Amicus Curiae Brief — Wyoming v. Houghton

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In the Supreme Court of the

OCTOBER TERM, 1998

WYOMING, PETITIONER

Vv.

SANDRA HOUGHTON

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WYOMING

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

BARBARA MCDOWELL

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether police officers who have probable cause to

conduct a warrantless search of a car for contraband

may search all containers within the car that could

conceal the contraband, even if those containers may

belong to passengers whom the police do not have

probable cause to arrest.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement 2

Summary of argument 6

Argument:

Police officers who have probable cause to search

an automobile for evidence of a crime may open

any container in the automobile that could conceal

that evidence, without regard to which occupant

of the automobile owns the container 8

A. Therationale of Ross applies to all containers

in a car that could conceal the object of the

search, regardless of who owns the con-

tainer 10

B. The limitation on Ross announced in this

case would be unworkable in practice .........0-es0 19

C. The application of Ross tq all containers,

regardless of ownership, accords with related

legal rules under the Fourth Amendment ............. 23

Conclusion 26

TABLE OF AUTHORITIES

Cases:

California v. Acevedo, 500 U.S. 565 (1991) wm 9, 10, 11, 28

California v. Carney, 471 U.S. 386 (1985) y

Carroll v. United States, 267 U.S. 182 (1925) «0+ 5, 6, 9, 16

Chambers v. Maroney, 399 U.S. 42 (1970) 9

Chimel v. California, 395 U.S. 752 (1969) 24

County Court of Ulster County v. Allen, 412 US.

140 (1979) 14, 15

Dunaway v. New York, 422 U.S. 200 (1979) ..--ssssssssesseee se 23

Maryland v. Wilson, 519 U.S. 408 (1997)... 7-8, 12, 18, 24

Michigan v. Sumners, 452 U.S. 692 (1981) 16

New York v. Belton, 453 U.S. 454 (1981) ..-.cecseesseees 8, 18, 28, 24

New York v. Class, 475 U.S. 106 (1986) 23

(IIT) :

Cases—Continued: Page

People v. McMillon, 892 P.2d 879 (Colo. 1995) .......s000 12, 25

People v. Prance, 226 Cal. App. 3d 1525 (Ct. App.

1991) 25

Pennsylvania v. Labron, 518 U.S. 938 (1996) (per

curiam) 9

Rawlings v. Kentucky, 448 U.S. 98 (1980) 15

State v. Fix, 730 P.2d 601 (Ore. Ct. App. 1986) ........s-ss0+. 12

State v. Moore, 619 So.2d 376 (Fla. Dist. Ct. App.

1993) 25

State v. Thomas, 818 S.W.2d 350 (Tenn. Crim.

App. 1991) 5

Terry v. Ohio, 392 U.S. 1 (1968) 17

Texas v. Brown, 460 U.S. 730 (1983) 24

United States v. Crotinger, 928 F.2d 203 (6th Cir.

1991) 13

United States v. Di Re, 382 U.S. 581 (1948) 18

United States v. Giwa, 831 F.2d 588 (5th Cir.

1987) 18

United States v. Gray, 814 F.2d 49 (1st Cir.

1987) 18

United States v. Hensley, 469 U.S. 221 (1985) .....cccccsssseee 24

United States v. Johns, 469 U.S. 478 (1985) 9

United States v. Johnson, 475 F.2d 977 (D.C. Cir.

1973) 18

United States v. Ross, 456 U.S. 798 (1982) .....cvesssesseees passim

United States v. Vaughan, 718 F.2d 332 (9th Cir.

1983) 25

United States v. Young, 909 F.2d 442 (11th Cir.

1990), cert. denied, 502 U.S. 825 (1991) 18

Whren v. United States, 517 U.S. 806 (1996) .........cssccssseee 24

Ybarra v. Illinois, 444 U.S. 85 (1979) essen 4, 7, 16, 17, 18

Zurcher v. Stanford Daily, 436 U.S. 547 (1978) sacs 15-16

Constitution and statute: Page

U.S. Const.:

Amend. IV 1, 3, 7, 8, 9, 21, 28

Amend. XIV ......., 8

Wyo. Stat. Ann. § 35-7-1031(c)(iii) (Michie 1996) ...........00. 2,3

Miscellaneous:

W. Brown, Delta to Count Laptops as Carry-Ons,

Wash. Post., Mar. 4, 1998 20

8 W. LaFave; Search and Seizure (3d ed. 1996) .........s-00000 19

L. May, In the Bag, Atlanta Const., Jan. 15, 1995... 20

In the Supreme Court of the Gnited States

OCTOBER TERM, 1998

No. 98-184

WYOMING, PETITIONER

SANDRA HOUGHTON

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WYOMING

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether the Fourth

Amendment permits police officers who have probable

cause to search a car for evidence of a crime to open any

container in the car that could hold such evidence, even

if the container may belong to a passenger whom the

police officers do not have probable cause to arrest for a

crime. The United States has a significant law-

enforcement interest in assuring that the rule of United

States v. Ross, 456 U.S. 798 (1982), which provides that

police officers who have probable cause to search a

motor vehicle may search all containers within the

vehicle that could conceal the object of the search, is not

undermined by the sorts of distinctions drawn by the

(1)

—_

court below concerning the ownership of such

containers.

STATEMENT

After trial in Wyoming district court, respondent

Sandra Houghton was convicted of felony possession of

methamphetamine, in violation of Wyoming Statutes

Annotated § 35-7-1031(c)(iii) (Michie 1996). She was

sentenced to a term of imprisonment of not less than

two years or more than three years. The Wyoming

Supreme Court reversed the conviction. Pet. App. 4-5,

21-22.

1. 'n the early morning hours of July 23, 1995, Offi-

cer Robert Delane Baldwin of the Wyoming Highway

Patrol stopped a 1977 Cadillac for speeding and a

burned-out brake light. The car was driven by David

Young. The car had two passengers, both women, who

were sitting in the front seat. Pet. App. 2; J.A. 135-137.

Officer Baldwin observed a hypodermic syringe in

Young’s shirt pocket. Officer Baldwin ordered Young to

step outside the car and to place the syringe on the

hood. When Officer Baldwin asked Young why he was

carrying the syringe, Young replied that he used the

syringe to take illegal drugs. Officer Baldwin, assisted

by two other officers, directed the passengers to leave

the car and to provide identification. Houghton, who

gave her name as “Sandra James,” stated that she did

not have any identification with her. Pet. App. 3; J.A.

138-142.

Officer Baldwin then began to search the passenger

compartment of the car for narcotics, based on Young’s

possession of the syringe and his admission that he had

used it to inject drugs. Officer Baldwin found what he

described as a “cloth lady’s purse” near the middle of

the back seat, “somewhat on the driver’s side” as op-

posed to the passenger’s side. He opened the purse and

removed a wallet, which contained Houghton’s driver’s

license. Houghton then identified the purse as hers.

She stated that she had given a false name “in case

things went bad.” Pet. App. 3-4; J.A. 142-145, 173.

Officer Baldwin continued to search the purse, in

which he found a brown bag. He opened the brown bag

to find a syringe that contained an estimated 60 cubic

centimeters of liquid, which field-tested positive for

methamphetamine. The brown bag also held additional

syringes, razor blades, and other drug paraphernalia.

Officer Baldwin then noticed fresh needle track marks

on Houghton’s arms. He arrested Houghton for posses-

sion of a controlled substance. He completed his search

of the purse, discovering a smaller black bag, which also

contained syringes, razor blades, and other drug para-

phernalia. Young and the second passenger were

allowed to go. Pet. App. 4; J.A. 148-151, 158-159, 169.

2. Houghton was charged with one count of pos-

session of methamphetamine in a liquid amount greater

than three-tenths of a gram, in violation of Wyoming

Statutes Annotated § 35-7-1031(c)(iii) (Michie 1996).

J.A. 4.

Before trial, Houghton moved to suppress all evi-

dence seized during the search of the car, contending

that the search violated her rights under the Fourth

and Fourteenth Amendments, as well as under the

Wyoming Constitution. The district court denied the

motion. The court reasoned that when a law-enforce-

ment officer has probable cause to believe that con-

traband is somewhere within a car, the officer may

search the car and any containers in the car, including a

passenger’s purse. Pet. App. 4; J.A. 12-13, 27-28.

The jury found Houghton guilty of the methampheta-

mine possession offense. Pet. App. 4; J.A. 269-270.

3. The Wyoming Supreme Court, by a three-to-two

vote, reversed Houghton’s conviction. Pet. App. 1-25.

a. The majority noted that Houghton did not contest

that the Highway Patrol officers had probable cause to

search Young’s car for evidence of illegal narcotics.

Pet. App. 6. The issue before the court was thus

whether the officers’ probable cause to search the car

for narcotics justified a search of any object in the car

that was capable of containing narcotics, even if the

object belonged to a passenger whom the officers had

no probable cause to believe was involved in a narcotics

offense. Ibid.

The court noted that “[t]he scope of a warrantless

search based on probable cause is no narrower—and no

broader—than the scope of a search authorized by a

warrant supported by probable cause.” Pet. App. 7

(quoting United States v. Ross, 456 U.S. 798, 823

(1982)). The court then concluded that, if the officers

had obtained a warrant authorizing the search of

Young’s car for narcotics, a search of the personal

belongings of his passengers would not have been

within the scope of the warrant. Jd. at 17-19.

The court reached that conclusion by relying not on

cases involving automobile passengers, but on cases,

such as Ybarra v. Illinois, 444 U.S. 85 (1979), involving

visitors to fixed premises. The court discussed the

various tests adopted by the lower courts for deter-

mining whether a search of a person, or his personal

effects, was within the scope of a warrant to search the

premises that the person was visiting. Pet. App. 8-15.

The court adopted what it termed “the ‘notice’ test”

under which such a warrant does not permit police

officers to search personal effects that they know or

should know belong to a visitor, unless “[s]omeone

within the premises had the opportunity to conceal the

contraband within the personal effects of the visitor

immediately prior to the execution of the warrant.” Id.

at 15-16 (quoting State v. Thomas, 818 S.W.2d 350, 359

(Tenn. Crim. App. 1991)). The court concluded that the

officers in this case should have known that the purse

did not belong to Young, the male driver, who was the

only person whom the officers had reason to believe

possessed narcotics in the car. Jd. at 17-18. The court

further concluded that the officers had no probable

cause to believe that narcotics were placed in the purse

immediately before the car was stopped. Jd. at 18. The

court therefore concluded that the search of the purse

was not “within the scope of the search of Young’s car,”

and that the evidence obtained from the search of the

purse should have been suppressed. Jd. at 18-19.

b. The dissenting justices argued that the majority

had created an unwarranted exception to the “settled

principle[]” that, when police officers have probable

cause to search a motor vehicle, they may search “the

entire vehicle and anything in it that could contain the

items being searched for.” Pet. App. 23, 24 (citing

United States v. Ross, supra; Carroll v. United States,

267 U.S. 182 (1925)). The dissent argued that Hough-

ton’s purse could have contained the controlled sub-

stance that was the object of the search of Young’s car,

since “[c]Jommon sense tells us that the transfer of small

containers of controlled substances between an auto-

mobile’s occupants can occur swiftly, silently, effort-

lessly, and without detection by even the keenest

observer.” Id. at 25.

SUMMARY OF ARGUMENT

This Court has long recognized that, when the police

have probable cause to suspect that evidence of a crime

is concealed within an automobile that they have

stopped along a public roadway, the police may search

the automobile immediately without obtaining a war-

rant from a magistrate. Carroll v. United States, 267

U.S. 132, 149, 153-154 (1925). A search conducted under

the “automobile exception” to the warrant requirement

may be as broad in scope as the search that a magis-

trate could have authorized by a warrant. The police

may thus search “every part of the vehicle and its

contents that may conceal the object of the search,”

including “compartments and containers within the

vehicle whose contents are not in plain view.” United

States v. Ross, 456 U.S. 798, 800, 825 (1982).

There is no basis for creating an exception to that

rule for those containers that are claimed by passengers

whom the police do not have probable cause to arrest

for a crime. To the contrary, it is reasonable to assume

that a passenger’s purse, bag, or other container, if

physically capable of holding the object of the search, is

as likely a receptacle as any other compartment or con-

tainer in the automobile. This Court’s cases demon-

strate that the occupants of a private automobile, who

are necessarily involved in the common activity of

traveling together from one place to another, often are

also involved in common activity relating to the object

of the search. And, even if a passenger is not aware of

the presence of the object within the automobile, the

object still could easily have been placed among his

belongings. Any container in an automobile may be

assumed to be accessible to all occupants, driver and

passengers alike, given the close confines of the vehicle

and the occupants’ opportunities to gain entry to one

another’s belongings in the course of travel.

The Wyoming Supreme Court did not consider the

special characteristics of automobile travel in conclud-

ing that the police could not search a passenger's

property unless they had probable cause to arrest the

passenger. The court instead relied on cases involving

searches of houses, places of business, and other fixed

premises. See, e.g., Ybarra v. Illinois, 444 U.S. 85

(1979). Searches of those places, however, involve

different considerations than searches of automobiles

stopped in transit, and the analysis of those cases does

not apply here.

The Wyoming Supreme Court recognized that its

decision would require the police to draw distinctions

among the containers found in an automobile, based on

whether a container could reasonably belong to the

driver (or someone else whom they have probable cause

to arrest) as opposed to a passenger. Such distinctions

are without support in this Court’s decisions under the

Fourth Amendment. In Ross, the Court concluded that

the drawing of “nice distinctions” among the containers

found in an automobile, based in that case on whether

the owner had evinced a reasonable expectation of

privacy in their contents, would be antithetical to the

Fourth Amendment and to the needs of “prompt and

efficient” law enforcement. 456 U.S. at 821-822.

The application of the rule of Ross to all containers

found in an automobile, without any exception based on

their ownership, is consistent with the Court’s decisions

on Fourth Amendment rights in the automobile con-

text. The Court has recognized that an individual has a

diminished expectation of privacy in his person and

effects when he is ina car. That is true whether he is a

driver or a passenger. See, e.g., Maryland v. Wilson,

519 U.S. 408 (1997) (passengers, as well as the driver,

may be required to exit a car during a traffic stop). And

quite apart from the rule in Ross, a passenger's interest

in avoiding a search of his belongings is overcome when

the police make a probable cause arrest of the driver or

any other occupant of the car. New York v. Belton, 453

U.S. 454 (1981) (search incident to arrest may extend to

the entire passenger compartment and all containers in

it). It would be anomalous if the same sort of search of

an automobile passenger’s belongings that occurred in

this case—although permissible ur.der Belton as part of

a search incident to the arrest of the driver or another

passenger—would nonetheless be impermissible as part

of a search of the automobile based on probable cause to

believe that it contains evidence of a crime.

ARGUMENT

POLICE OFFICERS WHO HAVE PROBABLE CAUSE

TO SEARCH AN AUTOMOBILE FOR EVIDENCE OF

A CRIME MAY OPEN ANY CONTAINER IN THE

AUTOMOBILE THAT COULD CONCEAL THAT

EVIDENCE, WITHOUT REGARD TO WHICH

OCCUPANT OF THE AUTOMOBILE OWNS THE

CONTAINER

The Fourth Amendment to the United States Consti-

tution protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against un-

reasonable searches and seizures.” U.S. Const. Amend.

IV. When police officers have probable cause to search

an automobile stopped along a public roadway, the

search is not “unreasonable,” within the meaning of the

Fourth Amendment, even though the police have not

obtained a warrant from a magistrate. The possession

of probable cause to believe that the automobile con-

tains evidence of a crime is sufficient to justify the

search. Carroll v. United States, 267 U.S. 182. 149, 153-

154 (1925)) (Fourth Amendment permitted federal

agents, who had probable cause to believe that illegal

liquor was being transported in an automobile, to

search throughout the automobile for the liquor);

Chambers v. Maroney, 399 U.S. 42, 48-50 (1970) (citing

multiple cases applying that rule). The Court has of-

fered two justification for what has come to be known

as the “automobile exception” to the search warrant

requirement: the “ready mobility” of automobiles,

which can cause any “opportunity to search [to be]

fleeting,” and the “lesser expectation of privacy” that

exists in an automobile, as a result of “the pervasive

regulation of vehicles capable of traveling on the public

highways.” California v. Carney, 471 U.S. 386, 390-392

(1985); accord Pennsylvania v. Labron, 518 U.S. 938,

940 (1996) (per curiam).

The rule permitting a warrantless search of an auto-

mobile based on probable cause extends to closed con-

tainers within the automobile. The Court has held that,

when the police “have legitimately stopped an auto-

mobile” and “have probable cause to believe that con-

traband is concealed somewhere within it,” they “may

conduct a probing search of compartments and con-

tainers within the vehicle whose contents are not in

plain view,” so long as those compartments and con-

tainers “may conceal the object of the search.” United

States v. Ross, 456 U.S. 798, 800, 825 (1982); accord

United States v. Johns, 469 U.S. 478, 479-480 (1985) (“if

police officers have probable cause to search a lawfully

stopped vehicle, they may conduct a warrantless search

of any containers found inside that may conceal the

object of the search”); California v. Acevedo, 500 U.S.

565, 570 (1991) (the rule authorizing warrantless

searches of containers in cars applies whether the

probable cause is focused on the car as a whole or on a

particular container in the car).

Contrary to the holding of the Wyoming Supreme

Court, there is no valid basis for carving out an excep-

tion to that rule for purses, bags, and other containers

that belong to automobile passengers whom the police

do not have probable cause to arrest. Such an excep-

tion would conflict with the Court’s rationale in Ross,

which relieved the police from having to stop to draw

“nice distinctions” based on the particular characteris-

ties of containers found in cars. 456 U.S. at 821. It

would also undermine the objective of providing “clear-

cut rule[s]” to guide the law-enforcement community in

the conduct of automobile searches. Acevedo, 500 U.S.

at 579.

A. The Rationale Of Ross Applies To All Containers

In A Car That Could Conceal The Object Of The

Search, Regardless Of Who Owns The Container

The Court held in Ross that the permissible “scope of

a warrantless search based on probable cause is no

narrower—and no broader—than the scope of a search

authorized by a warrant supported by probable cause.”

456 U.S. 823; accord id. at 800 (warrantless search of a

car based on probable cause may be “as thorough as a

magistrate could authorize in a warrant”). Accordingly,

because “[a] warrant to search a vehicle would support

a search of every part of the vehicle that might contain

the object of the search,” including closed containers

within the vehicle, id. at 821, a warrantless search of a

vehicle based on probable cause may be equally broad,

extending to “every part of the vehicle and its contents

that may conceal the object of the search,” id. at 825.

The Court explained that it would be “absurd” to

allow the police to conduct a thorough search of the

automobile itself—even ripping open its upholstery, as

they did in Carroli—but to disallow searches of closed

compartments and containers, which are the most com-

mon places for contraband to be secreted within an

automobile. Ross, 456 U.S. at 818-819. As the Court

acer

observed, because contraband goods “by their very

nature * * * must be withheld from public view,” they

“rarely are strewn across the trunk or floor of a car,”

but instead are “enclosed within some form of con-

tainer.” Id. at 820.

Because a warrant to search a private automobile for

narcotics would support a search of anything in the

| automobile “that may conceal the object of the search,”

Ross, 456 U.S. at 825, a warrantless search of the same

automobile based on probable cause to believe that it

contains narcotics has the same valid scope. The class

of items that “may conceal” narcotics includes any

purse, bag, or other such container that is found in the

ear during the search.!

A search of such a container is not invalid because it

may belong to an occupant of the car whom the police

lack probable cause to believe is linked to the suspected

illegal activity. Although the probable cause for the

search may have arisen from the actions of the driver,

the passenger’s container, so long as it is physically ca-

pable of concealing the narcotics, is as likely a recepta-

cle for them as any other container in the car.2_ There

! If probable cause exists only as to a particular container in an

automobile, of course, and “the police d[o] not have probable cause

to believe that contraband [is] hidden in any other part of the

automobile[,] * * * a search of the entire vehicle would * * * be []

without probable cause and unreasonable under the Fourth

Amendment.” Acevedo, 500 U.S. at 580; Ross, 456 U.S. at 824.

2 Other appellate courts have recognized that, under Ross,

when law-enforcement officers have probable cause to search a

vehicle for contraband, they may search passengers’ purses, bags,

and other belongings that could contain the contraband, even when

the evidence providing probable cause relates only to the driver or

to other passengers. See, e.g., People v. McMillon, 892 P.2d 879,

882-883 (Colo. 1995) (officers who had probable cause to search car

for narcotics, based on driver’s prior drug convictions and presence

are two “practical considerations” relating to auto-

mobile travel, Ross, 456 U.S. at 820, that underscore

the reasonableness of that belief.

First, when people are traveling together by private

automobile, they are necessarily engaged in one com-

mon consensual activity, i.e., going from one point to

another, by a particular route, at a particular time. It is

not unreasonable to assume that they may also be

engaged in other common activity associated with that

travel—whether sightseeing, running errands, attend-

ing a social event or conducting business of a legal or an

illegal nature—and that items associated with that

common activity may be stored in one person’s purse,

baggage, or other container. Many of this Court’s cases

involving vehicle searches, from Carroll to Chambers

to Johns, confirm that companions in travel may also be

partners in crime.

That assumption is reflected in this Court’s recent

opinion in Maryland v. Wilson, 519 U.S. 408 (1997),

which held that a police officer may order the

passengers as well as the driver out of a car during a

traffic stop, because “the fact that there is more than

one occupant of the vehicle increases the possible

sources of harm to the officer.” Jd. at 413. The Court

recognized that “the possibility of a violent encounter

stems not from the ordinary reaction of a motorist

stopped for a speeding violation, but from the fact that

evidence of a more serious crime might be uncovered

during the stop.” Jd. at 414. And in that circumstance,

of syringe between driver’s seat and center console of car, could

search passenger’s purse); State v. Fix, 730 P.2d 601, 604 (Ore. Ct.

App. 1986) (officers who had probable cause to search truck for

guns, based on information that driver and male passenger had

threatened persons with guns, could search female passenger’s

purse).

said the Court, “the motivation of a passenger to

employ violence to prevent apprehension of such a

crime is every bit as great as that of the driver.” Ibid.

The Court thus implicitly recognized that, when

evidence of a crime exists in an automobile, the

passengers and the driver may well be involved in that

crime together.’

Second, within the close confines of the passenger

compartment of a car, one person has easy access to a

traveling companion’s purse, packages, and other con-

tainers. See New York v. Belton, 453 U.S. 454, 460

(1981) (assuming that the entire passenger compart-

ment is within the immediate reach of any occupant). A

person may often be able to gain entry to such a con-

tainer without its owner’s knowledge or consent—for

example, under the dark of night, while the owner is

driving, sleeping, or distracted by other activities, or

during rest stops when the owner leaves the container

behind in the car.4 Or the person may gain entry to the

3 There is particular reason to suppose that the occupants of a

car are involved in a common illegal activity where—as in this case

and many cases involving searches under the “automobile excep-

tion”—the evidence that provides the probable cause to search the

car is within the plain view (or the plain smell) of all occupants.

See, e.g., United States v. Crotinger, 928 F.2d 203 (6th Cir. 1991)

(police who had probable cause to search car for narcotics, based,

inter alia, on pills observed on floor of car and scent of marijuana

in passenger compartment, could search passengers’ bags). Be-

cause “by their very nature [contraband] goods must be withheld

from public view,” Ross, 456 U.S. at 820, when a person does not

conceal the contraband from his traveling companions, that may

well be because they are also associated with the contraband.

4 In fact, respondent suggested at trial that the brown bag that

was found in her purse, and that contained the syringe with the

largest quantity of methamphetamine, could have been placed

there by her traveling companions, perhaps while she dozed off in

container with the owner’s permission under the guise,

for exampie, of extracting a tissue, a stick of chewing

gum, or coins to pay a toll.5

An occupant of a car that is in the process of being

stopped by the police may also find that a purse of

another occupant is an inviting place in which to try to

hide contraband. In County Court of Ulster County v.

Allen, 442 U.S. 140 (1979), for example, the police

stopped a car in which they observed several firearms

in an open handbag near the front passenger seat. That

seat was occupied by a 16-year-old girl; the other three

occupants of the car were adult men. Jd. at 143. The

Court observed that “it was not unreasonable for [the

girl’s}] counsel to argue and for the jury to infer that

when the car was halted for speeding, the other passen-

gers in the car anticipated the risk of a search and

attempted to conceal their weapons in a pocketbook in

the front seat.” Jd. at 164; see also Rawlings v. Ken-

tucky, 448 U.S. 98, 102 n.1 (1980) (quoting the trial

judge’s observation that the “more plausible” explana-

tion for how the drugs at issue came to be found in the

purse of the defendant’s female companion was that the

defendant “saw the officers pull up out front and then

the car or while she was making a purchase at a convenience store.

J.A. 223-224, 282 (respondent’s trial testimony); see also J.A. 265

(closing argument of respondent’s counsel) (“Did they prove the

other syringe [was respondent’s]? No, who’s in that car? David

Young is in that car. Who else is in that car? Vanessa McQueery.

Could they have had access to that purse? Yes. Could they have

put something in that purse? Yes.”).

5 A passenger’s packages and luggage stored in the trunk of a

car are likewise accessible to the driver, who has the key to the

trunk, and to other passengers, who could gain entry to the trunk

on the excuse that they need to store items in, or retrieve items

from, their own packages and luggage.

elected to ‘push them off’ on [his female companion],

believing that search was probable, possible, and

filmminent”).

The mere fact that one passenger owns a particular

container does not, therefore, justify an assumption

that only that passenger’s property can be found in the

container. The passenger may be a witting or un-

witting bailee of illicit goods that the owner hopes will

evade detection in a less suspicious place. Even when a

passenger is unaware that the driver (or another pas-

senger) has brought narcotics into the car in which they

are traveling, the possibility thus remains that the nar-

eotics have been placed among that passenger’s

belongings. It consequently makes no sense to limit the

rule of Ross, that the police may search “every part of

the vehicle and its contents that may conceal the

object” for which they have probable cause to search,

456 U.S. at 825, to only those contents that belong to

the driver of the car or to passengers whom the police

already have probable cause to arrest. Such an

exception could serve only as a blueprint for criminals

traveling by car to hide their contraband in the bags of

the least suspicious looking passenger.

2. This Court’s decisions in the Fourth Amendment

area do not offer any support for such a limitation on

Ross. The Court has previously rejected as “unten-

able” the suggestion that “property may not be

searched unless its occupant is reasonably suspected of

crime and is subject to arrest.” Zurcher v. Stanford

Daily, 436 U.S. 547, 559 (1978). As the Court recog-

nized, the “critical element in a reasonable search is not

that the owner of the property is suspected of crime but

that there is reasonable cause to believe that the spe-

cific ‘things’ to be searched for and seized are located

on the property to which entry is sought.” Jd. at 556.

Similarly, in Carroll, the Court explained that in a

warrantless search of an automobile based on probable

cause, “[t]he right to search and the validity of the

seizure are not dependent on the right to arrest,” but

“are dependent on the reasonable cause the seizing

officer has for belief that the contents of the automobile

offend against the law.” 267 U.S. at 158-159.

The Wyoming Supreme Court did not consider the

distinctive characteristics of automobile travel in

concluding that the officers’ probable cause to search

the car for narcotics did not extend to containers that,

although capable of concealing the narcotics that were

the object of the search, belonged to somebody other

than the driver. It instead relied principally on Ybarra

v. Illinois, 444 U.S. 85 (1979), which involved a search

of a tavern patron based on a warrant to search the

tavern. In Ybarra, the Court held that the warrant

itself did not authorize a search of the tavern patron, id.

at 92, and that the patron’s mere presence in the

tavern, without more, did not give rise to a reasonable

belief that the patron was armed and dangerous, as

needed to justify a frisk under Terry v. Ohio, 392 U.S. 1

(1968). Ybarra, 444 U.S. at 93-94. The Court also re-

jected the State’s effort to extend Terry to “evidence

searches of persons” found at the scene of a small place

to be searched under a warrant. Jd. at 94. The Court

6 The court also cited various lower court decisions involving

searches of visitors to fixed premises. See Pet. App. 8-15. Those

cases, which we assume for present purposes to have been

correctly decided in their own factual contexts, are inapposite here

for the reasons discussed below. In any event, this Court has not

resolved that precise issue. See Michigan v. Summers, 452 U.S.

692, 694-695 (1981) (noting the State’s argument that a warrant au-

thorizes a search of persons found at the location to be searched

but not resolving the issue).

instead ruled that the probable-cause standard struck

the proper balance in cases involving a search of

persons for evidence. Jd. at 95-96.

Ybarra is not applicable here. The search conducted

in Ybarra was of a customer who was merely found in a

public tavern for which a search warrant had been

issued. The patron had no apparent connection with

the tavern, other than as a customer, and the warrant

was not supported by a showing of probable cause that

related in any way to customers. For all the facts

showed, Ybarra may have been at the premises simply

to buy a drink. In contrast, when officers stop a private

car, the occupants are all involved in a common enter-

prise and have had ample opportunity (and, often,

incentive) to gain access to one another’s belongings in

the course of their travel. The probable cause for a

search often arises at a time when all occupants are

present, thus making it all the more plausible to suspect

that the occupants may be involved in joint criminal

activity. And even if there is no joint activity, one

individual in a vehicle that is about to be stopped may

seek to hide contraband in the effects of his companions.

Those factors make it reasonable to believe that any

contraband within the automobile could be concealed in

any occupant’s personal effects, even without individu-

alized probable cause attaching to each occupant.’

7 Even in cases involving warrants to search fixed premises,

the federal courts of appeals have recognized that a search of the

purse or other personal effects of an individual who is temporarily

at the premises may be within the scope of the warrant, although

the individual is not an owner, resident, or employee. See, ¢.g.,

United States v. Johnson, 475 F.2d 977, 979 (D.C. Cir. 1973)

(warrant to search apartment for narcotics permitted search of

visitor’s purse, where purse was on table “resting separately from

the person of its owner”). Some circuits have held that, so long as

It is true that Ybarra relied (444 U.S. at 94-95) on

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

involved the search of a passenger in an automobile. Di

Re held that the authority recognized in Carroll to

conduct a warrantless search of a car did not extend to

searching the passengers in the car. 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.”). The

holding of Di Re does not assist respondent in this case.

This case involves no claim that probable cause to

conduct a search of a car justifies a search of all persons

in the ear. Rather, the case involves the submission

that, under Ross, when officers have probable cause to

search containers in a car, their right to search is not

limited to containers owned by particular persons.

Whatever the force of Di Re in limiting searches of

the person found at a premises is more than a “mere visitor or

passerby,” a warrant to search the premises permits a search of

any of the person’s belongings that could contain the object of the

search. United States v. Gray, 814 F.2d 49, 51 (1st Cir. 1987) (war-

rant to search house for narcotics permitted police to search jacket

of non-resident who was found there in early morning hours after

drug deal had occurred outside); see United States v. Giwa, 831

F.2d 588, 544-545 (5th Cir. 1987) (overnight guest); cf. United

States v. Young, 909 F.2d 442 (11th Cir. 1990) (dicta), cert. denied,

502 U.S. 825 (1991). A passenger in a private automobile traveling

along the street is not equivalent to a “mere visitor or passerby”

because, among other things, he has chosen to engage in a common

endeavor with the driver and any other passengers, knowing that

he cannot simply walk away whenever he chooses, as could a

visitor or passerby from fixed premises. Accordingly, even under

the standard applied in those cases involving fixed premises, a

warrant to search an automobile, and thus a warrantless search of

the automobile based on probable cause, would permit a search of

the passenger’s belongings.

persons, but see 3 W. R. LaFave, Search and Seizure

§ 7.2(e), at 507-508 (3d ed. 1996) (finding “persuasive”

the criticism of the reasoning of Di Re in the Model

Code of Pre-Arraignment Procedure), it should not be

extended to limit the right recognized under Ross to

conduct a full search of all of the containers in a car that

may conceal the object of the search.

B. The Limitation On Ross Announced In This Case

Would Be Unworkable In Practice

The Wyoming Supreme Court, in order to implement

its view of the permissible scope of probable cause

searches of automobiles with multiple occupants, an-

nounced a set of guidelines to be followed by the police.

Under those guidelines, a police officer may search any

container that he finds in an automobile, unless he

knows or should know that the container belongs to a

passenger whom he does not have probable cause to

arrest; that rule is subject to an exception, however,

that permits a search even of such a container if an

“opportunity to conceal the contraband” in the con-

tainer existed “immediately prior to or during the

stop.” Pet. App. 16, 18. The practical difficulties that

would arise in applying those guidelines, and in reach-

ing fair, consistent, and coherent results, provides

further reason not to create an exception to the clear

rule of Ross applicable to containers owned by auto-

mobile passengers.

1. In Ross, while not presented with a situation

involving an automobile with multiple occupants and

thus multiple possible owners of any container, the

Court stated a rule that “applies equally to all contain-

ers” in an automobile, whether a “paper bag” or a

“locked attaché case,” regardless of the extent to which

the owner manifested an expectation of privacy in their

contents. 456 U.S. at 822. The Court explained that

“Cw]hen a legitimate search is under way, and when its

purpose and its limits have been precisely defined, nice

distinctions between closets, drawers, and containers,

in the case of a home, or between glove compartments,

upholstered seats, trunks, and wrapped packages, in

the case of a vehicle, must give way to the interest in

the prompt and efficient completion of the task at

hand.” Jd. at 821. mt

The Wyoming Supreme Court’s rule, however, would

require police officers to draw “nice distinctions” based

on the particular characteristics of containers and their

possible owners. The court reasoned that the officer in

this case knew, or should have known, that respon-

dent’s container did not belong to the male driver of the

car, simply because the container was a “lady’s purse”

and “men do not carry purses.” Pet. App. 17. Appar-

ently, then, if the driver of the car had been a woman,

or a man from a culture in which men do carry purses,®

the search of the purse in this case would have been

permissible. And the search presumably would also

have been permissible if respondent had chosen to

carry her belongings in a briefcase, a gym bag, or a

paper sack instead of a purse.

8 The leather “men’s carryall,” essentially a male purse, is

commonly carried by European men, but less commonly by

American men. See L. May, Jn the Bag, Atlanta Const., Jan. 15,

1995, at L1; see also W. Brown, Delta to Count Laptops as Carry-

Ons, Wash. Post, Mar. 4, 1998, at C12 (noting that one USS. airline

has created an exception to its new carry-on baggage rules for

“purses,” either male or female). Of course, leather or cloth bags

resembling purses are part of the traditional male costume of many

ethnic groups, ranging from the Scots to the American Indians of

the Northeast.

It makes no legal sense for an individual’s Fourth

Amendment right to be free from a search of his

belongings to turn on such considerations. And it

makes no practical sense for the police to have to

devote time during car stops assessing, at the expense

of “the prompt and efficient completion of the task at

hand,” Ross, 456 U.S. at 821, whether a mauve suitcase

might reasonably belong to a man or whether a

Pittsburgh Steelers duffel might reasonably belong to a

woman.?

2. The Wyoming Supreme Court’s guidelines also

fail adequately to address the possibility, discussed

above, that one occupant of a car may have secreted the

contraband in another occupant’s bag, with or without

his consent. The court did hold that a passenger’s bag

may be searched, even without probable cause to

believe that the passenger is involved in a crime, if

there was an “opportunity” to place contraband in the

bag during or “immediately” before the stop. Pet. App.

18. That test is inherently too limited in its scope,

however, because the concealment could have occurred

earlier. But, even on its own terms, the test requires

the police to resolve difficult questions about whether

an “opportunity” to conceal contraband existed and, if

so, whether it was sufficiently “immediate[]” in the

circumstances of a particular traffic stop. The outcome

could differ depending on the time of day, the size and

9 Nor could the police simply accept the car occupants’ own

assertions as to which of them owns a particular container. The

occupants, if actually engaged in a crime, could not be expected to

be truthful about the ownership of a container holding evidence of

the crime. In this case, for example, respondent initially told the

officer that she did not have any identification with her, perhaps in

an attempt to deceive the officer as to her ownership of the purse

that she had left behind in the car. J.A. 140-141.

configuration of the car, and the precise positions of the

occupants and their property within the car. And the

police would often have little assurance, given the fact-

specific nature of the inquiry, that a court would reach

the same conclusion that they had reached at the time

of the traffic stop.

Indeed, the majority and dissent on the Wyoming

Supreme Court appear to have reached different con-

clusions in applying that test to the present case. The

majority believed that no such opportunity existed

because, once the car had been stopped, the interior of

the car was illuminated and the passengers were

constantly under the observation of an officer. Pet.

App. 18. It was apparently irrelevant that the contra-

band could, for example, have been transferred to the

purse on the highway, had the occupants noticed the

officer parked at the side of the road completing a

previous traffic stop as they went speeding past. The

dissent, in contrast, seemed to believe that the requisite

opportunity was present, because “the transfer of small

containers of controlled substances between an auto-

mobile’s occupants can occur swiftly, silently, effort-

lessly, and without detection by even the keenest

observer.” Jd. at 25.

3. In the context of automobile searches, as in other

contexts, the Court has recognized “the virtue of pro-

viding clear and unequivocal guidelines to the law en-

forcement profession,” Acevedo, 500 U.S. at 577

(internal quotation marks omitted), whose members

have “only limited time and expertise to reflect on and

balance the social and individual interests involved in

the specific cireumstances they confront,” Belton, 453

U.S. at 458 (quoting Dunaway v. New York, 422 U.S.

200, 214 (1979)). The guidelines that the Wyoming

Supreme Court articulated in this case have the po-

tential to create great uncertainty among law-

enforcement officers as to what containers in an

automobile with multiple occupants may be opened and

searched.

C. The Application Of Ross To All Containers,

Regardless Of Ownership, Accords With Related

Legal Rules Under The Fourth Amendment

The rule of Ross that “[i}f probable cause justifies the

search of a lawfully stopped vehicle, it justifies the

search of every part of the vehicle and its contents that

may conceal the object of the search,” 456 U.S. at 825

(emphasis added), is consistent with the understanding,

reflected in this Court’s Fourth Amendment jurispru-

dence, that an individual has a diminished expectation

of privacy in his person and effects when he is in an

automobile, whether as a driver or a passenger. That is

both because an automobile “travels public thorough-

fares where both its occupants and its contents are in

plain view,” and because an automobile is subject to

“pervasive regulation by the State” such that its

occupants “must expect that the State, in enforcing its

regulations, will intrude to some extent upon [their]

privacy.” New York v. Class, 475 U.S. 106, 113 (1986).

The application of Ross to permit searches of any

containers found in a private automobile, regardless of

the ownership of the containers, is consistent with

those understandings and with the legal rules that have

derived from them. The Court has upheld police prac-

tices that necessarily intrude on the interests of auto-

mobile passengers to be free from searches and sei-

zures, without regard to whether probable cause (or

reasonable suspicion) exists to believe that the pas-

sengers themselves are involved in any offense. The

police may stop a car if they have probable cause to

believe that a traffic violation has occurred, Whren v.

United States, 517 U.S. 806 (1996), or reasonable suspi-

cion that the driver has committed a crime, United

States v. Hensley, 469 U.S. 221 (1985). As a practical

matter, when the car is stopped, all of its occupants are

detained, the passengers as well as the driver. Wilson,

519 U.S. at 413-414. The police may lawfully look inside

the stopped car, if necessary using a flashlight to

expose the interior of the car and its passengers. Texas

v. Brown, 460 U.S. 730, 739-740 (1983) (plurality opin-

ion). The police also may order the passengers, as well

as the driver, to leave the car in order to observe them

more carefully. Wilson, 519 U.S. at 413-414.

Even more pertinent to this case, when police officers

arrest any occupant of the car for a criminal offense,

they may search the entire passenger compartment of

the car incident to the arrest. Belton, 453 U.S. at 460.

The Court has not confronted the precise question

whether the police, in conducting a search incident to

the arrest of one occupant of a car, may search other

occupants’ belongings that are within the passenger

compartment. But an affirmative answer is necessarily

implicit in Belton, which recognizes that the police

should be able to search anywhere “an arrestee might

reach in order to grab a weapon or evidentiary ite[m].”

Id. at 460 (quoting Chimel v. California, 395 U.S. 752,

763 (1969)). Those locations could reasonably be ex-

pected to include another occupant’s purse, bag, or

jacket pocket.!°

104 number of lower courts have so held. See e.g., McMillon,

892 P.2d at 883; State v. Moore, 619 So. 2d 376, 377 (Fla. Dist. Ct.

App. 1998); People v. Prance, 226 Cal. App. 3d 1525, 1533 (Ct. App.

1991); see also United States v. Vaughan, 718 F.2d 332, 334 (9th

Cir. 1983) (“if [a passenger] had left the briefcase in the car, ad-

It would be anomalous if the police could, as Belton

suggests, search a passenger’s purse based on probable

cause to arrest the driver or another passenger, but

could not, as the court below held, search a passenger’s

purse based on probable cause to believe that the car

contains evidence of a crime.'! The police would then

be encouraged to make more arrests of drivers, if only

for traffic violations, in order to justify a comprehensive

search of all containers in the passenger compartment

of the car; in this case, for example, the officers needed

only to have arrested the driver of the car, as they

presumably could have based on the syringe in his

pocket and his admission that he used it to take illegal

drugs, in order to have made the search of respondent’s

purse permissible as a search incident to arrest. The

decision below could thus have the curious effect of pro-

ducing more intrusion on drivers’ interest in avoiding

seizures, without providing any more protection of

passengers’ interest in avoiding searches of their

belongings in the passenger compartment of the car.

mittedly it could have been searched” incident to the driver’s

arrest).

11 The police could not search the trunk of the car, however, as

part of a search incident to arrest, as they could as part of a search

based on probable cause.

CONCLUSION

The judgment of the Wyoming Supreme Court

should be reversed.

Respectfully submitted.