Amicus Curiae Brief — Wyoming v. Houghton

SEL

Supreme Court, U.S.

, Dp

CLERK

NOV 10 1998

No. 98-184

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

THE STATE OF WYOMING,

Petitioner,

vs.

SANDRA HOUGHTON,

Respondent.

On Petition for Writ of Certiorari to

the Supreme Court for the State of Wyoming

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record

QUESTION PRESENTED

Does the bright-line of Acevedo v. California permitting

containers to be opened during warrantless automobile searches

have limits based on the ownership of the containers?

(i)

AIEEE ALLS C8 COIL a

moet ee ee eee

TABLE OF CONTENTS

Question presented ........ 6. cece eee eee e teen eens i

Table of authorities 2.0.65. cect e nessa cr eeses iV

Interest of amicus CUTIGE «1.6.6.6. eee eee l

Summary of facts and case .......- esse eee reece ees 2

Summary of argument .........-- +e eee eee eee 3

Argument ........ cece cece eect erect eeeeereerene 4

I

The decision below did not account for the exigencies of

automobile searches .........--seeeeceeeecereeees 4

II

The rule of California v. Acevedo should not be complicated

by the impractical “notice test” ....---. 660s eee ees 14

A. The policy problem ...........22++seeeeeee 14

ee Raa Pere rr a eer eee, 17

1. Drawing the proper line ......--..-++++55 17

BG RR aan Seer ewok ee eo ew ee 21

Ee POPC OE CELE ETS ae Ree. 24

(iii)

iV

TABLE OF AUTHORITIES

Cases

Arkansas v. Sanders, 442 U. S. 753, 61 L. Ed. 2d 235,

Pe NA SOMOLIETEE v5 co cee a oe 10, 15

Cady v. Dombrowski, 413 U. S. 433, 37 L. Ed. 2d 706,

Le Me Spon 8 eS” Ff 5 * RUM Giger ON sepals sib GE 14

California v. Acevedo, 500 U. S. 565, 114 L. Ed. 2d 619,

111 S. Ct. 1982 (1991) ...... 3, 1, 12, 14, 15, 21, 23,24

California v. Carney, 471 U. S. 386, 85 L. Ed. 2d 406,

SOS Di AA: SOOO LIOR? 5 oa Sas kb oc ELE Le 14,15

Cardwell v. Lewis, 417 U. S. 583, 41 L. Ed. 2d 325,

MIC 2S ee 5,9

Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543,

45 S. Ct. 280 (1925) ...... Vewea te snkvesus 5, 7, 14, 15

Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419,

Pe thd SRO AIP, voneks hea ee 8, 16

Commonwealth v. Reese, 549 A. 2d 909 (Pa. 1998) ..... 23

Coolidge v. New Hampshire, 403 U. S. 443,

29 L. Ed. 24 564, 91S. Ce 2022-4971). 05005 ee 4

Florida v. Royer, 460 U. S. 491, 75 L. Ed. 2d 229,

se GE Eee Ce oc oo ks Sa ee eee 17

Harmelin v. Michigan, 501 U. S. 957, 115 L. Ed. 2d 836,

ER CASO oo 15 |

Houghton y. State, 956 P. 2d 363 |

CWFMG. THOMA cia va ors eh ae kak tees he Dy Bs Oy hy oy AO |

Maryland v. Wilson, 519 U. S. 408, 137 L. Ed. 2d 41,

a6 2 i CR RC as se 6, 7, 17, 20

ee ee

Michigan v. Summers, 452 U. S. 692, 69 L. Ed. 2d 340,

BGi BS. CRs BIRT LISS ooo ike skteat coe 7, 8, 16

New York v. Belton, 453 U. S. 454, 69 L. Ed. 2d 768,

501 SCR SRG LISSL) Co kc eae 17, 18, 20

New York v. Class, 475 U. S. 106, 89 L. Ed. 2d 81,

BUD. S. CL SOU Cie ics ca sca ic bea ee 5

Ohio v. Robinette, 519 U. S. 33, 136 L. Ed. 2d 347,

SE 7 Bs CRORES VASP v6 cas Steen neeoeekeenn 17, 18, 19

Pennsylvania v. Labron, 518 U. S. 938, 135 L. Ed 2d 1031,

RIGS. GR COGS Clot ka sas ive hee eee 14, 15

Pennsylvania v. Mimms, 434 U. S. 106, 54 L. Ed. 2d 331,

Fe D.C Sa Ear iia osha eh es 6

Richards v. Wisconsin, 520 U. S. 385, 137 L. Ed. 2d 615,

SETS. Ck FSGS aos HA ee 19, 20

Schneckloth v. Bustamonte, 412 U. S. 218, 36 L. Ed. 2d 854,

DS SOS; BSE Aa od os Sos oes ed en ee 19

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

49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976) ...... 6, 14, 15

Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,

Be Os Cty OTTO cnc bv oceans eas 13,17

Texas v. White, 423 U. S. 67, 46 L. Ed. 2d 209,

Pr es A NR io oo has Eee eH we 16

United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538,

PFT th Ak tO 1B PEED cis oak kc eo 4 Sao a eek oe 10

United States v. Di Re, 332 U. S. 581, 92 L. Ed. 210,

Oe ee Sots ee EE oo ok a he 12, 13

United States v. Johns, 469 U. S. 478, 83 L. Ed. 2d 890,

Re A SOk CAD EE Ie ee rin 15

vi

United States v. Knotts, 460 U. S. 276, 75 L. Ed. 2d 55,

BOS Gh IO E LEME) baicwietcccbirews Orbbe dS OFeas 6

United States v. Ross, 456 U. S. 798, 72 L. Ed. 2d 572,

Ue A BAe CAEN n'c sc eee cnaeds 8,9, 10, 11, 15, 16

Whren v. United States, 517 U. S. 806, 135 L. Ed. 2d 89,

Sah as RT EEE hr aso a ee eee ok 17

Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238,

id oe SR ROTO ak cv ka kv a annetes 8, 9, 12, 13, 22

Zurcher v. Stanford Daily, 436 U. S. 547, 56 L. Ed. 2d 525,

Pe Rs SPREE TT oo vik han Se RON eee ree 8

Treatises

W. LaFave, Search and Seizure

RS TOME ee i oe Ak Ge ee 8, 9, 13, 15, 21

Miscellaneous

Black’s Law Dictionary (6th ed. 1990) ............... 15

U.S. Dept. of Justice, Bureau of Justice Statistics,

Sourcebook of Criminal Justice Statistics 1996

EEE) hoy 2a wees VER COVE LE EE Oe 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

THE STATE OF WYOMING,

Petitioner,

vs.

SANDRA HOUGHTON,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society.

The automobile’s mobility and pervasiveness makes it an

ideal tool for transporting contraband, particularly illegal drugs.

The ability of police to conduct warrantless searches of automo-

biles whenever they possess probabie cause that the vehicle

Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

contains contraband is thus an essential tool for combatting

such crime. The Wyoming Supreme Court’s “notice test” for

opening closed containers suspected of carrying contraband

needlessly complicates automobile searches while providing

little protection for any legitimate expectation of privacy. The

threat posed by this decision to this very important law enforce-

ment mechanism is contrary to the interests CJLF was formed

to protect.

SUMMARY OF FACTS AND CASE

On July 23, 1995, in the early morning, a “Wyoming

Highway Patrol Officer stopped an automobile for speeding and

a faulty break light.” Houghton v. State, 956 P. 2d 363, 365

(Wyo. 1998). The vehicle contained three occupants: the

driver, David Young; his girlfriend; and the defendant. /bid.

The officer, who was soon joined by two other officers, started

questioning Young. During the questioning, the officer noticed

a syringe in Young’s shirt pocket. The officer then went to his

patrol car in order to get gloves. Upon his returning to Young’s

vehicle, he ordered Young out of the car and to place the

syringe on the hood. When asked what the syringe was for,

Young replied that it was for personal use. Jbid.

The passengers were then ordered out of the vehicle and

asked for identification. /bid. Defendant identified herself as

Sandra Jones and claimed that she had no identification. The

passengers were then patted down, which produced no weapons

or drugs. The officer then searched the automobile for drugs.

Ibid.

The officer discovered “a closed ‘cloth lady’s purse’ ” while

searching behind the area where the two female passengers sat.

Ibid. He opened the purse and took out a wallet. Inside the

wallet he discovered defendant’s driver’s license which

identified her as Sandra Houghton. Defendant then acknowl-

edged that the purse was hers. The officer then continued the

search, finding “a brown “wallet bag’ containing drug parapher-

nalia, a syringe containing an estimated 60 cc’s of liquid, a

black wallet containing drug paraphernalia, a vial, and a syringe

with approximately 10 cc’s of liquid.” Jbid. A field test of the

liquid from the syringe in the brown bag tested positive for

methamphetamine. Defendant was arrested, while Young and

his girlfriend were released. /bid.

The trial court denied defendant’s suppression motion,

relying on California v. Acevedo, 500 U. S. 565 (1991).

Houghton, 956 P. 2d, at 365. A jury convicted defendant of one

count of felony possession of a controlled substance. She was

sentenced to two to three years in prison. /bid. The Wyoming

Supreme Court reversed, holding that the search violated the

Fourth Amendment because the officer knew or should have

known that the purse did not belong to Young. /d., at 372.

SUMMARY OF ARGUMENT

The decision below failed to appreciate the special status of

the automobile under the Fourth Amendment. Beginning with

Carroll v. United States, this Court has treated automobiles

differently in its Fourth Amendment cases due to their mobility,

the diminished expectations of privacy surrounding automo-

biles, and the inherent dangers of automobile stops.

The Wyoming Supreme Court’s reliance on Ybarra v.

Illinois is a product of its failure to appreciate this key distinc-

tion. Occupants of an automobile are more closely associated

with the premises being searched and have less of an expecta-

tion of privacy than the tavern patrons in Ybarra. As both

automobiles and their passengers are treated differently under

the Fourth Amendment, Ybarra is inapplicable.

The automobile exception to the warrant requirement is a

creature of Fourth Amendment policy. In addition to the

mobility and diminished privacy of the automobile, another

consideration should influence this Court’s analysis of automo-

bile searches. Because the automobile exception is limited to

searches for contraband, and since most contraband searches are

for illegal drugs, most searches under this exception will be for

drugs. Therefore, the dangers often associated with such

searches should inform this Court’s analysis of the automobile

exception where relevant.

The present case is best served by the formulation of a

single, clear-cut rule by this Court. Although this Court has

shied away from bright lines upon occasion, it has done so

where the rule would be impractical or provide little benefit.

This Court can and has established bright-lines where there is

a need for clear authority in a carefully defined aspect of Fourth

Amendment law. This Court’s cases demonstrate that automo-

tive searches are ideally suited to such rules.

The “notice test” invoked by the Wyoming Supreme Court

tails to satisfy this requirement. Tying the authority to open a

container to the apparent ownership of it needlessly complicates

automobile searches, while providing a potential windfall for

perpetrators. Any attempt to deal with concealed contraband

under this test will either create an exception that will swallow

the test or create an exceptionally complicated rule.

The better rule is derived from Acevedo. Allowing all

containers to be opened, regardless of their ownership, is clear,

simple, and consistent with the spirit of Acevedo. So long as a

container is capable of holding the suspected contraband,

officers should be able to open it during an automobile search.

ARGUMENT

I. The decision below did not account for the exigencies

of automobile searches.

The automobile occupies an important niche in Fourth

Amendment law. Driving or riding in an automobile signifi-

cantly changes an individual’s legitimate expectation of privacy.

The Fourth Amendment does not, of course, disappear inside

the car. See Coolidge v. New Hampshire, 403 U. S. 443, 461-

462 (1971) (plurality). It is no less true, however, that one’s

expectation of privacy diminishes upon entering an automobile.

The reasons for treating automobile searches differently form

the foundation for any analysis of a search or seizure involving

an automobile. The Wyoming Supreme Court’s failure to

appreciate this difference taints its analysis.

The first case from this Court to uphold a warrantless search

of an automobile, Carroll v. United States, 267 U. S. 132

(1925), centered on the difficulty of searching an automobile or

other vehicles under the traditional warrant process.

“(T]he guaranty of freedom from unreasonable searches and

seizures by the Fourth Amendment has been construed,

practically since the beginning of the Government, as

recognizing a necessary difference between a search of a

store, dwelling house or other structure in respect of which

a proper official warrant readily may be obtained, and a

search of a ship, motor boat, wagon or automobile, for

contraband goods, where it is not practicable to secure a

warrant because the vehicle can be quickly moved out of the

locality or jurisdiction in which the warrant must be

sought.” Jd., at 153.

As the automobile exception was expanded and refined,

another justification developed, namely, the lesser expectation

of privacy associated with automobiles.

“The Court has recognized that the physical characteris-

tics of an automobile and its use result in a lessened expec-

tation of privacy therein:

“ “One has a lesser expeciation of privacy in a motor

vehicle because its function is transportation and it seldom

serves as one’s residence or as the repository of personal

effects. A car has little capacity for escaping public scru-

tiny. It travels public thoroughfares where both its occu-

pants and its contents are in plain view.’ ” New York v.

Class, 475 U.S. 106, 112-113 (1986) (quoting Cardwell v.

Lewis, 417 U. S. 583, 590 (1974) (plurality)).

tet

The diminished sense of privacy inherent in automobiles is

reinforced by the “pervasive and continuing governmental

regulation” of them. See South Dakota v. Opperman, 428 U. S.

364, 368 (1976).

The limited privacy of the automobile has consequences

beyond warrantless searches. In United States v. Knotts, 460

U. S. 276 (1983), federal agents placed a beeper inside a

container of chloroform to be sold to an individual suspected of

using stolen chemicals to manufacture illicit drugs. See id., at

277-278. Relying on a signal from the beeper, agents traced the

chloroform on its journey to its final resting point, a cabin in

Wisconsin. /d., at 278. Using the location of the chloroform

and additional information obtained through visual surveillance,

officers obtained and executed a search warrant. /d., at 279.

The Eighth Circuit Court of Appeals reversed the conviction,

holding that the monitoring of the beeper violated defendant's

reasonable expectation of privacy, suppressing all information

found after the cabin was located as being the fruit of the illegal

monitoring. /bid. This Court noted that it had “commented

more than once on the diminished expectation of privacy in an

automobile.” /d., at 281. The situation in Knotts was no

different since “[a] person traveling in an automobile on public

thoroughfares has no reasonable expectation of privacy in his

movements from one place to another.” Jbid. The surveillance

did not constitute a search or seizure, and therefore could not

violate the Fourth Amendment. See id., at 285.

The exigencies surrounding the automobile extend beyond

the Warrant Clause as well. In Maryland v. Wilson, 519 U.S.

_ 408, 410 (1997), this Court extended the rule of Pennsylvania

v. Mimms, 434 U. S. 106 (1977) (per curiam) (ordering the

driver to exit the vehicle during a lawful stop) to automobile

passengers. Since traffic stops pose a real threat of danger to

officers, see Wilson, 519 U. S., at 413, the balance of interest

tipped in favor of the reasonableness of ordering passengers out

of vehicles during traffic stops. Even though the passenger did

nothing to justify the initial stop, the “danger to an officer from

a traffic stop,” id., at 414, from the presence of passengers,

justified this additional intrusion. /d., at 415.

Wilson drew from the rule of Michigan v. Summers, 452

U. S. 692 (1981), which allowed police officers to detain

occupants during the execution of a search warrant for contra-

band on a residence. See id., at 704-705. While Summers gave

officers substantial authority, the grant of authority to detain

was carefully controlled. The existence of a warrant was “[o]f

prime importance” in supporting the constitutionality of the

detention. See id., at 701. Furthermore, Summers was applied

only to searches for illegal drugs because of the special risk

such searches carried. “[T]he execution of a warrant to search

for narcotics is the kind of transaction that may give rise to

sudden violence or frantic efforts to conceal or destroy evi-

dence.” J/d., at 702. Allowing officers to control the search

through temporary detention minimizes this risk. /d., at 702-

703.

Wilson extended Summers’ limited rule by recognizing the

automobile’s special place in the Fourth Amendment. Instead

of a magistrate’s finding of probable cause of the existence of

contraband, the Wilson detention can be supported by a simple

warrantless traffic stop. See Wilson, supra, 519 U. S., at 415.

The lack of a warrant is inevitable when a traveling automobile

is involved; it is impractical to obtain a warrant on a moving

vehicle. See Carroll, supra, 267 U. S., at 153. As noted earlier,

the inherent danger of automobile stops played a major role in

the Wilson decision, thus making the automotive stop analogous

to executing a search warrant for narcotics. See 519 U.S., at

414 (analogizing Summers). Finally, the realities of automobile

stops lessens the intrusiveness of the detention. Because “as a

practical matter, the passengers are already stopped by virtue of

the stop of the vehicle,” id., at 413-414, the extra intrusion of

ordering them out of the car is minimal. /d., at 415. Even

though the passengers did not commit the “minor vehicular

offense,” which justified the stop and detention, the realities of

the possible dangers at a traffic stop help justify the extra

intrusion. See id., at 413-414.

Summers created a special exemption for certain search

warrants. Although it took no formal position on whether its -

rule applied to ordinary searches for evidence, see 452 U. S., at

705, n. 20, a careful reading of that footnote casts substantial

doubt over any attempt to expand Summers beyond warrants for

contraband. Footnote 20’s disclaimer concerning evidentiary

searches is followed by a citation to Justice Steven’s dissent in

Zurcher v. Stanford Daily, 436 U. S. 547 (1978), where he

stated “the persons who possess evidence that may help to

identify an offender, or explain an aspect of a criminal transac-

tion, far outnumber those who have custody of weapons or

plunder,” and that “[c]ountless law-abiding citizens . . . may

have documents in their possession that relate to an ongoing

criminal investigation.” /d., at 579. If accepted, this view casts

grave doubt over extending Summers beyond contraband. See

2 W. LaFave, Search and Seizure § 4.9(e), pp. 651-652, n. 123

(3d ed. 1996). By contrast Wilson applies to al/ passengers in

all validly stopped automobiles, vividly illustrating the differ-

ences between automobile searches and most other searches.

As this Court has noted, “for the purposes of the Fourth

Amendment there is a constitutional difference between houses

and cars.” Chambers v. Maroney, 399 U. S. 42, 52 (1970)

(emphasis added).

The Wyoming Supreme Court’s decision did not appreciate

this essential distinction. Relying on the statement in United

States v. Ross, 456 U.S. 798, 823 (1982), equating the scope of

a warrantless automobile search with that of a search pursuant

to a warrant,’ see Houghton v. State, 956 P. 2d 363, 366 (Wyo.

1998), the Wyoming high court analyzes the search in the

present case as if it were the product of an ordinary search

warrant. See id., at 367.

This problem with approach is revealed by its reliance on

Ybarra v. Illinois, 444 U. S. 85 (1979). Ybarra struck down a

2. “The 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.” /bid.

patdown search of a customer who was in a bar during the

execution of a search warrant for drugs against the premises of

the tavern and the person of a bartender. See id., at 88, 96. In

reaching that conclusion, this Court noted that probable cause

must extend to each individual being searched or seized

pursuant to the warrant, as the mere coincidence of visiting a

place during the execution of a search warrant against it did not

justify an invasion of the visitor’s privacy. See id., at 91. The

Wyoming Supreme Court extended this “persons not places”

reasoning, ibid., to protect containers in automobiles such as the

defendant’s purse. See Houghton, supra, 956 P. 2d, at 367-369.

This conclusion fails to place Ybarra in its proper context.

Ybarra protected visitors to a public place, and is therefore

distinguishable from Summers, which dealt with a private

dwelling. See 2 LaFave, supra, at 650-651. Wilson demon-

strates that the passengers of an automobile are analogous to the

occupants in Summers under the Fourth Amendment. One does

not normally share an automobile with complete strangers, as

one often does with a public place like a bar. Furthermore, the

occupants of a vehicle have a diminished privacy expectation

compared to Ybarra’s bar patrons. The difference is more

pronounced when comparing the containers in the present case

to the Ybarra patrons. “ ‘The search of an automobile is far less

intrusive on the rights protected by the Fourth Amendment than

the search of one’s person or of a building.’ ” Cardwell v.

Lewis, 417 U. S. 583, 590 (1974) (plurality) (quoting Almeida-

Sanchez v. United States, 413 U.S. 266, 279 (1973) (Powell, J.,

concurring)). Ybarra’s protection of the stranger does not apply

to the context of the automobile search.

The fact that the Wyoming Supreme Court invoked Ross, an

automobile case, to support its use of Ybarra does not bring

Ybarra into the context of automobile searches. In Ross,

officers stopped defendant’s car after an informant had provided

them with probable cause that Ross was dealing drugs from his

car. See 456 U. S., at 800-801. A search of the passenger

compartment found a bullet on the front seat, and a gun in the

glove compartment. /d., at 801. The police then searched

10

Ross’ trunk where they found a closed paper bag which they

opened, finding glassine bags of what proved to be heroin. Jbid.

A more thorough search at the police station found in the trunk

a zippered leather pouch containing $3,200 in cash. Jbid.

Citing Arkansas v. Sanders, 442 U. S. 753 (1979), the Ninth

Circuit Court of Appeals struck down the opening of the leather

pouch because Ross had a reasonable expectation of privacy in

its contents. See Ross, 456 U. S., at 801-802.

Sanders was based on United States v. Chadwick, 433 VU. S.

1 (1977). See 442 U. S., at 762-763. In Chadwick, federal

agents had probable cause to believe that a 200-pound, double-

locked footlocker contained marijuana. 433 U. S., at 3-5. The

agents tracked the locker as defendants removed it from a train

and carried it through the station to a waiting automobile. /d.,

at 3-4. As defendants lifted the locker to the car, the agents

arrested them, seized the locker, and opened it one and one-half

hours later. See id., at 4. The United States did not claim that

the trunk’s brief contact with the car made Carroll applicable.

It instead analogized the movable luggage to an automobile.

Id., at 12. The Chadwick Court rejected this argument, finding

that a person expects more privacy in his luggage and personal

effects than in his car. /d., at 13. Sanders extended Chadwick

to a suitcase stored in the trunk of a vehicle. See Sanders,

supra, 442 U.S., at 762-765.

These cases provided a confusing, ill-considered standard

that impeded effective law enforcement while doing little to

protect privacy, and eventually would be abandoned for

automobiles. See post, at 11. The Ross Court avoided the

Chadwick-Sanders rule by distinguishing between it and the

original automobile search case, Carroll. See 456 U. S., at 817.

When it equated the scope of the automobile search with that of

a warrant-based search, the Ross Court was distinguishing the

Chadwick-Sanders rule so that officers could open containers

found during the search under the authority of Carroll.

“The scope of a warrantless search of an automobile

thus is not defined by the nature of the container in which

1]

the contraband is secreted. Rather, it is defined by the

object of the search and the places in which there is proba-

ble cause to believe that it may be found. Just as probable

cause to believe that a stolen lawnmower may be found in

a garage will not support a warrant to search an upstairs

bedroom, probable cause to believe that undocumented

aliens are being transported in a van will not justify a

warrantless search of a suitcase. Probable cause to believe

that a container placed in the trunk of a taxi contains

contraband or evidence does not justify a search of the

entire cab.” Ross, supra, 456 U. S., at 824.

This is the only limit that Ross adds to automobile searches.

Ross did not import all of the law of search warrants into the

automobile search. Where appropriate to the context of the

automobile search, principles could be borrowed from this

Court’s interpretation of the Warrant Clause. As California v.

Acevedo, 500 U. S. 565 (1991) demonstrates, where the

automobile demanded different treatment, automobile searches

would still be treated differently.

Acevedo’s car was stopped on probable cause that it

contained drugs. See /d., at 567. A search of the trunk found

a paper bag which, when opened without a warrant, was found

to contain marijuana. /bid A California Court of Appeal

suppressed the search of the bag under Chadwick while noting

tension between that decision and Ross. /d., at 568. This Court

found that the Chadwick-Sanders line provided little protection

of privacy, see id., at 575-576, and established a confusing

standard. See id., at 576-577. The Chadwick-Sanders line was

abandoned for automobile searches because automobiles were

different under the Fourth Amendment.

“Thus, this Court in Ross took the critical step of saying that

closed containers in cars could be searched without a

warrant because of their presence within the automobile.

Despite the protection that Sanders purported to extend to

closed containers, the privacy interest in those closed

12

containers yielded to the broad scope of an automobile

search.” Id., at 572 (emphasis added).

Attempts to apply stricter, non-automobile standards to

automobile searches are usually fruitless. In Acevedo, the

dissent supported its argument that Chadwick-Sanders had not

impeded law enforcement by noting that since Ross, this Court

had decided 27 cases in favor of the government. See id., at

600 (Stevens, J., dissenting). The Acevedo majority dismissed

this with a forceful argument against applying alien concepts to

automotive searches.

“Most important, with the exception of United States v.

Johns, 469 U. S. 478 (1985) and Texas v. Brown, 460 U. S.

730 (1983), the Fourth Amendment cases cited by the

dissent do not concern automobiles or the automobile

exception. From Carroll and Ross, this Court has explained

that automobile searches differ from other searches. The

dissent fails to acknowledge this basic principle and so

misconstrues and misapplies our Fourth Amendment case

law.” Jd., at 578 (emphasis added).

Accepting the Wyoming Supreme Court’s rule would amount

to jamming Ybarra’s square peg into the round hole of automo-

bile searches.

Ybarra’s reliance on United States v. Di Re, 332 U.S. 581

(1948), see 444 U. S., at 94-95, does not justify applying Ybarra

to automobile searches. In Di Re an informer told an Office of

the Price Administration investigator that he was going to

purchase counterfeit gasoline ration coupons from a person

named Buttitta in a certain place in Buffalo, New York. The

investigator and a Buffalo police detective trailed Buttitta’s car

until it parked at the appointed place. They went to the car and

found the informer in the rear seat holding two coupons which

were later found to be counterfeit. The informant stated that he

obtained the coupons from Buttitta who was sitting in front

along with Di Re. All three were taken into custody, frisked for

weapons, and taken to the station. At the station, two searches

of Di Re turned up numerous counterfeit gas and oil coupons.

13

See 332 U. S., at 583. This Court struck down the search,

finding that probable cause to search a car does not support the

search of an occupant of that car absent probable cause to arrest

him. See id., at 586-587.

Di Re was invoked by the Ybarra Court to reject an argu-

ment that had little to do with the present case. Illinois had

argued that Terry v. Ohio, 392 U. S. 1 (1968) should be

extended to the execution of drug warrants against “ ‘compact’

premises.” See Ybarra, supra, 444 U. S., at 94. Di Re itself

does not govern the present case because it only prevented

searches of the occupants themselves; Di Re did not address

searches of containers. This Court was only “not convinced that

a person, by mere presence in a suspected car, loses inumunities

from search of his person to which he would otherwise be

entitled.” Di Re, supra, 332 U. S., at 587 (emphasis added).

Both Ross and Acevedo demonstrate that as far as containers are

concerned, their presence in an automobile diminishes the

expectation of privacy in them. Di Re has been criticized for

allowing occupants of an automobile to “ ‘take the narcotics out

of the glove compartment and stuff them in their pockets, and

drive happily away after the vehicle has been fruitlessly

searched.’ ” 3 W. LaFave, Search and Seizure § 7.2(e), p. 508

(3d ed. 1996) (quoting Model Code of Pre-Arraignment

Procedure 552 (1975)). It should not be allowed to create a new

windfall with respect to containers in vehicles.

The legality of the search in the present case can only be

decided on its own terms, as an automobile search. The

Wyoming Supreme Court’s reliance on Ybarra was misplaced,

thus confusing the analysis and leading it to reach the wrong

result.

14

II. The rule of California v. Acevedo should not be

complicated by the impractical “notice test.”

A. The Policy Problem.

The automobile exception to the warrant requirement based

upon Carroll v. United States, 267 U. S. 132 (1925) and its

successors is a creature of Fourth Amendment policy. The

automobile exception and its subsequent application by the

Court have involved a careful analysis of the competing

interests of the individual’s privacy and the public interest in

effective law enforcement. See, e.g., id., at 153-154; Cady v.

Dombrowski, 413 U. S. 433, 441-442 (1973); South Dakota v.

Opperman, 428 U. S. 364, 367-369 (1976); California v.

Carney, 471 U.S. 386, 394 (1985); California v. Acevedo, 500

U. S. 565, 576-577 (1991).

The automobile exception to the warrant requirement is

justified on the policy grounds that it is impractical to obtain a

warrant to search something as mobile as an automobile, and

that cars carry a diminished expectation of privacy. See

Carney, supra, 471 U.S., at 391; supra, at 5-6. As noted in part

I, supra, these are not the only reasons for treating automobiles

differently under the Fourth Amendment. See supra, at 6-8.

Amicus submits that an automobile search should be analyzed

under all of the relevant policy reasons that make automobiles

special under the Fourth Amendment. Thus, an additional

aspect of automobile searches, the risks associated with

searches for drugs, deserves particular attention when consider-

ing what standards should govern the conduct of automobile

searches.

While important for traffic stops generally, the need to think

clearly and control the situation is even more important for a

traffic stop that escalates to a warrantless search under the

automobile exception. So far this Court has only allowed these

types of searches when there is probable cause that the vehicle

contains contraband. See, e.g., Pennsylvania v. Labron, 518

15

U. S. 938, 940 (1996) (per curiam).? The extra dangers

associated with the typical contraband search reinforces the

officer’s need for clear instructions from this Court.

Although the term “contraband” covers any goods which are

deemed “unlawful to produce or possess,” see Black’s Law

Dictionary 322 (6th ed. 1990), automobile searches will most

often involve illegal drugs. The threat posed to society by drugs

is considerable. “Possession, use, and distribution of illegal

drugs represent ‘one of the greatest problems affecting the

health and welfare of our population.’ ” Harmelin v. Michigan,

501 U. S. 957, 1002 (1991) (Kennedy, J., concurring) (quoting

Treasury Employees v. Von Raab, 489 U. S. 656, 668 (1989)).

Given the threat posed from the pervasive scourge of illegal

drugs, much effort is expended by law enforcement to combat

this threat. Preliminary statistics show that drug offenses

constituted 36.4% of all felony convictions in U. S. District

Courts in 1994 and 22.9% of all state felony convictions in

1994. See U. S. Dept. of Justice, Bureau of Justice Statistics,

Sourcebook of Criminal Justice Statistics 1996, pp. 440, 471

(1997). A problem this pervasive stands to be a very common

target of automobile searches. Thus the bulk of this Court’s

recent automobile search cases have involved drug searches or

seizures. See, e.g., Labron, 518 U. S., at 939 (per curiam);

Acevedo, 500 U. S., at 567; United States v. Johns, 469 U. S.

478, 480-481 (1985); Carney, 471 U. S., at 388; United States

v. Ross, 456 U. S. 798, 800-801 (1982); Arkansas v. Sanders,

442 U. S. 753, 755 (1979); Opperman, 428 U. S., at 365-366.

3. The contraband requirement started in Carrolil, which addressed a prohibition-

era search for alcohol. See 267 U. S., at 153-154. Although there are sound

reasons for having particular concerns about contraband, the impracticality of

obtaining a warrant would be similar for other items in an automobile such as

a murder weapon. Since this case involves a search for contraband it is

unnecessary to determine whether the automobile exception applies to searches

supported by probable cause that other evidence of a crime is in the vehicle.

However, Carroll’s contraband limitation should not be controlling if such a

case ever comes before this Court. See 3 W. LaFave, Search and Seizure

§ 7.2(a), pp. 459-460 (3d ed. 1996).

16

While some searches will turn up items associated with more

mundane crimes, see Texas v. White, 423 U. S. 67, 67-68

(1975) (per curiam) (fraudulent checks), other dangerous items

can be found during automobile searches. See, e.g., Chambers

v. Maroney, 399 U. S. 42, 44 (1970) (instruments and fruits of

armed robbery, namely guns and money).

Like automobiles, drugs do sometimes change the calcula-

tion of what is reasonable under the Fourth Amendment. In

upholding the authority of policy to detain an individual leaving

a house during the execution of a search warrant for drugs, this

Court said: |

“Although no special danger is suggested by the evi-

dence in this record, the execution of a warrant to search for

narcotics is the kind of transaction that may give rise to

sudden violence or frantic efforts to conceal or destroy

evidence. The risk of harm to both the police and the

occupants is minimized if the officers routinely exercise

unquestioned command of the situation.” Michigan v.

Summers, 452 U.S. 692, 702-703 (1981).

The need for clarity is made even stronger by a real threat of

lost evidence. The mobility that justifies suspending the

warrant requirement greatly aids in the destruction of success-

fully hidden contraband; if an officer fails to open a container

out of fear derived from an unclear understanding of the Fourth

Amendment law,’ then the lucky perpetrators can easily dispose

of the pctentially incriminating contraband far away from the

suspecting police. “In short, ‘[a] single, familiar standard is

essential to guide police officers, who have only limited time

and expertise to reflect on and balance the social and individual

interests involved in the specific circumstances they confront.’ ”

4. Since automobile searches are warrantless, “police officers of course lose the

protection that a warrant would provide to them in an action for damages

brought by an individual claiming that the search was unconstitutional.” United

States v. Ross, 456 U. S. 798, 823, n. 32 (1982). Fear of litigation can thus

make the threat of deterred searches all too real.

nr aren

17

New York v. Belton, 453 U. S. 454, 458 (1981) (quoting

Dunaway v. New York, 442 U.S. 200, 213-214 (1979)).

B. The Solution.

1. Drawing the proper line.

The Fourth Amendment is a particularly fruitful source of

interpretive problems. Any legal standard that turns on a

concept as liquid as “reasonableness,” see, e.g., Terry v. Ohio,

392 U. S. 1, 19 (1968); Whren v. United States, 517 U.S. 806,

817 (1996), is bound to create a complex body of rules. Since

the Fourth Amendment regulates much police conduct, see

Belton, supra, 453 U. S., at 458, its scope is necessarily broad,

multiplying its many judicial interpretations. Implementing

such an important complex legal standard will never be easy.

One of the more difficult problems posed by the Fourth

Amendment’s interpretative difficulties is determining the

proper level of specificity for Fourth Amendment rules. The

reasonableness standard at the heart of every Fourth Amend-

ment case often argues for a case-by-case approach so that the

factual peculiarities of each case may be appreciated. See, ¢.g.,

Ohio v. Robinette, 519 U.S. 33, 39 (1996); Florida v. Royer,

460 U. S. 491, 506-507 (1983) (plurality). This Court has,

however, also understood that some cases call for clear rules

that wiil govern a variety of situations.

“Respondent argues that, because we have generally

eschewed bright-line rules in the Fourth Amendment

context, see, e.g., Ohio v. Robinette, [519 U. S. 33 (1996)],

we should not here conclude that passengers may constitu-

tionally be ordered out of lawfully stopped vehicles. But,

that we typically avoid per se rules concerning searches and

seizures does not mean that we have always done so;

[Pennsylvania v. Mimms, 434 U.S. 106 (1977)] itself drew

a bright line, and we believe the principles that underlay that

decision apply to passengers as well.” Maryland v. Wilson,

519 U. S. 408, 413, n. 1 (1997).

18

This dilemma is not solved by throwing the labels “case-by-

case approach” or “bright-line rules” at particular Fourth

Amendment issues, but by a careful analysis of what level of

specificity will best solve the Fourth Amendment problem

brought before the Court. This Court will promulgate clear

rules to govern Fourth Amendment question when there is a

need to simplify.

“Yet, as one commentator has pointed out, the protection of

the Fourth and Fourteenth Amendments ‘can only be

realized if the police are acting under a set of rules which,

in most instances, makes it possible to reach a correct

determination beforehand as to whether an invasion of

privacy is justified in the interest of law enforcement.’

LaFave, ‘Case-By-Case Adjudication’ versus ‘Standardized

Procedures’: The Robinson Dilemma, 1974 S. Ct. Rev.

127, 142. This is because

“ «Fourth Amendment doctrine, given force and effect

by the exclusionary rule, is primarily intended to regu-

late the police in their day-to-day activities and thus

ought to be expressed in terms that are readily applica-

ble by the police in the context of the law enforcement

activities in which they are necessarily engaged. A

highly sophisticated set of rules, qualified by all sorts of

ifs, ands, and buts and requiring the drawing of subtle

nuances and hairline distinctions, may be the sort of

heady stuff upon which the facile minds of lawyers and

judges eagerly feed, but they may be “literally impossi-

ble of application by the officer in the field.”’ ” Jd. at

141.” Belton, supra, 453 U. S., at 458.

The proposed rule rejected by the Robinette Court was the

near-antithesis of a proper Fourth Amendment rule. Robinette

dealt with a consent search conducted after a valid traffic stop.

See 519 U. S., at 35-36. The Ohio Supreme Court struck down

the search by establishing

“a bright-line prerequisite for consensual interrogation

under these circumstances:

19

“*The right, guaranteed by the federal and Ohio Consti-

tutions, to be secure in one’s person and property

requires that citizens stopped for traffic offenses be

clearly informed by the detaining officer when they are

free to go after a valid detention, before an officer

attempts to engage in a consensual interrogation. Any

attempt at consensual interrogation must be preceded by

the phrase “At this time you legally are free to go” or by

words of similar import.’ ” /d. at 36.

The impracticality of this standard virtually forced its

rejection. This Court had earlier rejected the argument that

consent to search was invalid unless the defendant understood

his right to decline consent. Schneckloth v. Bustamonte, 412

U.S. 218, 227 (1973). Robinette understood the practicality of

that decision. “And just as it ‘would be thoroughly impractical

to impose on the normal consent search the detailed require-

ment of an effective warning,’ id., at 231, so too would it be

unrealistic to police officers to always inform detainees that

they are free to go before a consent to search may be deemed

voluntary.” Robinette, supra, 519 U. S., at 39-40 (citation

omitted) (quoting Schneckloth, 412 U. S., at 231).

The rule struck down by Robinette did not make an officer’s

task simpler. Since it was only a prerequisite to a valid consent,

satisfying the proposed rule would not end the inquiry. Instead,

a court would still have to determine the voluntariness of the

consent “ ‘from all the circumstances... .’” J/d., at 40 (quoting

Schneckloth, 412 U.S., at 248-249). This rule thus only served

to further complicate the officer’s job, contrary to the purpose

behind such rules. Since officers will not ask for consent in a

uniform manner, and citizens will not respond with any greater

consistency, a fact-specific inquiry is the only reasonable

solution.

Richards v. Wisconsin, 520 U. S. 385 (1997) provides

another example of an inappropriate Fourth Amendment rule.

The Wisconsin Supreme Court’s decision to suspend the

“knock-and-announce” rule for the execution of all drug-related

20

search warrants created an exception that was both too broad

and too difficult to contain. See id., at 392-394. This was due

in part to the control the police had over the execution of a

search warrant. Officers could at times substantially reduce the

physical risk or the risk of the destruction of evidence through

proper timing or investigation. See id., at 393. This differs

from automobile searches, in which police have little control

over when and where the search takes place, and where destruc-

tion of evidence poses a constant threat. The Richards Court’s

second reason for dismissing the rule, that “the reasons for

creating an exception in one category can, relatively easily, be

applied to others,” see id., at 393-394, does not apply to the

present case. Automobiles are clearly treated distinctly under

the Fourth Amendment. See Part I, supra. Acevedo demon-

strates that containers within them are also to be treated

specially. See supra, at 11-12. This different treatment has not

and will not bleed into other similar categories. Under the

Fourth Amendment, the vehicle stands alone. The rule of

Richards is thus inapplicable to the present case.

Automobile stops and searches provide several examples of

appropriate Fourth Amendment rulemaking. Two of these

examples, Belton, supra, and Wilson, supra, have already been

discussed in this brief. Belton dealt with a search incident to a

lawful custodial arrest of an occupant of a vehicle. 453 U. S.,

at 455. Searches incident to custodial arrests were particularly

important because of the need to find any weapons the arrestee

may have access to, and to prevent the destruction of evidence.

Id., at 457. It was therefore important to this Court to formulate

a “workable rule” to govern this situation. See id., at 460.

From this followed the rule that all containers in the passenger

compartment may be searched pursuant to a valid arrest. Jbid.

As noted earlier, Wilson was based on the inherent danger

of vehicle stops. See supra, at 6-7. The Wilson Court thus

understood that officers must be allowed to control the situa-

tion. See 519 U. S., at 414. Extending the bright line of

Mimms, supra, see id., at 413, n. 1, allowed officers to preserve

that control by freeing them from having to make unnecessarily

21

complex legal calculations concerning their control over the

passengers.

A particularly important rule for the present case was

announced in California v. Acevedo, 500 U. S. 565 (1991).

Acevedo abandoned the Chadwick-Sanders line of cases for a

rule generally allowing containers to be searched inside a car

under the automobile exception to the Warrant Clause. See

supra, at 11. A major problem with the Chadwick-Sanders rule

was its conflict with the Carroil doctrine governing automobile

searches. See Acevedo, 500 U. S., at 576. This “discrepancy

between the two rules has led to confusion for law enforcement

officers.” Jbid. Acevedo recognized “the virtue of providing

* “ ‘clear and unequivocal’ guidelines ....”° ” /d., at 577

(quoting Minnick v. Mississippi, 498 U. S. 146, 151 (1990)

(quoting Arizona v. Roberson, 486 U. S. 675, 682 (1988))).

When confronted by the confusion wrought by Chadwick and

Sanders, the Acevedo Court “conclude[d] that it is better to

adopt one clear cut rule to govern automobile searches . . . .”

Id., at 579. Carroll searches of containers within automobiles

thus are already governed by a bright-line rule. Any rule that

governs the present case should preserve Acevedo’s essential

clarity.

2. The Rule.

Before finding the <ight rule to govern the present case, it is

important to understand why the Wyoming Supreme Court’s

standard is inappropriate. It adopted a notice test which

prohibits officers from searching any containers they know or

reasonably should know “belong to someone not contemplated

in the warrant or amenable to search on the basis of probable

cause.” Houghton v. State, 956 P. 2d 363, 370 (Wyo. 1998).

This test is designed to govern the execution of search warrants

of premises, where it is one of several competing standards.

See id., at 367; 2 W. LaFave, Search and Seizure § 4.10(b), pp.

661-666 (3d ed. 1996).

22

The notice test’s first fault lies with its origin in Ydarra v.

Illinois, 444 U. S. 85 (1979). Because Ybarra only partially

limited the government's ability to search visitors to a premises

upon which a warrant is being executed, some test had to

determine when a visitor’s belongings could be searched. See

Houghton, supra, 956 P. 2d, at 367. The notice test attempts to ~

solve this problem.

As noted earlier, Ybarra does not govern automobile

searches under the Carroll exception because the expectation of

privacy of an occupant of a vehicle is less than that of Ybarra’s

visitor to a tavern, and the relationship between the occupants

and the vehicle is much closer than that of the visitor to the

tavern. See supra, at 9. Because automobiles are different for

the purpose of the Fourth Amendment, Ybarra does not apply,

see supra, at 9, depriving the notice test of its constitutional

authority.

The notice test is also impractical to apply to automobile

searches. Requiring an officer searching a vehicle to determine

who owns what container is an unnecessarily difficult decision

to make, thus risking a potential windfall for perpetrators. The

problem with tying authority to search a container to the identity

of the owner was explained by the Pennsylvania Supreme

Court:

“(I]t would be ineffective and unworkable to require police

officers to make the distinction between which articles of

clothing and personal property belong to the resident and

which belong to the visitor before beginning the search. It

would not be reasonable to require police officers executing

a warrant to ask individuals located on the premises whether

they own various items of personal property nor would it be

reasonable to expect an appropriate response were they

required to do so.°

5. The facts of the present case illustrate this point. Defendant falsely denied

having ID, when her ID was, in fact, in the purse now in question. See supra,

at 2.

23

“Visitors to the premises could frustrate the efforts of

police by placing contraband among their unworn personal

effects or by announcing ownership of various articles of

clothing and containers in order to place those items beyond

the scope of the warrant. We cannot sanction any rule that

through fraud and gamesmanship erects barriers to the

effective and legitimate execution of search warrants.”

Commonwealth v. Reese, 549 A. 2d 909, 911 (Pa. 1998).

The fact that the ownership of the container in the present

case may be relatively easy to determine does not justify a rule

capable of so much harm. The fact that the state did not dispute

defendant’s ownership of the contents of the purse in the

present case, see Houghton, supra, 956 P. 2d, at 370-371, does

not mean that a male suspect will never hide contraband in a

woman’s purse. The notice test tries to deal with this by

allowing a container known or reasonably suspected of belong-

ing to a visitor to be opened if there was “the opportunity to

conceal the contraband within the personal effects of the visitor

immediately prior to the execution of the warrant.” /d., at 370.

This will not be practical for automobile searches. Anytime the

officer could not see an appreciable part of the passenger

compartment for some time between the stop and the search,

there will be an opportunity to hide contraband in a purse or

some similar container. Since the vast majority of vehicle

searches are likely to satisfy this condition, the notice test may

be easily avoided. Requirements that add little to personal

privacy do not warrant Fourth Amendment protection. See

Acevedo, supra, 500 U. S., at 576. The Wyoming Supreme

Court’s test would only further complicate the rule at the risk of

greatly aiding the concealment of contraband. While such

complexity may be acceptable during the relatively formal and

set-piece execution of a search warrant, the much more fluid

Carroll search requires a more straightforward rule.

The proper rule is derived from Acevedo. This Court stated

that: “The police may search an automobile and the containers

within it where they have probable cause to believe contraband

or evidence is contained.” J/d., at 580. It is no more than a

24

small step to recognize that such probable cause supports

searches into any container within the automobile that could

contain the contraband. The diminished sense of privacy

associated with the automobile, see supra, at 5, the relationship

between the occupants of a vehicle, see supra, at 7-8, and the

relative ease of concealment during an automotive stop provide

strong support for this Court to take that step. The simplicity of

this rule and its obvious ease of administration satisfies the

needs of automotive searches, making a compelling case for this

rule.

Acevedo drew its rule from Ross. See 500 U. S., at 580.

When the Ross Court tied the authority to search containers to

probable cause, it was only concerned with whether the con-

tainer could reasonably be suspected of holding the contraband.

See supra, at 10-11. There is no inconsistency between the

spirit of Ross and a rule rendering ownership irrelevant.

Acevedo meant to provide officers conducting automobile

searches with “one clear-cut rule... .” 500 U. S., at 579.

Rejecting any ownership-based limits to Acevedo preserves its

integrity.

CONCLUSION

The decision of the Wyoming Supreme Court should be

reversed.

November, 1998

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation