# Amicus Curiae Brief — Wyoming v. Houghton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 295

## Text

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) :

IV

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

v.

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)

2

—_

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-

3

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.

4

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

5

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

6

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

7

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

8

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);

9

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

10

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

11

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

12

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).

13

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

14

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.

ne

15

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.

16

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).

17

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

18

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.

19

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

20

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.

21

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.

22

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-

23

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

24

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-

25

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.

26

CONCLUSION

The judgment of the Wyoming Supreme Court
should be reversed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General

NOVEMBER 1998

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1342%3A08. Public record. Not legal advice.