Brief for the United States — Cardwell v. Lewis

INDEX

“Interest of the United States____---------------

~ Introduction and summary of argument_.- -__---

_ Argument:

The warrantless seizure of an automobile,

when based on probable cause, is not per se

unreasonable under the Fourth Amendment

even if there was an opportunity to obtam a

warrant

A. Past holdings of this Court in automobile

search cases leave open the question here

PRR RAT EE RE SE 9

B. The fundamental policy of protection of

privacy interests embodied in the Fourth

Amendment would not be meaningfully

enhanced by adoption of a warrant re-

quirement for probable cause seizures of

i een cwon 13

C. The history of the Fourth Amendment fully

sustains the view that a warrant is not

essential to the validity of an otherwise

reasonable search and seizure of a ve-

EL!

2.4

a eee ied longws cc wae 21

i Condlusion..---. nn oe ee aa 30

a CITATIONS

> Cases:

¥ Almeida-Sanchez v. United States, 413 US.

NE ONIEE ER re ee 6, 7, 27

Boyd v. United States, 116 U.S. 616________- 21

Cady v. Dombrowski, 413 U.S. 433_______. 4, 10, 18

Carroll v. United States, 267 U.S. 132____- 10, 25, 27

(1)

533-994—74——_1

ay

I

Cases—Continued

Chambers v. Maroney, 399. U.S. 42____ 10, 11, 12, 3

Chapman v. United States, 365 U.S. 610_____- 15

Clic Fashions, (West Wales) Lid, v. Jones, 2

Q.B. 299, 1 All Eng.-Rep. 232_......____. 28

Coolidge v. New Hampshire, 403 U.S, 443____- 2,

“: * 39,1011, 12,15

Cooper v. California, 386 U.S. 58... ..-.- 17, 18,19

Cupp vy. Murphy, 412 US, 291___.__--.---_- 8

Dyke v. Taylor Implement Co., 391 U.S. 216___ ll

Elias v. Pasmore, 2 K.B. 164_.__...__.-___- 29

Emtick v. Carrington, 19 How. St. Tr. 1029, 95

TE NW ihn dh wi arian app de = 6

Frazier v. Cupp, 394 US. 731_.-_.-.----.-- 8

Ghani v. Jones, 1 QB. 693, 3 All Eng. Rep.

SR eos ois eee ele 28-29

Harris v. United States, 331 de he SE 21

Hester v. United States, 265 U.S. 57__._____- 16

Hoffa v. United States, 385 U.S. 293_._.____- 5

Jones v. United States, 357 U.S. 493____-_-_- 15, 16

Jackson, Ex parte, 96 U.S. 727_-..__.__---_- 15

Katz v. United States, 389 U.S. 347_______ 14, 15, 16

King v. Reginam, 1 A.C, 304, 2 All Eng. Rep.

: : :

Marcus v. Search Warrant, 367.U.S. 717

McDonald v.. United States, 335 U.S. 451

People v. Case, 190 N.W. 289

People ex rel. Winkle v. Bannan, 125 N.W,2d

875, 372 Mich. 292 :

People v. Ubbes, 132 N.W.2d 669, 374 Mich.

Bit a Bist ae pyowasouwus. us:

Preston v. United States, 376 US. 364 :

Rios v. United States, 364 U.S. 253___..___-_-

Schneckloth v. Bustamonte, 412 U.S. 218

Semayne’s Case, 3 Coke Rep. 91a

‘Oases—Continued

Sirimarco v. United States, 315 F. 2d 690, Sin

certiorari denied, 374 U.S. 807__.._______. 18

Stanford v. Texas, 379 U.S. 476____.________ 21, 22

- Stoner v. California, 376 U.8.488___________ 15

United States v. Artieri, C.A. 2, No. 731771, °

decided January 23, 1974________________ 19

United States v. Dionisio,.410 U.S. 1_-___- 8, 15, 17

United States v. Francolino, 367 F. 2d 1013,

certiorari denied, 386 U.8. 960_._-._______ 18

United States v. Lawson, 487 F. 2d 468______ 3

United States v. Mara, 410 U.S. 19__________ 15, 17

United States v. Rabinowitz,.339 U.S. 56____- 5

United States v. Stout, 434 F. 2d 1264_____ Sb 18

United States v.. Troiano, 365 F. 2d 416,

certiorari denied, 385 U.S. 958____._______ 18

United States v. White, No. 73-1301, decided

EE Te, SP 2 oc tt 18, 19

United States v: Ventresca, 380 U.S. 102______ 30

United States v. Young, 456 F. 2d 872_______ 18

Warden v. Hayden, 387 U.S. 294.___________ 27

Constitution and statutes:

United States Constitution, Fourth Amend-

I ssi iain gies tote hetsaictcig ante elis 2,

5, 8, 9, 11, 12, 14, 16, 17, 18, 21, 22, 23,

25, 27

pg RG eine aes 25

Act of March 3, 1815, 3 Stat. 231_..._______ 27

WN A bo atinccki et es 27

8 U.S.C. 1357 (a)(3) i ite naga Se Daas dea tiptoe 27

rs Ti oo ki Kk. 1

Chee Bev. Code § SiGe al... .25.6...-2..... 5

Ohio Rev. Code § 2933.24___-.......______ 5

Court Cases, 26 L.Ed.2d 893-- - ---

Comment, The Aftermath of Cooper v. Cali-

fornia: Warrantless Automobile Search In

Gn the Supreme Gourt of the United States

Ocroser TERM, 1973

No. 72-1603

Harotp J. CARDWELL, WARDEN, OHIO PENITENTIARY,

PETITIONER

Vv.

ArTHUR BEN LEWIS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

The United States has a direct interest in the stand-

ard governing the power of law enforcement officers to

search and seize an automobile when they have prob-

able cause to believe that the vehicle was used in the

commission of an offense. Law enforcement officers

employed by agencies of the United States, including

the Metropolitan Police Force of the District of Co-

lumbia, frequently encounter situations similar to that

at issue here. Moreover, an Act of Congress (49 U.S.C.

781, et seq.) expressly authorizes the warrantless seiz-

ure of a vehicle based upon probable cause to believe

(1)

2

that it has been used to transport contraband. The |

holding of the court of appeals, if sustained, may sub-

stantially affect the validity of that statute. Finally, to

the extent that the case involves the standards to be

employed generally in determining the validity of war-

rantless searches, it will have a substantial impact on

a wide range of federal law enforcement activities.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case raises once again an issue which has

sparked the “conflict that has been so notable in this

Court’s attempts over a hundred years to develop a

coherent body of Fourth Amendment law” (Coolidge

v. New Hampshire, 403 U.S. 443, 474). This conflict

has been “caused by disagreement over the importance

of requiring law enforcement officers to secure war-

rants” (ibid.). The underlying basis of that disagree-

ment was summarized by Mr. Justice Stewart in Cool-

idge (id. at 474-475; footnotes omitted) :

Some have argued that a determination by a

magistrate of probable cause as a precondition

of any search or seizure is so essential that the

Fourth Amendment is violated whenever the

police might reasonably have obtained a war-

rant but failed to do so. Others have argued

with equal force that a test of reasonableness,

applied after the fact of search or seizure when

the police attempt to introduce the fruits in evi-

dence, affords ample safeguard for the rights in

question, so that “‘[t]}he relevant test is not

whether it is reasonable to procure a search

warrant, but whether the search was

reasonable.”’

3

Both sides to the controversy appear to rec-

ognize a distinction between searches and seiz-

ures that take place on a man’s property—his

home or office—and those carried out elsewhere.

It is accepted, at least as a matter of principle,

that a search or seizure carried out on a sus-

pect’s premises without a warrant is per se

unreasonable, unless the police can show that it

falls within one of a carefully defined set of

exceptions based on the presence of “exigent

circumstances.” As to other kinds of intrusions,

however, there has been disagreement about the

basic rules to be applied, as our eases concérn-

ing automobile searches, electronic surveillance,

street searches and administrative searches

make clear.

This case (unlike Coolidge) does not involve “a

search or seizure carried out on a suspect’s premises”

and does not therefore implicate the “accepted * * *

principle,,[such] WB a search or seizure * * * with-

out a warrant is per se unreasonable, unless the police

officer can show that it falls within one of a carefully

defined set of exceptions based on the presence of

‘exigent circumstances’” (ibid.). Rather, it involves

the kind of search and seizure with regard to which

there has been uncertainty and disagreement “about

the basie rules to be applied” (id. at 475). As Judge

Gibson recently wrote in an opinion for the Court of

Appeals for the Eighth Circuit {United States v.

Lawson, 487 F. 2d 468, 470): , |

The problem of automobile searches and their

relationship to the warrant requirements of the

Fourth Amendment has been a perplexing one

for the courts. Without the assistance of defini-

a

4

tive guidelines (indeed guidelines attempting to

apply the general requirements of the Fourth

Amendment in this area are likely to be of

little assistance in the varying factual circum-

stances presented by concrete cases), the

courts have attempted to apply general Fourth

Amendment principles, assisted by what appli-

cable language they could discern from the Su-

preme Court cases, to resolve situations prob-

ably never contemplated by the drafters of the

Fourth Amendment or the courts. Lower courts

have been hampered in this process by a seem-

_ing lack of consistency in the Supreme Court

cases dealing with automobile searches, the in-

consistencies no doubt being due to the mani-

fold considerations that bear with unequal

weight on varying aspects of the problem. * * **

The issue presented here is whether the seizure of

an automobile parked on a public parking lot, based

upon probable cause to believe that it was used in

the commission of a murder, is invalid because a war-

rant could have been obtained. It is an issue that has

not been resolved by any holding of this Court. If

the rule which has been ‘‘accepted” with regard to

homes and like areas prevails here, and if what trans-

pired here is deemed a search, then the seizure and

“search” of the vehicle was invalid because no satisfac-

tory reason appears for the failure of the law enforce-

1 See also Cady v. Dombrowski, 413 U.S. 433, 440, where the

Court observed:

“While these general principles [regarding searches] are eas-

ily- stated, the decisions of this Court dealing with the con-

stitutionality of warrantless searches, especially when those

searches are of vehicles, suggest that this branch of the law is

something less than a seamless web.”

o

~ ment officers to have obtained a warrant—there appears

on the facts of this case to have been no real likelihood

that respondent would have destroyed or concealed the

evidence sought during the time required to seek and

procure a warrant.’ On the other hand, if the applicable

test is dependent not on whether a warrant could have

been obtained, but on “‘whether the search [or seizure }

was reasonable” (United States v. Rabinowitz, 339

U.S. 56, 66), then the seizure of the vehicle was plainly

lawful under the Fourth Amendment.

Our submission is that there is no support in the

history or language of the Fourth Amendment for the

view that every search or seizure—regardless of the

nature of the privacy interest at stake—is invalid

where a warrant could have been but was not ob-

tained. In making this argument, we are not disputing

* This does not appear to be a case in which compliance with

the requirement of prompt execution once a warrant is ob-

tained (Ohio Rey. Code, § 2933.24) would have alerted a suspect

to the fact that he was under suspicion and possibly have

caused him to take evasive action which would have aborted

the investigation before it was completed. Cf. Hoffa v. United

States, 385 U.S. 293, 310. Indeed, no effort was apparently

made to conceal from respondent that he was under investiga-

tion, and we do not understand the State to contend that the

failure to obtain a warrant could be justified by fear that the

delay incident thereto heightened the risk of removal of the

ear from the jurisdiction. Thus, a search warrant could have

been obtained at the same time the arrest warrant was ob-

tained.

One possible explanation for the failure to obtain a warrant,

however, may be found in the Ohio statute regulating the

issuance of search warrants, which authorized warrants only to

search a “house or place” for various specified items, which

may then be seized. Ohio Rev. Code, § 2933.21. Possibly the

search of car would not be viewed as the search of a “house

or place.”

533-994— 74-2

what ‘‘is by now axiomatic, that the Fourth Amend-

ment’s proscription of ‘unreasonable searches and

seizures’ is to be read in conjunction with its com-

mand that ‘no Warrants shall issue, but upon proba-

ble cause,’” nor are we suggesting that “both the

concept of probable cause and the requirement of a

warrant” are: not to be considered as bearing on the

reasonableness of a search. Almetda-Sanchez v. United

States, 413 U.S. 266, 277 (Powell, J., concurring).

Rather, we submit that whether a search or seizure with-

out a warrant should be held per se unreasonable

depends on a determination whether the privacy

interest at stake is of such magnitude that the inter-

position of a neutral and detached magistrate should

be required to make the probable cause determination.

The classic example of such a per se unreasonable

search is one involving the warrantless entry into a

home. At common law, at the time of the adoption of

the Constitution, it was settled that the privacy of

the home could not be invaded except pursuant to a

warrant, and then only to search for and seize stolen

property. See Entick v. Carrington, 19 How. St. Tr.

* 1029, 95 Eng. Rep. 807. That restriction reflected the

high regard for the integrity of a man’s home, which

has been traced back to biblical times (Lasson, The

History and Development of the Fourth Amendment /

to the United States Constitution, pp. 13-14 (1937)),

and which was reflected in Lord Coke’s aphorism that

‘‘every man’s house is his castle” (Semayne’s Case,

3 Coke Rep. 9la (1604) (Fraser ed., pt. 5). It is for

this reason that “‘the Constitution requires a magis-

trate to pass on the desires of the police before they

violate the privacy of [a man’s] home.” McDonald

v. United States, 335 U.S. 451, 455-456.

V—

A search of an automobile, however, is “‘far less

intrusive on the rights protected by the Fourth

Amendment than the search of one’s person or of a

building. This Court ‘has long distinguished between

an automobile and a home or office.’ ” Almetda-Sanchez

vy. United States, 413 U.S. 266, 279 (Powell, J., con-

curring). As the Supreme Court of Michigan observed

in an early automobile search case — v. Case,

_ 190 N.W. 289, 292) :

While [automobiles are a] possession in the

sense.of private ownership, they are but a ve-

hicle constructed for travel and transportation

on highways. Their active use is not in homes

nor on private premises, the privacy of which

the law especially guards from ‘search and

seizure without process.™

Moreover, “[t]he greater part of the interior of a car

is constantly within public view. Automobiles are

consistently left with casual bailees who have complete

control over the car for extended periods of time.

Therefore, the privacy interest in the automobile may

be sufficiently inferior to that of a home to justify

permitting a less stringent procedure for search.’

Comments, The Aftermath of Cooper v. California:

Warrantless Automobile Search In Illinois, 1968 U.

Ill. Law Forum, 401, 410.

This observation is particularly pertinent to the

facts of this case. Here the evidence sought to be sup-

pressed—the paint samples (and related testimony )—

was not the product of a search of the automobile.

Indeed, the taking of paint samples, which may be

likened to the taking of voice prints, fingerprint samples

™ See also, People, ex rel. Winkle v. Bannan, 125 N.W. 2d 875,

884-885 (Mich.) ; cf. People v. Ubbes, 132 N.W. 2d 669 (Mich.).

7°

or handwriting exemplars, cannot be characterized as

a search within the meaning of the Fourth Amend-

ment. See United States v. Dionisio, 410 U.S. 1, 15;

United States v. Mara, 410 U.S. 19. Cf. Cupp v. Mur-

phy, 412 U.S. 291. Moreover, while the defendant’s pro-

prietary interest (as distinguished from his privacy in-

terest) was interfered with by the taking of the car, that

invasion—if unlawful (i.e., without probable cause )—

can be rectified by the return of the property and by

some form of monetary compensation. The injury that

results from an invasion of privacy, such as a forcible

entry and seareh of a home, is largely irremediable.

Accordingly, when all that is really at issue is the

validity of a temporary detention of an item of per-

sonal property—an automobile—and not the validity

of a search of any enclosed area in the interior of the

vehiele or any packages in the car, there is even less

necessity for the interposition of a neutral and de

tached magistrate to make the probable cause finding.’

We shall show that the approach we propose here—

recognizing the lawfulness of warrantless probable

eause seizures of automobiles not on private property,

and permitting warrantless probable cause searches of

automobiles in the absence of special circumstanees par-

ticularly implicating privacy values—is not foreclosed

by any holding of this Court, is consistent with the lan-

*The court of appeals held that even if the seizure of the

automobile here could be justified, the taking of the paint

samples was a search within the meaning of the Fourth Amend-

ment because “ ‘layers of paint beneath the visible surface of the

vehicle’ ” (Pet. App. 33-34) were examined. But such “metaphysi-

cal subtleties” (Frazier v. Cupp, 394 US. 731, 740) cannot realis-

tically be said to transform an otherwise innocuous act into

a violation of petitioner’s right of privacy under the Fourth

Amendment.

guage and history of the Fourth Amendment, and is in

accord with procedures followed in England, where the

law of search and seizure has evolved in much the same

manner as our own law. We aceordingly urge the adop-

tion of this approach on the ground that it strikes a

proper and desirable balance between the important in-

terests of individual privacy protected by the Fourth

Amendment and the legitimate objectives of proper law

enforcement.

THE WARRANTLESS SEIZURE OF AN AUTOMOBILE, WHEN BASED

ON PROBABLE CAUSE, IS NOT PER SE UNREASONABLE UNDER

THE FOURTH AMENDMENT EVEN IF THERE WAS AN OPPOR-

TUNITY TO OBTAIN A WARRANT

4. PAST HOLDINGS OF THIS COURT IN AUTOMOBILE SEARCH CASES

LEAVE OPEN THE QUESTION PRESENTED

The district court (Pet. App. 59) and the court of ap-

peals, which adopted the rationale of the district eourt,

found that the result in this case was mandated by the

holding of this Court in Coolidge v. New Hampshire,

_ 403 U.S. 443. We do not regard the holding of that case

as controlling here. Contrary to the conclusion of the

district court, the facts in Coolidge were not “substan-

tially identical to those in the instant case” (Pet. App.

59). Unlike the instant case, where respondent’s auto-

mobile was parked on a public parking lot, the auto-

mobile in Coolidge was parked adjacent to the defend-

ant’s home and could only be seized by “entering [his]

private property” (403 U.S. at 463, n. 20). Part II-D

‘of the opinion in Cooltdge—the only relevant portion

of the opinion which commanded a majority of the

;Court—is, based on “[t]he most common situation in

“which Fourth Amendment issues have arisen,”’ namely,

- 10

those ‘‘in which the police enter the suspect’s premises,

arrest him, and then carry out a warrantless search

‘and seizure of evidence” (id. at 475). The thrust of

that part of the opinion is devoted to answering the

argument “that warrantless entry for purposes of

‘arrest and warrantless seizure and search of a vehicle

and per se reasonable, so long as the police have prob-

able cause” (td. at 479).*

Moreover, in Cady v. Dombrowski, 413 U.S. 433,

the Court distinguished Coolidge from the case before

it—which involved the removal of an automobile from

*Mr. Justice Harlan, who cast the deciding vote, likewise

-viewed the case as involving “such an everyday question as

the circumstances under which police may enter a man’s

property to arrest him and seize a vehicle believed to have

been used during the commission of [an offense].” 403 U.S. at

490.

The same emphasis on the entry onto Coolidge’s premises

is also to be found in that portion of the opinion which did

not command a majority of the Court. See, ¢.g., id. at 461, n. 18,

where the Court observed :

“But if Carroll v. United States, 267 U.S. 132, permits a

warrantless search of an unoccupied vehicle, on private prop-

erty and beyond the scope of a valid search incident to an

arrest, then it would permit as well a warrantless search of

@ suitcase or a box. We have found no case that suggests such

an extension of Carroll.”

Again id. wt Pr Bien A ay Be ose sai

Maroney, 399 U.S. 42, from Coolidge), Mr. Justice Stewart

observed :

“The rationale of Chambers is that given a justified initial

intrustion, there is little difference between a search on the

open highway and a later search at the station. Here, we

deal with the prior question of whether the initial intrusion

is justified. For this purpose, it seems abundantly clear that

there is a significant constitutional difference between stopping,

seizing, and searching a car on the open highway, and enter-

ing private property to seize and search an parked

vehicle not then being used for any illegal purpose. * * *”

11

the scene of an accident (and its subsequent search) —

on the ground that the seizure and search in Cool-

tdge was of an automobile “parked adjacent to the

dwelling place of the owner” (413 U.S. at 446-447).*

It has, however, never been held that a warrantless

seizure of an automobile based upon probable cause

to believe that it was an instrumentality of a crime

is invalid where no entry onto the owner’s private

property is necessary in order to seize the vehicle.

Preston v. United States, 316 U.S. 364, and Dyke v.

Taylor Implement Co., 391 U.S. 216, both involved

seizures and searches unsupported by a showing of

probable cause. “In Preston, supra, the arrest was

for vagrancy; it was apparent that the officers had

no cause to believe that evidence of crime was con-

cealed in the auto. In Dyke, supra, the Court ex-

pressly rejected the suggestion that there was prob-

able cause to search the car, 391 U.S., at 221-222.”

Chambers v. Maroney, supra, 399 U.S. at 47. Indeed,

in Dyke the Court expressly left open the issue

whether the Fourth Amendment permits ‘a war-

rantless search, based upon probable cause, of an

automobile which, having been stopped originally on

a highway, is parked outside a courthouse” (391 U.S. at

222). Ultimately, that issue was resolved in Chambers v.

Maroney, 399 U.S. 42, where it was held that such a

2

seareh does not violate the Fourth Amendment. There

an automobile was stopped on a public highway and

its oceupants arrested. The vehicle was then brought

to the station house and searched without a warrant

(but with probable cause) at a time when the car was

no longer movable and there were no exigent circum-

stances precluding procurement of a warrant. In re-

jecting the argument that the absence of a warrant

invalidated the search of the vehicle, Mr. Justice

White wrote (399 U.S. at 51-52) ;

Arguably, because of the preferenee for a

magistrate’s judgment, only the immobilization

of the car should be permitted until a search war-

rant is obtained; arguably, only the “lesser”

intrusion is permissible until the magistrate

authorizes the ‘‘greater.” But which is the

“‘greater” and which the “‘lesser” intrusion is

itself a debatable question and the answer may

depend on a variety of circumstances. For con-

stitutional purposes, we see no difference be-

tween on the one hand seizing and holding a

car before presenting the probable cause issue

to a magistrate and on the other hand carrying

out an immediate search without a warrant.

Given probable cause to search, either course

is reasonable under the Fourth Amendment.

There is one fact that distinguishes this case from

Chambers. There the vehicle was initially stopped

on a public highway, speeding from the scene of the

* Coolidge v. New Hampshire, 403 U.S. 443, did not under-

mine the holding in Chambers v. Maroney, 399 U.S. 42. Rather,

as noted (supra, p. 10, n. 4), it distinguished Chambers on the

ground, inter alia, that Coolidge involved an entry onto “pri-

vate property to seize and search” the automobile (403 U.S. at

465, n. 20).

13

crime, under cireumstances in which it was practically

impossible to. obtain a warrant prior to the stopping

(or seizure) of the vehicle but not. prior to.its search,

Here, the vehicle was seized’on a public parking lot,

but it is clear that probable cause had evolved in suf-

ficient time to permit procurement of the warrant

prior to the seizure. Whether the seizure of the vehicle

must be invalidated for this reason alone .is a question

that has not been determined by any holding’ of this

Court.’ See generally Annotation, Validity, Under

Federal Constitution, of Warrantless Search of Auto-

mobile—Supreme Court Cases, 26 L. Ed. 2d 893.

B. THE FUNDAMENTAL POLICY OF PROTECTION OF PRIVACY INTERESTS

EMBODIED IN THE FOURTH AMENDMENT WOULD NOT BE MEAN-

INGFULLY ENHANCED BY ADOPTION OF A WARRANT REQUIREMENT

FOR PROBABLE CAUSE SEIZURES OF AUTOMOBILES

The crucial police conduct on which this case

focuses is the warrantless seizure of respondent’s

. automobile, which the courts below deemed per se

unreasonable despite the existence of probable cause

clearly sufficient to have justified issuance of a warrant.

As we argue, the taking of the paint chips from the car

should not be deemed a search, since it entailed no mean-

ingful intrusion into respondent’s zone of privacy (as

distinet from his property interest) ; the proper focus

of inquiry should be on the validity of the seizure. The

* While we accordingly do not suggest that Chambers is con-

trolling here, that decision is highly pertinent because the

analysis there employed in determining whether a warrant

should have been obtained was not based on any per se rule,

but rested on whether there was a significant additional intru-

sion that should necessitate the interposition of a magistrate.

533-994— 74-3

See

14

seizure of respondent’s automobile under the circum-

stances of this case did not impinge upon the legiti-

mate desire for and expectation of privacy that this

Court has found to be the core interest protected by

the Fourth Amendment. It follows that, although the

Fourth Amendment’s protection of the citizen against

government action is not eonfined to privacy interests,

its values are sufficiently protected in cases such as

this by the ge reasonableness requirement, without

the need for antecedent interposition of a magistrate

between law enforcement officials and their actions to

deprive the citizen of possessory interest in an automo-

bile.

1. In addition to the holdings of this Court in auto-

mobile cases, respondent relies on the following gen-

eral principle outlined in Katz v. United States, 389

U.S. 347, 357:

Searches conducted without warrants have been

held unlawful “notwithstanding facts unques-

tionably showing probable cause,’’ Agnello v.

United States, 269 U.S. 20, 33, for the Constitu-

tion a ‘that the deliberate, impartial

judgment of a judicial officer * * * be inter-

posed between the citizen andthe police * * *.”

Wong Sun v. United States, 371 U-S. 471, 481-

482. “Over and again this Court has empha-

sized that the mandate of the [Fourth] Amend-

ment requires adherence to judicial processes,”

United States v. Jeffers, 342 U.S: 48, 51, and

that searches conducted outside the judicial

process, without prior approval by judge or

magistrate, are per se unreasonable under the

15

Fourth Amendment—subject only to a few

specifically established and well-delineated ex-

ceptions.

An examination of the cases cited in Katz, how-

ever, shows the accuracy of the observation in Coolidge -

that this principle has gained general acceptance only

in cases involving searches of individuals or homes,

offices, hotel rooms and like areas,* where a substantial

invasion of privacy is accomplished by a search

which precedes the seizure of evidence. While Katz

extended that principle to electronic surveillance not

accompanied by a physical trespass, that determina-

tion was obviously influenced by the serious invasion

of personal privacy involved in law enforcement

through eavesdropping. Compare United States v.

Dionisio, 410 U.S. 1, and United States v. Mara, 410

U.S. 19. Similar considerations govern searches of

mail placed into the hands of postal authorities. Ex

parte Jackson, 96 U.S. 727, 733.

* The cases cited in support of the per se rule in Katz were

(389 U.S. at 357, n. 18): (1) Jones v. United States, 357 U.S.

493, 498, which held that if “federal officers [were] free to

search without a warrant merely upon probable cause to believe

that certain articles were within a home, the provisions of the

Fourth Amendment would become empty phrases” (emphasis

supplied) ; (2) Chapman v. United States, 365 U.S. 610, which

held that a landlord could not authorize a warrantless entry

into the apartment of his tenant; (3) Stoner v. California, 376

U.S. 483, 490, which held that “[nJo less than a tenant of a

house, or occupant of a room in a boarding house * * *, a

guest in a hotel room is entitled to [the] * * * protection

against unreasonable searches and seizures.” A fourth case.

Rios v. United States, 364 U.S. 253, 261, involved a search and

seizure of narcotics from a defendant who had been riding

in @ taxicab, where there was neither a warrant nor any show-

ing of probable cause to justify the entry into the vehicle.

: ee

There are, howéver, ‘ho privacy intérests:at stake in

this ase. The temporary seimire of an attotiobile at

most impinges upon the owner’s proprietary interest

in the vehitle; it does not override any stibstantial ex-

pectation' of privacy he may have. While the Fourth

Amendment’ protects more than. just privacy from ¢er-

tain kinds of * governmental intrusion, ‘‘and -often

haf{s]- nothing to do with privacy at all” (Katz v.

United States, supra, 389 U.S. at 350), “[t]he deci-

sions of this Court have time and again underscored

the essential purpose of the Fourth Amendment to

shield the citizen from unwarranted intrusions into

his privacy.”’ Jones v. United States, 357 U.S. 493,

498. | is

When no such interest is at stake and when the

conduct of law enforcement officers does not touch on

interests which implicate ‘‘the essential purpose of the

Fourth Amendment,” there is no necessity to invoke

the most stringent protections which the Fourth

Amendment . aecords to significant invasions of pri-

vacy.

Particularly mene in recognizing this distinction

between invasions of privacy and invasions of pro-

prietary interests is Hester v. United States, 265 U.S.

57. There, law enforcement officers trespassed on to

private property and found evidence of the defend-

ant’s wrongdoing. In holding that the law enforcement

officers did not violate the Fourth Amendment, Mr.

Justice Holmes wrote as follows for a unanimous

Court (265 U.S. at 58):

It. is obvious that even if there had been a

trespass, the above testimony was not obtained

17

by an illegal search or seizure. The defendant’s

own acts, and those of his associates, disclosed

the jug, the jar and the bottle—and there was

no seizure in the sense of the law when the of-

ficers examined the contents of each after it had

been abandoned. This evidence was not obtained

by the entry into the house and it is immaterial

to disenss that. * * * The only shadow of a

ground for bringing up the case is drawn from

the hypothesis that the examination of the ves-

. sels took place upon Hester’s father’s land. As

to that, it is enough to say that, apart from the

justification, the special protection accorded by

the Fourth Amendment to the people in their

~ “persons, houses, papers, and effects,’ is not

extended to the open fields. The distinction be-

tween the latter and the house is as old as the

common law. 4 Bl. Comm. 223, 225, 226.

Similarly, in United States v. Dionisio, 410 U.S. 1,

and United States v. Mara, 410 U.S. 19, it was held

that the compulsory taking of handwriting exemplars,

fingerprint samples and voiceprints was not limited

by the Fourth Amendment because these acts involve

“ ‘none of the probing into an individual’s private life

and thoughts that marks an interrogation or search’.”

(410 U.S. at 15). (This is, indeed, the only basis that

appears to exist for the eminently sound distinction

between ‘‘seizures” of voiceprints and electronic sur-

veillance, which involves ‘“‘seizures” of conversations. )

Most significant of all is the settled law, approved

by implication by this Court in Cooper v. California,

386 U.S. 58, that warrantless seizures of vehicles: used

to transport contraband are valid if reasonable, with-

out regard to whether a warrant could have been ob-

ay

18

tained. Indeed, only eight months after it held that the

law enforcement officers in this case had violated the

Fourth Amendment, the Court of Appeals for the

Sixth Circuit sustained (without reference to its deci-

sion in this case) the warrantless seizure of an unoc-

cupied vehicle (parked on a public parking lot) based

on probable cause to believe that it had been used to

transport two counterfeit bills. United States v. White,

No. ‘/3-1301, decided December 13, 1973. The court of

appeals held (slip op. at 3) : “‘ Existing authority sup-

ports the legal proposition that probable cause alone,

without a warrant, is sufficient to jfistify the seizure of

the automobile here in issue pursuant to 49 U.S.C.

§$§ 782 and 783.”"° Accord: United States v. Stout, 434

-F. 2d 1264 (C.A. 10); United States v. Francolino, 367

F. 2d 1013, 1018-1023 (C.A. 2), certiorari denied, 386

U.S. 960; Sirimarco v. United States, 315 F. 2d 699,

701 (C.A. 10), certiorari denied, 374 U.S. 807; United

States v. Trotano, 365 F. 2d 416, 418-419 (C.A. 3), cer-

tiorari denied, 385 U.S. 958; United States v. Young,

456 F. 2d 872, 875 (C.A. 8); Lockett v. United States,

390 F. 2d 168 (C. A. 9).

*The court of appeals in White, relying on Cooper v. Cali-

fornia, 386 U.S. 58, and Cady v. Dombrowski, 413 U.S. 433,

then went on to uphold a search of the interior of the vehicle. -

Although it appears that there was not sufficient time to ob-

tain a warrant to seize the vehicle in White prior to its dis-

covery, there appear to have been no exigent circumstances pre-

cluding its procurement prior to seizure, and it seems plain that

the holding did not turn on this fact. Indeed, United States v.

Troiano, 365 F. 2d 416 (C.A. 3), cited with favor in White, was

ee eT *+ obtain a

warrant.

19

This case, it is submitted, cannot reasonably be dis-

tinguished from the line of cases upon which the court

of appeals relied in White. The forfeiture statute

which authorized the warrantless seizure in White

merely provides the legal justification for taking the

vehicle, but it is conceded (and the holdings of the

Ohio state courts confirm) that there was legal justi-

fication for seizing the vehicle here. The fact. that

there is some justification for seizing the vehicle thus

does not resolve the issue of whether, regardless of

the motive for seizure, the taking is to be deemed per

sé unreasonable absent a warrant or exigent circum-

stances.”°

Realistically, therefore, the basis for sustaining the

warrantless seizure of the vehicle in each case is the

same—that the seizure alone does not impinge upon

the fundamental values reflected by. the Fourth

Amendment. It is only a subsequent search of interior

enclosed portions of the vehicle and packages or suit-

cases found therein that touches on those interests.”

As the dissenters in Cooper v. California, 386 U.S. 58

(which involved the validity of a search of the vehicle

. after a warrantless seizure for forfeiture) stressed,

“if [automobiles] can be searched without a warrant,

%° We are frankly at a loss to understand how the court of

appeals could apply more stringent requirements to police con-

duct in the course of the investigation of a brutal murder than

it applies to essentially identical conduct motivated by a desire

to enforce quasi-civil forfeiture laws.

% Although the law enforcement officers here examined the

trunk of respondent’s car, the validity of that conduct is not at

issue. Even if that action were improper, it would not invali-

date other lawful conduct. See United States v. Artieri, C.A. 2,

No. 73-1771, decided January 23, 1974. ;

the precincts of the individual are invaded and the

barriers to privacy breached”’ (386 U.S. at 65). Here,

however, the seizure of the vehicle and the taking of

paint samples did not “invade the precincts of the in-

dividual,” nor did it ‘‘breach”’ the barriers to his pri-

vacy. Accordingly, the failure to obtain a warrant

should net invalidate the taking of the paint samples.

2. Moreover, if this Court agrees with us that this

ease involves the validity only of a warrantless seizure, —

and that the taking of the paint samples did not con-

stitute a search, the judgment of the court of appeals

should be reversed even if the Court holds that a war-

rant is normally required for a seizure of an automo-

bile. The State contended before the district court that

respondent had consented to the seizure of his automo-

bile by the police. There was conflicting evidence on

this question, whieh was never resolved by the district

court, beeause it viewed the taking of the paint sample

as a search, and it found that the evidence ‘‘estab-

lished, at most, that. [respondent] consented to their

taking eustody of the car for safekeeping * */* [and

not] for purposes of a search” (Pet. App. \54-55).

Thus, if the Court concurs in our ree Bt the

taking of the paint samples, which indisputably was

amply justified by probable cause, was not itself

per se unreasonable because done without a warrant

(i.e., that the investigators could have gone to the

place where respondent’s automobile was parked and

removed a paint sample without a warrant), a show-

ing of consent to police eustedy of the vehicle would

suffice. to sustain the lawfulness of the taking. of me

paint sample after the seizure.

—

21

Cc. THE HISTORY OF THE FOURTH AMENDMENT FULLY SUSTAINS THE

VIEW THAT A WARRANT IS NOT ESSENTIAL TO THE VALIDITY OF

AN OTHERWISE REASONABLE SEARCH AND SEIZURE OF A VEHICLE

Under the foregoing analysis, it would not be neces-

sary for the Court, in deciding this case, to reach the

more difficult general issue of the validity of warrant-

less searches of the interior of a vehicle. Should it be

necessary to resolve this issue, however, it is our sub-

mission that, although such a search may involve some

invasion of privacy, the extent of the invasion is ordi-

narily not such as to necessitate the interposition of a

neutral and detached magistrate. The preceding dis-

cussion has shown that this issue has not been resolved

by any holding of this Court. On the contrary, in those

instances in which a warrant has been held neces-

sary—none of which involved automobiles except

Coolidge—the invasions of privacy were far more sub-

stantial than that present in a search of the interior

of an automobile parked on a public street or en-

trusted to a bailee. We now show that neither the his-

tory nor the language of the Fourth Amendment —

sustain imposition of a per se warrant requirement for

automobile searches, and that this view is in accord

with English law.

1. The history and evolution of the Fourth Amend-

ment has been well documented in the decisions of this

Court * and in scholarly treatises,"* and there is no

12 See, e.g., Stanford v. Texas, 379 U.S. 476, 481-485; Marcus

v. Search Warrant, 367 U.S. 717, 724-729; Frank v. Maryland,

359 U.S. 360; Harris v. United States, 331 U.S. 145, 157-161

(dissent) ; Boyd v. United States, 116 U.S. 616, 624-629.

** Taylor, Two Studies in Constitutional Interpretation, pp.

3-46 (1969); Lasson, History and Development of the Fourth

Amendment of the United States Constitution, pp. 13-105

(1987).

° —

22

need to repeat this material at length here. Suffice it

to say that the principal intent of the Framers (if

not their only intent) was to bar forever the general

warrants under which entries into the home were

authorized without probable cause to believe that a

crime had been committed or that evidence would be

found. Such warrants were condemned by the English

courts, and it was the intent of the Framers to write

that condemnation into the Fourth Amendment. As

Mr. Justice Stewart wrote for the Court in Stanford

v. Texas, 379 US. 476, 481, 484 (emphasis added ; foot-

notes omitted) :

These words [of the Fourth Amendment] are

precise and clear. They reflect the determina-

tion of those who wrote the Bill of Rights that

the people of this new Nation should forever

‘*he secure in their persons, houses, papers, and

effects”? from intrusion and seizure by officers

acting under the unbridled authority of a gen-

eral warrant. Vivid in the memory of the newly

independent Americans were those general war-

rants known as writs of assistance under which

officers of the Crown had so bedeviled the colon-

ists. The hated writs of assistance had given

customs officials blanket authority to search

where they pleased for goods imported in viola-

tion of the British tax laws. They were de-

nounced by James Otis as “the worst instru-

ment of arbitrary power, the most destructive

of English liberty, and the fundamental prin-

ciples of law, that ever was found in an English

law book,” because they placed “the liberty of

every man in the hands of every petty officer.”’

23

* * * Tn an opinion which this Court has

characterized as.a wellspring of the rights now

protected by the Fourth Amendment, Lord

Camden declared the [general] warrant to be

unlawful. ‘‘This power,” he said, “so assumed

by the secretary of state is an execution upon

all the party’s papers, in the first instance. His

house is rifled; his most valuable secrets are

taken out of his possession, before the paper

for which he is charged is found to be criminal

by any competent jurisdiction, and before he

is eonvicted either of writing, publishing, or

being concerned in the paper.” Entick v. Car-

rington [19 How. St. Tr. 1029, 1064]. There-

after, the House of Commons passed two reso-

lutions condemning general warrants, the first

limiting its condemnation to their use in cases

of libel, and the second condemning their use

generally.

The historical background is confirmed by the “‘leg-

islative history’’ of the Fourth Amendment. In pro-

posing the adoption of that provision, James Madi-

son’s statement to the House of Representatives di-

rected its attention solely to the problem of general

warrants :

The General Government has a right to pass

all laws which shall be necessary to collect its

revenue; the means for enforcing the collection

are within the discretion of the Legislature:

may not general warrants be considered neces-

sary for this purpose, as well as for some pur-

poses which it was supposed at the framing of

their constitutions the State Governments had .

in view? If there was reason for restraining the

State Governments from exercising this power,

~

SE ARAN CR aneeee Maen OEP Te

itt . B.

hes there is like reason for restraining the Federal

4 Government.

Accordingly, the original draft of the Fourth Amend-

ment, as revised in minor, stylistic particulars by the

Committee of Eleven reflected only the concern about

general warrants. It provided:

The right of the people to be secure in their

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

reasonable seizures and searches, shall not be

violated by warrants issuing without probable

cause, supported by oath or affirmation, and not

particularly describing the place to be searched,

and the persons or things to be seized.’*

An amendment was then proposed by Representa-

tive Benson of New York (1 Annals of Congress, 1st

Cong., Ist Sess., p. 754) :

Mr. Benson objected to the words “by war-

rants issuing.’’ This declaratory provision was

good as far as it went, but he thought it was

not sufficient; he therefore proposed to alter it

so as to read “and no warrant shall issue.”’

The question was put on this motion, and

lost by a considerable majority.

*1 Annals of Congress, Ist Cong., Ist Sess., p. 438. In a

letter to George Eve written a few months earlier, Madison

wrote :

[I]t is my sincere opinion that the Constitution ought

to be revised, and that the first Congress meeting under

it ought to prepare and recommend to the States for

ratification the most satisfactory provisions for all essen-

tial rights, particularly the rights of conscience in the

fullest latitude, the freedom of the press, trials by jury,

security against general warrants, etc. * * * [Letters

and Other Writings of James Madison, Vol. 1, pp. 446-

447 (1865) ].

#4] Annals of Congress, supra, at p. 754.

25

As described by Lasson, supra, at pp. 101-102, the

following then took place:

[Ojn August 24, when Benson as chairman of

a Committee of Three, which had been ap-

pointed to arrange the amendments, reported

an arrangement of the amendments as they

were supposed to have been agreed upon by

the House, the clause appeared as he had pro-

posed it and as the House had rejected tt.

And so it stands today. The records do not

show that the alteration was ever noticed or

assented to as such by the House. In this form

it was received and agreed to by the Senate.

And the only remaining discussion by the

House and Senate concerned those amend-

ments upon which the two houses were not in

accord. [Emphasis in original; footnotes

omitted. ]

While the language of the Fourth Amendment

plainly affords protection against both unreasonable

searches and seizures and the general warrants, there

is no support for the view that the Framers intended

that every search undertaken without a warrant would

be per se unreasonable if a warrant could have been

obtained. Quite the contrary—it may be inferred from

legislation enacted by the very Congress which drafted

the Bill of Rights, and by other early Congresses, that

whether a warrant was necessary was dependent upon

the nature of the invasion of privacy. As Chief Jus-

tice Taft observed in Carroll v. United States, supra,

267 U.S. at 150-152:

It is noteworthy that the twenty-fourth sec-

tion of the Act of 1789 [1 Stat. 29, 43] provides:

i

“That every collector, naval officer and sur-

veyor, or other person specially appointed by

either of them for that purpose, shall have full

power and authority, to enter any ship or ves-

sel, in which they shall have reason to suspect

any goods, wares or merchandise subject to

duty shall be concealed; and therein to search

for, seize, and secure any such goods, wares or

merchandise; and if they shall have cause to

suspect a concealment thereof, in any particular

dwelling-house, store, building, or other place,

they or either of them shall, upon application

on oath or affirmation to any justice of the

peace, be entitled to a warrant to enter such

house, store, or other place (in the day time

only) and there to search for such goods, and

if any shall be found, to seize and secure the

same for trial; and all such goods, wares, and

merchandise, on which the duties shall not

have been paid or secured, shall be forfeited.”

2

26

Again, by the second section of the Act of

March 3, 1815, 3 Stat. 231, 232, it was made

lawful for eustoms officers not only to board

and search vessels within their own and ad-

joining districts, but also to stop, search and

examine any vehicle, beast or person on which

or whom they should suspect there was mer-

chandise which was subject to duty or had been

introduced into the United States in any man-

ner contrary to law, whether by the person in

charge of the vehicle or beast or otherwise, and

if they should find any goods, wares or mer-

chandise thereon, which they had probable

cause to believe had been so unlawfully brought

into the country, to seize and secure the same,

—

27

=

and the vehicle or beast as well, for trial and

for forfeiture. * * *”

Although in Carroll Chief Justice Taft attributed

the distinction drawn between houses and vehicles in

the foregoing legislation (and in subsequent statutes

enacted during the early years of the Republic), to

the movability of vehicles and the consequent imprac-

ticability of obtaining a warrant (267 US. at 151,

153), that was not likely to have been the only expla-

nation. Certainly the statutes permitted warrantless

searches without regard to whether there was any

reason to believe the vessel or vehicles would in fact be

moved before a warrant could be obtained. Moreover,

the statutes only required that there be “‘reason to sus-

pect” that contraband would be found in the vehicles.

The latter precondition—allowing searches on less

than probable cause—could hardly be explained by

the fact the vehicles were movable.” 3

15 Moreover, the Act of March 3, 1815, contained the follow-

ing proviso in Section 2:

Provided always, that the necessity of a search warrant, aris-

ing under this act, shall in no case be considered as applicable

to any carriage, wagon, cart, sleigh, vessel, boat or other

vehicle of whatever form or construction, employed as a medium

of transportation, or to packages on any animal or animals, or

carried by man on foot.”

The 1815 statute bears marked similarities to the statute (8

U.S.C. 1357(a)(3)) at issue in Almeida-Sanchez v. United

States, 413 U.S. 266, differing principally in that it arguably

required some suspicion to justify the stop and search. The

President who signed the 1815 statute into law was, of course,

James Madison.

%* We do not suggest that an eighteenth or nineteenth century

view of reasonableness ought to control today (see, ¢.g., Warden

v. Hayden, 387 U.S. 294), “[b]ut recognition of that reality

does not liberate us from all historical restraint.” Schneckloth

v. Bustamonte, 412 U.S. 218, 256 (Powell, J., concurring). In

other words, reversal of the court of appeals here would entail

: a

The language and history of the Fourth Amend-

ment, therefore, are entirely condjstent with our

submission that the necessity for a warrant should

be determined on the basis of the nature of the pri-

vacy interests at stake and not by any per se rule

that if a warrant could be obtained, then it must be

obtained.

2. The foregoing discussion has shown that the

Fourth Amendment was basically intended to reflect

the English law of the time. And, indeed, the law of

search and seizure in England—except for the absence

of an inflexible exclusionary rule—has evolved in

much the same manner as our own. See, ¢.g., rag v.

Reginam, 1 A.C. 304, 2 All Eng. Rep. 61% Bic

Fashions, (West Ma Ltd. v. Jones, 2 Q.B. 299,

1 All Eng. Rep. 232, - a it is if anything more

stringent in some respects. See Ghani v. Jones, 1 Q.B.

693, 3 All Eng. Rep. 1700, 1702£/% 9g)

It is therefore of some relevance to observe that

under English law today a search and seizure of the

kind at issue here would be valid without a warrant.

The standards for such a search and seizure were set

out by Lord Denning, M.R., in Ghani v. Jones, supra,

3 All Eng. Rep. at 1705:

First, The police officers must have reason-

able grounds for believing that a serious of-

fence has been committed—so serious that it

no dilution of the requirements of probable cause to support a

search or seizure; it merely would entail, with respect to the

theory we present in this portion of our argument, a refusal to

extend to automobiles the presumption of per se unreasonable-

ness applied to warrantless searches of houses.

29

is of the first importance that the offenders

should be caught and brought to justice.

Secondly. The police officers must have rea-

sonable grounds for believing that the article

in question is either the fruit of the crime (as

in the case of stolen goods) or is the instrument

by which the crime was committed (as in the

case of the axe used by the murderer) or is

material evidence to prove the commission of

the crime (as in the case of the car used by a

bank raider or the saucer used by a, train

robber).

Thirdly. The police officers must have rea-

sonable grounds to believe that the person in

possession of it has himself committed the

crime, or is implicated in it, or is accessory to

it, or at any rate his refusal must be quite

unreasonable.

Fourthly. The police must not keep the arti-

cle, nor prevent its removal, for any longer

than is reasonably necessary to complete their

investigations or preserve it for evidence. If a

copy will suffice, it should be made and the orig-

inal returned, As soon as the case is over, or

it is decided not to go on with it, the article

should be returned.

Finally. The lawfulness of the conduct of the

police must be judged at the time, and not hy

what happens afterwards.”

7 Although the opinion sets out these rules in the context of

a case in which no arrest had yet taken place, it does not appear

that this fact is critical except that a less stringent standard

would presumably apply to a search incident to an arrest. See,

¢.g., Elias v. Pasmore, 2 K.B. 164, 172 (1934).

= ae

30

The seizure and search here fully complied with

these standards.

3. In conelusion, it should be noted that we are not

suggesting that the reasonableness of an automobile

search is always sustainable simply upon a showing of

probable cause and that a warrant can never be re-

quired regardless of the surrounding circumstances.

There may be circumstances in which important pri-

vacy interests are materially implicated and in which

a strict warrant requirement ought to be imposed.

But there is nothing ew approaching such in-

terests at stake here.

Moreover, we believe it is unlikely that adoption of

our contentions would result in any increase in unlaw-

ful conduct by law enforcement officers, or that adop-

tion of the contrary view is necessary for purposes of

prophylaxis. The exclusionary rule remains applicable

in full force to unreasonable automobile searches, and

police continue to have substantial incentive to seek a

warrant in any doubtful case, in view of this Court’s

announced policy of rewarding such action in evaluat-

ing close questions of probable cause. See United

States v. Ventresca, 380 U.S. 102, 106.

The conduct of the law enforcement officers in seiz-

ing respondent’s automobile without a warrant did not

violate the Fourth Amendment because the seizure and

the taking of samples did not involve substantial

invasion of his privacy. Accordingly, it is respectfully

—

31

submitted that the judgment of the court of appeals

should be reversed.

Rosert H. Bork,,.

Solicitor General.

Henry E. PErersen,

Assistant Attorney General.

Epwarp R. Korman,

Assistant to the Solicitor General.

Marcu 1974.

U.S. GOVERNMENT PRINTING OFFICE: 1974