# Amicus Curiae Brief — Thornton v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0007%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2004 - **Citation:** 541 U.S. 615 ## Text oh, {ff } or No. 03-5165 In The Supreme Court Of The United States Marcus Thornton Petitioner Vv. United States of America Respondent ON WRIT OF CERTIORARI To THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT MOTION FOR LEAVE TO FILE BRIEF OF SHASHANK S,. UPADHYE AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY Shashank S. Upadhye* 2050 Bunker Circle Naperville, IL 60563-1892 (312) 443-1836 (day) Counsel for Amicus Curiae Shashank S. Upadhye *Counsel of Record Motion For Leave To File Brief Amicus is a member in good standing of this Court and moves this Court for leave to file the attached brief in support of neither party. The United States consented but the Petitioner's counsel did not and similarly, did not provide a detailed explanation thereto. This brief proposes a rule that finally dispenses of the “intent” or “motive” based approach for vehicle searches putatively present under the Chimel-Belton doctrines. The motive or intent based approach has been examined by this Court in two prior cases that were never resolved because this Court either dismissed the petition as improvidently granted or dismissed for want of jurisdiction. Amicus has a strong interest in preserving the rights granted under the Fourth Amendment and believes that a new zone-based approach is necessary. Amicus proposes a new rule that ignores subjective factors and focuses on objective factors; more precisely, the desire to create bright line rules that assist law enforcement officers in performing their duties and protects individual liberties. Given the increasing emphasis placed on law enforcement to ferret out national security threats, subjective inquiries must be abandoned in favor of objective inquiries. Amicus has demonstrated a disturbing and pernicious trend toward reducing privacy rights involving automobiles and believes that a more objective based inquiry is necessary. The new test is adequately described in the brief. Finally, as a matter of professional courtesy, a draft of this brief was sent to the Petitioner’s counsel weeks before this filing and thus has had ample opportunity to review its substance and thus will not be prejudiced by this brief. Therefore, amicus requests the Court grant the leave. -ii- TABLE OF CONTENTS TABSAS OF AUTUROEES BEEED cvccssccsetinintineiumiiie ill INTEREST OF AMICUS CURIAE ...............cccsecccccccceseeeeeees 1 SUMMARY OF THE ARGUMENT.......0000.....cc cece eeeeeeeeeeee 2 SURE TEI Bo 0cccccessrsvescesonscessienseniebsisssinnaianiinaainiennnan 4 I. Belton Does not Extend Beyond The Scope Of Chimel, Which is Strictly Construed..................00008. 4 1.A. Chimel Implicitly Adopted a Spatial and Temporal Relationship Theory Tying the Item Searched To TRO AgGeGGO .uscsicivcisemsommmeaaaae 7 Il. Chimel and Belton Mandate a Zone-Based Approach That Ignores The Arrestee’s Motive For Boitimg thee Vedic bee ..1ncccscscccossesssenniiaaneeneeee 10 Il.A. Why a Zone-Based Approach is 5 PR 10 11.B. Explanation of Scenarios and OCRCDEINOS........0+20000000<0000ssescsunsennniannalilannn 14 II.C. Justification for a Zone-Based Approach...... 16 III. Application of The Zone Based Approach To ne 21 CONCLUSION ........0000+:000ssessnennsensuesnasiiisiiaaiannnnnnnn 22 a ee : me gy on -ill- ‘ TABLE OF AUTHORITIES FEDERAL CASES Agnello v. United States, 269 U.S. 20 (1925) .....cccceceeeeeeees 7 Almeida-Sanchez v. United States, 413 U.S. 266 a acted iciaiscececenreunsevesevevsevecsesones 19 Arizona v. Gant, 202 Ariz. 240 (2002) ..............00c0eeee 15, 16 Atwater v. City of Lago Visa, 532 U.S. 318 (2001)... 18 Bowers v. Hardwick, 478 U.S. 186 (1986) .............cccccccceeee 2 Boyd v. United States, 116 U.S. 616 (1886) «0.0.0... 20 California v. Acevedo, 500 U.S. 565 (1991)... cccecceeeeees 19 California v. Carney, 471 U.S. 386 (1985) «00... 5,19 Carroll vy. United States, 267 U.S. 132 (1925) ..............:. 6,7 Chambers v. Maroney, 399 U.S. 42 (1970) .......ccceeceees 9,18 Chimel v. California, 395 U.S. 752 (1969)... passim Colorado v. Bertine, 479 U.S. 367 (1987)............:cccceceeeees 17 Coolidge v. New Hampshire, 403 U.S. 443 (1971)....... 8, 12 Delaware v. Prouse, 440 U.S. 648, 662 (1979)... 5 Dyke v. Taylor Implement Manufacturing Co., ES Le 9 Florida v. Bostick, 501 U.S. 429 (1991)...........ccc eee eeeeeeees 17 Florida v. J.L., 529 U.S. 266 (2000)............c.ssssssessssesseees 18 Florida v. Jimeno, 500 U.S. 248 (1991) 20.0.0... eee 15,17 -jV- Florida v. Rover, 460 U.S. 491 (1983) ........cccceceeeeeeeeeeeeeees 15 Florida v. Thomas, 532 U.S. 774 (2001) .........cccccc cece 11, 15 Florida v. White, 526 U.S. 559 (1999) ooo. ceccceee eee 16, 18 Go-Bart Importing v. United States, 282 U.S. 344 Eee sicnscccniseeiiceshateiniciiniciebeninitiondeniindaiiadinctiuindtalanasadnidiiins 7 Hill v. Colorado, 530 U.S. 703 (2000) ............ccccccccceeeeeees 11 Illinois v. McArthur, 531 U.S. 326 (2001) ....... cece 17 Katz v. United States, 389 U.S. 347 (1967) ..............0..c eee 19 Knowles v. lowa, 525 U.S. 113 (1998).......................000000. 13 Lawrence v. Texas, 539 U.S. _ (20003)............ccceeccceeeeeeees 2 Michigan v. Chesternut, 486 U.S. 567 (1988).............000 15 New York v. Belton, 435 U.S. 454 (1981)... passim Owasso Independent Sch. District v. Falvo, 534 a ee rccccendscisoibiiiniiaiiddltndnmunnciadilbiinamindiaiiliass 3 Pennsylvania v. Labron, 518 U.S. 938 (1996) ..............000 5 Pennsylvania v. Mimms, 434 U.S. 106 (1977) 0.0.0.0... 19 Rakas v. Illinois, 439 U.S. 128 (1978)........... ccc cece eeeeeeeeeeeees 5 Renton v. Playtime Theatres, Inc., 475 US. 41 SE ccinicieniseuhinsniesinsiapaitieidaebiecnatasapiaincdaadibiihd acti kaatdacesiatie 1] Schenck vs. Pro-Choice Network, 519 U.S. 357 EIGEN INT TITS S PTI FS SOPOT Pe 1] South Dakota v. Opperman, 428 U.S. 364 (1976)......... 5,17 ———o -y- BaOey 0. CIM, FOS UB. 8 CIT acvceccccscvccscscenasenssscssanssenees 17 Texas v. White, 423 U.S. 67 (1975) ...............ccccccccssseceeeeees 18 United States v. Banks, 540 U.S. (2003)... 11 United States v. Brignoni Siiiain 422 U.S. 873 Sr Waa ckiciecssosetsiipidibnaecheiaihiteniicinndciadiadisanadenbeténianibicseuiniiiiina 17 United States v. Jeffers, 342 U.S. 48 ......ccccccccsssssscssseeceeees 19 United States v. Johns, 469 U.S. 478 (1985) ...........cccce econ 12 United States v. Ortiz, 422 U.S. 891 (1975) ..........cc eee 11 United States v. Place, 462 U.S. 696 (1983) ............... 12,17 United States v. Rabinowitz, 339 U.S. 56 (1950) ................ 7 United States v. Robinson, 414 U.S. 218 (1973) ............... 13 United States v. Ross, 456 U.S. 798 (1982)..........cccccceeeeees 19 United States v. Thornton, 325 F.3d 189 (4" Cir. Taal vvceinissascticinleamssiiticdunisciiabininnaitatenmeenimsincdibiedaiaanedmiets 21 United States v. Van Leeuwen, 397 U.S. 249 Ii iicssinssstethienasenncinitinesdnciiniiaitinteapintniaseninieiineatenebiiin 17 Wyoming v. Houghton, 526 U.S. 295 (1999).......ccccceee 6, 18 DOCKETED CASES United States v. Flores-Montano, U.S. Supreme Court Docket No. 02-1794, cert. granted, 14 SE, Fa sssecsistinsaseninntnisisinsusentiijaisiiiniveiibdiadiicmassiiiiii 11,17 -vi- FEDERAL STATUTES 30 Geo. Il. Ch. 22, Sec. 5, 13, 22 Stat. 107-108, 111 (1757) 27 Geo. Il, ch. 16, Sec. 7, 21 Stat. 188 (1754)... 19 U.S.C. §1581(a) Law Review Articles Shashank S. Upadhye, Trademark Surveys: Identification Of The Relevant Universe Of Consumers Who Must Be Confused, 8 Fordham I.P., Ent. & Media L.J. 550, 564- 578 (June 1998) eee eee ee eee eee eee eee ee eee eee eee eee ee hee eee eee eee ee eee eee eee ee eee) a BRIEF OF SHASHANK S. UPADHYE AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY With the consent of the Respondent but without consent of the Petitioner, amicus curiae, Shashank S. Upadhye respectfully submits this brief in support of neither party.” INTEREST OF AMICUS CURIAE Shashank S. Upadhye is a lawyer who also studies the Fourth Amendment search and seizure law with a particular emphasis on the “automobile exception.” Through this brief, Mr. Upadhye hopes to persuade this Court to adopt a rule that reflects and reaffirms the standards set forth in Chimel instead of adopting rigid rules that emasculate the protections of the Fourth Amendment: Moreover Mr. Upadhye writes to remind the Court that the undisputed rule of the Fourth Amendment is that warrants are required wherever reasonably possible and warrantless searches are the very limited exceptions. Furthermore, Mr. Upadhye writes to dissuade this Court from adopting rules proposed by law enforcement agencies that are couched in terms of “national security” in the post-September 11' aftermath. Because the ultimate relief sought by the parties threatens both the interests of society and poses harm to * Counsel of record for the United States consent, but Petitioner's counsel did not. In accordance with this Court’s Rule 37.3(b), those letters have been filed with the Clerk. In accordance with Rule 37.6, amicus states that this brief was authored in its entirety by the counsel listed on the cover, and no person or entity other than the amicus listed on the cover made a monetary contribution to the preparation or submission of this brief. the respect for the Bill of Rights, Mr. Upadhye submits this brief. SUMMARY OF THE ARGUMENT The question presented is: whether the bright line rule announced in New York v. Belton, 435 U.S. 454 (1981) is confined to situations in which the _ police initiated contact with the occupant while that person is in the vehicle. Regrettably, the answer is not that simple for via prior cases that went unresolved by this Court, the United States has disguised within this simple question a hidden but frontal attack on Chimel v. California, 395 U.S. 752 (1969), and Belton. More particularly, the rule professed by the United States further erodes the Chimel- Belton rules and furthers the erosion of applicable Fourth Amendment rights. Belton’s indisputable holding is that “when a policeman has made a lawful custodial arrest of the occupant of an _ automobile, he may _ as contemporaneous incident of that arrest, search the passenger compartment of that automobile. [footnote 3]” Beltgn, 454 U.S. at 460. In footnote 3, the Court took pains to also hold that the Belton holding “does no more than determine the meaning of Chimel’s principles in this particular and problematic content. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” Accordingly, because the Belton rule is predicated on the Chimel rule, then the bases of the Chimel rule dictate the contours of the Belton rule. The issue framed has enormous impact on the resolution of the case. Compare, Bowers uv. Hardwick, 478 U.S. 186 (1986)(narrowly framed issue) with Lawrence v. Texas, 539 U.S. __ (2003)(overruling Bowers on a more expansively framed issue). It is respectfully suggested that the issue as framed is wholly inadequate to the resolution of this case because it only concerns an intent or reason to exit. Rather, the issue for -3- resolution is: “may officers conduct a warrantless search of a vehicle under Chimel-Belton if the arrestee was within a spatial or temporal zone of the vehicle and does it matter whether the arrestee exited the car voluntarily?” See, Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426, 431 (2002)(discussing merits of addressing questions not squarely presented in petition and certiorari grant). None of the Supreme Court cases involving vehicle searches made intent or motive an issue in whether the search was permissible. Intent simply did not play a role in vehicle searches. But space and time have, and do, play a significant role in the vehicle cases. After all, the very essence of Chimel was a search incident to a lawful arrest in the areas where an arrestee could reach for weapons or destroy evidence. To this end, only regional appellate courts or state supreme courts have layered the intent or motive factor onto the Chimel-Belton tests. As such, the best rule to adopt is one that placates the interests of the law enforcement agencies and the rights of individuals. To this end, this brief suggests that this Court adopt a new rule based on whether the arrestee was within a spatial or temporal zone of the vehicle as mandated by Chimel-Belton and ignore the reasons the arrestee exited the car. There are, therefore, four scenarios in the following matrix that defines the permissibility of the search. Column one identifies the reason for the arrestee’s exit from the vehicle. Column two identifies whether the arrestee is within the Constitutional spatial or temporal zone and column three identifies whether a Constitutionally permissible search can result. Column four identifies a precedent, if available. -4- Scenario | Exit Proximity | Result | Precedent Reason 1 Police In-zone Search | Chimel & Initiated Belton 2 Police Outside No Belton Initiated Zone Search | maybe & Fourth Amend- ment 3 Voluntary | In-zone Search | New Rule & Chimel 4 Voluntary | Outside No New Rule Zone Search | Chimel, & Fourth Amend- ment ARGUMENT 1. Belton Does Not Extend Beyond The Scope Of Chimel, Which Is Strictly Construed. Belton’s holding does not at all suggest that the reason an arrestee exited a vehicle is important. Belton held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compa .ment of that automobile. [footnote 3]” Belton, 454 U.S. at 460. In footnote 3, the Court took pains to also hold that the Belton holding “does no more than determine the meaning of Chimel’s principles in this particular and problematic content. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to ew Oe. eee ret eneteth ett ht atl tonne veo ~ 28 ery ates teen es AED SO ee ee 5. lawful custodial arrests.” Chimel provided for warrantless searches incident to a lawful arrest only under certain narrow circumstances. Accordingly, it is indisputable that Belton was a further narrowly drawn exception to Chimel’s already narrow exception. Chimel, therefore, as the broader rule dictates the contours of Belton. Said another way, Belton cannot be broader than Chimel. Now it is true that the Court has stated that “cars are not to be treated identically with houses or apartments for Fourth Amendment purposes.” Rakas v. Illinois, 439 U.S. 128, 148 (1978). The purpose of that distinction rests in the inherent mobility of the vehicle creating the exigency of flight, California v. Carney, 471 U.S. 386, 392-93 (1985), Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)(“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.”); or because there is a reduced expectation of privacy in vehicles given the pervasive governmental regulation of automobiles. South Dakota v. Opperman, 428 U.S. 364, 367-68 (1976) (“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements...The expectation of privacy as to automobiles if further diminished by the obviously public nature of automobile travel.”). But see, Delaware uv. Prouse, 440 U.S. 648, 662 (1979)(a person operating a car “does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation’). Chimel was the first case to sanction the concept of a search incident to a lawful arrest. Chimel acknowledged that Court decisions on warrantless searches were far from consistent and acknowledged the difficulty in creating hard and fast rules. Chimel, 395 U.S. at 755. Chimel recognized, as a matter of First Principles, that “ the Framers adopted the Fourth Amendment as “a -6- reaction to’ the general warrants and _ warrantless searches that had so alienated the colonists and had helped speed the movement for Independence.” Chimel, 395 U.S. 761. As a matter of Framer’s Intent or early common law at the time of the Fourth Amendment, I found no case expressly discussing the application of the Amendment to horses, buggies, wagons, stage coaches, saddle bags, or other early modes of transportation as opposed to idly speculating what the common law was as the Court did in Carroll v. United States, 267 U.S. 132 (1925). See, Wyoming v. Houghton, 526 U.S. 295, 299 (1999)(“The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular governmental action violates this provision, we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed”). ! Against this backdrop, the Chimel court pronounced the twin motives for warrantless searches as incident to a lawful arrest. The first motive was to protect the arresting officer from harm, e.g., to prohibit the arrestee? from reaching for a weapon. The second motive was to prevent the destruction or concealment of evidence. Chimel, 395 U.S. at 762-63. Belton did not add anything more except extend Chimel to vehicles. Again, neither Chimel’s nor Belton’s holdings suggested that the reason | See, e.g., 30 Geo. I]. Ch. 22, Sec. 5, 13, 22 Stat. 107-108, 111 (1757Mauthorizing arrest of people obstructing public streets, lanes or open passages with pipes, butts, barrels, casks, or an empty cart, car, dray, or other carriage); see also, 27 Geo. II, ch. 16, Sec. 7, 21 Stat. 188 (1754)(permitting arrest for negligent carriage drivers). > The term “arrestee” denotes the vehicle occupant who exited the vehicle and was subsequently arrested and convicted based on the evidence obtained in the post-exit search. ee Ss to i. ee ee hee = Cotten — -7- the arrestee exited the vehicle was important. Chimel did not involve vehicles at all. But what Chimel and hence Belton, did was endorse a zone-based approach. 1A. _Chimel Implicitly Adopted A Spatial And Temporal Relationship Theory Tying The Item Searched To The Arrestee. As to the first motive, Chimel went to great pains to discuss “spatial and temporal” relationships incident to a warrantless search. With regard to the spatial relationship of the arrestee to the disputed evidence, the Court noted the gradual progression of the scope of the “space” that could be searched: e the right was to search the arrestee only, not anything else (Chimel, 395 U.S. at 755); e the permitted “space” morphed into the person or- area “in his control” (Chimel, 395 U.S. at 755-56; citing to Carroll v. United States, 267 U.S. 132, 158 (1925)); e the space then became the area “in the possession or under the control of’ the arrestee (Chimel, 395 U.S. at 760; citing to United States v. Rabinowitz, 339 U.S. 56 (1950)); e the space then became the area in “the offender's immediate custody” (Chimel, 395 U.S. at 757; citing Go- Bart Importing v. United States, 282 U.S. 344, 456 (1931)); and e the space became “the” place — as opposed to just any place — “where the arrest is made in order to find and seize things connected with the crime as its fruits” (Chimel, 395 U.S. at 756; citing to Agnello v. United States, 269 U.S. 20, 30 (1925)). But the underlying and indisputable theme in Chimel and the cases cited therein that is consistent with -8- the first motive was that the space to be searched was either the arrestee himself or the space in_ his “immediate” or “direct” or “in his control.” There is no doubt that regarding the first motive, the Chimel rule was that “there is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel, 395 U.S. at 763. As such, the most consistent reading of this language is that “reachability” is the key determinant. “Reachability” as a test avoids fictitious, cartoonish, or incredible hypotheses that persons well outside the wingspan or at some distance from the vehicle, could be in theoretical reach of the weapon. According to Merriam Wenster’s dictionary, “immediate” means “directly touching or concerning a person or thing” or “acting or being without the intervention of another object, cause, or agency. Belton also sanctioned reachability as the determinant wherein the Court said that the space to search was the “passenger compartment [if] within reach of the arrestee” Belton, 453 U.S. at 460; and “drawers within an arrestee’s reach could be searched.” Belton, 453 U.S. at 461. It follows that reachability is the linchpin of the spatial relationship test for reachability means “an area within the immediate control” of the arrestee. Confining Belton to its facts and narrow rule creates the appropriate rule that where the custodial arrestee is at some distance from his vehicle, or is in custody, then his vehicle is deemed to be at “another place” outside the vicinity of the arrest domain and hence a search is not incident to a lawful arrest. See, Coolidge v. New Hampshire, 403 U.S. 443, 457 (1971)(“Mr. Justice Black’s opinion for a unanimous Court held that ‘once an accused is under arrest and in custody, then a search (of his car) made at another place, without a warrant, is simply not incident to the arrest.”). See also, Dyke v. Taylor eee = “tint ites tele hae od at 6 ae