner’s logic effectively creates a per se rule that allows

police to arrest everyone on the scene where hidden

contraband is found in confined spaces. This rule cannot be

limited to automobiles and will adversely impact the liberty

and privacy interests of innocent people who are unwittingly

present in cars and private premises that contain concealed

contraband. Finally, the thrust of petitioner’s argument would

sub silento overrule Ybarra and Di Re.

Petitioner’s position is not supported by the holding —

as opposed to the dicta — in Wyoming v. Houghton, 526 U.S.

295 (1999). Houghton concerned the scope of the

“automobile exception,” and reaffirms Di Re’s controlling

principle. Moreover, Houghton states that the “traumatic

consequences” of a personal search are not to be visited upon

a passenger due to his mere presence in a suspected vehicle.

Id. at 303. If a passenger cannot be subjected to the

“traumatic consequences” of a personal search, there is no

legal justification for subjecting a passenger to the far greater

consequences of an arrest. The judgment below addressed

caly the lawfulness of respondent’s arrest as a mere

passenger. Whether probable cause exists to arrest the driver

or owner of a vehicie under similar or different facts, is a

question the Court need not address in this case.

ARGUMENT

lL. INDIVIDUALIZED OR PARTICULARIZED

SUSPICION IS AN ESSENTIAL ELEMENT OF

PROBABLE CAUSE

Years before James Madison proposed “probable

cause” as the quantum of evidence needed for a valid

warrant, the colonists and Framers of our Constitution

* See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98

MICH. L. REV. 547, 703 (1999) (explaining that “*probable cause’ a/one

recognized that searches and seizures were unreasonable if

conducted without particularized or individualized suspicion.

During the years leading up to the adoption of the

Constitution, the colonists widely denounced intrusions that

lacked particularized suspicion. See William Cuddihy, The

Fourth Amendment: Origins and Original Meaning 1402

(1990) (unpublished Ph.D. Dissertation, Claremont Graduate

School). These protests demonstrated that “the individualized

suspicion requirement has a legal pedigree as old as the

Fourth Amendment itself.” Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 678 (1995) (O’Connor, J., dissenting).

Individualized suspicion was an essential element of a

reasonable search or seizure because without a particularized

basis for an intrusion, search and seize authority would be

left to the discretion of ordinary officers.

The Fourth Amendment reflected the Framers’

condemnation of governmental intrusions lacking

particularized suspicion. The intrusions that most troubled

the Framing generation were broad, suspicionless searches.

Davies, supra at 590 & 601. On the other hand, arrest

authority was less troubling because common-law rules

established strict limits on an officer's power to arrest.

“Except for the vicarious concerns over the use of general

warrants for arrests in connection with the English Wilkesite

cases, which involved both arrests and searches of houses

and papers, the pre-Revolutionary controversies were devoid

of any consideration of arrest authority.” /d. at 601. The

absence of protest about a constable’s warrantless arrest

authority is understandable because the “Framers understood

that justifications for warrantless arrests and accompanying

searches were quite limited,” and they “did nor perceive the

was not the common-law standard for criminal warrants; [the] common-

law required that arrest or search warrants had to be based on an

allegation of an offense or theft ‘in fact’ as well as ‘probable cause of

Suspicion’ as to a particular person to be arrested or place to be

searched”) (emphasis added).

peace officer as possessing any significant ex officio

discretionary arrest or search authority.” /d. at 640; see also,

id. at 641 (“The bottom line is that the Framers perceived

warrant authority as the salient mode of arrest and search

authority.”). Indeed, a particularized suspicion requirement

was intrinsic to the common-law rules regarding warrantless

arrests.

As Professor Thomas Davies explains, the “operative

common-law justification for a warrantless arrest” in

American law in 1789 was the “felony in fact” rule. Davies,

at 632. Under this rule, an officer could justify an arrest

“only upon proof that a ‘felony in fact’ had actually been

committed by someone and that there was ‘probable cause of

suspicion’ to think the arrestee was that person.” /d. at 632.

The “felony in fact” rule imposed substantial limitations on

arrest authority. See Jd. at 706 (describing the result in Ex

parte Bollman, 8 U.S. (4 Cranch) 75 (1807)). Arrests based

solely on probable cause were impermissible.’ Not only did

the officer have to know that a “felony in fact” had been

committed, but he also needed probable cause of suspicion to

think that a particular person — the arrestee — committed the

crime.

A. This Court’s Precedents’ Establish That

Particularized Suspicion is a Necessary Element of

Probable Cause

While the “legal pedigree” of the individualized

suspicion requirement is confirmed by historical evidence,

Acton, 515 U.S. at 678 (O’Connor, J., dissenting), the

* The authority to arrest on probable cause alone was established in

England in 1827, long after the Fourth Amendment had been ratified. See

Beckwith v. Philby, 108 Eng. Rep. 585 (1827). The “first American

reported decisions to endorse the [standalone] probable cause standard for

warrantless arrests by officers were the 1844 Pennsylvania decision

Russell v. Shuster, (8 Watts & Serg. 308 (Pa. 1844)] and the 1850

Massachusetts decision Rohan v. Sawin, [59 Mass. (5 Cush.) 281

(1850)}.” Davies, at 636-37 (footnotes omitted).

constitutional status of this legal norm has also been

recognized by this Court. For half a century, this Court’s

“probable cause” jurisprudence demonstrates that

individualized suspicion is necessary to make a search or

seizure reasonable.

1. Probable Cause to Arrest or Search Requires

Particularized Suspicion Directed at the Target of

the Intrusion

Probable cause exists where police have sufficient

information to justify singling out a person or persons for

search or seizure. In many of the cases decided by this Court,

the individualized suspicion requirement is satisfied, and the

existence of probable cause ve/ non turns on other factors.

For example, in Carroll v. United States, 267 U.S. 132

(1925), federal law enforcement officers had particular

reason to focus on “the Carroll boys” because they had

offered to sell liquor to the officers on a previous occasion

and because shortly after that proposed sale, the officers had

observed the suspects heading to Detroit, which the Court

assumed to be “one of the most active centers for introducing

illegally into this country spirituous liquors for distribution

into the interior.” Jd. at 160. The probable cause

determination in Carroll turned on whether the officers had

probable cause to search the suspects’ vehicle when, “[t]wo

months later these officers suddenly met the same men on

their way westward presumably from Detroit.” /d. Similarly,

in Brinegar v. United States, 338 U.S. 160 (1949), a federal

agent possessed individualized suspicion directed at Brinegar

because the agent “had arrested [Brinegar] about five months

earlier for illegally transporting liquor; had seen |Brinegar]

loading liquor into a car or truck in Joplin, Missouri, on at

least two occasions during the preceding six months; and

knew [Brinegar] to have a reputation for hauling liquor.” /d.

at 162. The question of probable cause focused on whether

the agent had sufficient evidence to search Brinegar’s car

when he saw the vehicle heading for the Oklahoma border

and it “appeared to be ‘heavily loaded’ and ‘weighted with

something.”’” /d. at 163. Finally, in //linois v. Gates, 462 U.S.

213 (1983), police had particularized suspicion focusing on

the Gateses because an anonymous letter had accused them

of drug trafficking and specified in detail their modus

operandi. The existence of probable cause ve/ non turned on

whether the police corroboration of the letter’s predictions

was sufficient to prove the reliability and basis of knowledge

of the informant’s allegations.

Carroll, Brinegar, and Gates illustrate the typical

probable cause case where police have particularized

suspicion for focusing on a specific person or persons. A

different (and less frequently seen) type of probable cause

case exists where police are investigating a known crime or

have imformation amounting to probable cause of criminality,

but lack individualized suspicion for searching or arresting a

particular individual or persons. United States v. Di Re, 332

U.S. 581 (1948), was the first case to address the meaning of

probable cause in these circumstances. In Di Re, an

informant, Reed, told a federal investigator that he planned to

purchase counterfeit gasoline coupons from Buttitta.

Accompanied by a Buffalo police detective, the investigator

followed Buttitta’s car to the identified locale. The officers

approached the car and observed Reed in the backseat

holding the counterfeit coupons. Reed told the officers that

Buttitta had given him the coupons. Buttitta occupied the

driver’s seat, and Di Re sat next to Buttitta. All three men

were arrested. A search of Di Re’s person at the police

station disclosed one hundred coupons in an envelope

concealed between his shirt and underwear.

The government defended the search of Di Re on two

grounds. First, the government asserted the search was

reasonable because the officers had probable cause to search

the car itself. The government asked the Court “to extend the

assumed right of car search [announced in Carrol/] to include

the person of occupants because ‘common sense demands

that such right exist in a case such as this where the

contraband sought is a small article which could easily be

concealed on the person.”” /d. at 586. The Court rejected this

argument stating that Di Re’s mere presence in a vehicle

suspected of holding contraband did not provide cause to

justify a search of his person. /d. at 587 (“We are not

convinced that a person, by mere presence in a suspected car,

loses immunities from search of his person to which he

would be entitled.”).

Alternatively, the government argued that the search

of Di Ke was justified as incident to a lawful arrest. The

government defended the arrest on the theory that Di Re’s

presence in the car gave the officers probable cause to

believe that Di Re was involved in a conspiracy to possess

counterfeit coupons. The Court rejected this argument

explaining:

The argument that one who “accompanies a

criminal to a crime rendezvous” cannot be

assumed to te a bystander, forceful enough in

some circumstances, is farfetched when the

meeting is not secretive or in a suspicious

hide-out but in broad daylight, in plain-sight

of passers-by, in a public street of a large city,

and where the alleged substantive crime is one

which does not necessarily involve any act

visibly criminal.... Presumptions of guilt are

not lightly to be indulged from mere meetings.

Id. at 593. The Court then noted that “whatever suspicion”

might attach to Di Re’s “mere presence seems diminished, if

not destroyed,” id. at 594, when Reed failed to implicate Di

Re, as he did Buttitta, as part of the conspiracy. “Any

inference that everyone on the scene of a crime is a party to it

must disappear if the Government informer singles out the

guilty person.” /d.

Decided in the same year as Di Re, Johnson v. United

States, 333 U.S. 10 (1948), addressed the meaning of

probable cause in situations where “police are investigating a

known crime and obtain information concerning the offender

which does not point exclusively to one particular

individual.” 2 Wayne R. LaFave, SEARCH AND SEIZURE § 3.2

(e) at 60 (3d ed. 1996). In Johnson, officers received a tip

from a confidential informant that unknown persons were

smoking opium at a hotel. When the officers arrived at the

hotel, they smelled burning opium and traced the odor to a

particular room. After Johnson acquiesced to the officers’

entry, they arrested Johnson and discovered incriminating

evidence in her room.

This Court first ruled that the entry into Johnson's

room was illegal because there was no exigency or other

justification for proceeding without a warrant. 333 U.S. at

14-15. The Court then addressed the government's

contention that the “search without warrant must be valid

because incident to an arrest.” /d. at 15. This issue required

determining whether “a crime [had been] committed in the

presence of the arresting officer or for a felony of which he

had reasonable cause to believe [Johnson] guilty.” /d

(footnote omitted). The government argued that once the

officers had discovered that Johnson was the only person in

the room, they had probable cause to make an arrest. This

argument, according to the Court, sought “to justify the arrest

by the search and at the same time to justify the search by the

arrest.” /d. at 16-17. The Court found this logic unsound. The

constitutional flaw in the government's argument was that

the officers “did not have probable cause to arrest [Johnson]

until [they] entered her room and found her to be the sole

occupant.” Jd. at 16. In other words, while the officers had

probable cause to search the room, id. at 13, they arrested

Johnson before actually finding the opium and thus did not -

have a particularized suspicion that Johnson possessed opium

until after her arrest and the search of her room. See 2

LaFave, supra, § 3.2(e), at 61 (noting that Johnson “suggests

that probable cause to arrest does not exist unless the

information at hand singles out one individual”).*

Di Re and Johnson established that police ar not free

to arrest or search everyone found at the scene of a crime.

Wong Sun v. United States, 371 U.S. 471 (1963), reinforced

the rulings in Di Re and Johnson that probable cause of

criminality does not justify police practices that amount to

dragnet searches or arrests.” In Wong Sun, an informant told

‘ Petitioner does net cite Johnson, but the United States does. Sor Br.

U.S. 22, n. 10. The United States suggests that Johnson's holding is

irrelevant to this case because the Johnson Court “assumed that officers

lacked probable cause to effect the warrantless arrest of an individual

when she answered the door to a hotel room in which the odor of opium

had been detected.” /d (citation omitted) (emphasis added). This is a

curious description of the second issue addressed in Johnson, particularly

in light of the fact that the government's brief in Johnson asked the Court

to decide:

“Whether there was probable cause for the arrest of petitioner

for possessing opium prepared for smoking and the search of

her room in a hotel incident thereto for the contraband opium,

where experienced narcotic agents unmistakably detected and

traced the pungent, identifiable odor of bumirz opium

emanating from her room and knew, before they arrested her,

that she was the only person in the room.”

Johnson, 333 U.S. at 16, 0.6.

* Prior to Wong Sun, the Court never questioned the correctness of its

holdings in Di Re and Johnson. In fact, in Mallory v. United States, 354

U.S. 449 (1957), a unanimous Court remarked:

Presumably, whomever the police arrest they must arrest on

“probable cause.” It is not the function of the police to arrest,

as it were, at large and to use an interrogating process at police

headquarters in order to determine whom they should charge

before a committing magistrate on “probable cause.”

id. at 456. Of course, petitioner and its amici are asking this Court to

approve the same procedure that Mallory condemned. See Br. Pet. 25

(“By arresting all three, the officer more precisely could determine

criminal culpability. Pringle confessed, and the other two were set free.”).

Br. U.S. 30 (conceding that innocent persons may be arrested, but

insisting that arresting al! the vehicle's occupants “will facilitate further

——— —<—

federal narcotics agents that he had recently purchased heroin

from “Blackie Toy,” who was the owner of a laundry

somewhere on Leavenworth Street in San Francisco. The

agents arrived at “Oye’s Laundry,” which was operated by

defendant James Wah Toy. After an undercover agent

knocked on the door, Toy appeared and opened the door. Toy

declined to discuss laundry with the agent and started to close

the door when the agent identified himself as a federal

narcotics agent. Toy ran away but was eventually captured

and arrested.

The “threshold question” in Wong Sun was whether

the officers could, “on the information which impelled them

to act, have procured a warrant for the arrest of Toy.” 371

U.S. at 480. The Court ruled that the officers lacked probable

cause to arrest Toy:

The narcotics agents had no basis in

experience for confidence in the reliability of

[the informant’s] information; he had never

before given information. And yet they acted

upon his imprecise suggestion that a person

described only as “Blackie Toy,” the

proprietor of a laundry somewhere on

Leavenworth Street, had sold one ounce of

heroin.... For aught that the record discloses,

[the informant’s] accusation merely invited

the officers to roam the length of Leavenworth

Street (some 30 blocks) in search of one

“Blackie Toy’s” laundry — and whether by

chance or other means (the record does not

say) they came upon petitioner Toy’s laundry,

which bore not his name over the door, but the

unrevealing label “Oye’s.” Not[hing]

suggest|s} that the agents had information

investigation that enables the officer to conclude in short order that a

particular passenger should be released”) (emphasis added).

giving them reason to equate “Blackie” Toy

and James Wah Toy, or that they had

consulted some other kind of official record or

list, or had some information of some kind

which had narrowed the scope of their search

to this particular Toy.

Id. at 481 (emphasis added). Wong Sun also explained that

the Warrant Clause’s particularity requirement “applies both

to arrest and search warrants.” /d. at 481, n. 9. Although the

agents acted without a warrant, the Court stated that no

warrant could have issued had the agents sought one.

A description of a suspect merely as “Blackie

Toy,” operator of a laundry somewhere on

Leavenworth Street, hardly is information

“particularly describing...the person...to be

seized.” Such mformation is no better than the

wholesale or “dragnet” search warrant, which

we have condemned.

Id.

Di Re, Johnson and Wong Sun involved warrantless

searches and arrests. Although car searches and arrests are

not controlled by the Warrant Clause, in these cases the

Court concluded that the same particularity that is required

when police intrude pursuant to a search warrant is also

required when police act without a warrant. Ybarra v.

Illinois, 444 U.S: 85 (1979), involved a valid search warrant

of a tavern and a bartender for narcotics. It was argued, inter

alia, that the existence of a valid warrant eliminated the

requirement that police have individualized suspicion with

respect to each person subject to search.° The Court rejected

that argument. The Court reiterated that individualized

* See Ybarra, 444 U.S. at 107 (Rehnquist, J., dissenting) (“in place of the

requirement of ‘individualized suspicion’ as a guard against arbitrary

exercise of authority, we have here the determination of a neutra! and

detached magistrate that a search was necessary”).

suspicion was an essential component of probable cause, and

thirty years after Di Re was decided, endorsed the principle

announced in that case that police may not search or arrest

everyone found at the scene of a crime, even when the

intrusion may “facilitate further investigati{ve},” Br. U.S. 30,

purposes of the police.

Ybarra was a patron of a tavern when the police

arrived to execute the warrant. A search of Ybarra revealed

narcotics. The Court addressed two issues in Ybarra pertinent

to this case. First, the Court rejected the claim that the police

had probable cause to search Ybarra. Concededly, the

warrant permitted a search of the premises and Ybarra was

on the premises at the time of the search.

But, a person’s mere propinquity to others

independently suspected of criminal activity

does not, without more, give rise to probable

cause to search that person. Where the

standard is probable cause, a search or seizure

of a person must be supported by probable

cause particularized with respect to that

person. This requirement cannot be undercut

or avoided by simply pointing to the fact that

coincidentally there exists probable cause to

search or seize another or to search the

premises where the person may happen to be.

444 US. at 91 (emphasis added). The Court explained that

each patron in the tavern was “clothed with constitutional

protection,” and that “individualized protection was separate

and distinct” from the protection possessed by the owner of

the tavern and the bartender. /d. Accordingly, the valid

warrant to search the premises and the bartender provided the

police “no authority whatever to invade the constitutional

protections possessed individually by the tavern’s

customers.” /d. at 92.

EEO ———————OO——E——EE——EEE————OeoOoO

The other issue addressed in Ybarra concerned the

state’s claim that the reasonable suspicion standard of Terry

v. Ohio, 392 U.S. 1 (1968), should be extended to promote

the evidence-gathering function of a search warrant. In an

argument reminiscent of the petitioner’s position in this case,

the State of Illinois urged the Court “to permit evidence

searches of persons who, at the commencement of the search,

are on ‘compact’ premises subject to a search warrant, at

least where the police have a ‘reasonable belief’ that such

persons ‘are connected with’ drug trafficking and ‘may be

concealing or carrying away the contraband.”” Ybarra, 444

U.S. at 94. The Court’s response was telling: “Over 30 years

ago, [we] rejected a similar argument in United States v. Di

Re.” Id. at 94. There were obvious differences between Di Re

and Ybarra. For example, the officers in Di Re lacked a

search warrant, whereas the police in Ybarra had one. Di Re

involved a car and Ybarra involved a tavern. Also, the State

of Illinois did not concede, as the United States did in Di Re,

that a valid search warrant for a house would not authorize

the search of all persons found in the house. Despite these

differences, the Ybarra Court concluded that “the governing

principle in both cases is basically the same, and we follow

that principle today.” /d. at 95. That principle — controlling in

Di Re, Ybarra and this case — is that probable cause requires

sufficient information — particularized suspicion — that

justifies singling out the target of the police intrusion.

Il. THERE WAS NO PROBABLE CAUSE TO

ARREST RESPONDENT ON THE FACTS OF

THIS CASE

When all is said and done, the petitioner’s argument

rests on either of two propositions, neither of which is

sustainable. First, petitioner contends there was probable

cause to arrest respondent because the facts provided an

individualized suspicion to arrest a// of the occupants of the

car. Second, petitioner appears to be asserting that police

may arrest everyone inside a car when drugs are found

hidden inside the vehicle even absent a particularized

suspicion that any one or all the occupants may have known

about the drugs. See Br. Pet. 25 (“Under the circumstances of

the car stop here, unlike the situations in Di Re and Ybarra,

suspicion did not focus on a particular individual to the

exclusion of others. Because the drugs were found not on the

person of anyone, but behind the armrest within the easy

grasp of the three occupants, there was probable cause to

arrest [everyone].”). See also Br. U.S. 26 (“In this case,

consequently, even if the circumstances had led Officer

Snyder to believe that one (and only one) of the three

passengers could have been associated with the cocaine, he

had probable cause to arrest all three and to identify the

guilty party through further investigation.”). The latter

proposition is not sustainable because Di Re and Ybarra have

already established that mere propinquity to hidden

contraband does not constitute probable cause to justify an

arrest or search.

Officer Snyder did not have probable cause to arrest

respondent. Although Officer Snyder was investigating a

known crime and had probable cause for a further search of

the vehicle, he had no individualized basis for arresting

respondent. “[Respondent] made no gestures indicative of

criminal conduct, made no movements that might suggest an

attempt to conceal contraband, and said nothing of a

suspicious nature to the police officer[].” Ybarra, 444 U.S. at

91. As in Ybarra and Di Re, Officer Snyder “knew nothing in

particular” about respondent, /d. at 91, except that he was

present, along with two other occupants, in an automobile

that the police knew contained illegal drugs. A person’s mere

presence in a suspected vehicle, however, does not constitute

probable cause to search or arrest that individual. “Where the

standard is probable cause, a search or seizure of a person

must be supported by probable cause particularized with

respect to that person. This requirement cannot be undercut

or avoided by simply pointing to the fact that coincidentally

there exists probable cause to search or seize another or to

search the premises where the person may happen to be.” /d.;

see also Di Re, 332 U.S. at 587 (“We are not convinced that a

person, by mere presence in a suspected car, loses

immunities from search of his person to which he would

otherwise be entitled.”); id. at 593 (“presence of Di Re in the

car did not authorize an inference of participation” in the

conspiracy to justify his arrest). A dragnet arrest “was no

substitute for the individualized suspicion requirement.”

Acton, 515 U.S. at 668 (O’Connor, J., dissenting). The

definition of “probable cause” stated in Ybarra has not

changed.

Petitioner insists, however, that “when multiple

occupants are present in a car containing illegal drugs, a

common sense inference can be drawn that any or all of the

occupants have knowledge of the drugs found in the car.” Br.

Pet. 17. See also Br. U.S. 15 (“[T]he presence of drugs —

without more — immediately reveals criminal activity....

[T]he discovery of an amount of narcotics suitable for

distribution in the passenger compartment supports an

inference that all of the car’s occupants were aware of, and

hence involved with, the drugs.”). This argument is flawed

for several reasons. First, it ignores the critical fact that the

drugs found by Officer Snyder were not in the plain view of

the occupants of the automobile. Second, the logic of

petitioner’s position effectively creates a per se rule that

police discovery of contraband that is not in plain view

provides probable cause to arrest everyone on the scene. This

rule cannot be confined to “car” cases. Finally, the reasoning

of Wyoming v. Houghton undermines petitioner’s argument.

Houghton states that the “traumatic consequences” of a

personal search are not to be visited upon a passenger due to

his mere presence in a suspected vehicle. Houghton, 526 U.S.

at 303. If respondent could not be subjected to the “traumatic

ee, a

consequences” of a personal search, there is no legal

justification for subjecting him to the far greater “traumatic

consequences” of an arrest.

A. The Discovery of Drugs Hidden Inside a Vehicle

Does Not Provide Probable Cause to Arrest All of

the Occupants

It is undisputed that the money and cocaine

discovered by Officer Snyder were not in the plain view of

the occupants of the vehicle. JA 33, 40-41. Moreover, the

ruling below that there was no probable cause to arrest

respondent specifically rested on the fact that the money and

cocaine were hidden from view. Pet. App. 2a., 22a-23a.

Petitioner’s contention that there was, nonetheless,

probable cause to arrest respondent simply because he was in

a car where drugs were found is contradicted by this Court’s

holding in Di Re. One of the factors relied upon by Di Re in

rejecting the inference that there was probable cause to arrest

Di Re was the fact that “the alleged substantive crime is one

which does not necessarily involve any act visibly criminal.”

Di Re, 332 U.S. at 593 (emphasis added). Here, “the alleged

substantive crime” was not conduct visible to the occupants

of the car or Officer Snyder.’ Furthermore, as in Di Re,

“(t]here is no evidence... . that [Officer Snyder] had any

’ Perhaps in an effort to avoid this aspect of Di Re, the United States

speculates that the cocaine was somehow, at sometime, visible to

everyone in the vehicle, or that Officer Snyder could have made such an

inference. See Br. U.S. 17 (“And the discovery of the drugs behind the

armrest rather than in a more secreted location suggested that the cocaine

had been in plain view of the passengers but was hastily lodged between

the armrest and the seat during the traffic stop.”) (emphasis added); id. at

22 (“the possession in a car of a commercial quantity of cocaine

‘necessarily involve[s] an{] act visibly criminal to passengers who

observe it.”) (emphasis added). There is no support in the record for this

conjecture. There was no information available to Officer Snyder at the

time of arrest that the cocaine “had been in plain view of the passengers,”

or that the passengers had “observe[d] it” while inside the vehicle. See JA

33, 40-41.

information indicating that [respondent] was in the car when

[the drugs were placed behind the armrest], and none that

[respondent] heard or took part in any conversation on the

subject.” Di Re, 332 U.S. at 593.

The Solicitor General’s claim that “the presence of

drugs — without more — immediately reveals criminal

activity,” and thus supports “an inference that all of the car’s

occupants were aware of, and hence involved with, the

drugs,” Br. U.S. 15 (citation omitted), is unsubstantiated by

the record and inconsistent with common experience.

Certainly, the innocent graduate student who is offered a ride

home by a friend after a late-night party will not search

underneath the seat or examine the glove compartment before

accepting the ride home. Similarly, the office worker who

offers to drive two colleagues to a weekend beach house will

not demand the right to search the bags of his invitees before

starting the trip. As Justice Powell noted:

[T]here are countless situations in which

individuals are invited as guests into vehicles

the contents of which they know nothing

about, much less have control over. Similarly,

those who invite others into their automobile

do not generally search them to determine

what they may have on their person; nor do

they insist that any handguns [or drugs] be

identified and placed within reach of the

occupants of the automobile. Indeed,

handguns [and drugs] are particularly

susceptibie to concealment and therefore are

less likely than are other objects to be

observed by those in an automobile.

County Court of Ulster County v. Allen, 442 U.S. 140, 174

(1979) (Powell, J., dissenting).

As a doctrinal matter, not only does the Solicitor

General’s proposal contradict the rule of Di Re, it also

ignores this Court’s repeated warnings that the definition of

probable cause and reasonable suspicion should not be

reduced to “a neat set of legal rules.” Gates, at 232; see also

Ornelas v. United States, 517 U.S. 690, 695-96 (1996). When

drugs or contraband are found hidden inside an automobile

containing multiple occupants, a more nuanced analysis is

required. For example, Professor LaFave concludes that

“(when the nature of the ongoing criminal activity is such

that its existence is not evident to others in the vicinity, it is

then necessary to give careful consideration to those aspects

of the extent and nature of the association which may

indicate that the associate is also an accomplice.” 2 LaFave,

supra § 3.6(c) at 311 (footnote omitted). Instead of the hard-

and-fast rule proposed by the Solicitor General, Professor

LaFave reads Di Re as “intimat[ing] that when the offense

committed by the other person does involve an ‘act visibly

criminal,’ then the chances are substantially greater that a

companion of the offender is something more than a mere

bystander.” /d. at 313.

Here, the nature of the criminal conduct involved —

cocaine possession — was not evident to others on the scene.

Officer Snyder was unaware of the drugs until he searched

the car. As noted, respondent made no furtive gestures or

other suspicious movements. In sum, there were none of the

telltale signs of suspicious behavior often observed by police

to support the inference that respondent was an accomplice in

criminal behavior. See /d. at 312, n.108 (listing cases where

suspicious conduct of person supported inference that he was

involved with the criminality of his traveling companions).

B. Petitioner’s Rule Extends Beyond Cars, and

Would Effectively Overrule Ybarra and Di Re

Petitioner’s argument cannot be confined to contexts

involving multiple occupants of automobiles. Indeed,

petitioner recognizes the breadth of its reasoning and invites

the Court to endorse the arrest of multiple persons on the

scene when police uncover hidden evidence of criminality.

See Br. Pet. 28-29. For instance, petitioner opines that

multiple arrests are lawful when an officer finds drugs “in a

motel room occupied by several people.” By not limiting his

proposed rule in any meaningful way, petitioner is essentially

urging this Court to create a new, per se rule that police

discovery of contraband provides probable cause to arrest

everyone on the scene, even when the contraband is not in

plain view. This rule would effectively overrule both Ybarra

and Di Re.

Petitioner criticizes the ruling below because it

“would wreak havoc in other probable cause applications.”

Br. Pet. 28.° The narrow ruling below, however, is consistent

with the particularized suspicion requirement mandated by

Di Re and Ybarra which was designed to bar dragnet

searches and arrests. A hypothetical illustrates the serious

implications of petitioner’s argument. Assume Baltimore

police come to A’s apartment at 3:00 a.m. in response to a

noise complaint. A is having a party with 20 friends. After

telling A to lower the music, the police obtain A’s consent to

* Petitioner offers the hypothetical of four persons sitting at a card-table

with a “smoking gun” in the middle of the table and one of the persons

slumped over the table (apparently dead or shot) as an illustration of the

possible havoc wrought by the ruling below. Petitioner contends that it

would be foolish to hold that an officer could only arrest the homeowner

or the person closest to the gun. Petitioner's hypothetical is not

comparable to facts here. As noted, the court below expressly confined its

holding to situations where an officer discovers evidence of criminality or

contraband not in plain view of the occupants. Pet. App. 2a, 23a. In

petitioner’s hypo, the gun and dead body are obviously in plain sight of

the other persons sitting at the table.

search the premises for weapons or drugs. An officer lifts a

pillow on the couch and discovers a large amount of money

and several baggies of cocaine. After A and his friends refuse

to talk about the money or drugs, the police arrest everyone.

If petitioner’s rule is applied to this hypothetical, the

discovery of the hidden contraband provides probable cause

to arrest everyone on the scene. Under this scenario, several

innocent persons will be arrested, and those who are unable

to post bail may spend several weeks incarcerated before

their case is dismissed or resolved.”

Although the discovery of the drugs indicated

criminal conduct and may have provided probable cause to

search the premises, it did not provide authority to arrest all

20 of A’s friends because “where the standard is probable

cause, [an arrest] of a person must be supported by probable

cause particularized with respect to that person.” Ybarra, 444

U.S. at 91. See also, United States v. Connolly, 479 F.2d 930,

936 (9th Cir. 1973) (“Even certain knowledge that

contraband is within a dwelling does not constitute probable

cause to arrest whoever happens to be inside.”); 2 LaFave,

” See Karl 1. Moline & Faye S. Taxman, Pretrial Processing in Baltimore

City, MD: A Status Report, Bureau of Governmental Research 5 (Final

Draft, March 2003) (reporting that arrestees “detained to trial spend an

average of 77.9 days incarcerated awaiting trial”). Other studies of

Maryland’s pretrial process also found that arrestees unable to obtain bail

may wait 30 days or longer before their cases are resolved or dismissed.

See The Abell Foundation, The Pretrial Release Project: A Study of

Maryland's Pretrial Release and Bail System 34-35 (Sept. 12, 2001);

Caitlin Francke, Police Powers of Arrest Under Study; Judges Favor

Shifting Authority to Prosecutors, Baltimore Sun, December 11, 1998 at

1B (quoting Baltimore Circuit Administrative Judge Joseph Kaplan: “It’s

just not right for them to charge people when you can’t prove the case

and have them sit in jail for a long time.”); Douglas L. Colbert, For Want

of a Lawyer, Many Do Time; 60% of Defendants Spend Weeks in Jail, but

Never go to Trial, Baltimore Sun, April 7, 1996 at 6F (noting a study of

Baltimore City showing “that nearly 60 percent of defendants’ cases were

either dismissed or not prosecuted after the defendant spent 47 days in

jail”).

supra § 3.1(b) at 9 (“probable cause to search a particular

place may exist without there also being probable cause to

arrest a person who occupies the place.”) (citation omitted).

If it is unreasonable to arrest all 20 of A’s friends, then the

arrest of respondent was equally unreasonable. Although the

hypothetical envisions arresting 20 people while this case

involves only three persons, under petitioner’s logic, the

arrests are justified in both situations. Both rest on the

premise that where drugs are found in a confined spatial

context and there is a sufficient personal nexus between the

individuals in that space, the circumstances justify an

inference that everyone was culpably involved with the

drugs. See Br. Pet. 22-23 (listing criteria that justified arrest

of respondent and the occupants).

Petitioner insists that Ybarra is distinguishable from

the case sub judice. Petitioner asserts that the search in

Ybarra “was improper because there was no connection or

common enterprise between the bartender and the customer.”

Br. Pet. 25 (emphasis added). This description misses the

point of Ybarra’s holding. Certainly, the officers who

executed the search warrant “knew nothing in particular

about Ybarra, except that he was present, along with several

other customers, in a public tavern at a time wher the police

had reason to believe that the bartender would have heroin

for sale.” Ybarra, 444 U.S. at 91. Assume, however, that

Ybarra was conversing with the bartender — instead of

“standing by a pinball machine,” id. at 88 — when the police

arrived. That conversation might have demonstrated a

“connection” between Ybarra and the bartender, just as the

presence of 20 people at A’s party established a “connection

or common enterprise” between the occupants. Despite such

a “connection,” Ybarra’s citation to Sibron v. New York, 392

U.S. 40, 62-63 (1968), unmistakably indicates that the Court

would have still found no probable cause to arrest or search

Ybarra. As the cite to Sibron explains, “[t}he inference that

persons who talk to narcotics addicts [over a period of eight

neal

hours] are engaged in the criminal traffic in narcotics is

simply not the sort of reasonable inference required to

support an intrusion by the police upon an individual's

personal security. Nothing resembling probable cause existed

[here}.” Jd.

The lack of probable cause in Ybarra was not based

on the absence of a “connection or common enterprise

between the bartender and the customer.” The reason there

was no probable cause to arrest in Ybarra is the same reason

there was no probable cause to arrest all of A’s friends (in the

hypothetical) or respondent in this case: the police lacked an

individualized basis for suspecting that the particular

arrestees had committed a crime. Mere conversations

between Ybarra and the bartender might have established a

“connection” between the two, but that would not be enough

to justify searching or arresting Ybarra. Likewise, the

gathering of 20 people at A’s apartment for a party

established a “connection or common enterprise” between

those persons and premises where police subsequently

discovered evidence of crime. But that “connection” does not

justify an inference that each was an accomplice to criminal

behavior.

The reasoning and result in Di Re controls this case.

Petitioner and its amici, however, suggest that Di Re supports

their position that the discovery of narcotics in a vehicle

provides probable cause to arrest all of the occupants.

According to petitioner, Di Re involved the “rare situation”

where police “have specific information that forecloses a

reasonable belief that one of the occupants was guilty, thus

negating probable cause to arrest that person,” Br. Pet. 24,

even though Di Re was present in a vehicle where there was

probable cause to search for counterfeit coupons and

probable cause to arrest the other occupants. Petitioner also

insists that dicta from Di Re “recognized that in other

circumstances an inference could be drawn that one who

accompanies another to a criminal enterprise is not an

innocent bystander.” /d. at 25 (citations omitted). By

contrast, the argument continues, respondent’s case provided

“no such basis for disregarding the inference that all three

passengers were aware of the cocaine.” Br. U.S. 22.

Petitioner’s analysis of Di Re is not convincing, and

contrary to Professor LaFave’s conclusion that Di Re “makes

it clear that companionship with an offender at the very time

of the latter’s criminal conduct is not inevitably sufficient to

establish probable cause for arrest of the companion. This is

particularly true when, as in Di Re, it is very possible for the

criminal conduct to be occurring without the knowledge of

the companion.” 2 LaFave, supra § 3.6 (c) at 310.

Petitioner’s analysis of Di Re, like its interpretation of

Ybarra, is mistaken for several reasons. First, the prosecution

has the burden of establishing probable cause for a

warrantless arrest. See Beck v. Ohio, 379 U.S. 89, 97 (1964);

Illinois v. McArthur, 531 U.S. 326, 328 (2001) (Souter, J.,

concurring). Thus, respondent had no obligation to bring

forth “specific information,” Br. Pet. 24, or other evidence to

establish a lack of probable cause for his arrest.'° More

importantly, the same factors that caused the Di Re Court to

find no probable cause to arrest Di Re are present in

respondent’s case. Di Re observed:

'° The Solicitor General wrongly suggests that it matters to the probable

cause determination that “[njone of [the occupants of the vehicle]

acknowledged exclusive ownership of the drugs when questioned by

Officer Snyder,” nor “did any of them express surprise at the discovery of

the drugs.” Br. U.S. 22. There are legitimate reasons why a person

questioned by the police would not acknowledge or deny ownership of

illegal narcotics that were found hidden inside the car he was riding in, or

why that person would not express surprise or reveal other emotions in

response to an officer's interrogation about illegal narcotics. The Self

Incrimination Clause of the Fifth Amendment protects drivers and

passengers from incriminating themselves in these situations, and it is a

federal crime to make a false statement to a federal law enforcement

officer, see 18 U.S.C. § 1001(2) (2002), and a crime in Maryland, see

Md. Code Ann., § 9-501 (2002), to make a false statement to a police

officer.

[A}t the time of the arrest the officers had no

information implicating Di Re and no

information pointing to possession of any

coupons, unless his presence in the car

warranted that inference. Of course they had

no information hinting further at the

knowledge and intent required as elements of

the felony under the statute.

332 U.S. at 592. Here, at the time of respondent’s arrest, the

only information that supported Officer Snyder’s inference

that respondent knew of the drugs was his presence in the

suspected car. Respondent “made no gestures indicative of

criminal conduct, made no movements that might suggest an

attempt to conceal contraband, and said nothing of a

suspicious nature to the police officer[].” Ybarra, 444 U.S. at

91. And, as in Di Re, Officer Snyder had “no information

hinting further at the knowledge and [dominion or control]

required as elements of the felony under the [Maryland]

statute.” 332 U.S. at 592. Officer Snyder’s inference that

respondent was aware of the drugs turned solely on

respondent’s presence in the vehicle, the same inference that

Di Re found insufficient to justify an arrest. See /d. at 593

(“[I}f the presence of Di Re in the car did not authorize an

inference of participation in the [conspiracy], it fails to

support the inference of any felony at all . . . Presumptions of

guilt are not lightly to be indulged from mere meetings.”).

Cc. Rulings Since Di Re Have Not Undermined the

Validity of Di Re; Rather, These Rulings Support

the Conclusion That, Under the Facts, There Was

No Probable Cause to Arrest Respondent

The holdings — as opposed to dicta — in Wyoming v.

Houghton, 526 U.S. 295 (1999) and County Court of Ulster

County v. Allen, 442 U.S. 140 (1979), do not support

petitioner’s position. As petitioner concedes, both of these

cases were “decided in contexts other than probable cause to

arrest.” Br. Pet 18. Houghton concerned whether the

automobile exception permits a search of a passenger’s purse

found inside a car absent individualized suspicion that

contraband is in the purse. Houghton’s holding was

straightforward: “We hold that police officers with probable

cause to search a car may inspect passengers’ belongings

found in the car that are capable of concealing the object of

the search.” 526 U.S. at 307. To be sure, Houghton creates

an exception to the “individualized probable cause”

requirement for packages and containers found inside a

vehicle. Jd. at 302. That result was compelled by the unique

history of the automobile exception, id. at 300-01, which

concerns an officer’s search authority when probable cause

exists that a vehicle contains criminal evidence. This case,

however, concerns an officer’s arrest authority, and thus,

does not implicate the same law enforcement and diminished

privacy interests involved in car searches.

More importantly, rather than undermining “the

continuing vitality of Di Re,” Br. U.S. 7, “Houghton actually

reaffirms Di Re.” 3 LaFave, supra § 7.2 at 124 (3d ed. 1996)

(Pocket Part 2003). Houghton specifically distinguishes a

search of a passenger’s property from a ~~

passenger’s person, which was invalidated in Di Re.

former search is reasonable because of ee

expectation of privacy” associated with property in a

vehicle. Houghton, 526 U.S. at 303. It is unreasonable,

however, to search a passenger's person absent

“individualized probable cause.” Jd. at 302. “[T]he degree of

intrusiveness upon personal privacy and indeed even

persona! dignity,” makes a search of the person “differ

substantially from the package search at issue” in Houghton.

Id at 303. Because Houghton distinguished searches of

property from the “significantly heightened protection

afforded against searches of one’s person,” id., petitioner

wrongly suggests that “[t}he facts and rationale [of

Houghton] are quite analogous to the issue here of probable

+ me

cause to arrest a passenger.” Br. Pet 19. If the “traumatic

consequences,” Houghton, 526 U.S. at 303, associated with a

personal search are not to be visited upon a passenger due to

his “mere presence in a suspected car,” Di Re, 332 U.S. at

587, the far more “traumatic consequences” inherent in an

arrest surely cannot be visited upon a passenger either. C/.

Atwater v. Lago Vista, 532 U.S. 318, 364-65 (2001)

(O’Connor, J., dissenting); United States v. Watson, 423 U.S.

411, 428 (1976) (Powell, J., concurring).

Similarly, Allen does not support the arrest of

respondent. A//en upheld the constitutionality of a statutory

presumption, “as applied to the facts of th[{at] case,” 442 U.S.

at 163, that provided that the presence of a firearm in a car is

presumptive evidence of its illegal possession by all of the

vehicle’s occupants. The facts in Allen were “tantamount to

[a case] in which the guns were lying on the floor or the seat

of the car in the plain view of the three other occupants of the

automobile. In such a case, it is surely rational to infer that

each of the [occupants] was fully aware of the presence of

the guns and had both the ability and the intent to exercise

dominion and control over the weapons.” /d. at 164-65

(emphasis added). Here, the critical fact is that the money

and drugs were not in plain view of the occupants or Officer

Snyder. Thus, the result in Allen does not affect this case.

The judgment below addressed only the lawfulness of

respondent’s arrest as a mere passenger. Whether there might

be probable cause to arrest the driver or owner of a vehicle

under these circumstances or different facts, is a question the

Court need not address in this case. See Ashwander v.

Tennessee Valley Authority, 297 U.S. 288, 346-47 (1936)

(Brandeis, J., concurring); (explaining the Court should not

decide “‘questions of a constitutional nature unless

absolutely necessary to a decision of the case.””) cf. Alabama

v. Shelton, 535 U.S. 654, 676-77 (2002) (Scalia, J.,

dissenting).

CONCLUSION

For the reasons stated above, the judgment of the

Maryland Court of Appeals should be affirmed.

Respectfully Submitted,