United States v. Albert Ross, Jr.

course, of its temporary regulations. Of plaintiffs

should not be satisfied with the

permanent regulations emerge rulemaking, judicial

notice-and-comment

rеview of the regulations final will be avail- them; furthermore,

able to the administra-

tive response public criticism will be of

substantial aid in this review.

III. CONCLUSION

Although might be thought that our today requires

decision Department

foresight to our State equal hindsight, Jersey, Department

New of Environmental EPA,

Protection n.11, 626 F.2d at 1047

we Department believe that the could have statutory

reconciled the commands of the

Administrative ju Procedure Act with the

dicial command embodied in injunctive by promulgating

order regulations these as regulations

interim and instituting notice- procedures

and-comment promulga

tion permanent Judge rules. As Chief stated, McGowan has the admonition “[i]f good-cause construe the exception of sec 553(b)(B)

tion narrowly means anything,

means that we cannot condone its invoca where, here,

tion such a reconciliation is Id. at 1047. We affirm the

possible.”

judgment of the district court as modified

and direct the Secretary to institute rule-

making proceedings forthwith.

It is so ordered. America,

UNITED STATES of Jr., ROSS, Appellant.

Albert

No. 79-1624. Appeals,

United States

District of Columbia Circuit.

Argued en banc Oct.

Decided March 13,1981. Oct.

Certiorari Granted 102 S.Ct. 386.

See Geltner, C., Washington, D.

Michael E. Ritchie, C., Washington, J. D. Larry and filed a curiae behalf of brief as amicus Appellate Litigation George- Clinic of University. town McGOWAN, Judge, Chief and Before ROBINSON, WRIGHT, TAMM, MacKIN- NON, WILKEY, WALD, MIKVA, ROBB, GINSBURG, EDWARDS, and Circuit Judges. by

Opinion court filed Circuit for the GINSBURG, Judge Judge in which Chief WRIGHT, Judges McGOWAN, and Circuit WALD, MIKVA, ROBINSON, ED- WARDS concur. dissenting part,

Separate opinion, filed TAMM, by Judge in which Circuit Circuit Judge concurs. ROBB Judge filed Dissenting opinion Circuit MacKINNON. Judge filed Circuit

Dissenting opinion ROBB. Judge opinion filed Circuit

Dissenting WILKEY.

GINSBURG, Judge: Circuit Arkansas v. (1979), Su- preme question whether Court settled officers, exigent absence of circumstances, required to obtain a war- searching luggage, opening rant before small, unlocked, large or taken locked properly stopped from an automobile searched’ The Court held for contraband. warrant, that absent a such searches violate Garber, Washington, (ap- William J. D. C. Amendment, lug- even when the Fourth pointed court) by this for appellant. gage lawfully seized. The case has been Fisher, Atty., John R. Asst. U. Wash- question S. before raises the whether Sand- us C., whom ington, “luggage D. C. ers rule” or Charles F. establishes Ruff, Atty., reasoning U. and John of that ex- Terry, S. A. Asst. whether the decision Washington, C., Atty., U. S. D. tends as other containers used to were well to effects, brief, Liles, appellee. carry personal belongings Bobara Asst. con- E. solid, smaller, Atty., Washington, C.,D. tainers or less durable U. S. also entered less luggage appearance appellee. shop.1 than on sale in a those ent, related, Robbins, granted People issues: 1. The Court has certiorari in involving two search and seizure cases differ- exception specific, in contention in No well-delineated initially items The two permits untaped brown our attention this case were a closed but called to and, open warrant to bag lying alongside dispense it in the with a and search paper car, Moreover, containers. be- zippered “unworthy” Ross’s we trunk defendant validity suc- a rule under which the pouch. red leather The Government lieve that search would turn suppress judg- a motion to the a warrantless on cessfully opposed containers, durability ments about the of a container found in both heroin in evidence impose would an unreasonable and unman- paper bag, pouch. the cash in the leather bag ageable burden on and courts.4 For Although argued it earlier that both reasons, these and because the Fourth subject were to warrantless pouch and Government, protects persons, just all search,2 Amendment despite its success those with the resources or fastidiousness to court, the trial now concedes place their effects in containers that deci- Sanders.3 pouch covered the rule in It is line, luggage would rank in however, sionmakers paper a urge, continues to we hold that the Fourth war- Amendment pro- a bag does not merit classification as requirement rant forbids the warrantless repository personal tected effects. closed, opening bag of a opaque paper We conclude that did not estab the same extent that it forbids the warrant- “worthy encompass lish a container” rule opening less of a small unlocked suitcase or ing bags paper. of leather but not of Rath pouch. a zippered leather er, it appears to us that Sanders reaffirmed I opinion Part of this states facts that longstanding position Court’s give controversy; rise to this Part II deals regarding the of centrality the warrant re with threshold issues the Government has quirement to Fourth Amendment adminis challenges raised —belated to the retroactiv- tration: absent a “specifically established Sanders and to Ross’s ity of standing exception, well-delineated” a warrant- suppression seek found in per se Katz v. evidence impermissible. less search is 347, paper bag; scope Part III concerns the of Sanders and the 507, 514, 19 application of its hold- (1967); Coolidge L.Ed.2d 576 New Hampshire, ing reasoning to this case. 443, 454-55, 2022, 2031-32, (1971); I. Bustamonte, Schneckloth v. 412 U.S. 2041, 2043, 27,1978, November Detective Charles On D.C., Washington, Metropol- Marcum Cal.App.3d Cal.Rptr. (1980), p. panel required. infra. The cert. rant See granted, rehearing vacated and a en decision was later Belton, People L.Ed.2d 838 50 N.Y.2d held on October 1980. In a brief banc was (1980), 407 N.E.2d 429 N.Y.S.2d 574 prepared hearing, for the en banc the Govern- granted, cert. argued ment first that Sanders should Robbins, application applied retroactively. pp. in- See exception the warrant for containers whose case, applies fra. But if Sanders to this packaging contents can be inferred from the continued, the not con- brief Government does court; Belton, scope divided the lower pouch type luggage test is “the a search incident to an arrest is at issue. Supplemental contemplated Sanders.” Appellee at 7. Brief for Appellee (urging 2. Brief for 17at n.9 that Sand- applies only luggage ers and that neither administer, think, pouch bag luggage Similarly nor we “is difficult considered luggage known”). commonly panel majority protection sense that would have legitimately person’s paper accorded a seized April panel 3. On a divided panel majority bag sometimes. The distin- 1) currency pouch court held: found merely by guished paper bags between closed evidence; suppressed 2) should have been folding flap bags a sealed shut. It also the Fourth Amendment does not forbid the paper bag distinguished the found in a car opening untaped paper from a closed but not sur- trunk “amidst suitcases” one bag properly once it is in their Had hands. by luggage. Slip op. 15-16 n.6. rounded shut,” paper bag however, Ross “sealed the panel majority would have held a search war- heroin, possession possession Ross for Department received a tele- itan Police distribute, prior carrying a call from an informant who intent to phone heroin with license, information provided possessing occasions had reliable pistol without informant trafficking. narcotics about Ross felony conviction. firearm after a had observed a man told Marcum that he obtained suppress the evidence moved to selling narcotics in front known as “Bandit” paper bag and from the search of the N.W.; Street, Ridge he furnished of 439 district hearing, After a pouch. leather report- “Bandit” and description detailed jury trial fol- the motion. A judge denied trunk of drugs ed that were in the and, Ross was on March lowed automobile, maroon two-door Bandit’s possession of narcotics convicted of Malibu with District Columbia Chevrolet distribute, in violation of 21 U.S.C. intent to plates. license 841(a). § Marcum, Detective David Cas- Detective drove

sidy, Sergeant Raymon Gonzales II. Ridge where observed a car Street matching description. the informant’s A (A) regis- car radio check revealed that the Although the did Government Ross, Jr., whose nick- tered to an Albert argues panel, the point raise the before The officers name was “Bandit.” v. should not here that Arkansas Sanders twice, passed through spotted the area then v. retroactively. In United States apply driving stopping Ross the car. After Peltier, 95 422 U.S. ' themselves, identifying po- vehicle and (1975), Supreme step lice asked Ross to out of his car. Ross expanding that decisions Court reiterated description matched the informant had exclusionary rule should scope given Marcum. As Marcum conducted a only. A court prospective effect body search, Gonzales observed a round of apply retroactively a decision if should not ammunition on the car’s front seat. Gon- [yvho officials con the “law enforcement round, zales retrieved the searched the in- reasonably believed in ducted the search] weapons, side of the car for and found a in accord good faith that their conduct was pistol glove in compartment. Marcum at the time of ance with the law” in effect him; arrested Ross and handcuffed Detec- at 2317 the search. Id. at Cassidy tive then unlocked and searched the If, however, deleted). a decision (emphasis car’s trunk. He found in it side by side a rule, but expand exclusionary does not paper closed but unsealed brown sack about applies already doctrine merely restates and bag the size of a lunch zippered red officers place, then law enforcement pouch. Cassidy immediately opened leather knowledge of that charged with must be paper bag quan- and discovered inside a decision is explanative doctrine before tity glassine envelopes containing a Supreme indi sues. The Court Sanders powder. Leaving bag white and the principle no new constitutional cated that trunk, pouch in the the officers drove Ross’s contrary, the Court was at stake. On the station, headquarters. car At the opinion recapitulation as a styled its Cassidy reopened paper bag, determined v. Chad exposed in United States theme thirty glassine envelopes, contained wick, 53 envelopes and sent the to the labora- we cannot seek ref 538 Therefore tory analysis; laboratory later re- justify a declaration that uge in Peltier to ported envelopes that the contained heroin. only prospective adher commands Sanders Cassidy opened also pouch the leather ence. currency. point found inside At no $3200 episode did the officers seek search for the Court in opinion Justice Powell’s warrant. decision, affirming signals that the Sanders judgment of Ar- grand December

On a federal kansas, open- jury ground. in the District of Columbia indicted breaks no new

H63 place since ing welded Chadwick —doctrine paragraph purpose announces a elab alter, orate, Cassidy Detective knew or should have existing doctrine: “We known when he searched the containers apparent took this to resolve case ... some found in the trunk of Ross’s car. We there misunderstanding application reject argu fore the Government’s belated our decision in United States Chadwick join ment and the numerous courts that at at ....” 442 99 applicable have held retroactively Sanders, Summing up Justice Powell de least to searches conducted after Chadw justifica clared “no the Court found Dien, ick8 United F.2d 1038 States 609 tion for United the extension [Carroll (2d 1979), Cir. petition adhered to on 280, 69 L.Ed. rehearing, (2d 1980); Cir. Unit (1925)] its warrant- progeny Medina-Verdugo, ed States v. F.2d 649 less personal luggage merely search of one’s (9th 1980); Cir. MacKay, States v. because located in an automobile it was White, (9th 1979); 606 F.2d 264 State police.” Id. lawfully stopped N.M. (Ct.App. 615 P.2d Powell, therefore, 99 S.Ct. at Justice 1980) (argument not ap Sanders does majority indicated that a Court be ply retroactively “spurious”); Abell v. contrary lieved that a decision to the one Commonwealth, Va. S.E.2d Sanders, reached in rather than the one. Bulgier, cf. United States v. made, prior there would have altered law.5 (7th Cir.) (assuming F.2d retroactive Between Chadwick and more- application upholding of Sanders over, at four that least courts held Chad- search), denied, 843, 449 cert. 101 U.S. wick unlawful rendered the warrantless 125, (1980). 66 L.Ed.2d 51 But S.Ct. cf. search luggage seized from a car.6 Hatami, (N.J.Super. v. No. State A-1567-77 These contrast rulings pre-Chadwick with Ct.App.Div. 21,1979) curiam) (un (per Nov. decisions, consistently which held that no published opinion) (refusing apply Sand required warrant luggage was to search retroactively pre-Chadwick search), ers ato seized from a car.7 The shift trend denied, 471, certification 85 427 N.J. A.2d of lower court decisions after Chadwick 567, denied, 1035, cert. 449 101 S.Ct. thus anticipated Supreme signi- Court’s 610, (1980). Chadwick, fication in Sanders that not note, We that finally, doubt some courts Sanders, was the path-marking decision. expressed, and commentators the wake For these reasons we conclude that Ar- Chadwick, police whether about kansas augment, v. did Sanders not needed a warrant search contain- closed simply explained car, applied, justify doctrine seized ers from a cannot Detec- Judge Wilkey’s dissenting opinion, post, (1977), 5. S.W.2d 704 Sanders, aff'd sub nom. Arkansas v. Supreme 753, 2586, urges Court’s that 442 U.S. 61 opinion precludes State, (1979); Peltier court from Shingleton L.Ed.2d 235 39 asking Sanders 527, Indeed, whether declared new law. It Md.App. A.2d 1134 387 is true that the Court in not set Peltier did out Supreme the Court in Sanders noted that inquiry, separate this consideration as a direct- Court of Arkansas had found ally controlling” “virtu Chadwick ing the courts instead to ask whether the questions Sanders officer knew or should have known that his presented. 762, 442 U.S. at 99 at 2592. conduct was in accordance with law. We believe, however, inquiry the former See, Tramunti, g., States v. 513 F.2d e. United develops subsumed in the latter. If a decision 1087, denied, Cir.), (2d 1104-05 cert. 423 U.S. law, no new then the officer —who is 832, (1975); United charged knowledge of the old law—should Soriano, (5th 1974) States v. 497 F.2d 147 Cir. known, and acted in a manner consistent (en banc); Evans, States v. 481 F.2d United with, the core doctrine. (9th 1973). 993-94 Cir. Stevie, (8th 6. United States v. 8. Chadwick decided on June was 1978) (en banc), denied, cert. 443 U.S. The searches in this case Novem- occurred on L.Ed.2d 876 United ber 1978. Sanders was decided on June Vallieres, (D.Conn. F.Supp. States v. 1977); State, 262 Ark. Peltier, resolved should not have been fer obtain a search Cassidy’s failure to tive requirement.10 sack and opening paper the warrant against warrant before in Ross’s car. pouch leather found firmly held Supreme Court has (B) judicial

“searches outside conducted pre not preliminary issue A second by judge prior approval process, without under concerns viously unreasonable raised the Government magistrate, per are se to a subject only posi the Fourth to its “standing.” contrast Ross’s Amendment — and well-deline- specifically few established regarding the Government tion States, exceptions.” Katz v. United ated retroactivity, specifically, champions here 507, 514, 19 347, 357, 88 S.Ct. Supreme Court’s retroactivity of indi- (1967). That declaration L.Ed.2d 576 Salvucci, in United States decision may entertain police officers cates doubts of, against, favor to be resolved in precede warrant the main rule that a suppress the evi- Ross moved to When invert search. We cannot from the search obtained dence sanctioning police instructions Court’s tried, pouch bag, and when his case searches, subject of warrantless conduct standing” rule of Jones the “automatic prior express courts’ mandate Rather, we are obtain a warrant. (1960), lower courts. governed required to adhere to the Court’s command Jones, charged defendant with a police obtain a warrant unless their that the Under express and search falls within one of the to claim possession was entitled crime of exceptions to the warrant narrowly drawn challenge the le- standing” “automatic requirement. against Read this back- produced evidence gality of a search Peltier, ground, the Court’s statement testify against him. Ross therefore did retroactivity ruling impermissible that a hearing and the suppression Govern- good “in when a officer believes objection to his silence. ment raised no is “in accordance faith” that his conduct trial was The evidence at Government’s law,” at at with the S.Ct. the evidence it substantially the same as Cassidy mean Detective must hearing on the motion to presented at the believe, faith, good his to in conduct the circum- suppress. The described few, jealously fell within one of the drawn Ross, surrounding the arrest of in- stances exceptions requirement. to the warrant In pouch cluding searches of the the attendant sum, Cassidy if Detective had doubts about suppression mo- bag. Having lost the Chadwick, meaning the he should have denying, by tion, at trial Ross defended presumption the down in followed laid nu- anything packets about of narcot- knowing Supreme merous decisions and Court doubts, bag in the trunk of his car. paper obtained a warrant.9 His even af- ics in a by judiciary” Judge admirably sistently approved expresses point the Tamm this any impression” opinion dissenting part: “question presented in his in “In situa- ... of first case, approaching Supreme tion a borderline the U.S. at the Court. 413 cautious, proper Peltier, 2542, quoted best be would and obtain a at in 422 U.S. at Post, proceeding.” conducting search warrant at before at 2319. Police officers roving patrol n.6. Aimeida- border searches before therefore, Sanchez, about did not have doubts Peltier, contrast, In the Court found that conduct; constitutionality that con- of their the roving patrol had received border searches consistently approved the duct had been judicial approval” Almeida- “continuous before above, however, explained As federal courts. Sanchez v. United 413 U.S. court decisions follow- Chadwick and the lower (1973), the decision that ing at least created a substantial it must have was there effect. 422 U.S. denied retroactive constitutionality of warrant- doubt about the opin at at Justice Powell’s from of closed containers seized less searches ion for had rec the.Court Aimeida-Sanchez automobiles. ognized that these searches been con- “ha[d] possession until his exclusive and control he hearing After the initial decision Supreme police. significant Court overruled encountered the More appeal11 view the which Jones context in the case comes v. United States. In United States us, granted had the court Salvucci, 2547, 65 district motion, suppression we believe it should (1980), de- the Court held that have, there would been no trial and no have charged possession fendants with crimes testimony denying knowledge from Ross exclusionary may claim the benefits of the trunk. bag found in his rule if first establish that their own rights Fourth Amendment have been saddling of now Ross with unfairness Salvucci, Relying violated. the Govern- than one in rule Salvucci rather ment now asserts for the first time that positions, Jones evident.13 Ross’s his si- Ross, by trial, coupled his tactic his at lence and his suppression hearing at suppression hearing, silence at the forfeited trial, testimony judged at should not be any claim that his own Fourth Amendment a rule that did not exist until after his hand n rights professed igno- were violated. Ross’s fully We hold played. had been therefore paper bag ranee of the in his narcotics-filled Jones, Salvucci, provides testimony, argues, trial the Government “standing” governs rule that this case. pinions him. He now be cannot heard Moreover, standing if Ross’s even trunk, bag claim that he secreted the were now to.be determined under Sal hence he cannot re- satisfy Salvucci test, we Govern accept vucci could not quirement. tactic, position denying ment’s that his trial But the did Court Salvucci Fourth knowledge bag, strips him of retrospec- rule that Jones was overruled protection. The found jury Amendment fact, tively. In noted Court that Jones beyond To guilty Ross a reasonable doubt. bound the lower courts until it said other- the jury make that determination necessari 85,100 wise. ly bag concluded that the narcotics-filled contrast was a which confirm- conclusion, belonged Ross. To reach that decision, ing clarifying Salvucci was a attempt at jury reject had to Ross’s forthright overruling prior High suggest might trial someone else precedent.12 placed bag in the trunk of car. verdict, believe, any The jury’s we resolves In Salvucci itself the Government had bеlonged to Ross —it bag issue whether the challenged the “standing” defendant’s determination, jury did. In view of the challenge start. No such was raised in argue sensibly that the Government cannot the case before us. We decline to trans- bag of the convic purposes was Ross’s for form this case into the “Catch-22” tion, someone for Fourth Amend else’s proposes. Government Had the Govern- purposes. ment standing ment raised a question sup- at the pression hearing, be, however, Ross and may his counsel in emphasizing It would have been alerted the risk testimony, Ross’s trial the Government does remaining failing Ross’s silent seriously to assert Ross’s con- challenge exclusive pouch that both bag possession were items under trol and narcotics-filled supra. (1975). See note See also L.Ed.2d Walker, Linkletter 381 U.S. Under in the criteria set forth Oil Chevron Huson, 105-07, Co. v. (1971), Salvucci should Houma, Cipriano City 13. See apply ap retroactively not peal to cases on direct prosecution challenge where the failed to away, finding Even backs the Government “standing” suppression the defendant’s at the forecast “understandable” that Ross did not hearing. case, While Chevron was a civil its while his case was before the district Salvucci reasoning fully applicable in this context. Supplemental Appellee at 12 court. Brief for Bowen, States 975 n.l n.6. (9th 1974) (en aff'd, banc), below, explain we As we further believe bag prior apprehension by police. to his precluded Rather, first of these two bases is may asserting the Government the Court’s statement of “misunder- standing requires expectation an in standing” sought to resolve Sanders. privacy, testimony, which Ross’s trial Moreover, we note that the Government paper bag to be no supposed “There wasn’t urge distinguish we searches does not trunk],” given car defeats. But [the police suspicion based directed to a vehi- verdict, on jury we must take it to be fact that it, integral part from those in cle an supposed paper bag a there was to be suspicion particular focuses on a con- which put trunk and Ross it there. The Govern- carried in vehicle. For such a tainer ment now concedes that Ross had an ade- distinction, case, applied to this would ren- quate expectation privacy in the curren- pouch der the as vulnerable to warrantless cy-filled pouch. We it difficult to com- find bag, now search as the and the Government prehend why expectation that same would decision, concedes that under the Sanders not attend a contraband-filled closed con- prerequisite exposing the con- warrant tainer Ross secreted in the trunk locked pouch. tents of the alongside pouch.14 pressed by The second basis is Government and has attracted several III. just courts.16 But as the Court Turning application of Su was unable to tie to the Fourth Amendment preme precedent point, most im “established, requirement any warrant Sanders, mediately, Arkansas we find we exception luggage, well-delineated” arguable two bases for the warrantless perceive exception are unable to such an First, searches pouch bag. of Ross’s packets luggage to less resistant than hard Sanders, Chadwick, police as in suspicion frequent wear and use. containers, related to the not to the vehicles We discuss below in more detail each of case, placed. which were In this possible reading the two bases for out of police informant told the that Ross had this case the Fourth Amendment warrant narcotics in specif the trunk of his car. No requirement. ic Conceivably, container was identified. we distinguish those cases in which (A) police suspicion focus their on the con tainer from those tip in which the vehicle or local received a integral part of it passenger designated flight attracts attent due Second, ion.15 Chadwick and municipal airport carrying would be might cases, cubbyholed luggage marijuana. deci green containing small suitcase applying sions the Fourth Amendment war The passenger’s depar- observed the requirement rant placed terminal, green effects in dura ture from the suitcase in containers, tow, ble carryover with no to effects placement and the of the suitcase in put in less stable packets. the trunk of a taxicab. The taxi drove off pp. 14. See case, text at bag 1170-71 and notes on facts of this but facts in another expectation), and 34 infra. cert. such an case could show - -, granted, 69 U.S. Sanders, supra, 15. Cf. Arkansas v. 442 U.S. at Goshorn, v. United States 1000 J., (Burger, 99 at 2594-97 C. con- 1980) (remand (1st 7 69 Cir. 628 F.2d curring). expecta had whether defendant evidence bags). paper privacy Several in tion of g., Mannino, 16. E. United States v. 635 F.2d distinguishing recent decisions containers the (2d 1980) (plastic bag); 110 Cir. United States closely resembling luggage (purs more or less Mackey, (9th 1980) (paper 626 F.2d 684 Cir. 493 es, wallets, cases) guitar plastic paper or from bag); Blair, F.Supp. United States v. analysis in (D.Md.1980) now vacated (cardboard boxes). sacks cite the the pan Cf. United case, distinguished Brown, 1980); (6th in this which States v. el decision 635 F.2d 1207 Cir. Jimenez, paper (7th pouch bag. States F.2d leather 1980) (no expectation privacy paper Cir. in stopped (1970), sever- by pursuing and was officers U.S. L.Ed.2d 419 upheld the terminal. re- Chambers police al blocks from At controlled. the “automo- quest, opened exception” requirement; taxi driver the trunk. bile to the warrant the suitcase, green constitutionality then seized the war- police The sustained of a unlocked, it, opened found of a or which was rantless search vehicle on a street marijuana packets. police The highway probable inside ten Su- when preme affirmed the vehicle Court the decision cause believe contains contra- Supreme holding Finnegan Court of Arkansas band or evidence crime. The Chadwick, out not suppressed pointed the trial court should have court if Chambers, marijuana through because it applied, police was obtained then could search marijuana an unlawful search of the suitcase. without a warrant for a brick of trunk, a car one lying inside but not for granted The certiorari in Sanders inside in the trunk. 568 F.2d at a suitcase apparent “some to resolve misunderstand Stevie, hand, the other held Chad- ing” among lower applica courts about the dispositive; ruling, Eighth wick in so Chadwick, tion of United States v. disagreed explicitly Circuit stated (1977).17 53 L.Ed.2d reasoning with the of the Ninth Circuit held that a in placed Chadwick footlocker panel Finnegan. in 582 F.2d at 1179. parked the trunk of an automobile at a curb lawfully police custody, be taken into Supreme Finnegan The Court identified probable because the cause to and Stevie as inconsistent and it decisions contraband, believe it contained could sought in to resolve the inconsist- lawfully therefore, not be searched without warrant. ency. apparent, It seems To the post-Chadwick majority illustrate misunder the Sanders did not believe the courts, standing among lower compatibility search with Fourth Finnegan, Court cited United States 568 Amendment should turn on whether (9th 1977), F.2d 641-42 Cir. suspicion (as and United related to the car in Finne- Stevie, 1175, 1178-79 (8th ) States v. 582 F.2d gan (as Stevie). container We to the in (en 1978) banc), denied, cert. Finnegan-Stevie cannot treat citations haphazard.20 idle or must Sanders as We accept implication the clear of Sanders: Finnegan, car, In particular decided; correctly in- Finnegan Stevie was it, originally container attracted correctly applied Chambers rather than Stevie, In police suspicion attention.18 Chadwick. car, related baggage placed not to the vehicle in which the luggage police suspicion was In related us, carriеd.19 Ninth panel Circuit in Fin- suitcase itself. the case before negan it, reasoned that inappli- trunk, Chadwick was any car identified container cable car rather when than was suspected carrying container But contraband. object suspicion. Instead, Finne- the Supreme disapproval Court’s of Finne- held, gan Maroney, court Chambers gan our analysis. controls Where a contain- passengers lug- airport, 442 U.S. at 99 S.Ct. at 2588. saw them load gage wagon, stopped station into a rented stopped speeding. 18. The car had been A highway, occupants, vehicle on arrested the patrol approached officer the car window luggage, opened looked for their a suitcase plain large currency saw in view a amount of wagon. rear area of found the station driver, gun and a case. The officer arrested the wrapped la- Inside were bricks of a substance case, currency, gun opened removed marijuana. ter to be determined pistol fully-loaded which contained and two 1176-77. clips, and further observed a suitcase opened He then hatchback. the suitcase and Circuit, ap- 20. Nor the Ninth now does which incriminating found evidence in it. 568 F.2d at plies suspicion on a Sanders whether is focused particular luggage piece car in or on the general. Medina-Verdugo, 637 States v. United police, engaged 19. The in surveillance for nar- 649, (9th 1980). F.2d 652-53 trafficking, incoming cotics had observed two 1168 seizure; police the time of the enter trunk is legitimately

er seized from a car warrant, their pre- tained no belief that the containers or searched without a Sanders endangered personal safety; their the con- contents cludes different outcomes when contraband, pouch bag police possession with the and suspected housing tainer is there was no risk that evidence would object and when the car itself is the or could be destroyed lost before a warrant that, suspicion.21 We therefore conclude Belton, People obtained. Cf. 50 N.Y.2d case, been re- if a small suitcase had 420, 429 407 574 N.E.2d N.Y.S.2d car, moved from the trunk of Ross’s and (warrantless jacket may pockets search of obtaining thereafter searched without upheld not be as search incident to arrest warrant, suppres- would mandate object once is within exclusive control incriminating evidence found in the sion police), granted, cert. suitcase. The Government does not contest 838 conclusion, nor does it contest that applies as well to the evidence seized in this beyond question Also serious is the coher- pouch. Supplemental case from the leather position ent has elabora- Appellee Brief for Accordingly, at 7. respect require- ted with to the warrant question sole we must determine is whether ment. The of a reasonableness search protection cloaking the Fourth Amendment light surrounding circumstances does zippered an unlocked small suitcase and a not obviate the need for a warrant. Sand- pouch stops leather short of a closed but ers, at 2590. U.S. at On paper bag. unsealed contrary, requirement the warrant af- protection separate fords and distinct from

(B) protection against unreasonable Amsterdam, generally Per- searches. See addressing Before envi- whether Sanders Amendment, spectives on the Fourth sions and the Fourth Amendment tolerates 349, 358-60, 374, Minn.L.Rev. a warrant covering rule small suitcases and Whether or not the search would be “rea- pouches paper bags, we set out sonable,” requirement operates the warrant parties facets of this case the do not seri- Sanders, “as a matter of course.” ously dispute. tip Based on the (quoting at S.Ct. at 2590 from Cool- received22 car properly stopped Ross’s was idge Hampshirе, v. New U.S. at searched, and pouch bag and the were 2046): However, properly “special seized. no exi- gencies”23 justified opening pouch ordinary In the case ... a search of bag without a private property warrant: both containers must be both reasonable securely were removed from Ross’s pursuant properly reach at to a issued search compel argued three-judge panel 21. Even if Sanders did not itself such a 22. Ross before the result, question probable stop we would that the lacked cause to administrative car, pressed feasibility his has not of a distinction based and search but he on whether the event, objection any object suspicion At before full court. is the car or the container. ample cases, example, we believe it clear that the In some when an informant stop and to supplied and reasonable cause to Ross precise tip, object suspi- has supplied ac- search his car. The informer had may clearly many cion cases, defined. But in occasions, prior he curate information on probable an officer derives cause from eyewitness to sales of narcotics totality circumstances, after observ- just Ross. He seen Ross take said he had ing appearance, a vehicle’s movements and making his car in narcotics from the trunk of occupants, demeanor and activities of its say possessed sale him he additional and heard transfer, placement, or removal of contain- Spinelli v. United narcotics. See cases, ers to or from the vehicle. In such (1969); officer, require would demand too much to Texas, Aguilar v. determining probable after the existence of Davis, States cause, to make the further assessment whether (D.C.Cir.1979). 692-93 “object suspi- the car or the container is the cion.” 442 U.S. at 763-64 n.l 2593 n.ll.

1169 some cen- impounded automobiles to port of a The mere reasonableness warrant. could be se- until warrants tral location search, light of the sur- assessed 761, 765-66 442 at cured.” U.S. circumstances, is not a substi- rounding However, n.14, n.14. 99 at 2594-95 S.Ct. required un- judicial for the warrant tute which we deal were pouch bag and with ... der the Fourth Amendment. seizure; hardly it was by police immobilized has been a requirement warrant “The unopened to a carry them burdensome law part valued of our constitutional short, respect to in- magistrate. decades, and it has determined pouch bag, and specting the contents of of cases in result in scores and scores with no in this case were saddled police country. It is not courts all over this obtain- the inconvenience other than burden to be somehow an inconvenience any ease. ing imposes a warrant ‘weighed’ against the claims be, is, im- efficiency. or should an It arguable that search Nor is it working part machinery of our portant as incident to bag permissible or pouch as a matter government, operating after the car was arrest. At no time an bag of course to the ‘well-intentioned and within pouch check were the stopped mistakenly overzealous executive control. There was not Ross’s immediate any system danger anyone that Ross or part slightest officers’ who are a remove the than the would of law enforcement.” other of the containers before a warrant contents exceptions to the reiterated that delay opening A be obtained. number, requirement are few in warrant bag pending appearance before a pouch and jealously guarded, carefully delineated. jeopardized the magistrate would not have 759-60,99 2590-91. We 442 U.S. at S.Ct. at See public. or the safety established, excep- discern no well-drawn Sanders, 442 n.ll, at 763-64 99 S.Ct. at U.S. covering opening pouch bag tion Amsterdam, supra, 58 Minn. n.ll; cf. 2593 True, precedent fully supports in this case. 412-14.26 L.Rev. at seizing the stopping Ross’s vehicle and warrant re- excep- exception But no to the pouch bag. the “automobile Since 24 by the justify stopping quirement tion” invoked to the car thus far delineated Su- case, prosecu- placing police preme in it under Court covers this items found asks, essence, that we delineate encompass control cannot be stretched to tion us, appears The automo- new the facts before openings.25 the warrantless one. On police could have obtained exception mobility bile rests on the inherent certain that “severe,” magistrate they applied to a of motor vehicles and the some- a warrant had surely But “impossible” opening the seized items. police depart- times burdens before requirement warrant they required exception ments would encounter were judgment that a post on a hoc place every officer’s beck and call “the cannot rest granted if one people equipment necessary to trans- warrant would been 3092, 364, 132, States, Opperman, 49 ta v. S.Ct. 267 U.S. Carroll (1925); (1976) (glove compartment); Tex- S.Ct. Maroney, Chambers L.Ed.2d 1000 White, 423 U.S. as v. (1970). generally Moylan, compartment); (1975) (passenger See The Auto L.Ed.2d 209 Exception: Dombrowski, mobile What is and What it Cady Label, not —A Rationale in (trunk); Search of a Clearer Chambers Note, 27 Mercer L.Rev. 987 The Auto (concealed compartment Maroney, supra un- Exception Requirement: mobile to the Warrant dashboard); v. United Carroll der the Amendment, Speeding Away from the Fourth seats). (behind upholstering supra 82 W.Va.L.Rev. 637-56 contend, nor does not 26. The Government indicated, 25. As Sanders 442 U.S. at plausibly, officers were en- could it exception applied has been “inventory gaged South in an search.” Cf. integral parts the Court to of an automobile Opperman, Dakota v. separately but not to items porarily contained and tem- See, g., Dako- stored in a car. e. South Sanders, further. requested. point The need be labored been See “unworthy an container” Not would n.12, (reasona- at 764 S.Ct. at 2593 n.12 supply “easily rule fail to an understood search, coupled bleness of with inconven- guide police,29 for the and administered” approaching magistrate, ience of does not from infirmities more critical would suffer Rather, warrant). justify dispensing with a would infeasibility. than administrative It argument appears to be that some con- so- those the means or the snare without game they tainers are fair once are seized worthy use containers.30 phistication to small, insecure, because are too too or And, destroy it would importantly, most cheaply too made to burden the time aof well-established, clear, emi- coherence of a magistrate. that, manageable special rule absent nently upon a search necessity, a search must rest police The fine distinctions into which the warrant. and the courts would be drawn were we to adopt “unworthy us, container” ap- rule are not leave the it seems to did large doubt. The Court there matter parent.27 could not be the dividing Size indicated when the nature of the container line, nor does the Government contend oth- justify would immediate search: “[S]ome given erwise its concession that the leather (for example burglar containers a kit of pouch encompassed by A price- Sanders. case) by very their nature gun tools or a bequest, great grandmother’s less diary, for expectation support any cannot reasonable example, could be carried in a sack far their contents can be privacy because accommodating smaller than one jogging appearance. inferred from their outward quality suit and sneakers. And if of mate- cases, Similarly, in some the contents of a counts, rial is what on what side of thе line view,’ package open ‘plain will be there- place variety parcels peo- would one by obviating the need for a warrant.” 442 ple carry? police Are distinguish cotton n.13, at 765 at 2593 n.13. silk; felt, tinfoil, purse canvas, vinyl, think, guides, comprehensible, Those we cardboard, paper or containers from leath- administrable, with and consistent the Su- er; folding sacks closed by flap from preme centrality Court’s stress on the those zippers, drawstrings, requirement closed with warrant to Fourth Amend- but- ment enforcement. tons, snaps, fastenings, velcro or strips of tape? Tiffany adhesive Would a shopping cannot infer from the Ordinarily, one bag rank supermar- with one from the local shape, pouch or size of a leather or density, inside,31 ket?28 bag opaque paper what is and this Amsterdam, Post, supra, Washington 27. Cf. 30. Dec. 58 Minn.L.Rev. at Cf. Cl, (“[I]n (reporting important col. 3 that Arlene Robinson and the first and most instance children, aged speaks her six 4 to homeless and on the fourth amendment welfare, existence, “have lived a hand-to-mouth speak intelligibly.”). must to them mostly Washington, on the streets of with their belongings paper shopping few bags”). stuffed into In addition to the value of a or sturdiness closed, way container and the in which it is panel majority suggested in this case another court, consistently Neither nor unimposing paper variable: an container —a Amendment, the Fourth reason backward can bag might subject open- not be to warrantless — required to determine that no warrant was if ing if the found it “amidst suitcases.” the container searched in fact concealed evi- Slip op. paper bag at 15-16 n.6. The in this Similarly, dence crime. as to the reasona- alongside case was found in the car trunk privacy expectation, bleness of a the innocence pouch lug- that the Government now ranks as goods or evil concealed cannot determine gage. luggage-like adjacent Would one con- protection. Amendment See United Fourth upgrade paper bag tainer suffice to Rivera, supra, F.Supp. States v. bag spot would the remain vulnerable to on the greater expectation has no or lesser One warrantless search unless sever- surrounded privacy bag drugs in a when it contains of prescribed by pieces baggage? al physician embarrassing for an ailment than when it contains contraband. Cf. Rivera, F.Supp. Taborda, 29. See United States v. United States v. 138- F.2d (N.D.Tex.1980). (2d 1980). 39 n.10 paper bag pouch of the leather searches The Govern- presents exception. no case trunk, very appear- assert that from his car the conviction is ment does not seized bag seized from paper feel of the pro- ance or reversed and the case remanded suggested its contents.32 Ross’s car trunk ceedings opinion. consistent with this argue Nor does the Government and remanded. Reversed view” or bag “plain of the were in contents his sacks willingly displayed what that Ross TAMM, dissenting part: Judge, Circuit employed The means that Ross carried.33 pouch bag, and store the contents of suggests that opinion for the court The us, seems to were calculated to secure colleagues majority of the are my learned intrusion privacy possessions against of his reality. insensitive to theory sensitive to public.34 of by members appellate of responsibility It is a basic cannot sanction the war- summary, we stating principles courts of constitution- rantless searches in this case without dis- rights give, precisely as ally guaranteed reasoning diminishing the torting the and guidance both to trial possible, practical holding distinguish can we in Sanders. Nor I feel courts and law enforcement officers. pouch bag and in a manner that between my colleagues majority, with practical makes or sense. We theoretical particular ruling reference to their therefore conclude that “[w]here —as paper bag, descending disarray from endanger- present police, case—the without chaos. ing risking loss of the evi- themselves or whether With this case we must decide dence,” car, stopped de- lawfully officers must obtain a law enforcement crimi- any person suspected tained in it opening pa- search warrant before a closed parcels nal secured found in activity, and per bag pouch lawfully or a closed leather car, par- they delay must search from trunk of an automobile that seized judicial been approval cels “until after has probable officers have cause to believe way, rights obtained. In this constitutional contains narcotics. I conclude that under judicial suspects prior review of case, the circumstances of this the defend- Sanders, fully protected.” will be searches expectation ant did not have a reasonable 442 U.S. at 99 S.Ct. at 2594. paper bag in the contents of the privacy IV. hands; bag police once the was in the war- therefore, bag, paper rantless search of the Because Ross’s conviction rested on evi- however, through permissible. pouch, dence obtained unlawful was A is a belongings. United States v. Tabor into his Cf. Sanders, v. 32. Cf. United States 631 F.2d 1309 136-39; da, supra, v. United States 635 F.2d at (8th 1980) (contents of a 2'h 3 inch Cir. Note, 1031-34; Rivera, F.Supp. supra, 486 packet brown manila could be inferred from its Beepers, Privacy, Tracking and the Katz: appearance agents outward where knew that Amendment, 1472-77 86 Yale L.J. Fourth (1977) (indicating packets frequently carry such were used to “expecta concept heroin, well-worn, packet cocaine or privacy” Amendment cases is in Fourth Robbins, tion part off); People and of it was tom coherent, produced fully confused less than has Cal.App.3d Cal.Rptr. decisions, unprincipled and is in need and (holding “green wrapped 2-1 that contents of explica further Court attention plastic blocks” could be inferred from outward cert, tion). granted, appearance), (1981). Note, supra 34. See Yale note at 1482. Judge opinion dissenting part, post, 33. Situated as were the locked car Tamm’s trunk, pouch bag bags surely distinguishes paper were not “knowingly expose[d] public.” bag, paper luggage partly See Katz that a on basis 347, 351-52, possession, v. United is more of its owner’s once out Note, susceptible cf. War- or the to invasions the curious Automobiles, signifi- regard, rantless Searches and Seizures of no In this we see dishonest. vulnerability 87 Harv.L.Rev. an n.29 Place- cant difference between the suitcase, pouch, ment of the closed sacks inside the locked wallet and that of unlocked or sufficiently bag. paper trunk exhibited Ross’s reasonable a folded expectation pry peer that others would not But cf. have a luggage form of must Wilson, (8th F.2d 1161 item. Because States to search such warrant 1980) (inventory search of locked automo- of the defendant in this case conviction unreasonable). My only bile trunk held rested evidence obtained from both con- concern, then, permissibility is with the tainers, reverse that I would conviction the warrantless search containers a new trial at items remand for which they found in the trunk. paper bag, taken from the but not from pouch, may be leather admitted. amendment dictates fourth private “normally property searches of

I to a pursuant search performed [must] compliance warrant issued the War argument Ross’s initial Arkansas rant Clause.” stop probable lacked cause to and search his Texas, Aguilar disagree. car.1 I Under (1979). represents 235 warrant 108, 1509, A search

378 84 12 L.Ed.2d 723 U.S. S.Ct. States, formality more than a Spinelli v. United (1964), technicality. and 393 search, “The reasonableness of a 410, 89 584, (1969), mere as 21 U.S. S.Ct. L.Ed.2d 637 surrounding in light sessed circum probable may based infor cause stances, judiciаl a substitute for the supplied by mation an if the in informant warrant required under Fourth Amend and his formant was credible he obtained Id. United States v. See Chad ment.” United way. See information in a reliable wick, 1, 8, 2476, 2481, Davis, 433 97 677, U.S. S.Ct. 53 States v. (D.C.Cir. 617 F.2d 693 McDonald v. United (1977); 1979). 538 discovering One method of an infor States, 451, 455-56, 191, 69 is, truthfulness, 335 S.Ct. credibility, that his U.S. mant’s 193, (1948). Moreover, 93 L.Ed. 153 provid to examine his “track record” Supreme clearly has stated and em Id. ing police with accurate information. Texas, Aguilar n.5, phatically exceptions to the See that warrant 378 U.S. at 114 84 rare, requirement Here, and the few undisputed testimony S.Ct. at 1514. recognized exceptions be “jealously must indicates the officers knew infor ” Jones v. United drawn ... . supplied carefully mant had accurate information on States, 493, 499, 1253, prior Moreover, 357 U.S. 78 S.Ct. occasions. there is no chal 1257, See also (1958). Unit lenge to the method in which the informant Jeffers, 48, 51, ed States 342 72 upon eye came his information: U.S. S.Ct. he was 93, 95, (1951). 96 59 witness to actual sales of L.Ed. narcotics. Under circumstances, these I believe it clear that Analysis protection fourth amendment probable stop cause to Ross begins person making with the claim to and to search his car. protection. rights Fourth amendment are not of a intrinsic attributes container or

II Instead, any object. “rights other assured only Not did personal have the neces Amendment are Fourth cause, under Carroll sary probable rights may ... be enforced exclu- [that] States, ‍‌​​​​‌​‌‌​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌‌​​‌‌‌​​​​‌​​‌​​​‌​‍132, 280, United 267 U.S. 45 69 sion of the instance one S.Ct. evidence at (1925), Maroney, Chambers v. infringed L.Ed. 543 whose protection own 1975, 42, 399 90 Simmons United U.S. S.Ct. 26 L.Ed.2d 419 search seizure.” States, (1970), 389, 967, 973, lawfully 377, the officers search 390 88 S.Ct. U.S. automobile, trunk, quoted in Rakas v. including (1968), Ross’s its with 19 L.Ed.2d 1247 Illinois, 421, 427, out a warrant. See United States v. Haw 99 S.Ct. 439 U.S. kins, Accord, Alderman v. (D.C.Cir.1978) (per (1978). 753 58 L.Ed.2d 387 denied, States, 165, 174, cert. curiam), 99 S.Ct. 89 U.S. 394 U.S. S.Ct. majority opinion accurately 1. The sets out the majority op. relevant facts of this case. See at

961, 966, may justified The de- tation when the defendant fendant must establish disputed that “the longer possesses no the searched item. search and seizure infringed has an interest Both majority and the dissent in Rakas of the defendant which the Fourth Amend- acknowledged “perhaps the Constitu- designed ment was protect.” Rakas v. provides degree tion some protection less Illinois, 128, 140, U.S. 99 S.Ct. personal for the freedom from unreasonable n.l, L.Ed.2d 387 See id. at 130 99 governmental intrusion when one does not S.Ct. at 424 n.l. possessory have a interest in the invaded To test whether officers’ search private place.” Id. at 99 S.Ct. at 442 paper of either the bag or the pouch leather J., (White, dissenting), quoted approv- invaded interests protected of Ross by the 146-47, inal id. at (majority S.Ct. at 432 amendment, fourth I look to expecta opinion). Similarly, Court has tion-of-privacy standard first enunciated in held in automobile cases that the character- States, Katz v. United U.S. cars, use, istics of the manner of their 507, 19 (1967), L.Ed.2d 576 especially Justice degree regulation of their dilute the concurrence, Harlan’s id. at justifiable expectation of privacy. See at 516-17. Maryland, Smith v. Chambers v. Maroney, 399 61 L.Ed.2d 220 1975, 26 (1970); Carroll v. Unit- Illinois, Rakas v. ed 430. An protected interest is if two (1925). Accord, L.Ed. 543 Arkansas v. present. First, elements are subjective as a Sanders, 2586, 99 S.Ct. aspect, the actually defendant must have 2591, expected preservation the of his privacy. case, however, In this we are dealing Katz v. United 389 at U.S. 88 with the search of a car but with the search (Harlan, J., S.Ct. at 516 concurring). Thus of two containers. inquiry Our must focus if the accused intentionally displayed the expectation reasonable privacy contents of his automobile to police, the he Ross had in the paper bag and the leather obviously did not expect the contents to pouch. containers, The contents of some remain hidden from view. See id. at those Supreme Court refers to as “com 88 S.Ct. at 511 (majority opinion). effects,” repositories] mon Second, personal objective aspect, the defend expectation entitled to an expectation privacy ant’s re must be society one that prepared gardless right of their location or the recognize as reasonable. That is, possess defendant must them. Arkansas v. 442 justifi have relied ably 753, 763-66, on a freedom governmental 2593-94, from in U.S. 61 trusion. Id. at (Harlan, 88 S.Ct. at 516 Luggage, L.Ed.2d 235 such as a J., concurring). suitcase, footlocker or inevitably “is asso expectation privacy.” ciated with the Id. cases, In most expectation extent of (emphasis added). 99 at 2594 S.Ct. is reasonable will depend upon the recognizes Because society luggage as a circumstances at the time of the search. personal sanctuary, presence its within a Court has taken several fac- car or having, lawfully public its fallen into tors into account: precautions taken to hands does not alter the reasonableness of preserve privacy, the manner in which the an expectation opened that it will not be person by claiming fourth protec- amendment Id.; Illinois, police. tion Rakas v. 439 has used the place searched, or item n.2, n.2, treatment 99 436 58 accorded place or item at (Powell, J., (1978) concurring). time the adopted Framers the fourth amendment, and Professor finally, Wayne LaFave has observed that applicable property rights. “p]n Chadwick, Illinois, See Rakas say Court was able to U.S. at infringement L.Ed.2d ‘substantial with re (Powell, J., concurring) (summarizing spondents’ possession’ use and the foot cases). earlier For example, a expec- locker, lower justified circumstances, by exigent cerning just nonluggage what containers respondents’ legitimate

‘did not diminish expectation that the footlocker’s contents require being a warrant before searched. ” LaFave, private.’ would remain 2 W. determine whether a We must therefore 5.5, at 365 Search Seizure § pouch may a leather paper bag or Chadwick, (quoting United States immediately proper after their sei- searched n.8, n.8, zure, if, luggage, they may only like Accord, (1977)). id. 5.5 § can ob- impounded until the officers (Supp.1980) by (analysis unaffected Sand- id. at tain a warrant to search them. See Mimms, ). Pennsylvania ers Cf. J., (Blackmun, at 2597 dissent- (1977) (per ing). curiam) (Court legality of or- examines dering stopped the driver of a vehicle out looking Ill by

his car to the incremental inva- privacy, given stop). sion of circum- I believe that absent unusual justified The same circumstances here, present the fourth amend- stances not justify search of Ross’s automobile also open- ment does not forbid the paper bag warrantless seizure of the ing paper bag properly once it is in their pouch, thereby depriving leather Ross of expec- analyzing privacy After hands. possessory rights, some of his tem- least paper bag lawfully by tation in a seized porarily. Our focus shifts to whether Ross amend- police, I conclude that the fourth reasonably expect bag that after the interest protect any privacy ment does not pouch police, were seized these bag paper in a closed but unsealed over and containers nevertheless would un- remain justified virtue privacy above the opened. differentiating In fourth amend- possession and control. containers, parcels, ment treatment of conclusion, traveling to this I am for- packages personal luggage, from that of portion path my tunate that a has been although Sanders Court stated that illuminated the federal and the state nonluggage need for a warrant to search already courts have dealt with related depend “upon does not they whether general, In of war- situations. invalidation automobile,”2 seized from an not all con- rantless searches has been confined to the types tainer full proteсtion “deserve the types normally of containers associated the Fourth Amendment.” Arkansas v. suitcase, Sanders, personal luggage: a a brief- 753, n.13, 442 U.S. 764 99 S.Ct. 2586, case, n.13, purse, bag, backpack, a a (1979). 2593 61 duffle L.Ed.2d 235 satchel, Court left us guidance gym bag, vinyl guitar without detailed con- or a case.3 (1) Montano, Consequently, police may capitalize Suitcase: United v. States 613 1980) curiam); momentary presence (6th (per on a container’s vehi- F.2d 147 in a Cir. United pretext MacKay, (9th 1979); searching cle as a States v. 606 F.2d 264 the container Cir. Crutchfield, 570, Chadwick, State v. 123 601 without a Ariz. P.2d 333 In the Court warrant. State, (Ariz.App.1979); Haughland opening v. 374 disallowed the police So.2d of a footlocker that the State, 1979); (Fla.App. Buday search, attempted although 1026 v. 150 Ga. had not 686, (1979); App. so, probable 258 S.E.2d 318 State v. Gaui had cause to do until the din, 19, (1979); N.C.App. 44 259 S.E.2d 779 defendant stowed the footlocker in the trunk of (W.Va. Virginia Tomey, Sanders, West v. 259 S.E.2d 16 probable a car. Kralik, 1979). Cf. United States v. 611 F.2d cause to search Sanders’ suitcase before it was 1979) car), (10th (warrant 343 to search placed trunk, Cir. in the taxicab Arkansas v. see denied, 953, 1603, Sanders, 2594, cert. 445 U.S. 100 S.Ct. 63 2586, 442 U.S. 99 S.Ct. DeRusha, (1980); State v. 74 Ill. J., L.Ed.2d 788 (1979) concurring (Burger, 61 L.Ed.2d 235 C. 641, 583, App.3d Ill.Dec. 393 N.E.2d 619 30 judgment), but the chose to wait. (search exigent (1979) permitted circum Nevertheless, due to although storing in a a container Plantefaber, stances); People Mich.App. v. 91 suddenly strip car does not owner of his 764, (1979) (exigent 283 N.W.2d 846 circum legitimate expectation privacy the con- stances). contents, presence tainer’s of a container Presier, may (2) an automobile United v. 610 allow the to discover Briefcase: States Morris, (4th 1979); possession and take without a F.2d 1206 F.Supp. Cir. Moran v. 478 of the container (C.D.Cal.1979) (dictum); search warrant. 145 In re

1175 bile, hand, open knapsack, taped generally other courts an electric ra- On the toolbox, permissible case, a found warrantless searches zor a closed but unsealed box, department store or a but when confronted with containers dissimilar closed un- luggage: integral part envelope.4 an automo- sealed 77, B.K.C., (D.C.1980); People Spencer, 74 A.D.2d 426 413 A.2d 894 Webb v. v. N.Y.S.2d State, Araj (FIa.App.1979); 1980) (sealed carton). (App. 373 So.2d 400 v. 605 Div. cardboard State, (Tex.Cr.App.1979). Mannino, F.Supp. 592 S.W.2d 603 Cf. See United States v. 487 508 White, (7th United States v. 607 F.2d 203 Cir. (S.D.N.Y.) (no expectation priva reasonable 1979) (exigent circumstances); United States v. aff'd, cy boxes), in unsealed cardboard 635 F.2d Calaendrella, (6th Cir.) (Chadwick 605 F.2d 236 Robbins, (2d 1980). People v. 110 Cir. But see denied, applied retroactively), U.S. cert. 444 34, Cal.App.3d (no Cal.Rptr. 103 162 780 rea 991, 522, (1979); 100 62 Unit L.Ed.2d 420 expectation privacy taped, plas sonable Garcia, (7th 1979) ed States v. F.2d 605 349 Cir. tic-wrapped package), granted, cert. 449 U.S. denied, (search arrest), incident cert. 446 1109, 916, (1981). 101 S.Ct. 66 L.Ed.2d 838 984, 2966, (1980); U.S. 100 S.Ct. 64 841 Daniel, (Alaska 1979) v. State 589 P.2d 408 (1) Integral part of the automobile: United search, (inventory decision based Alaska Dall, (1st 1979) v. 910 States Cir. constitution). denied, 918, cap), (camper cert. 100 (3) Miller, v. Portfolio: United States 608 1280, cf. United (5th 1979), denied, 1089 F.2d 926, Cir. cert. Ramapuram, (4th v. States 632 F.2d 1149 Cir. (1980). 1980) car). (junked (4) Ulesky State, 121 Purse: v. 379 So.2d Schrier, (2) knapsack: Unlatched v. State (Fla.Dist.Ct. App. 1979). 1979). (Iowa 283 N.W.2d 338 (5) Hlady, Or.App. Wallet: Cf. v. State 43 (3) Closed satchel: United States v. Milhol (1979) (search permitted 607 733 P.2d lan, denied, (3d Cir.), 599 F.2d 518 444 cert. being arrest). incident to (1979) 144 62 L.Ed.2d Johnson, (6) bag: Duffle United States v. 588 (three granted Justices would have the writ and (5th 1979). 147 F.2d Cir. Sanders). reversed under (7) Meier, Backpack: United v. 602 States (4) Taped Cooper electric razor v. case: (10th 1979). F.2d 253 Cir. Commonwealth, (Ky.App.1979). 577 S.W.2d 34 Marcum, (8) Gym bag: State v. 24 Wash. (5) Wyss Closed but unlocked v. toolbox: App. (1979). 601 P.2d 975 Cf. State v. State, (1977). 262 Ark. 558 S.W.2d 141 Hassapelis, (Me. 1979) (harmless 404 232 A.2d (6) department Closed unsealed store error). Neumann, box: United States v. F.2d 355 Benson, (9) bag: Tote States v. (8th 1978) (inventory permitted Cir. search be- (8th 1980); People Minjares, F.2d 1336 Cir. v. securely). cause boxes cannot be closed Cal.Rptr. 24 Cal.3d 591 P.2d Home, (7) Cigar box: In the Matter Isaiah denied, cert. N.C.App. 272 S.E.2d (8) Envelopes: United States v. (10) Little, bag: People Travel 598 P.2d (8th 1980); F.2d Cir. United States (Colo.1979) (en banc). Duckett, (5th 1978). 583 F.2d 1309 Cir. Bella, Guitar case: United States (9) Burlap Casillas, bag: State 393 So.2d (5th 1979) (per curiam). F.2d State, (La.1981); 694 Burkett v. 607 S.W.2d (12) DeLong, Camera case: State v. 43 Or. (Ark. 1980) (dictum). 399 App. (1979) (decided 602 P.2d 665 under Mannino, bags: Plastic United States v. precedent). Oregon combination of and (2d 1980) (plastic paper 635 110 Cir. F.2d and Dalton, But see State v. 24 598 Cal.3d Gooch, bags); United States v. 603 F.2d 122 467,157 Cal.Rptr. (1979) (closed P.2d 497 metal (10th Ficklin, 1979); Cir. United States v. 570 box), denied, cert. (9th 1978) (memorandum) (plastic F.2d 352 Cir. denied, burlap bags), and cert. 99 Although Dien, in United States v. 609 F.2d (1978), quoted (2d 58 118 1979), L.Ed.2d Stevie, Unit rehearing, 1038 Cir. adhered on (8th (2d 1980), ed v. 582 F.2d 1179 n.4 States 615 F.2d 10 Cir. the court held that a denied, 1978), 443 necessary Cir. cert. large warrant was to search three Duers, (1979); boxes, predicated State v. 49 cardboard the court its con- N.C.App. findings 81 v. 271 S.E.2d State plastic clusion its use of Januszewski,-Conn.-, tape (Conn. secreting to seal the 42 boxes and the C.L.J. 8 of Aug. 19, 1980) (garbage bag automobile); boxes behind covered windows an “manifested Flynn State, expectation v. (Fla.App.1979). 374 So.2d would contents remain State, public But see free from Liichow v. examination.” Id. at 1045. 419 A.2d 1041 (Md.1980) Accord, (manner Rivera, F.Supp. and United States v. circumstances of de- possession (sealed personal (N.D.Tex.1980) polyethylene belongings fendant’s plastic bag bags); White, (N.M.App. expec- State v. 615 P.2d demonstrated a reasonable (closed, privacy). 1980) bags); tion partially sealed and boxes Andrews, No. 79 Cr. v. In States bags United paper have looked courts Several 2, 1979), an un- (S.D.N.Y. a search Nov. (MJL) have concluded particular, In bag seizure. permissible paper after their a brown agent had seen dercover (9th Cir. Mackey, 626 F.2d 684 v. States from the liquid, of clear taken a vial bag beneath 1980), paper discovered a identified as which had been bag, seat of an automobile the front Later, surveillance, police ar- after “juice.” dis- Finding reason to side. no passenger’s searching While driver of a car. rested the justified sei- clearly tinguish between the trunk, ob- arresting officer the car’s of its con- bag and the search zure Searching paper bag. a brown served defendant did tents, held that the the court previ- vial officer found the bag, the paper interest privacy possess sufficient Al- agent. the undercover shown to ously the war- bag justify imposing paper v. citing Arkansas though of Chadwick Sanders. requirement rant suppress without a motion to denied court Goshorn, 628 F.2d 697 In v. United States search of the discussing the warrantless plastic two (1st 1980), police discovered Cir. State, (Alas- P.2d 1261 v. bag. In Clark bags which bags paper inside three brown rental car 1978), a search of defendant’s ka bags, plastic two other were further inside glove com- paper bag in the uncovered an automo- the locked trunk of all within warrant, po- without a partment. Still facts of rec- court held that bile. The bag and discovered it opened the lice officer defendant to establish that ord failed Affirming con- Clark’s contained narcotics. priva- possessed expectation a reasonable com- viction, the Alaska bags within the automobile cy in found and conclud- case with Chadwick pared this held that a war- Circuit trunk. Second privacy expectation ed that pa- brown search of a folded-over rantless than bag’s contents paper in a much lower bag plastic folded-shut per bag inside a Reaching the same con- in a footlocker’s. of an automobile located on the front seat State, clusion, v. in Webb violate the fourth amendment. the court would not Mannino, (2d F.2d 110 noted that there (Fla.App.1979), United States So.2d Furthermore, Cir- 1980). the Seventh Cir. had no reasona-

cuit held that a defendant the reason- arguable between differences paper expectation privacy ble in a brown might one privacy expectation able bag locked automobile located within a opposed to a bag as paper attach to a Jimenez, trunk. United States type. luggage of some briefcase 1980). In (7th Cir. United States repоsito- “luggage is a common Whereas 1980), Brown, (6th 635 F.2d 1207 Cir. effects, there- personal one’s ry for warrantless search upheld the Sixth Circuit ex- with the inevitably associated fore is paper bag of a found in automo- closed v. Sand- Arkansas pectation privacy,” ruling yet a sixth bile trunk. ers, not hold true same does supra, the point, appellate ‍‌​​​​‌​‌‌​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌‌​​‌‌‌​​​​‌​​‌​​​‌​‍court on this federal bags. paper upheld the warrantless search Fifth Circuit also found Id. at 403. Courts on the front floor- paper of a sack located bags, containers plastic opaque contents of an automobile. United board States entitled Sutton, (5th 1981). bags, to be comparable paper F.2d 96 although Sutton, 1979) (approved United States v. (11) Paper bags: without discussion People opinion); (5th 1981); v. 636 F.2d 96 Cir. United States v. Sanders cited elsewhere 892, Cal.Rptr. Brown, (6th 1980); Fick, Cal.App.3d 106 166 635 F.2d 1207 United Cir. 107 Cavegn, 717 Honigman, (9th (1980); 294 N.W.2d States v. 633 F.2d 1336 Cir. State v. State, 1980) (paper bag grocery bag); 1980); 574 P.2d 1261 (Minn. inside United v. Clark State, 1980); Mackey, (9th 1978); So.2d 400 (Alaska States v. F.2d 684 Cir. v. 373 626 Webb Jimenez, (7th (dictum). v. (Fla.App.1979) United States v. 626 F.2d 39 Cir. See United States 1980); Goshorn, 1980) (touch Portillo, (9th 628 F.2d 697 of United States v. Cir. 633 F.2d 1313 Vento, (1st 1980); bag States v. 533 paper Cir. United trunk revealed located automobile (3d 1976); handgun). v. An- F.2d 838 Cir. United States presence of 2, drews, (MJL) (S.D.N.Y. No. 79 374 Nov. Cr. 1177 used, person rights was and the expectation privacy property a lesser of than See, luggage. g., bag pages al e. United States v. time of the search. See Mannino, (2d 1980); Note, 635 F.2d 110 Unit supra. Cir. 4-5 also From See Private Ficklin, (9th 570 F.2d 352 Cir. Privacy: ed v. Places to Personal A Post-Katz States denied, 1978) (memorandum), cert. 439 U.S. Protection, Study of Fourth Amendment 43 (1978), 95, 118 99 58 L.Ed.2d S.Ct. (1968) (“The N.Y.U.L.Rev. 983-84 de- Stevie, 582 F.2d quoted in United States gree privacy of offered structural char- denied, 1978), cert. (8th Cir. n.4 1179 acteristics, walls, partitions such as is an 3102, 61 L.Ed.2d 876 443 important determinant of an area’s charac- Duers, N.C.App. (1979); State ter.”). State, Flynn S.E.2d paper bag If a of luggage, were a form (contrasting (Fla.App.1979) 374 So.2d my task simple would be a one: Sanders Sanders). requires a searching any warrant before precedent Recitation of does not itself piece luggage. Paper bags of differ from determine whether Ross continued to have personal luggage respects, in two material a expectation reasonable of privacy after First, paper bags however. offer at best paper bag his lawfully by police. seized protection against minimal accidental I rely my must also analysis own paper bag and deliberate A intrusions. can when legitimate expectation a of privacy open easily. presents fall or break It very container, given attaches to a so that absent no real obstacles to invasions the curious exigent circumstances, requires a search or the dishonest once it has left its owner’s warrant. As the Court declared possession. actual Because it is neither so Illinois, would, course, in Rakas v. “it permanent secure nor so forms of typical merely tautological to fall back on the no- luggage, likely its contents are much more tion expectations those privacy subject public to become than if display which legitimate depend primarily on luggage. the same items had been stored cases deciding exclusionary rule issues in Thus, it realistically is doubtful that one n.12, criminal cases.” 439 U.S. at 143 expect paper bag can to remain closed or Instead, S.Ct. at 430 n.12. “[ljegitimation intact, unrevealed, its contents at least if it expectation privacy by law must have has left its owner’s hands. United See Amendment, a source outside of the Fourth (9th Mackey, States v. Cir. either by reference to concepts of real or Neumann, 1980). Cf. United States personal property law or to understandings (8th 1978) (cardboard F.2d 355 boxes that are recognized permitted by socie- secure; justified). inventory search ty.” Id. Maryland, See Smith v. Second, paper bags inevitably are not as- (1979) expectation privacy. sociatеd with the (society prepared recognize expecta- Arkansas v. See tion of privacy in identity of telephone numbers called from another telephone). I Although paper bag may pressed into

therefore must decide what “sense of secur- effects, repository personal service as a I ity” should exist in society, and I must do so not believe a reasonable man would iden- part at least in do by looking at “the customs tify paper bag place as a normal to en- and values of past present....” White, personal possessions. trust his intimate States v. contrast, luggage general carry serves to (Harlan, J., clothes, toiletries, dissenting), and other items associat- quoted in 1 W. La- Fave, 2.1, living. Luggage typi- Search and ed with day-to-day Seizure at 231 § important Other cally portable in- functions as a closet and considerations drawers; precautions clude the preserve pri- taken to person chest it follows that a vacy, the paper manner in which the bag justifiably substantially maintain a

1178 Sanders, v. See Arkansas sible evidence. expectation privacy person- in his higher of 2586, 762, 99 61 L.Ed.2d bag.5 luggage paper al than in a Chadwick, 235; States whether, under We therefore must decide L.Ed.2d 538 case, had a the circumstances of this Ross general vul- paper bag’s a (1978). Because the expectation privacy of in reasonable expecta- suggests no reasonable nerability during that paper bag police the discovered seizure, see page after its privacy tion of search car. the lawful of the trunk of his 1177 supra, police justifi- and because the the had to believe that The officers reason this bag was not paper that ably believed was the for Ross’s narcot trunk warehouse items, po- personal store the being used to serving Thus was as more than ics sales. open violating lawfully could it without lice luggage the simply compartment. a When rights. amendment Ross’s fourth police a searching upon in the trunk came analysis, determination of bag, my there In the final paper was no indication that intimate, security” of should exist being private used what “sense carry was to Dien, general experi- upon be based items. See United States society 609 F.2d must in this rehearing, to on judgment. facts case adhered (2d 1979), ence and The Cir. Ross could not generally See (2d 1980). lead me to conclude that 615 F.2d 10 Cir. privacy of Cunningham ex v. Fol expectation harbor an United States rel. reasonably lette, existing bag beyond that due to cert. (2d 1968), paper 397 F.2d his denied, which is all enables possession, actual contents from Walker paper bag’s one a v. United (1969); protect to L.Ed.2d If, as the decision (D.C.Cir.1963), public exposure. denied, suggests, po- are the cert. there containers seizure,7 State, lice, proper a may open with- Liichow after warrant, bag (Md.1980).6 one out Ross’s must Md. 419 A.2d 1041 No a search I examples. agree best Thus disputes right among had the to compared to bag prevent of with Professor LaFave that seize destruction contents, is, luggage, “when pos- destruction of the warrantless search of its case, luggage approaching a borderline I would not rule that tion create a cautious, protected proper the fourth amendment. Because a and obtain would best society always luggage privacy, proceeding. associates before search warrant always protect the fourth must it. amendment I decisions inter- Court’s read This is not an characteristic intrinsic preting to state that the fourth amendment luggage application society’s legal but a of privacy objective expectation of evidence of an expectations quality, manifested extrinsic —an determining factor to be considered one speak. paper bag so to a is not a Bеcause privacy interest should be an asserted whether however, piece luggage, I must undertake give protected. attempts en- This note law general inquiry the more whether under guidance as officials some forcement particular sug- facts before us this container objective certain evidence with treatment gests expectation privacy. After exam- likely confronted. The to be which facts, ining those I have concluded that Ross’s opinion appears majority more interested paper bag expectation did not connote such an resulting problems mocking nec- Therefore, privacy. privacy there was no “line-drawing process,” essary Arkansas protect. interest for the fourth amendment 442 U.S. at employed 6. There was no that Ross evidence any offering instruction or than in paper bag luggage, a substitute nor guidance. any do the facts and circumstances manifest If, special expectation privacy. example, majority opinion’s irrelevant reference to paper bag had found amidst carry belongings shopping their those who luggage, suitcases or other there would have n.30, misappre- op. majority bags, at 1184-1185 stronger bag a been indication that Only analytical point. after basic hends this pressed repository personal into service as a container, pursuant seizure valid Similarly, paper effects. if Ross sealed the exception within well-delineated warrant or shut, bag manifesting special expectation legality requirement, must warrant privacy, of a search intrusion would be addressed. of a search negligible been more than and a search warrant might required. any well have situa- been

1179 away. Pre- a substantial distance later and things as are such effects the [searched] 364, 367, States, 376 U.S. 84 inter- v. United bags, possessory ston paper coats 881, 883, (1964). much less dis- 11 L.Ed.2d 777 See interest are privacy S.Ct. est Chadwick, tinct, to conclude 433 it is thus far easier v. generally United States protected 1, 15, 2476, 2485, is not [privacy] interest 53 L.Ed.2d 97 S.Ct. U.S. exigent California, whenever Warrant Clause v. 538 Ghimel intrusion 2034, 2040, allow a warrantless 752, circumstances 23 L.Ed.2d La- 2 W. upon [possessory] interest.” (1969). 5.5, Fave, at 365 and Seizure § Search of agree majority with the that none I Accord, (Supp.1980) (analy- 5.5 id. § and well-deline- “specifically established Sanders). sis unaffected States, 389 exceptions,” Katz v. ated United 514, 507, 19 L.Ed.2d U.S. IV (1967), ap- requirement to the warrant pouch, respect to Ross’s red leather With to follow and that failed plied “ pages directly. controls See Sanders justification of antecedent procedure ‘the lug- type personal of supra. As a magistrate that is central before a pouch, in the words gage, v. ....’” Osborn Fourth Amendment itself, repository for one’s is a “common U.S. effects, inevitably and therefore is personal (1966) (quoting expectation privacy.” with the associated Price, 364 ex rel. U.S. Ohio Eaton Arkansas v. 1463, 1468, 4 L.Ed.2d 1708 (1979). Ab- Brennan, J.) (equally di- (opinion a valid warrant or one of the few sent Court)). currency found vided recognized exceptions, any evidence secured sup- should have been pouch red leather pouch from the leather should be excluded as evidence.8 pressed determining culpabili- when Ross’s criminal ty- V attempts bring The Government noteworthy that Although certainly it is pouch warrantless search of the leather warrantless confronted with the every court exception within the for searches incident bag, save for this court paper search of a attempt a lawful arrest. The fails. Ross search, pages see upheld the today, has challenge search of his does 1176 and note 4 supra, my analysis of person any object or of associated with his searches based on the container involved person at the time of his arrest. Unit- See offering any per be construеd as should not Robinson, ed States Rather, recently this court rules. as se When Detective en- stated, law each encounter between Cassidy pouch opened seized the and later unique, “is officers and citizens forcement police headquarters, it was far measuring involving weighing reach Ross’s and in the exclusive control United States contrary indicators.” police. danger There was no Ross White, (D.C.Cir.1981). at 34 might gain pouch access to the and retrieve totality We continue to examine must weapon or destroy evidence. The in each case. As I circumstances

officers no reason to believe that precedent, interpret current pouch contained explosives any other objective indicia duty is to search for might prove item that hazardous to them- our privacy that signalling expectation public. selves or to the Ross’s arrest cannot accept reasonable. society prepared excuse a search made a substantial time having thus unable to committed. We are 8. The counsel conceded at oral Government’s $3,200 argument currency of the evidence as harm- excuse introduction found James, See, g., pouch e. United States was essential to the less error. Government’s (D.C.Cir.1972). charge distribute, possession 473 F.2d 115 narcotics intent crime Ross was convicted state, I have what some decisions Markland, (2d Despite F.2d 174 v. United States subse- agreeing in difficulty Mannino, great 1980); United States pouch bag and the looking into the quently 1980). (2d Cir. F.2d 110 determined to be top from the should part conviction rested Because Ross’s is the constitutional “unreasonable” —which obtained on evidence IY, Having Amend. U.S.Const. standard. search, I would re- through an unlawful the small bag and paper properly seized and remand the case verse the conviction acted unrea- would have pouch inconsistent proceedings not further if had not mere- opinion sonably my opinion. with this ly looked inside. MacKINNON, (dissenting). Judge Circuit dissenting: ROBB, Judge, Circuit opinion to Judge Tamm’s I concur with dissent with Judge Tamm’s I concur in that it holds the examination the extent As for the leather bag. regard paper to the I bag legal. was paper the inside of the I think the only because I concur pouch Judge Wilkey’s opinion also concur compelled by reaches is Tamm Judge result extent that it holds that Arkansas Sand- Court. recent decisions ers, 2586, 61 L.Ed.2d I must add that respect however great With retroactive- applied should not be nojt make sense. It does to me this result ly- search-re- which creates a rule follows from It is pouch. I examined the leather in an area compartments cells or sistant X 2" money pouch, square, 7" 8" small subject to search. In lawfully otherwise soft, bottom, at the made of red leath- wide right an automo- to search my opinion I would not zipper along top. er with a open any right should include bile poiich automobile, place paper bag just or the small found within container Cf., luggage”. category “personal lawfully arrested search a right as the my at 2594. In to examine right with it the prisoner carries opinion applica- envelope are not luggage any cases his wallet and the contents of fact, paper bag, search respect right ble. with pocket, found in his and cartoonist, prominent Reggie open and strip authority room includes character, found Smythe, Andy Capp, and containers had his search all the drawers to extend joke Andy Capp: make a such within It is reasonable the room. claim — envelope, and to the wallet your “Where’s mother off to?” Flo: “She’s a lawful search room, in a drawers and containers stayin’ days.” with Auntie Ada for a few and to reasonable to extend now, equally I think it Andy: goes “There she down to the containers in search to a lawful automobile luggage.” bus station with ’er matchin’ “Yeah, the automobile. luggage?” Andy: Flo: “Mаtchin’ two bags supermarket.” carrier from the “expecta- respect I find Again with cry The factual situation here is a far It condi- impractical. privacy” test tion the locked footlocker in United States upon the right to search tions an officer’s Chadwick, 433 U.S. challenging man feeling of the subjective feeling as upon such at least the search —or enter- reasonably might he judge thinks bag pouch The seizure of the causes amorphous This standard tain. supported by probable cause and was rea and confusion continue to cause doubt will sonably justification related to for the officers and courts. among law-enforcement stop very strong probable which was cause. Cf., Cortez, United States v. WILKEY, dissenting: Judge, Circuit (1980); Terry opinion Ohio, 1868, 20 well-reasoned In her careful and Ginsburg convine- Judge majority, Post, Washington June properly charged ingly analyzes may knowledge, state of the current Su- preme precedent controlling our deci- the search was unconstitutional under today. majority sion I concur with the the Fourth Amendment.”6 It is no secret ruling its conclusion that the Court’s in that at Cassidy opened the time Detective us, compels Arkansas v. a lower Sanders1 bag Ross’s pouch leading the nation’s court, to hold that a warrant is now re- lower courts and commentators were admit quired may open before a officer ting puzzlement regarding how the Su opaque dis- shape container whose does not preme ultimately Court would resolve the probable contents, close its even if the con- issue finally by addressed it in Sanders7 tainer has war- during been found a lawful we impute So would have to to Detective rantless search of an automobile. Cassidy nearly supernatural powers to see holding But no matter how correct this charge the future before we him with be, pending seems to further clarification knowledge that his conduct was unconstitu by Court, Supreme should not be we tional. The windfall benefit exclu making today.2 this decision This case sionary remedy thus should not be extended should major have been decided without a to Ross and the evidence uncovered Cas pronouncement constitutional from this sidy subject post should not be the of ex prevent unnecessary court. To constitu- facto suppression. tional decisionmaking, Supreme opinion In Part I of the that follows I has directed the lower po- courts decide why majority plainly gra- show errs in tentially dispositive concerning issues tuitously conferring advantages on Ross the application retroactive of the exclusionary Then, Sanders. having been forced to remedy passing before on to substantive address questions majority’s the merits deter- of constitutional law.3 But the majority today mination my applies retroactively, dismisses —in view incor- that Sanders rectly government’s position that why I set forth in Part II I judge believe a —the benefits of the Sanders rule are not retroac- sitting on agree a lower court must tively available to Ross.4 the majority’s ap- conclusion that Sanders plies paper bags. III Finally, Part I The majority has stumbled over opportunity presents take the case this retroactivity hurdle. Under the standard again devastating underscore once im- enunciated the Supreme Court in United pact the exclusionary remedy has had on us, States v. binding Peltier5 and “evi justice dence the administration of the obtained criminal from a search should be suppressed only system. if it can The elimination of this ill-con- be said that law enforcement officer knowledge, ceived long anachronism is now overdue. raised, 1. 442 deciding retroactivity U.S. 61 L.Ed.2d 235 doctrine are (1979). issue first.” Bowen v. enlightenment may 2. Further be swift in com (1975). ing. case, argument Since we heard oral in this Supreme granted Court has certiorari Majority opinion (Maj. 4. op.) at 1162-1164. involving two search and seizure cases contain Rоbbins, People Cal.Rptr. ers. 5. 422 U.S. Cal.App.3d (Ct.App.1980), granted, cert. (1975). People Belton, 50 N.Y.2d 429 N.Y.S.2d Id. at at (1980), granted, 407 N.E.2d 420 cert. The fact that example, Court action in these 7. For Prof. LaFave wrote at about the pending two cases is now underscores the ex time the events with which we are con- unnecessary pronouncements tent to which our impossible predict cerned here: “It is how today are ill-advised. the court would decide case like Sanders [a ].” LaFave, 7.2, 2 W. Search and § Seizure appeals “[T]he district courts and courts of 538-39 See the I discussion Part practice, should follow our when issues of both below. retroactivity application of constitutional Cassidy pouch,10 red could not leather THE RETROACTIVE REACH

I. knowledge, or SANDERS possible prop- “had ... have OF knowledge”11 erly charged with be[en] set II of While for the reasons out in Part a car opening found in without containers agree I with the opinion majority held to violate the warrant later be would Sanders suspect established that a has official cannot be Constitution. A right to have ob- constitutional something he doing could not deterred from they open before tain warrant a container unlawful. Under the con- known was car, during found a search of a I do not trolling precedent,12 I ac- Supreme Court agree appellant us is enti- before cordingly hold that the evidence Cas- would rem- of the exclusionary tled to the benefits sidy properly was admitted obtained edy for violations of the rule that Ross’s trial. before Sanders occurred The decided. exclusionary remedy right is not a personal Retroactivity Significance A. claim;8 merely lay which Ross can In Sanders the judicial Supreme expanded Court attempt to remove whatever incen- scope right mis- the to a warrant under might tive there otherwise be to conduct.9 Because Sanders had not yet the to cover containers Fourth Amendment the during integral been Detec- found a lawful search of evening decided when the Cassidy opened paper bag parts tive Ross’s of an automobile. case before brown Powell, 465, 486, unconstitutionally 8. Stone v. 428 U.S. 96 S.Ct. seized evidence without 3037, 3048, (1976) (“Post-Mapp objection by 49 L.Ed.2d 874 or over his assent. the defendant “flagrantly decisions have established illegal,” that the rule is not a Even when a search is personal right. 727, 729, constitutional calculat- It is not Payner, 447 U.S. United 100 States injury privacy ed the to to redress the 2443, 2439, (1980), 468 S.Ct. 65 L.Ed.2d seizure, any ‘[r]epa- victim of the search or for 733, criminal,” “possibly 101 id. at at S.Ct. (cid:127) late.’) (citation omitted); ration comes too 2445, the evidence has ruled obtained Court Calandra, 338, 348, United States v. 414 94 U.S. cannot if the lacks be excluded defendant 613, 620, (1974) (footnote 38 L.Ed.2d 561 S.Ct. omitted) (“the standing. Id. judicially rule is a reme- created dy designed safeguard to Amendment Fourth Powell, 465, 486, 9. Stone v. 428 U.S. 96 S.Ct. effect, rights generally through its deterrent 3037, 3048, (“The (1976) pri- L.Ed.2d 874 49 personal right rather than a constitutional mary justification exclusionary for the rule States, party aggrieved”); Elkins v. United then is the deterrence of conduct that 206, 217, 1444, 1437, S.Ct. rights.”); violates Fourth Amendment Elkins (1960) (“The L.Ed.2d 1669 prevent, rule is calculated to States, 206, 217, 1437, United 364 U.S. repair. purpose not to Its is to deter— 1444, (1960). 4 L.Ed.2d 1669 compel respect guaran- to for the constitutional ty only effectively way by available — important chronology 10. The events is to removing disregard it.”). the incentive to (1) Supreme what 21 June 1977 the follows: on often While the Court has that the reiterated of United decided the case States exclusionary remedy right is not a to which a 2476, Chadwick, 1, 97 433 U.S. 53 L.Ed.2d entitled, defendant is if has also held that the (1977); (2) ap- 538 pellant, on 27 November exclusionary remedy is not to a de- available Ross, his Albert was arrested and rights fendant whose own Fourth Amendment have not been violated. paper bag pouch brown searched, and red leather See, g., e. 2; Appellee (3) for on 9 Brief Salvucci, 2547, 448 U.S. States v. 100 S.Ct. February pretrial held 1979 the district сourt (1980) (“defendants 65 L.Ed.2d 619 hearing suppress motion to evi- on Ross’s charged possession may only with crimes of posses- dence sions, search of obtained from the his exclusionary the benefits of the claim rule if 1; (4) id. at on March after a rights their own Fourth Amendment have in convicted, 1-2; trial, three-day Ross was id. violated”); Illinois, fact been Rakas v. 439 U.S. (5) 20 June Court decided 421, 425, 134, 99 S.Ct. 58 L.Ed.2d 387 Arkansas v. 422 U.S. 99 S.Ct. (“it proper permit only is to defendants (1979). 61 L.Ed.2d 235 rights whose Fourth Amendment have been [exclusionary] to from violated benefit Peltier, 531, 542, 422 U.S. United States v. protections”); States, rule’s Brown v. United 2313, 2320, (1975). Alderman v. United Peltier, 22 L.Ed.2d United States v. Moreover, courts will not exclude us, course, majority majority, has felt it did address the of this court neces- but, its retroactivity question deter- reach whether sary question to Ross’s first,17 applies retroactivity mination that Sanders paper bag type brown is a container of a plainly Unfortunately, error. this er- mandate, subject Sanders and to hold compounded provides ror is in that is.13 But Ross himself that before can necessary permit excuse majority questions benefit Sanders other two reach constitutional issue we could have must be answered in his favor: it must be day. left another decided, first, right announced in applies retroactively pre-Sanders Sanders Controlling B. The Precedent: United searches, so, exclusionary and if States v. Peltier remedy right are also violations of that admits, As the majority opinion the Su- retroactively. available preme Court in United held States Pelti- give we Admittedly, the answers to these expanding scope er “decisions questions in will be long run of lesser should have exclusionary prospec- rule significance holding to which effect The Peltier opinion than the tive only.”19 key determining whether the exclu- today its energy court directs most of —that sionary remedy applied should be retroac- applies It paper hardly Sanders bags.14 tively to in violation searches of Sanders. needs be said the conclusion that is thus recalling It worth in some detail applies will be retroactively disposi- what the Peltier court decided. tive of cases relatively arising few Peltier guidelines announced useful for from occurring during events a limited application the retroactive of the exclusion- stretch of time. ary doing rule in remedy, but so it did not Nevertheless, were we to find that the It merely create new doctrine. codified exclusionary remedy for violations of the what had been previously piece- decided Sanders rule is retroactively, not available Peltier, prior meal. For the Court the outcome of Ross’s case could be deter- noted: mined without reaching the broader consti- every which case in the Court [I]n ha[d] question majority today tutional the ad- in retroactivity problem addressed the dresses, and on which I therefore have felt rule, exclusionary context of the obliged to prevent just write. To this sort whereby concededly relevant evidence unnecessary constitutional decisionmak- excluded in order enforce a constitu- ing, explicitly Court has di- guarantee tional that does not relate rected us follow practice deciding integrity factfinding process, of the retroactivity possi- issues first whenever any Court ... concluded that such otherwise, Were this do court to it new principle constitutional would be ac- ble.15 would not only corded disobey only prospective the mandate of the application.20 Supreme Court, but demonstrate it In Peltier the Court little more than set did misunderstands proper constitutional in a single opinion forth basis role of the federal courts.16 string unbroken of decisions.21 op. Maj. at 1171. 13. (1976); How.L.J. 159 13 Am.Crim.L.Rev. 317 14. Id. Maj. op. 19. at 1162. supra. 15. note See (citations 422 U.S. at 95 S.Ct. See, g., TVA, e. Ashwander omitted). 346-48, 80 L.Ed. 688 (1936) (Brandéis, J., concurring). Court, id., Walker, 21. The cited Linkletter v. Maj. op. 381 U.S. L.Ed.2d 601 at 1162-1164. (1965); Jersey, Johnson v. New 18. 422 U.S. 45 86 Stovall commentary Denno, For on Peltier see 19 18 L.Ed.2d rule, pillars exclusionary functional repeatedly why To the Court had show conclusion, “the introduc- Rehn- observed that the same Justice first come to Court func- quist principal recounted the two been seized first which had tion of evidence exclusionary remedy: good-faith tional bases enforcement officials law judicial integrity”22 (1) “imperative constitu- then-prevailing compliance with not “accom- demanding that courts become the courts norms not make tional [does] aof Con- plices in the willful disobedience of a willful disobedience ‘accomplices in the ”27 uphold”23 sworn to stitution uphold.’ sworn to they are Constitution trial of evidence un- permitting the use at noted, regard to Court then The obtained; “deterrent lawfully exclusionary remedy, aims of the deterrent exclusionary rule” purpose served pur- action was the official that “[w]here removing incentive unlawful ... the deter- complete good faith sued the exclusion other- behavior. Because its force”28 much of rence rationale loses primary wise reliable evidence obstructs the “necessarily assumes because trial, factfinding function of a the Court willful, at the or engaged application the retroactive concluded negligent, least conduct.”29 very always exclusionary remedy should balancing concluded that Court therefore balancing be of a test based outcome admission always requires of interests weighing disruption of accurate fact- where the retroactivity cases evidence benefits of the finding against probable reliance in reasonable officer involved acted In the exclusion evidence. Court’s author- legal prior pronouncements exclusionary words: “Whether or short, rule the Peltier itative sources. depends on applied rule be ... should is: obtained binding on this court “evidence judicial in- whether considerations of either only if suppressed be from a search should tegrity or deterrence Fourth Amendment enforcement be said that the law can sufficiently weighty re- violations are knowledge, may properly officer quire unquestioned evidence “re- that”25 knowledge, the search charged with excluded. liability relevancy”26 the Fourth was unconstitutional under The Peltier set out the Amendment.”30 courts, weighed to be future interests balancing but itself undertook a threshold and Detective The Peltier Standard C. to competing considerations order Cassidy’s Search identify those situations in which the func- decide, then, is key question we must exclusionary purposes tional rule are Cassidy, opened when whether Detective he always so little served that balance paper leather bag brown red compels Ross’s admission of otherwise reliable and knowledge, pouch, possibly have “had Examining relevant evidence. in turn both 80, 539, (1967); Alaska, at S.Ct. 2318. 1199 Fuller v. 393 U.S. 89 25. Id. 95 at 61, (1968); 21 212 Desist S.Ct. L.Ed.2d v. Unit- States, 244, 1030, Walker, ed 394 22 U.S. 89 S.Ct. (quoting U.S. 381 26. Id. Linkletter Delaware, (1969); 248 L.Ed.2d Jenkins v. 395 618, 639, 1743, 1731, 14 601 L.Ed.2d 85 S.Ct. 213, 1677, (1969); 23 253 89 S.Ct. L.Ed.2d (1965)). States, 646, Williams v. United 401 U.S. 91 1148, and Hill v. S.Ct. L.Ed.2d 536, (quoting at Elkins Id. at 27. 797, California, 1106, 401 U.S. S.Ct. 1437, States, (1960)). 4 L.Ed.2d 1669 (quoting 22. at 422 U.S. 95 S.Ct. at (quoting Michi- S.Ct. at 2318 28. Id. States, 206, 222, 80 Elkins v. United 364 U.S. 433, 447, Tucker, gan 1437, 1446, (1960)). 4 L.Ed.2d 1669 (1974)). (quoting 23. Id. Elkins United 29. Id. (1960)). 95 S.Ct. at Id. Id. simple.35 or ... The facts of Chadwick are properly charged with knowl- be[en] him, edge” Unknownst Chadwick was in the that his actions violated the Constitu- company government agents when he tion. I conclude he could not have been so met the train accomplices on which two charged. To why, understand it is neces- Diego travelled from Boston San with a sary put the state of the law on 27 containing double-locked footlocker contra- Cassidy November when searched band. As he partners and his two in crime trunk, perspective. Ross’s into began loading the footlocker into the trunk Detective Cassidy opened Ross’s trunk car, parked agents, ample of his fifty-three years Supreme after the Court cause, probable seized the footlocker and authorized warrantless searches of automo footlоcker, arrested all three. The reduced biles in Carroll v. United and sev States31 agents’ possession exclusive and con- enteen months after the Court decided trol, was removed to Building, the Federal United States v. Chadwick.32 While Chad and, after one-and-one-half hours had merely wick held required that a warrant passed, searched without a warrant. At a before open personal luggage can pretrial suppression hearing, Chadwick at- seized under circumstances in which exist tacked the ‍‌​​​​‌​‌‌​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌‌​​‌‌‌​​​​‌​​‌​​​‌​‍warrantless search on the basis ing exceptions requirement, to the warrant it had his rights violated under the including exception, the Carroll cannot be Fourth Amendment.36 invoked, way and thus in no directly in litigation When this the Supreme reached volved the exception,33 Carroll it is nonethe Court, government seized on the case as less of significance some here because it separate chance to offer the Court three evidently set people, including some some opportunities expand government’s courts, speculating Supreme right to conduct searches without a war- might Court prepared to cut back on the First, government rant. argued the exception by Carroll removing from its am position rather extreme the “Warrant bit containers during found a lawful war protects only Clause interests traditionally rantless search of a car. Because Chadwick identified with the home.”37 Had the pivotal must be the point any reasonable view, accepted government’s argument that Detective Cassidy should right to search without a warrant would somehow have been sufficiently prescient to expanded encompass have almost all situ- predicted Sanders,34 necessary closely ations not dwelling. linked to a closely to just consider Second, what Chadwick in government argued that accomplished. fact exception requirement to the warrant level, Chadwick, 31. 267 U.S. 69 L.Ed. 543 United States v. (1st 1976), 778-79 nor at the level, Chadwick, Court United States 32. 433 U.S. 53 L.Ed.2d 538 1, 11, 2476, 2483, U.S. (1977). 53 L.Ed.2d 538 (1977). government initially sought 33. The origi- at the the pretrial suppression 1162-1164, arguing that hearing nal justify Maj. 34. op. to the See at opinion “br[oJk|eJ search in Chadwick on the basis of the for the Court in Sanders no Carroll exception. Chadwick, ground” explained “simply States v. new but rather F.Supp. (D.Mass.1975). applied place The district in doctrine welded since Chad- court, however, granted the defendant’s motion wick.” suppress. government to Id. at 773. The then asking filed a motion the district court to re- Chadwick, 35. See United States v. grant consider and to vacate its of the defend- 3-5, 2476, 2479-80, suppress, ants’ arguing motion to this time that justified the search was as a search incident to government an arrest. Id. at 773-75. The Chadwick, F.Supp. 36. United States v. attempt bring abandoned its to the search with- (D.Mass.1975). Carroll, again pur- the ambit of and never theory ensuing litiga- sued the Carroll in the Chadwick, 37. United States v. exception tion. The auto search was ar- by gued government the at the circuit court Supreme Sophisticated observers includes the incident to an arrest searches Court, observers of not unlike astute “any property possession in the search of Kremlin, however, attempt to draw as long as person public, a arrested in so there meaning from whatever proper- possible much as probable cause to believe that they might think they or evidence of subtle nuances ty contains contraband opinions. detect Court adopted this theo- able to crime.”38 Had did not unnoticed that Justice ry, exception go for incident it searches So response had from an- grown have to include even Blackmun drawn arrest would Justice he wrote in dissent place or from the other when searches “remote time agents postponed had Finally, government argued that arrest.”39 Chadwick “if longer by Carroll, automobile, arrest a minutes until analogy to the few drive company] started to exception requirement to the warrant [Chadwick seized, have been objects away, then the car could warrantless searches of other mobile office, agents’ and all its con- do not offend Fourth Amendment.40 taken including accept the footlocker —searched persuaded Had the Court been tents — response, In Justice argument, the automobile search ex- without warrant.”42 Brennan, in a himself concur- ception replaced writing would have been excep- opinion, answered Jus- personalty” much broader “mobile rence to Court’s “it stating that is not at tice Blackmun tion. agents legally could all obvious that Court, however, rejected all three The footlocker had have searched the government attempts rights its expand suspects] had driven it after seized [the warrant, leaving to search without a search with it car.”43 This com- away in their and seizure where it stood before. Two law ment, suggestion with the together taken points analy- Chadwick critical to our about disclosing that Chadwick be read sis the state of the law at the time Ross’s adopt the view preparing the Court was (1) trunk was searched be noted: should special personal luggage is entitled way in no the Carroll Chadwick involved Amendment, protection under the Fourth exception requirement. to the warrant stage flurry litigation set the for a exception simply car search was not in the courts. lower Indeed, (and government did not case. it;41 decided, not) day sup- sensibly could On the invoke Chadwick litigation cut of this any previous- port Chadwick did not back on two sides ly up as follows. On exception endorsed to the warrant re- been lined rather, quirement; longstanding in favor view represented refusal record expand government’s containers in a car come under the Court found rights exception to search a warrant. were not the two without Carroll short, (Justices when Chadwick was decided it would Justices dissent in Chadwick quite Rehnquist) have been to conclude but also the ex- reasonable that Blackmun nothing holdings to do four plicit with the automobile of at least Circuit Second,44 Fifth,45 exception Appeals, search at all. Courts (Brennan, 38. Id. at 2486-87 Id. at 97 S.Ct. at J., concurring). (quoting Id. at Preston 364, 367, 881, Tramunti, 1087, United 376 U.S. 84 S.Ct. 513 44. United F.2d States v. 883, (1964)). 11 L.Ed.2d 777 832, (2d denied, Cir.), 423 1104-05 cert. U.S. 96 54, (1975). 46 S.Ct. L.Ed.2d 50 40. Id. at 97 S.Ct. at 2483-85. Soriano, (5th 497 F.2d 45. States v. 147 supra. 41. See note 33 1974) (en banc), Cir. aff'd sub nom. United Aviles, (1976) (mem.), States v. 535 F.2d 658 1, Chadwick, 42. United States v. 22- 433 U.S. denied, cert. 97 53 433 2476, 2489-90, (1977). 1095 J., (1977) (Blackmun, dissenting). Seventh,46 as a him suffi- permitted and the Ninth.47 On the duties detective side, favoring position that con- other keep up time to minute with cient tainers found in a car are not covered very judicial pronouncements, latest Carroll, only possible a be found read- just from the of Columbia courts District ing Chadwick and Justice Brennan’s hint country, from all around and even response in his to Justice Blackmun. assuming interpreting further that in those By Cassidy sophisti- he the most the time Detective searched decisions had access to trunk, however, Circuit,48 Eighth Ross’s lawyers proce- in the of criminal cated field Court for the United States District Con- dure, is it conclude that on 27 reasonable to necticut,49 and two courts50 had en- state Cassidy “had November 1978 Detective view to be ultimately dorsed the vindicated knowledge, may properly [have] be[en] decision, by while the Ninth charged his search knowledge”53 support had reiterated its Circuit51 paper bag pouch Ross’s was uncon- previously pre-Chadwick view of unanimous not, every unless faint Surely stitutional? explic- Circuit Appeals those Courts of emanating from the Court of hint had itly question. considered the Mean- possible forthcoming position, pro- a shift while, the best commentary informed gains judicial support vided some some- concluded that in view Chadwick it was where, against is to standard become the longer possible no to determine how the which to be measured. If conduct is Supreme Court would treat matter. so, “law” which a officer LaFave, treatise, Prof. known his well promulgated rely entitled to is that published at about the time Detective Cassi- country, most extreme in the courts opened dy trunk, Ross’s summarized the a pending definitive statement from the impossible situation as follows: “It Supreme Court.54 predict how the Court would decide case [a Sanders], reasoning like Chad- attributing To absurdity see the wick and the Court’s car search cases does Cassidy foreknowledge Detective point all single in a direction.”52 Sanders, might speculate outcome we I submit that legal if the answer to the moment if happened what would question governing Detective Cassidy’s con- Cassidy, Detective when he confronted impossible LaFave, duct was for Professor paper bag pouch, Ross’s leather was equally least impossible for Cassi- accompanied visiting “judicial squad” dy- composed Judges Friendly, Circuit Mans- field, what and Meskill If reasonably expect can we of the Second Circuit. So Detec- Cassidy may permitted tive to have of this we draw conclusions made confusion assuming in the courts? Even that his from the outcome of United States Issod, (9th 46. United Finnegan, States v. 508 F.2d United States F.2d 637 51. denied, (7th 1974), 1977). Cir. cert. Cir. (1975). L.Ed.2d 783 7.2, LaFave, 2 W. Search and Seizure § Evans, 47. United States v. 993-95 (1978). 538-39 (9th 1973). Cir. Peltier, 53. United 422 U.S. States v. Stevie, (8th 48. United States v. 582 F.2d 1175 1978) (en denied, banc), cert. Provided, course, district court or jurisdiction circuit in which the court Vallieres, F.Supp. 49. United States v. has not officer finds ruled on the himself (D.Conn.1977). question. Presumably, police officer is enti- rely tled to on the decisions of the federal Shingleton State, Md.App. jurisdiction, regardless rul- courts his State, A.2d 1134 Sanders v. 262 Ark. ings of courts (1977), elsewhere. 559 S.W.2d 704 aff'd sub nom. Arkansas (1979). suitcases, and Ochs,55 flight other con- bags, case Circuit decided after a Second search, tainers automobiles.... Cassidy’s Cassidy Detective removed precedents in such a advicé, Clearly, when the been to this group able to turn for law offer so constitutional crucial area of judges likely two of the three would is difficult to guidance little told him that he did not need a warrant opposite results on the choose between open he had Yet the containers found. our reasoning, ability to superior basis of today majority charges Cassidy with the severely hampered.56 dispense justice is knowledge he did need a warrant satisfy the Constitution. Nonetheless, majority finds that today the “charged Cassidy Detective should position imagine We that the of the third outcome Sanders.57 knowledge” of the judge three, Meskill, Judge of the Circuit agnostic, company would has in sure, majority have been for in Ochs he To be question. explana- ap- refused to reach the In that Sanders should its conclusion tion, he set the following forth admirable Recent Second and plied retroactively. description of the state of the law at that have come to the opinions Ninth Circuit majority time: Like same conclusion.58 court, in Dien59 has Circuit the Second Rehnquist Cady Justice in observed law, made no new concluded that Sanders governing Dombrowski that the law war- addition, retroactively. In applies and thus seizures, especially rantless searches and Circuit Dien and the vehicles, both Second involving something those “is MacKay60 draw opinion Ninth Circuit less than a seamless web.” So serious ap- that Sanders support position years Cady confusion six after plies retroactively from fact fairly can be said that the law in this area legality search whose was liti- warrantless developing any predictability without prior gated place took or even discernible direction. Warrant- Supreme decision in I Court’s Chadwick. virtually less vehicle search cases no shed will light examine these contentions turn. which, on fact situations if one were attempt apply usual methods of Prospectivity Proper 1. The Test legal reasoning, would seem to be distin- guishable only on the basis trivialities. majority With I respect, believe precedents Thus the cast shadows rather the Dien court have this court as well as light, than making the resolution of each applied in confused the test to be retroac- succeeding case less rather than more cer- involving exclusionary tivity cases tain. rule standard the Peltier with the decision years

In two rule applied exclusionary since the set forth to be involving Court held unreasonable the the retro- warrantless cases. In situations search of a footlocker exclusionary removed reme- application federal active agents automobile, from the trunk dy, prospective appli- limited to decision is the lower federal courts each of two tests.61 have been unable cation if it meets approaches harmonize their is a test these two threshold searches The first of Dien, (2d (2d 1979), 55. 1254-55 F.2d 595 F.2d Cir. Cir. cert. 58. United States denied, 1980), aff'g rehearing F.2d Judge MacKay, (9th Friendly Ochs wrote for States 1979) curiam). (per the court “we ... rest our decision on the ground impair that Chadwick did not Cham ” Ochs, bers .... Id. at 1255. The facts in 59. at 11. F.2d were, course, not identical to the facts present case. Id.; 60. F.2d at 265 n.2. (Meskill, J., concurring) (cita- Id. at 1262-63 summary For a succinct and useful omitted). tions application regarding law the retroactive rulings, constitutional see 13 Am.Crim.L.Rev. n.5. Maj. op.'at 1163 however, quickly application, which eliminates new sub- five only ap- those is now seriously stantive decisions that should not plied retroactivity cases not involving the be prospective considered for limitation to exclusionary remedy; Supreme Court effect. This first test was set out announced approach a different to be used Supreme Chevron Oil Co. v. exclusionary rule opinion cases in its Huson,62 in which the Court stated that a fact, United States v. Peltier. the ma- case must impres- decide “an issue of first jority Circuit, considering Ninth Pel- sion whose resolution was clearly fore- tier appeal before and reversal shadowed” before rule of the case can Court,67 Supreme as well as the Justices seriously be prospective ap- considered for who dissented from the de- Supreme Court plication only. cision in Peltier'68 would have decided Pelti- Unless the new decision meets the thresh- er applying just two-step analysis. this requirements test, old of the Chevron Oil it Sitting Circuit, en using banc the Ninth ineligible for full-blown consideration for analysis, divided seven to six over whether prospective limitation to application. If it Almeida-Sanchez v. United States69 the standards, meets the threshold further con- Peltier, ruling substantive pass behind guided sideration is then by the three fac- the threshold pro- test so that limitation to tors set forth in Supreme Court’s deci- spective application seriously could be con- (1) sion in purpose Stovall v. Denno:64 sidered. The battle was Al- over whether result; (2) of the new the extent to which clearly meida-Sanchez so made new law as law may enforcement officials have relied not to have been foreshadowed. The Jus- law; previous on the impact dissenting tices Supreme in the Court as retroactivity jus- on the administration of well seven-judge as the majority of the placed tice.65 The Court has greatest Ninth Circuit concluded that Almeida-San- importance factors, on the first of these merely chez an aberration.”70 “corrected] purpose result, stating the new Circuit, The six-judge minority in Ninth has “heavily relied on the factors of the however, would have found that Almeida- extent of reliance consequent burden passed the Sanchez threshold test. justice administration of only when purpose question rule in did not Court, majority how clearly favor either retroactivity prospec- ever, rejected this entire analysis. In its tivity.” place was substituted the standard I have requires summarized above which that evi two-step This analysis, with a threshold retroactively test which must dence not be exсluded unless passed before a court moves on to responsible full-scale “had consideration of the officer either knowled desirability limiting ruling gé”71 “properly charged retroac- or could 97, 349, 62. 404 U.S. 92 S.Ct. 30 L.Ed.2d 296 66. Desist v. United (1971). (1969). 22 L.Ed.2d 248 106, Id. at 92 S.Ct. at 355. An alternative Peltier, (9th 67. United States v. 500 F.2d 985 provided formulation of the threshold test was rev’d, 1974) (en banc), Cir. by Justice Stewart in his dissent in Milton v. (1975). 45 L.Ed.2d 374 Wainwright, n.2, 407 U.S. 381-82 2174, 2180, n.2, (1972) (Stewart, 33 L.Ed.2d 1 Brennan, Marshall, Douglas, Justices J., dissenting). Stewart, According to Justice Stewart dissented in Peltier. qualify for consideration for limitation to prospective only, plainly effect a new rule must 69. past precedents disrupt overrule or at least (1973). long accepted widely upon past prac- relied tice. Peltier, 70. United States rev’d, (9th 1974) (en banc), 64. 388 U.S. 71. 422 U.S. at 95 S.Ct. at 2320. Id. at 87 S.Ct. at 1970. past. the no break with represented sharp his were uncon knowledge”72 that actions been would have Indeed, argument search. stitutional at the time of the that that before point is to make. The easier Thus, Circuit, by focusing on the Second so confused that nei- the law was Sanders made new “whether Arkansas Sanders sharp break. represent could ther outcome court, by majority and the law”73 sharply from chaos. impossible It to break is developed inquiring “new whether Sanders already or ... doctrine law” “restate[d] us instructs to question Peltier But the place,”75 applying the ini- incorrectly are not Sanders broke with is whether consider to a appropriate tial threshold test consider- Cassidy Detective can but whether past, the retroactivity of the exclu- ation of outside of its out- foreknowledge charged be with Peltier, however, sionary remedy context. leading plain. is If the The answer come. to apply us a different standard directs to bench, authorities, the legal on and off both cases, the in- rule where test exclusionary outcome, how predict not could Sanders’s responsi- the official stead is whether with that Cassidy charged be can Detective “properly knowledge”76 “had ble crys- have needed a prediction? He would charged knowledge”77 with [have] befen] else had. anyone tal neither he nor ball that his actions violated the Constitution. majority that both the I thus conclude ask, then, question is not appropriate to Dien have Circuit in here and Second lawyers whether and would describe judges applied part they have erred in because sharp past the new decision as a break with use the test law, wrong standard. Rather than working patrolman but whether a can properly charged foreknowledge apply retroactivity to to with Peltier instructs us new These two involving exclusionary remedy, decision’s outcome. cases quite older, different matters. general, more they have used the test used in other retroactiv- threshold to be Perhaps open argument it is extended ity They thus been led unnec- cases. whether, majority suggests, as the Sanders whether essarily incorrectly to consider merely appliefd]”78 past Su- “restatefd] judges regard would Sanders lawyers decisions, particular preme Court and in sharp, change in the stream of avulsive open United States v. Chadwick.79 It law, ask whether Detective however, rather than to question, that before Sanders charged could be expert Cassidy authorities beat decided most predict knowledge were unable to its outcome. It is outcome months be- Sanders’s also undeniable that Sanders made new law Supreme decided the case. fore the Court end put sense test, led have been Using wrong disorder which had broken out the lower wrong results.

federal courts and the state courts in the

wake Chadwick. Sanders “clarified” the Hold Implicitly Did Sanders Chad- 2. by affirming law of the Arkan- decision Retroactively? wick to Apply Court; hand, Supreme sas on the other opinion in Dien80 Both Second Circuit by reversing Sanders “clarified” law MacKay81 Court, the Ninth decision in Supreme Arkansas Circuit would have easy argue Sanders applying been that outcome also offer a secоnd basis Maj. op. 72. Id. 78. at 1162. Dien, (2d

73. United States v. F.2d 79. 433 U.S. 1980), aff'g rehearing, Cir. F.2d Dien, (2d Maj. op. 615 F.2d 10 80. United States v. Cir. at 1163 n.5. 74. 1980). 75. Id. 1162. 1979) curiam). (9th (per U.S. at at 2320. Id. which, legality was tested in occurred retroactively though it was be- today, adopted by majority should fore the decision in Al- Court’s Chadwick. other has though possible addressed. Each of the circuits anything perhaps until complained noticed the search Supreme speaks contrary, place before Sanders took unanimous view those circuits nearly Court decision Chadwick.82 These courts the issue addressing has been Chad- Supreme has then conclude that the Court apply wick does not retroactively.86 implicitly apply decided Chadwick retro- circuit to retro- only apply Chadwick actively, suggests which then that Eighth Circuit, so in a actively, the did case Chadwick, “clarification” of should also ambiguously Supreme remanded from applied retroactively. light Court “for further of consideration This reads far too much into the Court’s v. As United States Chadwick."87 Chief past, action in Sanders. In the Su put Judge separate Gibson it in his concur- preme Court explicitly has refused to read case, Eighth rence in “The Circuit Su- previous applying cases without discussion preme present Court remanded the case for exclusionary remedy retroactively Chadwick, in light our consideration thus foreclosing the In retroactivity applies Chadwick to this case whether or issue.83 fact, in the itself Peltier decision the Court applies any not it But that other.”88 referred to the fact that after the Court’s conclusion, understandable, though is none- Ohio,84 Mapp landmark decision three v. faulty, theless as the Supreme Court’s important subsequent applied Mapp cases treatment Bowen v. United States89 retroactively without discussion before proved. ap- involved Bowen the retroactive Court then decided Linkletter v. Walker85 plication United Almeida-Sanchez in which it apply Mapp refused to retroac case applica- whose retroactive States,90 tively on collateral review state convic petition tion also A was issue in Peltier. tions. We are thus notice that is pending for certiorari was in Bowen when inappropriate to too much read into a deci Supreme Court decided Almeida-San- sion which does much not so as mention the judgment chez. The Court vacated the retroactivity question. Ninth Circuit Bowen remanded addition, light In it for “in of Almei- argument appear would reconsideration 91 much, prove implies too for it not The Ninth da-Sanchez.” Circuit reheard only Sanders but also Chadwick is the case en banc but nevertheless affirmed applied retroactively issue, since the search whose holding the conviction at that Almei- 82. Lonnie James Sanders was Reda, subjected (1978); L.Ed.2d 138 United States v. 563 April (2d 1977) curiam), (per search on 23 1976. Chadwick was not F.2d 510 nied, Cir. cert. de 973, 1617, decided until 21 June 1977. 98 56 435 U.S. S.Ct. L.Ed.2d 65 (1978); Montgomery, United States v. 558 F.2d 83. United States v. Peltier, 531, 422 535 U.S. (5th 1977) curiam). (per 311 Contra Unit Cir. n.5, 2316, 2313, n.5, 95 S.Ct. 45 L.Ed.2d 374 Schleis, ed 582 States F.2d 1173- (1975). (8th 1978) (en banc). 74 Cir. 84. 367 U.S. 643, 1684, 81 6 1081 S.Ct. 87. States, 905, Schleis United 433 U.S. (1961). 2968, (1977). 85. 618, 1731, 85 S.Ct. 14 L.Ed.2d 601 J., (Gibson, concurring). 582 F.2d C. (1965). 89. 422 U.S. Calandrella, 916, 2569, See United States v. 605 F.2d 45 L.Ed.2d 641 (6th denied, Cir.), (1975). 250-53 cert. 444 U.S. Unit 90. Cornejo, (9th ed States v. 598 F.2d 556-57 1979) (per curiam); Cir. United States v. Stew art, (9th 1979) (per cu riam); (7th Berry, United States v. F.2d 2 Bowen Cir.), denied, cert. 37 L.Ed.2d en panel and now three-judge first in a retroactively.92 apply not did

da-Sanchez banc, separate opinions decid- subsequently approved spent six was has That conclusion again fact, when once ing, benefit after argu- case.93 considered the the briefs and but also of hindsight counsel, should not Cassidy ments of sum, risky view of it seems at best —in first bag without into Ross’s have looked pronouncement in Peltier recent the Court’s obtaining warrant. expansion exclusionary reme- that an applied retroac- dy is not to be generally circumstances, suppressing Under these Sanders, in which retroac- tively read nothing Cassidy the evidence uncovered —to mentioned, hold even tivity penalty on levying post ex facto short of retroactively. The risks applies Chadwick undertaken utterly police work blameless compounded when that conclusion duty. Suppressing the evidence the line applies that Sanders itself used to infer deter the in this case cannot For, pointed retroactively. as we out knowing is doing way no of what have Chadwick, above,94 it may whatever help surely it little to wrong. And does hinted, of the law at did not alter the state preying likes of Ross deter the against merely time held the line a but today does majority’s The action public. rights expand government attempt blundering by the constable from deter agents of its to search without warrants. simply liberates liberating the criminal. It hand, Sanders, represents other the criminal. law, overruling previous shift in the distinct Thus, of of many decisions the circuits.95 REACH II. THE SUBSTANTIVE applied if to be retro- even Chadwick were OF SANDERS actively, very proposition, doubtful Sand- has ruled majority of this court Because ers should not be. retroactively, applies and that Sanders Thus, arguments advanced neither position dissenting col- my view of the majority opinion today by the leagues prospectively that even Sanders persuasive. MacKay Dien and courts is bags,96 or even apply paper does not Supreme signaled apply Court has not us to necessary find to address the I pouches,97 retroactively, either Chadwick Sanders holding: that Sanders majority’s principal test, and, appropriate under the we cannot whose contents opaque containers covers with charge Cassidy Detective foreknowl- from the exterior. perceptible are not Sanders, edge of the outcome of and there- case apply fore cannot result course, Of were the search he conducted. v. decision in Arkansas Court’s obvious; at of this case would be outcome matter is The undeniable truth Supreme Court least 1925 when the since no one foretell with confidence States,98 lower decided Carroll As how would be decided. an officer courts have assumed that belong- Cassidy’s Detective search Ross’s court, may cause without a warrant ings, noteworthy sitting probable it is that this Evans, Bowen, (9th taxicab); United States 92. United States es in trunk of F.2d curiam) banc). (en 1974) (footlocker (per (9th 1973) Cir. 481 F.2d 990 Cir. car). For discussion collected trunk of 93. Bowen v. United U.S. LaFave, and Seizure cases see 2 W. Search 45 L.Ed.2d 7.2(e) (1978 Supp.). § & supra. Seepp. 1184-1187 94. JJ., Robb, dissenting ante. Tamm Vento, g.,E. United States v. 533 F.2d (3d 1976) (paper bag car); 865-67 found Cir. MacKinnon, J., dissenting ante. Tramunti, United States (2d 1975) (suitcase seat 1104-05 Cir. on back 69 L.Ed. 98. 267 denied, car), cert. Soriano, United States v. banc) (suitcas- (5th 1974) (en 497 F.2d 147 stop and search a and its con- Sanders thus conveyance yet layer adds another Sanders, however, tents for legal contraband.99 to the complexity analysis a well-in- holds otherwise. tentioned officer approaching a car must carry spot. Unfortunately, out on the if effect, Sanders abolished the automo- there is contraband the car and the offi- exception bile requirement warrant error, snap legal judgment cer’s is in applied in narcotics cases. Traffickers responsible go criminal in all likelihood will spoon do not powders glove contraband into free: precipi- either because the officer too trunks; compartments or shovel them into tously investigation terminated his before narcotics are transported in containers —af- needed, discovering the evidence he or be- ter Sanders in opaque containers. To fast, cause he continued too or too far successfully search for narcotics hidden in a forcing thereby judge suppress later to policeman car a open must the containers the evidence obtained. upon. he comes But in after more than a century experience half with the Moreover, police patrol officers on will exception automobile search not be alone in their confusion. We in the epidemic addiction, midst of an of narcotic presented courts will also be with new the Court suddenly ruled that before an solve; puzzles Fourth Amendment officer open can a container found in a car present litigation undoubtedly only get he must a warrant. beginning of the flood to follow. We will be asked not to determine whether a This complicates result further job sufficiently luggage-like container officer, the conscientious law adding to the qualify special treatment under Sand- bewildering array legal issues he faces ers, but also to decide whether a container approaches each time he a car. The Sand- found opened somewhere in a car and with- ers dissent summarizes what an officer out a conceivably warrant was within grab- must do: bing occupant, distance of the car’s arrested In approaching the vehicle and its occu- given whether an officer in a instance could pants, the officer must divide the world opaque fact discern the contents of an personal property into groups. three suspicious container from its size and If there probable is cause to arrest shape,101and so forth. occupants, then under Chimel v. Califor- nia, he may objects search Perhaps troubling within the most will be the inevi- occupants’ control, immediate with or table stream of consent cases in which the probable without prob- cause. If there is courts will required be to determine wheth- itself, able cause to search the automobile er an investigating officer obtained effec- then under Carroll and Chambers the en- tive consent before a opening container tire interior car, area of the may did, automobile found a and if he whether it was searched, be with or without a warrant. lawfully granted. obtained and voluntarily But under [Sanders], Chadwick and any if From experience our with consent searches object suitcase-like is found in the car dwellings we know each such case will outside the facts, immediate control area of present unique making impossible it occupants, searched, it cannot be to general applicable enunciate rules to exigent circumstances, absence of consequence, with- most situations.102 In state out a warrant.100 ap- federal courts will be flooded with supra. 99. See authorities cited note 95 102. For a recent discussion of the difficulties associated with consent searches see Com- (Black- 100. 442 U.S. at ment, 99 S.Ct. at 2597 Response Consent to Search In to Police mun, J., dissenting) (citations omitted). Threats to Seek or to Obtain a Search Warrant- Alternatives, Criminology Some 71 J.Crim.L. & opinion 101. The Arkansas v. exempts requirement Sanders from the warrant containers whose “contents can be inferred appearance.’’ from their outward 442 U.S. at n.13, 99 S.Ct. at 2593 n.13. we at this court must follow. spoken; has will add little to whose resolution peals already-existing required law. we to adhere As a lower court by set down to the most recent mandate complications The new adds to Sanders extent with the most Supreme Court to the litiga and the analysis Fourth Amendment are able to under- conscientious effort we spawn to would tion has and will continue justified understand what perhaps if Sanders stand its content. To nonetheless brought long-awaited and con a coherence to mean—and Court intended Sanders sistency to search and seizure doctrine. But narrowly it should read— determine how existing con merely reinforces the begin a fresh examina- useful to explained can it be tradictions. How limitations of purposes tion of the why principled grounds policeman with containers apрlied search warrants open may out warrant force locked found in automobiles. lift the lid on an unlocked glove box a Warrant. Purposes 1. The Served jewelry Certainly box?103 recourse applied search of a traditionally As exigent is of little doctrine circumstances dwelling requirement the warrant said help, explain why it fails the locked First, it purposes.107 serve at least three glove jewelry box—but not box—can be independent confirmation provides an opened without officer a warrant before, magistrate already who has secured an automobile at neutral detached The law of war occurs, probable stationhouse.104 search after, cause a search applied rants as automobiles is no more a result, magis- the event a As a exists. web105 Sanders than before. seamless after cause, the probable find war- trate does not requirement reduces the level of offi- rant respect, With to understand I am unable zero; subject precursors cial intrusion to the intended why Sanders and its were decid- were; deep- ed as even those with the will all likelihood never of the search est admiration for work threat- become aware a search even put rarely development Court have its ened. regarding exclusionary the law rule at Second, requirement warrant limits top clarity the for and list consistent objects to the area to searched and the be however, logic. question here, is the be seized to those enumerated in war- whether Sanders controls the case before rant, the of to restricting scope the search Plainly, this subordinate court. necessary accomplish the minimum area to distinguished by following be either purpose the for which the warrant was suggestion the of Burger Chief Justice By providing a written record authorized. concurring Justice Stevens Sanders it- search, a of the basis for the warrant thus self,106 by adopting approach an similar helps range post to limit the of hoc rational- Judge writing to set forth by Tamm justify be used to a izations that can later I am persuaded dissent here. But that the sweep than was constitu- search of broader scope of Sanders is such that would be inappropriate tionally to do so. The authorized at outset. presumably jewelry A 106. 442 2594-95 103. box cannot U.S. J., concurring judgment). opened (Burger, without a warrant under the Sanders C. 1201, qualifies personal luggage, p. rule because infra. See box, part glove integral while the auto- a an of attached, mobile which it is comes within to See, Barlow’s, Inc., g., e. Marshall v. exception. the Carroll 307, 1816, 1825, 323, 98 U.S. Chadwick, (1978); United States 42, Maroney, 399 U.S. See Chambers 2482, 26 L.Ed.2d 419 Court, (1977); Municipal Camara Dombrowski, Cady v. United Johnson (“this S.Ct, 92 L.Ed. 436 something than branch of the law is less a web”). seamless seized; objects subject searched and the to be Finally, a reassures the warrant demanding a search has been and the con- already that the individuals car searched by to entrance his home are authorized the time the warrant is- tainers seized agents legal purpose, than a rather obviously, sues. Just as the warrant re- own. officers on some frolic of their Un- quirement for searches of containers found questionably, likely a citizen is to resent a car does not serve function a wholly even lawful invasion his home. occupants reassuring the of the officer’s many, perhaps, But swallow able to purpose lawful After authority. they necessary price as a such intrusion searched, stopped, deprived have been is an outrage It of a differ- control over their taken to property, and citizenship.108 frightening ent order —and far more station, for reassur- moment —to the victim of an invasion officers abus- ing occupants pur- the car’s lawful ing their ability to act under color of law. pose of the will police long since have Thе warrant apprehension. removes this passed. When a container is seized an auto- requirement A warrant for containers mobile after a lawful warrantless search of provides only thus a small fraction car, however, advantages largely these protection require- assured the warrant First, in the event warrant dwellings. evaporate.109 ment for How little is left is seized, does not issue for containers considering demonstrated what value a modestly, level intrusion is reduced if at if applied warrant would be rules same occupants all. The car’s have already been apply search of houses as to the stopped, detained, deprived of control of cars. Were require- search the warrant likelihood, over the seized container. In all cars, parallel ment for houses to for arrested, also they have been for most probable officers with cause would be au- probable cases cause to search for contra- producing thorized enter house without provide probable band will also cause to warrant, range throughout free possessors. its arrest Should be arrest- they contents, examining house while open its ed, the occupants car’s will in addition be cupboards, closets and else anything immov- subject to searches of their able, persons110 scoop then up any suspicious con- of the area grabbing within distance of stationhouse, tainers removal point, them.111 At this if a warrant fails to probably with the householder himself in issue, additional intrusion After delay, tow. considerable the officers spared been surely compared minimal triumphantly present would then the star- gone By with that which has before. con- tled householder with a authorizing warrant trast, when a warrant does not issue opening of the containers seized. Inno- search of a dwelling, householder cent householders could be expected con- spared knowledge even proposed of the appearance sider this belated a warrant a search. nearly useless afterthought. It is hard .to containers,

A requirement warrant for why passengers see drivers and should react moreover, does define not the area to be otherwise. pay Sanders, prices, 753, 770,

108. We similar other whose direct 109. Arkansas v. 442 99 U.S. personal safety (1979) (Black- relation to our own and welfare S.Ct. 61 L.Ed.2d 235 obvious, g., mun, J., security dissenting) (“the protection is more e. searches additional airports public buildings. provided by and entrances to But a search will be mini- warrant mal”). all reasonable searches authorities are di- preserving safety rected at the and welfare of all, g., guns us e. searches for See, Robinson, and narcotics on g., e. United States v. 414 street, display- the even for the routine demand U.S. S.Ct. ing keep a unqualified Florida, driver’s license to driv- Gustafson v. U.S. S.Ct. thoroughfares. off ers the in- The individual 38 L.Ed.2d 456 only paying price convenienced is the the own) (including good. common his California, 111. See Chimel Today, precede the search. Thus, obtained could is not re- given that a warrant focusing question by first to search an automobile the the answers quired protection provided the incremental with place, difficulties associated practical applied to con- requirement a warrant a But seizure of car.114 temporary the But this alone is insuf- tainers is minimal. case decid- search the first automobile while to the warrant re- ficient cause abandon Court, v. United Carroll ed the rights When constitutional quirement. States,115 language suggesting the uses stake, guarantees additional even modest obtaining warrant de- a impracticality of is necessary it forgone should not be unless rives from the difficulties associated do so. to automobiles, the underlying Car- handling ImpracticaP is 2. When a Warrant assumption that analysis roll is the Court’s Traditionаlly, it has been considered neces- arises from impracticality source sary forgo to benefits of a warrant securing the sus- involved in problems “impractical” apply mag- it to a when is to vehicle, their contraband or their pects, not principal obtain reason istrate to one. is worth sought. is It while a warrant investiga- why may impractical be for an ‍‌​​​​‌​‌‌​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌‌​​‌‌‌​​​​‌​​‌​​​‌​‍reviewing basis for the Carroll decision. quo get a is the status warrant tor practicality of the physical In Carroll preserved during cannot be the attendant suspects while and the seizing the vehicle delay.112 Because the element sur- been chal- seeking a warrant could have prise, normally possible it is to obtain a lenged suspects the vehicle and the because dwelling; searching warrant before a following search and in fact were seized occupants usually are not forewarned and a a could place taken to where warrant are unable to take evasive action. Situa- obtained, automobiles, establishing that involving stopped how- have been thus tions ever, easily so while capable guard- cannot be frozen a physically were always warrant is obtained. So it has been car, suspects and the ing the its contents requirement held that the does not warrant magistrate for a war- application while apply occupied of an the search automo- warrantless rant was made. After bile.113 liquor pos- of the car Carroll for search Act, sessed in violation the Volstead But why can the situation be frozen all, officers involved “took two defendants is stopped? when an automobile After Rap- temporary liquor seizure while a and the and the car to Grand warrant vehicle, See, required holding g., e. Carroll v. United seizure imposed require- 69 L.Ed. 543 would a constitutional have (automobiles); Hayden, upon police departments Warden ment of all sizes 294, 298-99, 1642, 1645-46, country 18 L.Ed.2d peo- have around the available (1967) (houses). necessary transport ple equipment im- pounded central loca- automobiles some 113. Arkansas More- tion until warrants could secured. (1979) (“One over, were once seized automobiles taken circumstances which the Constitution highway re- would be require does not police stop way a search warrant when sponsible providing appropriate lo- some high- an automobile on the street they kept, cation where with due probable because cause to be- safety regard to and their vehicles lieve it contains crime.”). Unoccupied contraband or evidence contents, ap- magistrate until ruled automobiles, however, plication a warrant. Such a constitution- for may differently. Coolidge be treated See imposed requirement therefore would have al 443, 461-62, Hampshire, New 91 S.Ct. severe, impossible, many on even burdens 2022, 2035-36, 29 L.Ed.2d 564 departments. comparable No burdens 114. Arkansas v. likely respect to exist with seizure (citation S.Ct. omit- personal luggage. ted): however, view, 115. 267 69 L.Ed. 543 S.Ct. We the seizure of a suit- quite case from the as different seizure an Chambers, automobile. if the In Court had ids,”116 city, grounds temporarily a at or even the nearest location which arrest roadster, occupants presumably warrant could have been detain any a search open temporary obtained the officers detention while before tore sought warrant or an arrest warrant was liquor seats of the to find the concealed car unlawful, would have been whatever its inside. The Oldsmobile roadster physical practicality. carried the was im- liquor Carroll also Act, pounded as the Volstead required Court, Carroll and Before the specified which intoxicat- “[w]henever accomplice his Kiro assumed that search ing liquors transported possessed illegally or as only justified of their car could be shall be an officer shall take seized he an this search incident arrest. theo- On possession of the vehicle and team or auto- their ry, justified by arrest not be could mobile, boat, craft, or any air or water it, fruits of the be- preceded search which other The vehicle conveyance.”117 and sus- only justified cause the search could as Carroll, pects having been in fact seized in incident subsequent an arrest. But that, it is undeniable at least in circum- arrest for the misdemeanor with which case, possi- stances of that it was physically they charged were been not have for the ble officers have obtained a war- prior search, made because the offi- open rant before tore they the car seats. cause, cers had had only‘probable not seen the committed in their misdemeanor Although opinion Justice Chief Taft’s for presence, when searched roadster. the Carroll does explicate not the real unlawful, Because the arrest was the search full, problem source in that case in unlawful, Kiro,121 argued Carroll and analysis not much needed to see the true their conviction had to be overturned. difficulty presented. nature of the the case McReynolds, joined Justice by Justice Suth- When boys”118 stopped the “Carroll were erland, adopted view in dissent.122 by police on officers the road from Detroit Rapids, to Grand the officers neither had writing majori- Chief Justice Taft for the legal arresting basis for for them nor seiz- however, search, that a ty, held warrantless ing prior their roadster to a search. The if not a arrest for a misde- warrantless officers did have an arrest warrant for meanor, justified basis of could be on the Carroll accomplices. or his Under Vol- probable cause alone.123 The warrantless stead Act a first offense was a misde- indepen- search of the roadster was thus meanor, and a warrantless arrest a mis- effect, dently justified. Justice Chief required just demeanor at that time head, its theory Taft turned Carroll’s probable cause but the offense had justifying to and the arrests incident presence been committed of the ar- dependent fruits of a warrantless resting Of officer.119 course in 1925 it was search, rather than warrantless search implicitly understood that there was no arrests. a war- as incident to the Whereas half-way “stop” type eventually au- been before required rant would have “a by Terry thorized v. Ohio.120 Under store, dwelling of a house other search common law applicable rules Carroll respect proper of which a offi- structure obtained,”124 there was no for investigative readily room deten- may warrant cial Thus, tion. required of a Carroll no warrant was not “a search 136-42, 116. Id. at 45 S.Ct. at 281. 121. 267 at 281-82. U.S. at (quoting 117. Id. at 45 S.Ct. at 282 National J„ (McReynolds, Id. at 45 S.Ct. at 288 Act, II, 26, Prohibition ch. tit. 41 Stat. 315 § dissenting). (1919)). 158-59, Id. at 45 S.Ct. at 287. 118. 267 U.S. at 45 S.Ct. at 287. Id. at 285.

119. 267 U.S. at 286-87.

120. 392 U.S. (1968). results automobile, searches quirement for automobile boat, or for wagon ship, motor detention practica- temporary is not goods, it from difficulties contraband [since] who the vehicle must suspects ble to secure a warrant because for and poses locality or quickly be moved out of the an ex- Holding suspects can for detain them. must be jurisdiction in which the warrant will period in limbo with tended sought.”125 police, the problems for the cause vexatious who, least, courts, suspects, not and “out of quickly But can move a vehicle to be denied access a guilty, if will even locality” if it and its driver are free rights protections and the other and lawyer go; plainly especially so and on the facts to person. an arrested afforded Carroll, Justice Taft’s unstated as- Chief sumption is would have been that Carroll suspects, treatment I submit that legal- not free because it was away to drive become automobiles, again should once ly permissible detain him and his accom- to grappling principal concern courts sought The plices while a warrant was The Su- exception. the auto search with a warrant basis of the decision that Carroll clarify the consistently would preme Court required a an is not before search of auto- it were Fourth Amendment it aims probable mobile on cause that contains is not impracticality that the relevant contraband thus does rest on as- state cars, but sumption impractical the seizure of physically that it is that associated while suspects temporarily seize cars a effectively and associated with rather is sought, quite warrant but on the distinct magistrate the shifting patrolman assumption legally impossible that it was so massively on to intrude decision whether detain their suspects impound From occupants. such rights a car’s car.126 quickly changed would perspective, requirement the warrant perceived that Indeed, appears Court itself helpful, as I believe than more harmful unconsciously implicitly perhaps ultimately rule experience with the Sanders impracticality have understood that obtaining depends prove. warrant not on the will difficulty seizing guarding auto- impediments were legal In Carroll there

mobile, problems associated with seizure of temporary automobiles detaining occupants. years six af- its Thus upheld suspects ter Carroll while a warrant was obtained. the Court a warrantless after legal search an automobile initiated impediments, Those erected shield put driver had it but he had entered before unnecessary improper citizens from de- years seven it into And another motion.127 tentions, rarely applicable. now But later, endorsed a warrantless suspects protected by those the interests of search a car initiated as the driver important today impediments are as halt in alighted brought after it was to a require- of a imposition ever. warrant Coolidge garage.128 Hamp- But in v. New puts interests in ment containers those shire,129 accept the Court refused to war- in most a war- jeopardy, because situations unoccupied rantless search of an car whose requirement implies temporary de- rant had already owner been arrested elsewhere. best, present At will suspects. tention of law, to a Turning day suspects to modern we then see with a cruel choice: consent problem the real with a warrant re- search or detained while a warrant added). Id. (emphasis States, 128. Scher v. United (1938). 83 L.Ed. 151 Wilson, 126. Accord The Warrantless Automo- Justifícation, Exception bile Search: Without 129. 403 U.S. Hastings (1980). L.J. 131-32 Husty v. United 75 L.Ed. 740

1199 to a fingerprinting obtained.130 Absent consent search on and so forth. For those who spot, usually necessary detention will be have no criminal record —and who are inno- suspects, to ensure if guilty, do not booking threat of a will a cent —the terms, flee. In legal an arrest will be nec- powerfully coercive effect view of what essary sought; proba- while warrant is perceived to be the con- widely lifelong ble provide cause search proba- to will also result, sequences of an arrest record. As a ble cause arrest in to most instances involv- the characterization of automobile searches ing possession contraband of which is crimi- on “consent” ring based will often false. nal. requirement, With a warrant we there- intriguing Here an problem for the expect litigation fore what must much will arise in event a warrant does not consent, police may constitutes and how the issue: by magistrate determination problems compli- obtain it. These will be probable cause to did search not exist by cated the fact that consent will almost suggest will strongly probable cause to ar- invariably only result in waiver not rest also not consequence, did exist. In requirement warrant also proba- but tort constitutional action131 or an action requirement. being ble cause Without un- under 42 1983apparently U.S.C. will then § duly cynical about the behavior against lie arresting officer basis general, possible predict it is to that some unconstitutional, the arrest was put- police on some will occasions use the threat ting proving good the officer to the test warrant, obtaining with consequent faith in Many may court.132 officers thus delay, hours of detention and to con- obtain feel pressure under considerable to obtain sent to searches not justified by probable consent, put rather than be in jeopardy appropriate cause. In we circumstances attempting way to obtain a warrant. One get expect to can then courts faced with these may consent be to threaten not arrest, detention to rule tantamount situations that “consent” was vitia- its trappings incarceration, as well: booking, totality ted circumstances States, warrant); The difficulties with associated consent to an invalid Amos United suspect 313, searches are considerable. The who (1921) U.S. L.Ed. 654 pro consents to a search waives constitutional (consent by “implied invalid where extracted guaranteed by tections the Fourth Amendment. suspect’s agents wife coercion” federal To be effective such must waiver be free and they who said had come to search for viola- voluntary. judging In such a is whether waiver laws). Indeed, tions of revenue court this truly voluntary, courts look to “all the circum consent, has noted that “true free of fear Bustamonte, stances.” Schneckloth v. pressure, readily is not so to be when a found” 36 L.Ed.2d police. suspect confronting Unit- Judd v. (1973)." many circumstances courts States, (D.C.Cir.1951). ed apparent have found that consent was not ef courts, however, Most not find do consent example, police fective. For threats will vitiate granted it is have been vitiated when sponse in re- See, g., States, consent. e. Waldron United threats obtain a search (D.C.Cir.1955) (policemen 219 F.2d 37 threat analysis For warrant. citations suspect’s eighteen-year-old they ened wife that Comment, problem see to Search Consent responsible might hap would pen be what Response to Police to Seek Ob- Threats or to suspect’s apartment should Alternatives, tain a Search Warrant: Some get warrant); Camp forced to United States v. (1980). Criminology J.Crim.L. bell, (8th 1978) (officers 574 F.2d 962 required get threaten to ransack home if See, g., e. Bivens Six Unknown Named warrant). Consent not effective if it is based Narcotics, Agents of Federal Bureau policeman’s on reliance aon false assertion. E. 29 L.Ed.2d 619 g., Importing Go-Bart Co. v. United U.S. (false 75 L.Ed. 374 im- 132. Officers executive branch are warrant). Moreover, claim to have had a liability mune from when their action is reason- suspect consent will ably if valid reason circumstances, light coupled of all able “in any option believed he did not have Rhodes, good-faith belief.” Scheuer v. g., Bumper but to consent. E. v. North Caroli 1691-92, na, (1968) (no pursuant consent when search made magis- shifting to a impracticality on the In face of such rul-

surrounding it.133 well-intentioned, other, will be- intrude on the police whether to ings, the decision trate whether, they rely on if come uncertain impracticality but on the suspect, life of a At consent, they their case. destroy will storing cars. then, they important investigations, least explanation of respect, this allWith due consent, accept to but will become reluctant impractical is itself most impracticality a obtaining on feel to insist compelled will assume that surely we can theoretical. For probable ample there warrant when is small matter how police no any department, cause, who protests of citizens even over the vehi- rural, impound transport can just permit empty suitcase would soon an haz- illegally or abandoned parked cles way. on their opened they to be so can be are Tow trucks available ardous locations. wish police who yet, undisciplined Worse experience it is a common everywhere and will reason to citizens for whatever harass resort to them. police prepared are to a to do so: given potent device to one officer “boot” on one wheel and A fruitless, predictably by a arrest followed suffi- entirely car would be watch over the out, long attempt get to a war- drawn and its preserve to immobile auto cient Unfortunately, be next it will rant. Supreme apparently The contents. type impossible for courts control believes, however, police that some small damning police when abuse without warrant, supply may as well as when not be able to they departments do seek a not. the courts is the necessary do Chaos resources whatever additional likely most result. custody sufficient to establish a chain with- a vehicle but evidence only secure warrant re- my It is conclusion that is tampering while a warrant against quirement is whenev- impractical therefore sought. suspect during er the detention of required get is neces- time the warrant drawing line In Court is a fine here. The justified. Be- sary independently and not fact, practicality the difference between this is whenever a normally cause the case searching a obtaining a warrant before probable vehicle is on cause that it stopped in- searching luggage found car and before contraband, ap- I contains would therefore required a is side is small. When warrant exception

ply the automobile search opened, investigat- is before container integral parts to searches of the of an car, stop it for ing officer must search its automobile but contents as well. concealing capable of contra- containers Views on When Supreme 3. The Court’s band, seize containers and arrest Impractical. is The Warrant car, driver, transport the driver secure the Court, however, impracticality finds its location, war- secure and then obtain a to a that, elsewhere. it concluded required before rant. When a warrant is get practical while it is not for the hand, searched, auto is the other an on car, it searching prac- warrant before is changed the officer nothing except get con- opening tical to a warrant before required the evidence that to secure also provided tainers inside. reason might against possibil- the car be within Court134 for this distinction is that task in most ity tampering or removal —a adequate anywhere can be assumed to “seizing” than no more difficult cases containers, securing though facilities it parked protecting car and illegally expect- not all of the nation’s can be by keeping intrusion against necessary ed to have the facilities to secure focuses, not public. automobiles. The Court thus Sanders, Bustamonte, 134. Arkansas v.

133. Schneckloth n.14, n.14, (1973) (determi- to an nation of the voluntariness consent totality auto search is to be based circumstances). car, But when a line has to be there is be found somewhere in the but did not drawn making knowledge little merit in observa- the contraband obvious have sufficient points tion side of the line are luggage. suggestion, either was in the This while separated very once impact little distance. And would limit the deleterious the Court had ruled United States does not seem consistent with or requirement the warrant Chadwick135 that easily integrated analysis within the Court’s cars, applies luggage to but it not to could requirement by of warrant reference to deciding luggage not avoid whether in a car practicability. practicability of obtain- subject is or is not require- to the warrant ing specifici- a warrant does not turn on the ment, althоugh sought it Chadwick to do knowledge of an officer’s of the location ty so.136 It had to draw a line somewhere. of contraband within a car. An even more telling difficulty approach with is that this Distinguished1 Should Sanders Be puts it prosecutor posi- in an awkward attempting Based confusion cases suppression hearing tion: at a he must to follow both Chadwick and its “clarifica- show investigating officer knew appears point tion” in much, enough but not he had too suffi- by chosen place Court was not the best knowledge cient to probable establish cause fact, to draw the line. In I because believe knowledge but to exactly insufficient know emphasis changed should be from the where the contraband was located. This impracticality impounding cars to the approach thus not lacks a functional impracticality shifting magistrate to a foundation but would be unworkable in the decision to significantly intrude on a practice. rights, citizen’s I would not have drawn a drawn, line at all. But if a line is to be principal approach suggested The second should clearly cleanly and done so that limiting adopted by Sanders is that courts and law officers can know where today,138 dissenters who would find some Thus, they stand. because I believe there containers flimsy support legiti- too should be as little possible any- doubt as mate expectation privacy. ap- Their one’s mind whether or not a warrant is proach debilitating also suffers from de- required, I accept cannot the invitation this First, fects. prob- it does not focus on the present provides case distinguish Sanders lems of requirement applied the warrant as

—and perhaps thus to add to the confusion. automobiles, sweepingly instead Although tempting, it is I do not follow withdraws certain classes of containers approach suggested protection. but not asserted from all Fourth Amendment Burger Chief Justice (joined This may unnecessary. Justice be unwise and Ex- Ste- vens) in his pectations concurrence137 in privacy Sanders. He do not correlate well sturdiness; suggests might Sanders pri- limited to situa- the most intimate and tions in which probable may lovingly vate letter be carried in its cause to search luggage original opened envelope. now Sanders —and — might apply Moreover, approach situations in which the invites endless liti- police have specific gation less information about about what containers are within the location of contraband within and what containers a car. are without the ambit policeman Under such a rule a of Fourth protection. search Amendment In luggage provided law, found in a car he had Fourth Amendment we need clearer probable cause to believe contraband could lines and fewer cases. Kamisar, LaFave, Israel, Y. W. J. Modem Crim- (5th 1980). inal Procedure ed. (“The Id at 97 S.Ct. at 2483 Govern- 137. 442 U.S. at 99 S.Ct. at 2594-95 ment does not contend that the footlocker’s C.J., (Burger, concurring judgment). brief contact with Chadwick’s car makes this search____”). an automobile A well-known Tamm, opinions Judges 138. See the MacKin- case book describes the automobile is- search non Robb ante. having “sidestepped” sue as been in Chadwick. of the statute.141 furtherance dertaken sum, the Court I believe that because that war- proposition establish the And to luggage, to draw line at we

has chosen conveyances long searches of to main- rantless respect that line and seek should to the numerous pointed authorized he While I been clarity consistency. its tain the na- enforced since statutes enacted and prefer that the Court shift would specifically at the beginning storing tion’s directed impracticality its focus from smuggled suppression contraband impracticality shifting evidence to the opinion Throughout the there is a patrolman goods.142 the decision intrude from so, emphasizing that to do undertone magistrate, it chooses constant until seized contraband. ever, liquor its duty carry if our is to out di- reason, For that I concur rectives. Taft does not Although Chief Justice majority concern- conclusion reached the basis for this point, elaborate the much prospec- applied reach of ing the found in the fact plainly to be emphasis tively. has no possessor of contraband that it to counterbalance property Before interest in 5. The Contraband Element. reclaiming sup- in government’s III to interest turning opinion in Part of this con- course, at least since Katz impact pressing it. Of exclusionary sider the adverse of the the line of consolidated generally case I v. United States143 rule both in this and more that which had eroded the notion sig- to draw attention here to another cases wish contraband, fruits, instrumentalities element to be in the seminal and nificant found evidence,” crime, opinion that but not “mere Carroll has sometimes been government,144 longer we no weight fact given overlooked: that seized rights solely as of Fourth Amendment the search undertaken to locate contra- think band, rights rights. Fourth property private property incidental which rights viewed vin- are now as could attach.139 Amendment expectations priva- dicating “reasonable it is that noteworthy In Carroll Chief no property even in in which cy” situations emphasized Taft that the .statute Justice exists.145 interest authorizing primari- issue was search at shows, Nonetheless, opinion ly directed at as the Carroll suppression contra- band, determining a search with or only secondarily and at the conviction in whether from under possessors.140 of its It is clear the without a warrant is “unreasonable” and sup- historically that Taft as Fourth it is opinion viewed this fact Amendment weight porting functionally give legitimacy of warrantless correct to govern- seeking incident that in contraband searches not to a valid arrest un- fact at 284-85. 139. The itself noted this close connection 142. Id. at 45 S.Ct. acceptability between the of warrantless suspected presence searches and the of contra- 143. 389 U.S. 88 S.Ct. years opinion band some later in in its 581, Re, Di States v. (1948), pointed L.Ed. 210 in out which it that premise property con- that interests “[T]he indispens- automobile ... was an almost “[a]n able right to search and trol the Government instrumentality large-scale violation of seize has been Id. at discredited.” Act, the National car Prohibition and the itself Hayden, (quoting at 512 Warden therefore was treated somewhat as offender 294, 304, 1642, 1648, 18 became and contraband.” Id. at (1967)). J., (Harlan, Id. at at 516 con- 140. Carroll v. United (“My understanding curring) of the rule (1925) (‘‘Section 69 L.Ed. 543 emerged prior is that there has decisions destroy the 26 was intended to and for- reach requirement, person twofold first that is a provi- liquor transportation bidden and the (subjective) expecta- exhibited have an actual forfeiture of and the arrest sions for the vehicle second, and, privacy expecta- tion of incidental.”). transporter were society prepared recog- tion be one that ”). nize as ‘reasonable.’ 141. Id. positions crystallized have has a rehearsed seeking ment that which it alone appears sometimes right govern- the extent possess, whereas when though any debate over the merits “mere evidence” it wishes to almost ment seeks likely degenerate into a normally right which has no of the rule will obtain that polarized proponents it now contest between possess or control but which superior There can be no rule who see their adversaries as lamenta- claims a interest. of basic consti- bly interest in contraband. insensitive to violations privacy opponents of the rule tutional freedoms who, turn, supporters accuse the rule’s III. WE CAN DO BETTER WITHOUT softness on crime and criminals. THE EXCLUSIONARY REMEDY itself, Along exclusionary since with the rule sixty-seven years It has now been stereotyped polarized the exclu- debate between applied Court first sionary remedy simplistically to evidence obtained in vio- factions identified with “law rights” lation of the Fourth Amendment and order” and “individual has be- alone,146 twenty years longer since the rule was first an anachronism we can no come against gave used During pe- assumptions afford. The which rise to states.147 judges lawyers stereotyped positions pro riod some of our finest and to the rule arguments support longer have advanced and con are no valid. Times and many changed. so much so that now reflex- circumstances rule rule,148 ively equate abolished, zealous concern for cherished should now be not out of an guarantees spirit- nostalgic Fourth Amendment atavistic and desire to return support earlier, era, for exclusionary ed the rule. an more naive in which we however, Throughout rule’s history, protection the oth- were content to entrust the ers, distinguished, opposed no less have governments individual freedoms to state years rule and its extensions.149 Over the people close to the rather than to the feder- arguments pro recogni- and con have been well al but rather in frank judiciary,150 States, States, g., Weeks United 232 U.S. 148. E. Olmstead v. United 438, 470, 564, 575, (1928) (1914). S.Ct. 58 L.Ed. 652 Weeks was 48 S.Ct. 72 L.Ed. 944 choose, presaged by Boyd (Holmes, dissenting) (“We v. United 116 U.S. J. have my part (1886). Boyd, and for I think it a less evil that some S.Ct. 29 L.Ed. 746 however, govern escape strong criminals should than that the had Fifth over Amendment play ignoble part.”); involving only an id. at 485 ment should tones and in a case Amendment, the Fourth J., (Brandéis, dissenting) (“Crime contagious. York, Adams v. New 192 U.S. breaker, 585, 24 372, 48 it (1904), If the becomes a law Government L.Ed. 575 the Court law; contempt every invites man breeds adhered to the common-law rule that a court himself; to become a law unto it invites an by compe will not consider the which method archy.”). acquired. tent evidence has been DeFore, 13, 21, g„ People Ohio, 149. E. 242 N.Y. Mapp 367 U.S. 81 S.Ct. (Cardozo, J.) (“The 150 N.E. is to criminal Earlier in 1949 the blundered.”), go free because the constable has Colorado, Court had held in Wolf v. 338 U.S. denied, cert. (1949), 93 L.Ed. 1782 that the Wigmore put oppo L.Ed. 784 Dean his rights Fourth Amendment substantive “im- are ” exclusionary remedy way: sition to the plicit concept liberty,’ in ‘the of ordered id. at “ ‘Titus, you guilty have been found of conduct (quoting 69 S.Ct. at 1361 Palko v. Connecti- Flavius, confessedly ing lottery; you have cut, 149, 152, ought violated the Constitution. Titus imprisonment to suffer (1937)), L.Ed. 288 and therefore enforceable crime, and Flavius for con against under the Fourteenth Amendment tempt. you go We let both But no! shall states. Nonetheless, Id. at at 1361-62. way upholding free.... Our the Constitu quite reasonably the Court con- it, tion is not to strike at the man who breaks exclusionary remedy cluded that the was not somebody but to let off else who broke some ingredient” “an essential of Fourth Amendment ’’ thing else.’ rights. substantive Id. at at 1362. limitation, In 1961 the Court abandoned that eight 150. The first amendments to the Consti- holding exclusionary remedy applicable inapplicable were to the states in tution held Mapp. the states in Baltimore, (7 Pet.) Mayor Barron excesses in the time. The established at now available to federal the tools tion indulges, how- majority today Fourth judges to combat violations which potent ever, varied and concomitant of Amendment are far more inevitable are not an it could fairness, At one time rule, and, than once were. exclusionary exclusionary plausibly argued even against it. But charged should not defects, rule, was the glaring its with all it can be properly applied, when the rule be fashioned remedy best that could policeman imposing obstacle to uphold judges, sworn to the Consti- federal prosecutor. powers limited given only strictly tution but sure, overstated. case can be To be longer this is no with which to do so. But the rule denies principle, At least protections provide so. We can now bеtter anyway evidence he would prosecutor only violations without un- against constitutional kept within if the not have had bring criminals to dercutting ability our so, Even the bounds of Constitution. justice. relegate come to The time has prosecution like the many prosecutions, too exclusionary history. rule to Ross, awry, not as gone Albert misconduct, and result of intentional Exclusionary Rule A. Defects of any doubt about certainly not because exclusionary poses rule problems criminal, simply because guilt fighting charged for those with the task of reflect court, of time to with the benefit plain enough require elabo- crime are that an officer hindsight, concludes and of necessary to add ration here.151 Nor is field, maybe acting pressure in the under unnecessarily com- problems those life, properly failed under fear for his own when, pounded majority has done in as the confusing apply the often confused case, present overly zealous courts ex- in- set out courts standards of conduct clude evidence obtained officer terpreting whose cannot be faulted on the law the Constitution.152 actions (Marshall, C.J.) provided his actions he reason- the time of 8 L.Ed. 672 (“Had extraordinary congress engaged ably The to be valid. Id. believed the statute occupation improving generally of the constitutions of is of the executive rule that officers states, affording by people liability addi- the several whenever from branch are immune protection power by tional good from the exercise and are actions are made in faith their governments, their own in matters which con- light all the circumstances. reasonable in alone, they have de- 232, 247-18, cerned themselves would Rhodes, 416 U.S. Scheuer purpose plain intelligible clared this and lan- 1683, 1691-92, (1974). The 40 L.Ed.2d 90 guage.”). immunity for branch officials of executive fhe good-faith consequences ac- reasonable of their Wilkey, exclusionary why The rule: See assumption predicated that “it is tions is suppress valid evidence? 62 Judicature 215 injury possible better to risk some error (1978); Wilkey, A to the call for alternatives such not to officials] from such error than [for exclusionary Congress rule: let and the trial 242, 94 or act at all.” Id. at decide speak, court id. at at 511 pointed out in his dis- 1689. As Justice White Powell, 465, 541-42, exclusionary remedy applies sent Stone whether 152. The (1976): “If good not faith. the officer involved acted may recov- in criminal cases the defendant This is in view of the fact that an anomalous good-faith invasion of his er for a mistaken but privacy, of the executive branch who acts in officer good Thus, sense exclude the liability. makes even less it faith is immune to civil solely not at all example, suspect on his behalf. He is is evidence recompensed for a whose innocence later merely getting damages against proved the invasion at trial cannot recover arresting property back. It is often contraband if was based on his the probable officer the arrest Ray, property entitled in to which he is not stolen any cause. Pierson v. charged with crime has been event. He probative seeking (“A policeman’s unhappy evidence he and is against to have lot is not so excluded, although being charged often it is the him with dere- must choose between very instrumentality There is duty of the crime. when he has liction of probable if he does not arrest cause, damages equity side in these being in the defendant’s little mulcted rule, judi- exclusionary does.”). Similarly, liable circumstances. if he an officer is not construct, pub- seriously shortchanges the damages later held cial if he acts under a statute applied.” presently applied, interest as its or as lic unconstitutional either on face hap- To how the innocent defend- Unfortunately perhaps, when that understand pens the criminal the offi- suspect, it is by the ant is victimized diversion of scarce cer, is the court who before the court. So criminal trials resources from dis- punish cannot the officer. dic- Under necessary cipline, briefly it is to consider rule, tates of the court exclusionary justice system oper- how our criminal now punishes releasing a public by instead fact, theory. not in ates in if The health potentially dangerous resume criminal system justice depends large the criminal depredations. say his criminal it to Suffice quantity and quality measure on the absurdity result, of this if obscure Experience committed to it. resources un- legal whose training those clouds their has shown that is fortunately polity judgment, is manifest to laypeople.153 most more unwilling to devote than a rather than dwell on Rather what should gross product share of national small everyone, emphasize I plain to would like to Nonetheless, justice. criminal we in the other, perhaps less un- equally obvious but profess United States to have the high- fortunate, consequences of this outmoded est ideals when comes to what we will First, rule. the rule allo- diverts resources as a openly tolerate minimum level due justice cated to the criminal system Moreover, process adjudication. in criminal the trial criminals to the trial scheme, under our constitutional we have police.154 Innocent criminal defendants delegated task of defining that mini- may therefore be for a denied a real chance mum acceptable process princi- level due part fair trial least in because limited pally judiciary. judges to the But work resources available have been diverted piecemeal without responsibility for the questions. consideration exclusionary rule must sacrifices that be made elsewhere These innocent represent defendants class “purchase” whenever an additional el- victimized which exclusionary rule ement of process holding due goes often unnoticed because nor- attention indispensable element of a fair trial. mally is focused on pro- the boon the rule process This more will be ensures that due guilty. course, vides to the many Of required system can pay than the afford to rule; guilty man owes his freedom to the result, for. As trials have now been assumption underlying the rule to be held priced high too in most circum- holding impor- in check is more stances; usually neither the defendant nor check, holding tant than criminals in what- government can afford to carry ever the common experience city dwel- justice process through to its sup- criminal might lers be Innocent contrary. full-blown, defendants, however, posed natural conclusion in a may, public, with the be indirect victims of the rule. prepared well trial.155 foreign juris- remedy may mostly 153. And to those in at the state rather common-law than English dictions. Neither the nor the Canadian the federal level. Martin, legal systems adopted have the rule. Exclusionary Foreign The Canada, Rule Under Law— Weinreb, generally 155. See L. Denial of Justice 52 J.Crim.L.C. & P.S. Wil- report A 71-86 recent under the head- liams, Exclusionary Foreign The Rule Under Felony City line Arrests in the Failed “99% England, 52 P.S. 272 J.Crim.L.C. & Law— Bring in State Prison” in the Terms New provides example York Times a dramatic of our plight. explains The article current “[T]he going one 154. About third of federal defendants 100,000 felony year cases each enter what the suppression file to trial Fourth Amendment coordinator, Mayor’s justice G. criminal Robert motions; hearings most of these have formal funnel,’ ‘huge felony Keating, as a M. describes Comptroller on these motions. General of the prosecutorial vie for limited in which must Exclusionary Impact of the Rule enforcement and court resources.... Prosecutions, [L]aw Rep.No.- on Federal Criminal to treat (19 officials have decided all but the most April 1979). GGD-79-45 most Because misdemeanors, justice states, more often by serious offenses criminal is meted and out during by agreement reaching plea frequently state than not because officers are less well Times, effectively arraignment.” disciplined N.Y. 4 Jan. Sec- trained and officers, federal than exclusionary impact the true tion at 1. a rule attempt to invent diabolically to were increasingly to Instead, we have come substantive slowly to undermine sure negotiated system informal rely on an Amendment, it would Fourth reach of the plea bargained in the form of settlements exclusionary than the to do better be hard prosecutor and de- arrangements between how understands Every lawyer trial rule. results are woeful. Crimi- fendant. The ruling get a favorable it is to much easier routinely grievous offenses guilty nals are your case the facts of the law if with convictions permitted escape are client, But cosmetic. your wrist- attractive carrying less serious crimes far neatly assures exclusionary rule innocent penalties.156 Meanwhile slapping question Fourth Amendment nearly every been vindi- might well have defendants who disrep- facts and unsavory litigated involves settling for a coerced into cated at trial are Often, ruling favorable clients. utable charge; the dire con- conviction on a lesser Fourth Amendment reading of the a broad bargaining of- of recalcitrance sequences plain- criminal freeing of a will result in the innocent pose great too a risk to an ten heinous offenses of the most erroneously ly guilty may he defendant who fears Courts public. more on the prey ill- once by an after a trial conducted convicted consequences of their law- not unaware ill-prepared defense compensated and strain to judges help cannot rulings; yer.157 possible. So outcome if such an avoid we background that against It the rule term benefits whatever short energy, tal- the diversion must measure compli- might by way of additional achieve the central task of ent and dollars from counterbalanced must be more than ance determining guilt and innocence fairly the sub- narrowing of slow but certain adjudicating of defendants into the work of Amendment.158 of the Fourth stantive reach blundered. Plain- whether the way prosecutors, have in the ly, what we Advantages Supposed B. The Rule’s has been judges legal attorneys aid gratuitously exclusionary rule thus the allocation of The spread permit too thin to wors- prey public, frees criminals to discipline resources to the these scarce defendants plight of innocent per- should be ens police. That function adequate re- reducing ex- the chances others. The formed elsewhere afford them a will be available to literally buys what sources clusionary remedy thus trial, gradual and contributes to the Amendment fair way little in the of Fourth under the rights of more erosion substantive protection it affords at the cost What can be said if Fourth Amendment. for criminal defendants. Even trials job its favor? promoting rule did a fair Fourth values, Amendment this would be at best exclusion explanation for the usual questionable bargain. it removes whatever incen ary rule is that unconstitu fact, enhancing might Fourth there otherwise be to But in far from tive conduct, by denying guarantees, long run the tional Amendment searches the fruits of unlawful exclusionary remedy undoubtedly government erodes explanation is some seizures.159 This protections. If one Fourth Amendment Indeed, process given work in City, we can see this 156. In New York chance of a “[T]he my dissenting felony ending pris- col- us in which in to state the case before arrest a sentence leagues suggested according Amend- that the Fourth to statistics on is about of protect privacy in some compiled by Department.” not interests N.Y. ment does the Police opin- Times, sturdy luggage. See than containers less 4 Jan Section Judge ante. ion of Tamm 157. The Court has said that it is con- g., Elkins v. stitutionally permissible accept guilty plea to a 159. E. protests from defendant who his innocence. a Alford, (The exclusionary “purpose deter— rule’s is to North Carolina guaran- compel respect to for the constitutional L.Ed.2d 162 definitively probably answered and never by saying that the rule time's summarized misconduct, impact And police to be.162 because the the serves as a deterrent will not on the though strictly prosecutor, is true in most rule falls that not why theory the it is hard to in only policeman, even in Not does see theory.160 cases marginally the be more levy penalty directly rule fail to on the rule could than not offending government violates the Fourth effective. The is a mono- officer who lith; Amendment, but, policeman offi the assuming jurisdictions that in most even separate by penal prosecutor belong cers can be motivated and the to bu- indirectly against prosecutor against levied case one ty the whose reaucracies. Actions taken operation, may effectively is weakened the rule’s in most not even be communicated not acted instances the officer unconsti the other. tutionally would not even have suspect efficacy However uncertain is the rule’s policeman been arrested and the would not eliminating unconstitutional behavior hand, have “cleared” his On the case. other is clear it police, likely the rule is that rule, exclusionary even under the when an discourage the type discipli- of internal unconstitutionally, though officer acts a nary by police that would supervisors action result, may ultimately conviction he regulating police be' far more effective in nonetheless makes an arrest and “clears" the rule With the rule behavior than itself. may

his case. an choice So officer’s often place, any discipline police internal of a trophy be between on the one hand no effect officer is sure have the incidental form of but no an arrest violation of the sabotaging prosecution’s case before .of either, and, hand, on Constitution the other begins. prosecutor only A armed cleared con perhaps case but unclear evidence dubious value because it is the required science about the methods to clear constitutional fruit of a search doubtful may The possibility it. of a conviction may plea- still be obtain a validity, able to way.161 remote either bargained conviction offense. on a lesser fact, if, disciplining

In in view low But remarkably policeman, up of felony government unconstitutionality fraction defendants who wind admits the jail, search, experienced may evaporates. officers well view a of even this chance jail assumption sentence follows an as a is arrest While the rule based on the rare, unexpected impor- random more occurrence. is disciplining so, criminals, exclusionary If rule few simply chastising will be tant than conduct, any assump- immaterial this supervisors likely their which in to share predicated discipline event is thus hope much tion. Effective internal sum, imprisonment eventual conviction and the rule’s value in shortcircuited. the offender. reducing incidence of unconstitutional police behavior is at best doubtful. At Whether the fact inci- rule in reduces the worst, may counterpro- actually the rule dence of is a matter misconduct ductive. continuing empirical dispute; there evi- not, Moreover, assuming, dence that even as I am not probably does it is do, to say question fair is of some prepared has not been the rule ty effectively Health?, Against way by available Some New Data and a Plea — removing disregard it.”). Conclusion, (1974); Precipitous Ky.L.J. incentive Comment, Empirical On the Limitatiоns empirical basis of the rule is sub- Exclusionary of the Rule: A Evaluations Cri- ject of extended For and inconclusive debate. Spiotto tique United States Research and sample scholarly a question literature on Calandra, Oaks, Studying Exclusionary see Seizure, Rule in Search and 37 U.Chi.L.Rev. (1970); Spiotto, An Search and Seizure: supra. 161. See notes 155-56 Empirical Study Exclusionary Rule Alternatives, Legal Its 2 J. Stud. 243 supra. 162. See note Canon, Exclusionary Failing Is the Ruie in better, appropriate remedies more been that an incentive marginal removing benefit misconduct, forthcoming penalty its have not been from police present historically at proportion- is administered with a sense of the branches of the coordinate those penal of medieval ality reminiscent those power the to fash- who do have government punishment systems prescribed capital deal effective tools to with the ion more up. everything from on pickpocketing of abuse.163 problem on mercilessly The rule falls evidence argue the existence of the would I to have been seized unconstitution- deemed exclusionary itself has retarded the rule ally, regard gravity without for the the remedies development alternative misconduct or the seriousness of the branches. But legislative or executive of which the defendant has been crime judg- in this or not I am correct whether Even if the actions charged. policeman’s ment, recent decisions the as result of in violation of only marginally were judiciary longer dependent no federal despite good his faith while Constitution fashion better coordinate branches to murder, guilty rape the criminal is More effective meas- potent and remedies. stays dispro- still the evidence out. Such as a disposal are now our result ures portion regarded would as barbaric if (cid:127) changes in the law.164 recent crime; employed deter ironically, used to police many apparently deter consider it particular, effective tort In remedies “progressive.” developed court could now be federal —and flaw, degree already available —to Perhaps to some rule’s most serious however, only abuses, is available and could further check guilty may who thereby escape conviction. strengthened by court decisions without rights An innocent citizen whose are in- key legislative or executive assistance. The fringed can receive from no benefit is the here resurrection of U.S.C. § remedy. exclusionary prov- He must be a redress violations for the of constitutional ably guilty advantage criminal to take it. officials,165coupled with the impo- by state govern- liability on state sition vicarious

C. Where Can We From Here? Go their mental units the actions defects, long-recognized With these it is together, develop- Taken these agents.166 hard to understand how the rule has sur- provide in civil rights ments law reason, think, rule, The I vived. is that the pocket deep federal forum but a state faults, its perceived all has been as the enough adequate compensation to assure only remedy justices judges federal for and deterrence of Fourth Amendment legislature could fashion unaided violations. judi- past executive. the federal than faults of Other the all-too-obvious ciary relatively powerless has been to set up itself, exclusionary there are rule sever- po- effective deterrent to check mechanisms interest- why lawyers al reasons courts lice abuses. judges So federal who took ‍‌​​​​‌​‌‌​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌‌​​‌‌‌​​​​‌​​‌​​​‌​‍of Fourth Amendment ed vindication seriously their uphold oath to the Constitu- rights away should turn exclusion- may tion have felt compelled grasp ary development rule toward the effec- the straw of the exclusionary rule to carry tort tive remedies. duty out perceived their what only way they that a tort reme- Certainly could. Most obvious is the fact last refuge supporters of the rule’s always compensates has victim of Fourth dy See, g., exclusionary Kamisar, Pape, e. 165. Monroe v. rule perspective: struggle in historical to make (1961). empty the Fourth Amendment more than ‘an blessing,’ (1979). 62 Judicature 337 Services, Dep’t of Social 166. Monell v. See, g., Wilkey, e. A call for alternatives to exclusionary Congress rule: let speak, trial courts 62 Judicature 351 violation, they negli- Amendment while the exclusion- tutional tort actions as are for ary solely rule acts as an ill-conceived deter- gence tort actions. windfall rent to future violations whose juries by composed peers Verdicts only incidental are made available benefits from the drawn affected communities charged to those with crime. The exclu- go by police would not unnoticed either deters, when that sionary merely rule supervisors officials or their and would fails, must, always deterrence as it almost effectively police way deter misconduct in a for the vic- compensation forthcoming no exclusionary rule will never do. Nor remedy tims. An effective tort police easily disparage could the as deters, compensates the victim but also judgments of their fellow as citizens when and if deterrence fails to achieve law- appointed can that of judges. At the same police ful conduct. time, we can juries composed count on Second, remedy the tort has the advan- citizens who live in a community to under- tage decision- depend jury could stand the realities dangers of life in making judicial decisionmaking. rather than community judges better than may

Judges notably have been unsuccessful accurately and more to evaluate the con- their body principled effort to create a flicting claims of reasonableness and unrea- and coherent rules on which the can ag- sonableness of the and of the rely to determine the reasonableness of a grieved subject of a search. search with or without a warrant under the ques- I do not underestimate the difficult Fourth Amendment. The circumstances law, tions of particularly in the area of under vary which searches are made too damages, that must be answered before greatly and the number of relevant factors system such a tort could be considered well large permit is too the “reasonable” developed problems and mature. But the captured search to be adequately in a few should be no moré posed difficult than those understandable and administrable rules. exclusionary the crush of now rule cases What is community “reasonable” in one clogging the courts. And while the exclu- one time may not be “reasonable” in anoth- sionary rule cannot ever expected community er at another time. Juries work, system goals tort aimed at the twin drawn very from the community affected compensation reasonable and deterrence both abuses and criminal attacks might provide way well out of our current expected to provide better and Fourth Amendment difficulties. The time surely more popularly acceptable resolu- replace exclusionary has come to rule cases, tions of Fourth just Amendment replace it with a more effective alter- juries judges rather than traditionally have Both native. tasks are within the reach of expected been provide more accurate and judges justices.167 There is no reason acceptable more disputes resolutions of over any longer. to wait what negligence constitutes in the multi- tude of concrete circumstances that arise. actions,

Just as negligence course,

constitutional tort juries actions decided by subject

would be array usual of de- designed

vices to control jury decisionmak-

ing to ensure that it remains within the

bounds of the rational and the lawful.

Among tools, instructions, other jury direct-

ed judgments verdicts and notwithstanding verdict, would be as available for consti- Congressional Narcotics, surely pre- action would be erai Bureau of congressional 1999, 2012-20, following ferable. The silence Burger’s C.J., however, legislation, Chief (Burger, dissenting), Justice call for such has been Agents Bivens v. thundering. Six Unknown Named of Fed-

Case Details

Case Name: United States v. Albert Ross, Jr.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 13, 1981

Citation: 655 F.2d 1159

Docket Number: 79-1624

Court Abbreviation: D.C. Cir.