Amicus Curiae Brief — Wyoming v. Houghton

No. 98-184

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

THE STATE OF WYOMING,

Petitioner,

Vv.

SANDRA HOUGHTON,

Respondent.

ON WRIT OF CERTIORARI

To THE SUPREME COURT OF WYOMING

BRIEF OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

Of Counsel: PAUL MOGIN*

LISA B. KEMLER ERIC R. DELINSKY

National Association of DAVID O. MARKUS

Criminal Defense Lawyers Williams & Connolly

108 North Alfred Street 725 Twelfth Street, N.W.

Alexandria, Virginia 22313 Washington, D.C. 20005

(703) 684-8000 (202) 434-5000

~ “Counsel for Amicus Curiae

* Counsel of Record

ee ey a n— —p —N - — se

“BEST AVAILABLE COPY!

QUESTION PRESENTED

When the circumstances that create probable cause to

search an automobile do not provide probable cause with

respect to a passenger’s purse, does the automobile exception

to the warrant requirement nevertheless authorize a search of

the purse?

il

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIA ccisscsissremniciretionsacisemananins l

STATON OF TFG CABS sonissscaynuupaindienntataatnion l

SUMMARY OF TIES ARGUMEN S wiiccsisccsisicisentsiotincinenecions 3

PRA FR FINEIIIN S| iictnsscsnieccussveiscnsovocidabonsinencinicabedin a aeavaaauniaeied 5

POLICE OFFICERS SHOULD NOT BE PERMITTED TO

SEARCH A PASSENGER'S BELONGINGS WITHOUT

PROBABLE CAUSE SPECIFIC TO THE PASSENGER OR

PRESTR SRSA Aan CINE ack sckcuitisss cesmenbccsonsivanshigeeniomadaseiparccannmeeinesiaen 5

A. PROBABLE CAUSE MUST BE SPECIFIC

AINED-EINER VLA ARAOED vcctuisvivienirsniteneiencsteoeen seria 6

B. THE COURT’S AUTOMOBILE SEARCH

CASES HAVE NOT CHANGED THE

REQUIREMENT THAT PROBABLE CAUSE

BE SPECIFIC AND INDIVIDUALIZED..........00......... 12

1. The nature of the automobile exception ................... 13

2. Ree GE ACOVIND iccccianticceasciaeaaen 14

C. IT IS REASONABLE TO MAINTAIN THE

REQUIREMENTS OF PROBABLE CAUSE IN

THE CONTEXT OF AUTOMOBILE

AARC RANSOD \shesihnb\ wisahainnsulepies igs aeisasansuaean edie ebleioiane 20

CONCLUSION

nt ae ie ee

TABLE OF AUTHORITIES

FEDERAL CASES

Page

Arizona v. Hicks, 480 U.S. 321 (1987) ...........ceeeeeees 11, 13, 22

eee Se, eae RS CEE. MEE CROPS D vices censcanbhonnarsddaadeserannnaneviady 8

California v. Acevedo, 500 U.S. 565 (1991) ........06 4, 14, 19, 22

Carroll v. United States, 267 U.S. 132 (1925) ..........:.cceeeees aR

Chambers v. Maroney, 399 U.S. 42 (1970) ...cccccccccsesseeeeeeeeeeees 13

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

Henry v. United States, 361 U.S. 98 (1959) ......ccccccecceeeeeeees as

CRO AED 05.05. LS CLOUS D ccscsncsvinscshcesnivsenaisicevnynvccess 7

Maryland v. Wilson, 519 U.S. 408 (1997) ........ccccceeeee 23, 24, 25

Mincey v. Arizona, 437 U.S. 385 (1978) .........sccccsseesseeseseeseenees 23

National Treasury Employees Union v. Von Raab,

tn TRCN, CHRD fas iicsccephsctinieentababawnsicinenccaniagsans 8, 21

New Jersey v. T.L.O., 469 U.S. 325 (1985) .........scccssesssesseceneeees 18

New York v. Belton, 453 U.S. 454 (1981) .........ccccceeee 5, 23, 24

Ornelas v. United States, 517 US. Ree 7

Payton v. New York, 445 U.S. 573 (1980) ......cccccccsseseseeeseeseeeees 11

Sibron v. New York, 392 U.S. 40 (1968) ..................0 7,9, 14, 21

iV

Skinner v. Railway Labor Executives’ Ass'n,

4B9- U.S. GO2 C19BD) on. ncercissiccsessccsccecsansssnsssssencessoqoncesesans 8

Terry v. Ohio, 392 U.S. 1 (1968) ......ecceeeseesesseseseerseeesneneenenney 8

United States v. Cortez, 449 U.S. 411 (1981) .....cccceeeeeeeeeeeseenees 8

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

United States v. Robertson, 833 F.2d 777 (9th Cir. 1987) ........ 23

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

United States v. Welch, 4 F.3d 761 (9th Cir. 1993) ........c:ccceee 18

Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995) ...........+. 6, 7,8

Wong Sun v. United States, 371 U.S. 471 CRUE E sienecivvinssnainnioets 7

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

Zurcher v. Stanford Daily, 436 U.S. 547 (1978) .........00 11,12

STATE CASES

Childers v. Georgia, 281 S.E.2d 349

(Ga. Ct. App, 1981) .......-.sccccescccssessersstsvnsonnesnasenonenanneas 23

Hawkins v. Georgia, 300 S.E.2d 224

(Ga. Ct. App. 1963) ..0..c.sccccessscccrsescseseseseeassesssstocnssanes 23

Hawaii v. Przeradski, 677 P.2d 471

(Haw. C0. Ai, 198A) ...ccccccscsccsscsepeccenensnisescesncosscnceioens 23

CONSTITUTIONAL PROVISIONS

U.S. Const. ammeind. FV ..n.......c0ssssittwisessoarscsssensonrvenessnavesnonss passim

v

MISCELLANEOUS

Thomas K. Clancy, The Role of Individualized Suspicion

in Assessing the Reasonableness of Searches and

Seizures, 25 U. Mem. L. Rev. 483 (1995) ........:.sc00+0

W. Cuddihy, The Fourth Amendment: Origins and

Original Meaning (1990) (Ph.D. Dissertation at

Claremont Graduate School)................seeeeeeeeeeees

3 Wayne R. LaFave, Search and Seizure (3rd ed. 1996) ........

Tracey Maclin, The Complexity of the Fourth Amendment:

A Historical Review, 77 B.U. L. Rev. 925 (1997) ......

1

INTEREST OF AMICUS CURIAE'

The National Association of Criminal Defense

Lawyers (““NACDL”) is a nonprofit corporation with a

membership of more than 10,000 attorneys and 28,000

affiliate members in all fifty states. The American Bar

Association recognizes the NACDL as an_ affiliate

organization and awards it full representation in its House of

Delegates.

The NACDL was founded in 1958 to promote study

and research in the field of criminal law; to disseminate and

advance knowledge of the law in the area of criminal

practice; and to encourage the integrity, independence, and

expertise of defense lawyers in criminal cases. Among the

NACDL’s objectives is to ensure the proper and fair

administration of justice, and the continued recognition and

adherence to the Bill of Rights which is necessary to sustain

the quality of the American system of justice.

STATEMENT OF THE CASE

On July 23, 1995, Officer Delane Baldwin stopped an

automobile driven by David Young. According to Officer

Baldwin, the automobile was speeding and a brake light was

faulty. Respondent Sandra Houghton was a passenger in

Young’s car. As tens of millions of American women do

' This amicus curiae brief is submitted in support of the Respondent,

Sandra Houghton. By letters filed with the Clerk of the Court, Petitioner

and Respondent have consented to the filing of this brief. As required by

Rule 37.6 of this Court, amicus curiae submits the following: no party

other than counsel authored this brief in whole or in part; no person or

entity other than amicus curiae, its members, or its counsel have made a

monetary contribution to the preparation or submission of this brief.

2

every day, Houghton had taken her purse with her. J.A. 135-

37.

After approaching the vehicle, Officer Baldwin

noticed a syringe in Young’s shirt pocket and questioned

Young about it. According to Officer Baldwin, Young said

that he used the syringe to take drugs. Officer Baldwin then —

ordered the occupants out of the vehicle, patted them down,

and proceeded to search the car. He discovered a closed

“cloth lady’s purse.” J.A. 19, 143; Pet. App. 4.

Officer Baldwin knew the purse belonged to Ms.

Houghton. Ms. Houghton told him so, and the first item that

the officer discovered in the purse was her identification.

Officer Baldwin also knew that men generally do not carry

purses. J.A. 18-21.

Furthermore, the officer did not testify that he

observed any furtive movements by Houghton, or any

movements by Young indicating that he was depositing

drugs into Houghton’s purse. To the contrary, the occupants

of the car were constantly under police observation and there

were no suspicious movements within the car. See Pet. App.

18.

Thus, as the officer admitted, there was no probable

cause with respect to Ms. Houghton or her purse. J.A. 19.

Nonetheless, the officer opened the purse, and found two

wallets. Still without probable cause to believe that Ms.

Houghton’s purse contained drugs, he opened and searched

the wallets. Officer Baldwin found illegal drugs and arrested

Ms. Houghton. J.A. 19, 21.

3

Prior to trial, Ms. Houghton moved to suppress the

evidence on the basis that the search violated the Fourth

Amendment. The district judge denied the motion. On

appeal from Ms. Houghton’s conviction, the Wyoming

Supreme Court reversed, concluding that the search was

unconstitutional. The court stated that it could not agree that

“the automobile exception remuves from judicial review all

searches of all containers physically capable of containing

the object of the search. To so rule would provide a

wholesale surrender of Fourth Amendment protection upon

entering an automobile.” Pet. App. 21 (emphasis added).

SUMMARY OF THE ARGUMENT

This case is about probable cause, and this Court’s

cases defining the nature and quantum of evidence that

comprise probable cause. This case is not about the warrant

requirement, or this Court’s discussion of the exception to

that requirement in the context of automobile searches. With

this in mind, this*Court should affirm the decision of the

Wyoming Supreme Court.

First, there was no probable cause to search Ms.

Houghton’s purse. It is well settled that probable cause

requires individualized suspicion, and it is uncontroverted

that Officer Baldwin lacked individualized suspicion with

respect to Ms. Houghton or her purse. Insofar as the State

suggests that some notion of “general” probable cause

sufficed, the State’s position must be rejected, for it is

inconsistent with the very nature of probable cause. Indeed,

the purpose of the Fourth Amendment was to replace the

notion of general suspicion with the requirement of

individualized suspicion.

4

Second, the automobile exception to the warrant

requirement does not relax the requirements of probable

cause. The automobile exception removes the need for a

warrant for automobile searches, but does not dilute the level

of suspicion required for probable cause. The requirements

necessary to establish probable cause during an automobile

search are the same as those required for probable cause in

all other contexts. The State’s attempt to distinguish the

seminal probable cause decisions of this Court on the ground

that they do not involve automobile searches is, therefore,

unavailing. In addition, the State’s assertion that searches

of passenger’s belongings are controlled by the statements

about containers in Ross and Acevedo is untenable. Those

cases did not address passengers or their belongings, and

certainly did not hold that a passenger’s purse could be

searched simply because the driver was suspected of using

drugs. Such a holding would not only create a warrant

exception in automobile search cases, but a probable cause

exception as well.

Third, contrary to the State’s arguments, the

circumstances of automobile searches do not justify a retreat

from the requirements of probable cause. The State suggests

that absent any specific and individualized suspicion, it is

reasonable to assume that drivers and passengers are

engaged in the same activities merely because they are riding

together in a car. This suggestion, however, is bare

conjecture. The State also argues that requiring officers to

distinguish between passengers’ items and drivers’ items is

unworkable. But Officer Baldwin had no problem making

this distinction; he testified that he knew that the purse

belonged to Ms. Houghton. Indeed, police officers make

probable cause determinations every day of the week in a

variety of contexts. Finally, the State argues that affirming

the decision of the Supreme Court of Wyoming would create

5

an anomaly because the decision would be inconsistent with

the rule concerning searches incident to arrest set forth in

New York v. Belton, 453 U.S. 454 (1981). But pre-arrest

automobile searches and searches incident to arrest implicate

different considerations and thus call for different rules. In

any event, the State’s position would create an unjustified

anomaly concerning the rules governing searches of an

automobile passenger and those governing searches of a

passenger’s belongings.

ARGUMENT

POLICE OFFICERS SHOULD BE NOT PERMITTED

TO SEARCH A_ PASSENGER’S BELONGINGS

WITHOUT PROBABLE CAUSE SPECIFIC TO THE

PASSENGER OR HER BELONGINGS.

The search of Sandra Houghton’s purse was

conducted without probable cause to believe that the purse

contained contraband or evidence of a crime, and therefore

did not satisfy the requirement that probable cause be based

on specific and individualized suspicion. The State admits

as much, see, e.g., Petitioner’s Brief (“Pet. Br.”) at i (“police

... have no probable cause specific to [Houghton’s] purse or

[Houghton]”), and is left to argue that probable cause is

different when applied to an automobile. See Pet. Br. at 20.

It contends that under the automobile exception, probable

cause specific to a passenger’s belongings is not necessary

when there is probable cause to search the car generally. See

Pet. Br. at 23. This proposition—that the specific and

individualized suspicion requirement of probable cause is

relaxed in the context of a car—is contrary to this Court’s

cases explaining the probable cause requirement and the

automobile exception to the warrant requirement.

A. PROBABLE CAUSE MUST BE SPECIFIC AND

INDIVIDUALIZED.

The Fourth Amendment’s “individualized suspicion

requirement has a legal pedigree as old as the Fourth

Amendment itself.” Vernonia Sch. Dist. 47J v. Acton, 515

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

Framers’s insistence on the requirement of specific and

individualized suspicion grew out of suspicionless searches

permitted by general warrants and writs of assistance in

England and early America. See Tracey Maclin, The

Complexity of the Fourth Amendment: A Historical Review,

77 B.U. L. Rev. 925, 938 (1997); Thomas K. Clancy, The

Role of Individualized Suspicion in Assessing _ the

Reasonableness of Searches and Seizures, 25 U. Mem. L.

Rev. 483, 528 (1995) (describing the “core complaint” of the

colonists as the general, baseless searches that were executed

without “individualized suspicion”). Such warrants and

writs “were not issued as a result of any information that

contraband was stored at a specific place; instead, the

customs officials could search wherever they chose.” /d. at

500.

The colonists’ dissatisfaction with general warrants

and writs of assistance, and their concomitant drive to

replace general suspicionless searches with specific and

individualized searches, grew in part out of the 18th century

corollary of the car—the boat. See Maclin, 77 B.U. L. Rev.

at 962. On the eve of the American Revolution, British

agents, without probable cause, searched and seized ships

belonging to Henry Laurens and John Hancock. Both

Laurens and Hancock organized loud and effective political

protests concerning the general searches of their vessels. Jd.

The result of these and similar protests was not only the

Deere

7

Fourth Amendment, but also the Collection Act of July 31,

1789, which required individualized suspicion before the

search of a vessel. See Vernonia Sch. Dist., 515 U.S. at 671

(O’Connor, J., dissenting) (describing the Collection Act of

1789 as the most significant of all early search statutes, “‘for

it identified the techniques of search and seizure that the

framers of the amendment believed reasonable while they

were framing it’ (quoting W. Cuddihy, The Fourth:

Amendment: Origins and Original Meaning 1490-91 (1990)

(Ph.D. Dissertation at Claremont Graduate School)).

For the last 200 years, this Court has remained

faithful to the idea that a reasonable search requires specific

and individualized probable cause. Today, probable cause

requires a finding that, under the totality of the

circumstances, “there is a fair probability that contraband or

evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983). Phrased

differently, it requires “known facts and circumstances . . .

sufficient to warrant a man of reasonable prudence in the

belief that contraband or evidence of a crime will be found.”

Ornelas v. United States, 517 U.S. 690, 696 (1996); Wong

Sun v. United States, 371 U.S. 471, 479 (1963).

Accordingly, a finding of probable cause requires

individualized suspicion based on facts and circumstances

specific to the object or person to be searched. See Ybarra v.

Illinois, 444 U.S. 85, 91 (1979) (“Where the standard is

probable cause, a search . . . of a person must be supported

by probable cause particularized with respect to that

person.”); Sibron v. New York, 392 U.S. 40, 62-63 (1968)

(no probable cause to search person talking to narcotics

dealers where officer was “completely ignorant” of specific

facts and circumstances implicating person); United States

v. Di Re, 332 U.S. 581, 587 (1948) (person’s “mere presence

8

in a suspected car” does not amount to probable cause to

search that person). See also Skinner v. Railway Labor

Executives’ Ass'n, 489 U.S. 602, 624 (1989) (“search[es],

.. ., aS a general matter,” require “individualized suspicion”);

Brown v. Texas, 443 U.S. 47, 52 (1979) (“The fact that

appellant was in a neighborhood frequented by drug users,

standing alone, is not a basis for concluding that appellant

himself was engaged in criminal conduct.”); Vernonia Sch.

Dist., 515 U.S. at 667 (O’Connor, J., dissenting) (discussing

“requirement of individualized suspicion”); National

Treasury Employees Union v. Von Raab, 489 U.S. 656, 680-

81, 684 (1989) (Scalia, J., dissenting) (“individualized” or

“particularized” suspicion is necessary component of

reasonable search and seizure absent some “demonstrated”

“social necessity”). See also Terry v. Ohio, 392 U.S. 1, 21

n.18 (1968) (“Thfe] demand for specificity in the

information upon which police action is predicated is the

central teaching of this Court’s Fourth Amendment

jurisprudence.”).

Specificity and “individualized suspicion” are such

essential components of a reasonable search that they are

ordinarily required even when probable cause is not, in the

context of lesser intrusions that require only “reasonable

suspicion.” See, e.g., Skinner, 489 U.S. at 624 (Even

“[w]hen the balance of interests precludes insistence on a

showing of probable cause, we have usually required ‘some

quantum of individualized suspicion’ before concluding that

a search is reasonable.”) (quotation omitted); United States v.

Cortez, 449 U.S. 411, 418 (1981) (investigative stop of a

vehicle must be supported by the “suspicion that the

particular individual being stopped is engaged in

wrongdoing”). These cases underscore the principle that

probable cause must be specific and individualized.

9

Three decisions of this Court—Di Re, Sibron and

Ybarra—expiore the specific and individualized nature of

probable cause. In Di Re, police approached a car on the

basis of a tip from an informant that the driver of the car was

selling counterfeit gasoline coupons. 332 U.S. at 583. The

Court assumed, without deciding, that probable cause existed

to search the car. /d. at 586. But the police went further, and

searched Michael Di Re, a passenger in the car, even though

none of the information supplied by the informant implicated

him. /d. at 583. “All [the police] had was his presence.” /d.

at 592. The Court characterized the government’s attempt to

base probable cause on Di Re’s “mere presence” in the car as

“farfetched,” and held that “mere presence” was insufficient

to establish probable cause. Jd at 592-94. The Court

concluded that “a person, by mere presence in a suspected

car, [does not] lose[] immunities from search of his person to

which he would otherwise be entitled.” Jd. at 587.

In Sibron, police conducted a search of the defendant

after observing him talk to known narcotics addicts over an

eight hour period. 392 U.S. at 40. In concluding that these

facts did not justify a search, the Court emphasized that the

officer “had no information concerning [Sibron].” /d. at 62.

“The inference that persons who talk to narcotics addicts are

engaged in the criminal traffic in narcotics is simply not the

sort of reasonable inference required to support an intrusion

by the police upon an individual’s personal security.” /d.;

see also id. at 73 (“There must be something . . . in the

activities of the person being observed or in his surroundings

that affirmatively suggests particular criminal activity,

completed, current, or intended.”) (Harlan, J., concurring).

The third case, Ybarra, involved a warrant to search a

tavern and its bartender for heroin. 444 U.S. at 85. The

10

warrant was issued based on information indicating that the

bartender was selling heroin. /d. at 88. Upon executing the

warrant, the police not only searched the premises and the

bartender, but also each customer, including the defendant

Ventura Ybarra. The police “knew nothing in particular

about Ybarra,” the Court noted, “except that he was present

_.. ina public tavern at a time when the police had reason to

believe that the bartender would have heroin for sale.” /d. at

91. This was not enough to establish probable cause to

search Ybarra. “[A] person’s mere propinquity to others

independently suspected of criminal activity does not,

without more, give rise to probable cause” because of the

absence of “particularized” suspicion. Jd The Court

stressed that “Ybarra made no gestures indicative of criminal

conduct, made no movements that might suggest an attempt

to conceal contraband, and said nothing of a suspicious

nature to the police officers.” Jd. at 93.

Based on these cases, the conclusion that officer

Baldwin lacked probable cause to search Ms. Houghton’s

purse is easy and uncontroversial. The mere fact that the

driver of the automobile in which Sandra Houghton was

riding was a drug user did not support any individualized

suspicion with respect to Ms. Houghton or her purse. Under

Ybarra, a person’s “mere propinquity to others

independently suspected of criminal activity” does not

authorize an officer to conduct a search of that person.

Therefore, Ms. Houghton’s presence in David Young's car

did not authorize Officer Baldwin to search her belongings.

11

The State and its amici attempt to distinguish these

cases’ on grounds previously deemed insignificant by this

Court. First, they argue that Di Re and Ybarra involved

searches of people as opposed to searches of objects. See,

e.g., Brief for the United States as Amicus Curiae Supporting

Petitioner (“U.S. Br.”) at 18-19. Probable cause, however, is

required to search citizens and their effects. See Payton v.

New York, 445 U.S. 573, 586-87 (1980) (“[I]t is . . . well

settled that objects such as weapons or contraband found in a

public place may be seized by the police without a warrant

. . . assuming that there is probable cause to associate the

property with criminal activity.” (emphasis added)); Henry v.

United States, 361 U.S. 98, 104 (1959) (“The police must

have reasonable grounds to believe that the particular

package carried by the citizen is contraband.” (emphasis

added)); see also Arizona v. Hicks, 480 U.S. 321, 326-28

(1987) (holding that search of stereo equipment required

probable cause to believe that equipment was stolen and

noting that the Court has never drawn “categorical

distinction[s]” between different types of searches and

seizures when discussing “degree of justification needed to

establish the reasonableness of police action”). The State

fails to provide a principled explanation as to why personal

belongings should be treated differently than passengers.”

2 The State does not cite or discuss Di Re. Accordingly, this brief

addresses the arguments concerning Di Re advanced by the amici

supporting the State.

> This is not to say that an individual must be suspected of wrongdoing

before her belongings can be searched, but rather that there must be

specific and individualized suspicion that the belongings contain

contraband or evidence of a crime. Thus, cites to Zurcher v. Stanford

Daily, 436 U.S. 547 (1978), do not help the State. The State cites

Zurcher for the proposition that a search may be conducted even where

there is not probable cause that the person being searched has done

anything wrong. The search in Zurcher, however, was based on probable

12

Then, without regard to Di Re, an automobile case

explaining probable cause exactly the same way as the

Ybarra Court did, the State argues that Ybarra does not

apply because the search in that case did not occur in an

automobile. See Pet. Br. at 20, 25. The Ybarra Court,

however, explicitly relied on Di Re, and explained that “the

governing principle in both cases is basically the same.” 444

U.S. at 95. The concerns of the colonists about overbroad

searches were not limited to searches about stationary

premises, as the protests of British searches of ships

demonstrate. As fully described in the next section, the

requirements for probable cause are the same regardless of

whether a search is conducted in a car or on fixed premises.

B. THE COURT’S AUTOMOBILE SEARCH

CASES HAVE NOT CHANGED’ THE

REQUIREMENT THAT PROBABLE CAUSE

BE SPECIFIC AND INDIVIDUALIZED.

The State contends that, under the automobile

exception, probable cause specific to a passenger's

belongings is not necessary to search those belongings. See

Pet. Br. at 23 (“given existence of probable cause to search

the vehicle generally, an additional measure of probable

cause should not be required” (emphasis added)). In effect,

cause to believe that evidence of a crime was located at a student

newspaper office. /d. at 550. In this case, however, there was no cause

to think that Houghton’s purse contained evidence of a crime or

contraband. If the officers in this case had reason to think that

Houghton’s purse contained evidence of a crime or contraband (whether

put there by Houghton herself or by the driver), they would have been

permitted to search it. As the State concedes, however, there was no

probable cause specific to the purse.

13

the State is arguing that the automobile exception not only

removes the need for a warrant, but also changes the

contours of probable cause by removing the requirement of

specific and individualized suspicion. Despite the State’s

urging, however, this requirement applies to automobile

searches.

1. The nature of the automobile exception.

The State mischaracterizes the automobile exception.

The exception, as delineated by Carroll v. United States, 267

U.S. 132 (1925), and its progeny, only concerns the need for

a warrant. It does not alter the probable cause requirements

for a search. “[{The Carroll] decision merely relaxed the

requirements for a warrant on grounds of practicality. It did

not dispense with the need for probable cause.” Henry, 361

U.S. at 104.

Carroll was clear on this point. “[C]ontraband goods

concealed and illegally transported in an automobile or other

vehicle may be searched for without a warrant” only if “there

is known to a competent official authorized to search,

probable cause for believing that their vehicles are carrying

contraband or illegal merchandise.” Carroll, 267 U.S. at

153-54 (emphasis added); see also Chambers v. Maroney,

399 U.S. 42, 51 (1970) (“In enforcing the Fourth

Amendment’s prohibition against unreasonable searches and

seizures, the Court has insisted upon probable cause as a

minimum requirement for a reasonable search permitted by

the Constitution.”). As this Court observed in Arizona v.

Hicks, 480 U.S. 321, 327 (1987), “[d]ispensing with the need

for a warrant is worlds apart from permitting a lesser

standard of cause for the seizure than a warrant would

require.”

14

Indeed, in Di Re, a case which the State neglects to

cite, the Court addressed, and rejected, the proposition now

advanced by the State—that the automobile exception

reduces the level of suspicion required for probable cause.

There, the government argued that, even in the absence of

probable cause to search Di Re, who was a passenger in a

vehicle that the police had probable cause to search, “the

search of his person was justified as incident to [the] search

of a vehicle.” Di Re, 332 U.S. at 583-84, 586 (emphasis

added). The Court unequivocally rejected that argument.

“We see no ground for expanding the ruling in the Carroll

case to justify this arrest and search as incident to the search

of a car. 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.” Jd. at

587.

And in Ybarra, the Court explicitly recognized that

probable cause is the same both inside and outside of an

automobile. 444 U.S. at 95. The authorities are therefore

clear that the automobile exception does not relax the

requirements of probable cause, and that the principles of

probable cause set forth in cases such as Ybarra and Sibron

apply to automobile searches.

2. Ross and Acevedo.

The State’s submission that the belongings of an

automobile passenger may be searched without probable

cause is not supported by either United States v. Ross, 456

U.S. 798 (1982), or California v. Acevedo, 500 U.S. 565

(1991). Those cases expand only the automobile exception

to the warrant requirement and in no way relax the probable

15

cause requirement. Moreover, unlike Di Re, they did not

involve the search of a passenger or her purse.

In Ross, the police searched Ross’s car without a

warrant after an informant told the police that he had seen

Ross complete a drug transaction using drugs stored in the

trunk of Ross’s car. The police searched the car’s trunk,

finding a paper bag. Upon opening the bag, the police found

drugs.

Upholding the constitutionality of the search, the

Court held 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.” 456 U.S. at 823. Because a warrant would

have authorized the search of the bag, the Court found the

search reasonable. The Court concluded that the scope of a

warrantless search of an automobile is “defined by the object

of the search and the places in which there is probable cause

to believe that it may be found.” Jd. at 824. See also

Acevedo, 500 U.S. at 570 (describing Ross as allowing “a

search of a container or package found inside the car when

such a search was supported by probable cause”). The Ross

Court thus made clear that it was not authorizing the search

of “every container.” 456 U.S. at 822-23.

Nevertheless, the State appears to assume that Ross

somehow adopted a diluted version of the probable cause

requirement. The Court, however, did not say it was doing

so, nor analyze whether such a dilution is justified, as the

Court certainly would have done had it intended to alter the

longstanding requirement of probable cause. The State

points only to a single sentence of Ross: “‘If probable cause

justifies the search of a lawfully stopped vehicle, it justifies

en

16

the search of every part of the vehicle and its contents that

may conceal the object of the search.’” Pet. Br. at 16-17

(quoting Ross, 456 U.S. at 825). The State’s interpretation

cannot withstand scrutiny.

First, the State ignores the preceding sentence: “We

hold that the scope of the warrantless search authorized by

that exception is no broader and no narrower than a

magistrate could legitimately authorize by warrant.” Ross,

456 U.S. at 825. The import of the passage in its entirety is

to equate the scope of a warrantless search under the

automobile exception with the scope of a search that a

warrant could legitimately authorize, and there is no question

that a magistrate’s issuance of a warrant is fully subject to

the requirement of probable cause. See U.S. Const. amend.

IV (“no Warrants shall issue, but upon probable cause”).

Second, the Court gave specific examples

demonstrating that it did not authorize the search of every

container: “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.” Ross,

456 U.S. at 824. The Court added that “[p]robable 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.” Jd. These examples refute the notion that Ross

automatically authorizes a search of each and every container

in a vehicle once there is probable cause to search the

vehicle.

Third, the Ross Court did not address the situation in

which the police know, prior to searching a container found

17

in a car, that it belongs to a passenger whose person and

belongings are not implicated by the circumstances giving

rise to probable cause to search the car. The Ross Court was

addressing the typical search of a container in a car, and

undoubtedly the existence of probable cause to search a car

ordinarily means that there is probable cause to search any

container large enough to contain the object of the search.

But the situation is different when the police are on notice

that the container belongs to a passenger whose person and

belongings are not implicated by the circumstances giving

rise to probable cause. As Professor Lafave explains, “it is

sometimes possible that there will not be probable cause

[that] the object sought could be in a certain container within

the car, even though the object would fit within that

container and even though there is probable cause that the

object is somewhere within that vehicle.” 3 Wayne R.

LaFave, Search and Seizure § 7.2(c), at 488 n.113 (3d ed.

1996). The search of Sandra Houghton’s purse is that case.

The State’s reading of Ross would lead to intolerable

results. Suppose, for instance, the police stop a taxicab

occupied by a lawyer on the way to court. According to the

State’s argument, if the officer spied a syringe in the driver’s

pocket, the police could search a lawyer’s briefcase even

though the lawyer had no relationship to the driver and had

done nothing suspicious.

Indeed, the rule proffered by the State would have its

greatest impact on those persons who do not drive—

including low-income persons who cannot afford the cost of

their own automobile—and rely on others for transportation.

There are many people in this country who lack the means to

travel to a concert, ballgame, or political protest other than in

a vehicle shared by several other occupants. In the State’s

18

view, such individuals would essentially forfeit their Fourth

Amendment rights every time they step into an automobile

driven by another person.

But even if the State were correct, and Ross were

read to permit suspicionless searches of all containers

(including those belonging to passengers), nothing in Ross

suggests that a purse constitutes such a “container.” See,

e.g., Ross, 456 U.S. at 822 (giving as examples of containers

“paper bags, locked trunks, lunch buckets, and orange

crates”). Women typically carry purses on their persons or

keep them in very close proximity. As noted by one of the

amici supporting the State, “[t]he Court can take judicial

notice that in American society women almost always keep

their purses (or pocketbooks) on them, usually on their

shoulders, in their hands, or between their arms ....” Brief

of Amicus Curiae National Association of Police

Organizations in Support of Petitioner at 10 n.3. A search of

a purse bears a closer resemblance to a search of a person’s

clothing than it does to a search of the kinds of articles the

Ross Court gave as examples of “containers.”

There are good reasons to treat a search of a purse as

a search of the person rather than as a search of a container.

Not only do women typically keep their purses on them, but

purses to a considerable extent serve the same function as

pockets in clothing, and they contain highly personal items.

See New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)

(“students may carry on their persons or in purses or wallets

such nondisruptive yet highly personal items as photographs,

letters, and diaries”); United States v. Welch, 4 F.3d 761, 764

(9th Cir. 1993) (“a purse is a type of container in which a

person possesses the highest expectations of privacy”). It is

difficult to understand why the contents of a woman’s purse

am NC a a i

19

should receive less protection than the contents of a man’s

(or a woman’s) pants pockets.

If Houghton had been carrying the contents of her

purse in pockets in her clothing, those materials clearly could

not have been searched, since the police lacked probable

cause specific to Houghton. See Di Re, 332 U.S. at 585.

The result should not be different merely because Houghton

chose to keep items in her purse instead of in her pockets.

The State’s reliance on California v. Acevedo, 500

U.S. 565 (1991), is similarly misplaced. That case did not

involve a situation where the police lacked probable cause

specific to the container that they searched. To the contrary,

the issue was whether police may conduct a warrantless

search of a container in the trunk of a car where they have

probable cause specific to the container, but not with respect

to the rest of the car. /d at 567. The Court authorized a

warrantless search of the particular container, but it made

clear that the police could not search the remainder of the car

for which there was no probable cause. Acevedo, therefore,

is fully consistent with the principle that probable cause

requires specific and individualized suspicion.

The Court’s cases applying the automobile exception

to the warrant requirement have been remarkably consistent:

probable cause is always required. Because the Wyoming

officers could not point to one objective fact to indicate that

Sandra Houghton possessed drugs or that someone had

placed drugs in her purse, the officer should not have

rummaged through her purse. The Court should not stray

from the principle explained in its automobile cases—that

searches must be supported by probable cause—or from the

principle explained in its probable cause cases—that specific

and individualized suspicion is required before conducting a

20

search. Accordingly, the Court should affirm the Wyoming

Supreme Court’s holding that the search of Sandra

Houghton’s purse without probable cause violates the Fourth

Amendment.

c IT IS REASONABLE TO MAINTAIN THE

REQUIREMENTS OF PROBABLE CAUSE IN

THE CONTEXT OF AUTOMOBILE

SEARCHES. :

The State and its amici seem to suggest that even if

probable cause is not present, other considerations militate in

favor of searching Ms. Houghton’s purse. They argue that

specific and individualized suspicion is not necessary to

search a passenger’s belongings because (1) when there is a

reason to believe a driver is involved in illegal activity, it is

reasonable to assume that the passenger is engaged in the

same illegal activity; (2) it is unworkable to require officers

to make probable cause determinations with respect to

passengers’ belongings; and (3) requiring probable cause to

search a passenger’s belongings would create an anomaly in

the case law governing automobile searches. Each of these

arguments is without merit.

2 The State and its amici claim that it is

reasonable to assume that a passenger’s belongings may

contain evidence of criminal activity when there are grounds

to suspect a driver of committing a crime. They say that

drivers and passengers are likely to be engaged in a common

purpose and, therefore, a passenger is likely to be engaging

in the same illegal activity as the driver. See, e.g., Pet. Br. at

31 (stating that it is “obvious[]” that drivers and passengers

have a “common purpose”); U.S. Br. at 12 (“[iJt is not

unreasonable to assume that [drivers and passengers] may

21

. .. be engaged in other common activity associated with . . .

travel” (emphasis added)). Similarly, they suggest that it is

reasonable to assume that the driver’s contraband may be

concealed in the passenger’s belongings. See U.S. Br. at 6

(“it is reasonable to assume that a passenger’s purse, bag or

other container . . . is as likely a receptacle as any other

compartment or container in the automobile”). In effect, the

State and Solicitor General attempt to revive the argument

that “mere presence” gives rise to probable cause.

But the State’s underlying assumptions are far from

reasonable. The State and its amici fail to point to any

evidence or statistics of any sort supporting the notions that

drivers and passengers share a “common purpose,” or that

drivers are likely to conceal contraband in the belongings of

their passengers. Such notions are no more than

generalizations which are insufficient to justify a departure

from the requirement of specific and _ individualized

suspicion. See Ybarra, 444 U.S. at 91; Di Re, 332 U.S. at

587; Von Raab, 489 U.S. at 684 (Scalia, J., dissenting) (mere

“generalization[s]” should not be permitted to influence this

Court’s Fourth Amendment jurisprudence).

As discussed above, this Court has previously

rejected similar assumptions as “farfetched.” Di Re, 332 U.S.

at 593. See also Ybarra, 444 U.S. at 91; Sibron, 392 U.S. at

62. And rightly so. For example, suppose that we knew

that David Young was a fan of the Washington Redskins

football team. Even the State must agree that no

assumptions can be made regarding Houghton’s allegiance to

the Redskins. She might be a fan of the Dallas Cowboys and

detest the Redskins, notwithstanding the fact that she is

riding in the car with Young. Similarly, information

indicating that Young is a drug user does not indicate that the

22

passengers in the car are drug users. Permitting this type of

inference does away with the specific and individualized

suspicion requirement of the Fourth Amendment.

2 The State also contends that the probable

cause requirement is unworkable in the context of

automobile container searches. Not only are officers

perfectly capable of making probable cause determinations

before conducting searches, but they do so each and every

day. Thus, the State’s contention that requiring officers to

search only upon probable cause is unworkable is faulty.

This case is a perfect illustration. Here, the officer knew that

the purse was Houghton’s, and had no reason to think that

she possessed drugs in her purse, or that Young put drugs

there. What, then, is unworkable about prohibiting this

search, or others like it, where probable cause is lacking?

“On the spot” determinations are part and parcel of

being a police officer. The police make probable cause

determinations routinely and in a variety of situations—

including when they search or seize an item in “plain view,”

see, e.g. Hicks, 480 U.S 321, and when they search a

specific container in a car, but not the rest of the vehicle, see,

e.g, Acevedo, 500 U.S. 565. To argue that the very same

determination is now “unworkable” in the context of a search

of passenger’s belongings is not plausible.

Lower courts, which would have to deal with the

alleged workability problem, have not found such a problem

exists. | Numerous cases involving searches on fixed

premises have required the police to distinguish between a

search of a suspect’s belongings, for which probable cause

exists, and a search of a visitor’s belongings for which there

is no probable cause. See, e.g., United States v. Robertson,

833 F. 2d 777, 785 (9th Cir. 1987) (search of visitor’s

23

backpack violated Fourth Amendment because government’s

rationale would permit search of objects “in the absence of

any suspicion whatsoever that they contain anything in

which the police have a legitimate interest in viewing”);

Hawkins v. Georgia, 300 S.E.2d 224 (Ga. Ct. App. 1983)

(search for drugs could not extend to search of purse of

visitor); Childers v. Georgia, 281 S.E.2d 349, 351 (Ga. Ct.

App. 1981) (search for marijuana could not extend to

defendant’s purse where there “was no evidence to indicate

that [she] was other than a mere visitor”); Hawaii v.

Przeradski, 677 P.2d 471 (Haw. Ct. App. 1984) (search for

evidence of fraudulent investment scheme did not permit

search of visitor’s beach bag).

It might be easier for law enforcement if the probable

cause requirement of the Fourth Amendment were

abandoned, but the requirement is not unworkable. Cf

Maryland v. Wilson, 519 U.S. 408, 423-24, (1997)

(Kennedy, J., dissenting) (“It does no disservice to police

officers . . . to insist upon exercise of reasoned judgment. . . .

Liberty comes not from officials by grace but from the

Constitution by right.”). In any event, “the mere fact that

law enforcement may be made more efficient can never by

itself justify disregard of the Fourth Amendment.” Mincey v.

Arizona, 437 U.S. 385, 393 (1978).

3. The State and its amici, citing to New York v.

Belton, 453 U.S. 454 (1981), also argue that it would be

anomalous if officers were not permitted to search

Houghton’s purse. This argument is unfounded.

Belton applied the search incident to arrest exception

to automobiles, and permitted the search of a person’s jacket

who had been arrested. It did not involve the search of

ai tlacetiaciaiiaiiiiaeaiaaiiaaiaiiliidl

24

bystanders or their things.4 The Be/fon Court announced an

extremely narrow exception to the requirements of an

automobile search. The exception, that probable cause is not

required for a search of the passenger compartment incident

to arrest, was created “because of the need ‘to remove any

weapons that [the arrestee] might seek to use in order to

resist arrest or effect his escape’ and the need to prevent the

concealment or destruction of evidence.” /d at 457

(alteration in original) (quoting Chimel v. California, 395

U.S. 752, 763 (1969)). Those concerns are triggered by an

arrest, not by a search unaccompanied by an arrest. This is

so because safety concerns are heightened when an arrest is

made. See id. at 457. Accordingly, it is not anomalous that

Belton, a case dealing with the safety concerns present

during a search incident to arrest, permits a broader search

than do cases involving searches in the absence of an arrest.

Similarly, there is no tension between the Wyoming

Supreme Court’s decision and Wilson, 519 U.S. at 415.

There, the Court stated that officers making traffic stops may

order passengers to get out of the car pending completion of

the stop. /d The safety concerns animating the Court in

Wilson led to the conclusion that the “additional intrusion on

the passenger [of getting out of the car] is minimal.” /d. at

415. This is so because the passenger is already stopped;

therefore, the additional measure of stepping out of the car

was deemed a minor intrusion. /d. Here, however, there was

a significant invasion of Houghton’s privacy. In addition to

being ordered out of the car, Houghton had her personal

belongings searched. Because the additional intrusion here

is not “minimal,” Wilson is not analogous.

4 This Court has never extended Belton to encompass articles belonging

to persons other than the arrestee.

25

A true anomaly would be created if this Court

reversed the decision of the Supreme Court of Wyoming.

This Court held in Di Re that an officer cannot search a

passenger without probable cause specific to the passenger.

Why then, should an officer be permitted to search a

passenger's purse? Why should there be a difference

between the person and her intimate belongings? The

underlying rationale of Di Re and other seminal probable

cause decisions of this Court provides the answers to these

questions: searches cannot be conducted of a person or her

personal belongings where probable cause specific to the

person or the belongings is lacking.

CONCLUSION

For the foregoing reasons, the judgment of the

Supreme Court of Wyoming should be affirmed.

‘Respectfully Submitted,

Lisa B. Kemler Paul Mogin*

National Association of Eric R. Delinsky

Criminal Defense Lawyers David O. Markus

108 North Alfred Street Williams & Connolly

Alexandria, VA 22313 725 12th Street, N.W.

(703) 684-8000 Washington, D.C. 20005

(202) 434-5000

* Counsel of Record