UNITED STATES v. ROBINSON
A police officer pulled over and arresting Robinson for operating an automobile without a valid permit. The officer then frisked Robinson and discovered a crumpled cigarette package containing fourteen vials of heroin in his pocket.
Did the officer's search violate the Fourth Amendment?
Legal provision: Amendment 4: Fourth Amendment
The Court upheld the search. Distinguishing between searches done to discover concealed weapons and those conducted coextensive with an arrest, Justice Rehnquist argued since the officer did not conduct the search in an abusive or extreme manner, and because he acted consistent with the authority vested in a police officer when making an arrest, his actions were legitimate.
Argument of Allan A. Tuttle
Chief Justice Warren E. Burger: We’ll hear arguments next in 72-936, United States against Robinson.
Mr. Tuttle, you may proceed whenever you're ready.
Mr. Allan A. Tuttle: Mr. Chief Justice and may it please the Court.
This case as the Court is aware, presents questions quite similar to those raised in Gustafson versus State of Florida which you’ve just heard.
There are also differences, which I have to point out in the course of my argument.
But basically, we are concerned here with the scope of a permissible search for weapons, incident to a lawful custodial arrest.
And the arrest here occurred in April of 1968, when Officer Richard Jenks of the Metropolitan Police Department here in the District, arrested the respondent Robinson for the crime of driving after revocation of his operator's permit and for obtaining a permit by misrepresentation.
In the course of a search of Robinson incident to that arrest, Officer Jenks discovered heroin and that heroin became the basis of a prosecution for unlawful possession of heroin.
He was convicted of that offense in August of 1969 and an appeal was taken to the Court of Appeals.
The procedural history here is a little involved.
The Court of Appeals, a panel of the Court of Appeals reversed respondent’s conviction on the ground that the seizure had been illegal.
However, the case was then heard en banc by the entire panel -- Court of Appeals and they remanded the case to the District Court for an evidentiary hearing, on the scope of the search incident to the April 23rd arrest.
Then after the evidentiary hearing, the en banc court again heard the case and this time, by a vote of five to four held that Officer Jenks’ search had exceeded the scope of a permissible weapon search incident to this arrest.
Now, the facts of the search can be briefly summarized.
The arrest here occurred on April 23rd of 1968.
Few days prior to that time, Officer Jenks had stopped the respondent Robinson in a routine traffic check.
He noticed the discrepancy between the birth dates on the respondent’s temporary operator’s permit and the birth date on his draft card.
Justice William J. Brennan: What do you mean, Mr. Tuttle, a routine traffic check?
Mr. Allan A. Tuttle: I mean a stop where the officer will bring a car to the curb that he observes for any reason that leads him to wish to check whether or not the driver is duly licensed and the car’s property register.
Justice William J. Brennan: What was the reason in this search?
Mr. Allan A. Tuttle: The record does not reveal any particular reason on this case.
Justice William J. Brennan: Are you suggesting as I drive home, an officer can insist that I pull over the curb while he asks to look at my license?
Mr. Allan A. Tuttle: Absolutely, yes.
I do believe that --
Chief Justice Warren E. Burger: Do -- you said routine, you mean routine or random?
Mr. Allan A. Tuttle: Well, I mean -- I mean it was routine and that is -- it is a practice of the Metropolitan Police Department to do this and -- this kind of stop on a random basis.
It is random, but it’s also routine and that it’s not unusual.
That’s what I meant.
I may say --
Justice William J. Brennan: Have you ever experienced this since you live in Washington?
Mr. Allan A. Tuttle: Such a stop?
Justice William J. Brennan: Yes.
Mr. Allan A. Tuttle: I have been stopped but --
Justice William J. Brennan: Have that ever happened to you?
Mr. Allan A. Tuttle: In that particular circumstance, no, I haven’t.
Justice William J. Brennan: Well, you’re relying, 17 years.
Mr. Allan A. Tuttle: Well, I may say that this --
Justice William J. Brennan: But how routine is it --
Mr. Allan A. Tuttle: That this is not a question before the court unless the court wishes to make it a question.
Justice William J. Brennan: Well, I thought you were relying on the fact that this was something called a routine traffic.
It's part of your --
Mr. Allan A. Tuttle: I’m relying in the last analysis on the fact that this is a conceitedly lawful arrest.
Now, I did -- perhaps Your Honor is confused between the dates and I was trying to make a distinction between the date of April 19th when this stop occurred and the license check was made because no arrest was made at that time.
And it was only later after the officer had checked those dates which where he saw the discrepancy through the traffic records and discovered by checking those dates that Robinson’s regular operators permit had been previously revoked.
But going back to the original stop, that was never questioned throughout this trial.
There was a question in the initial trial of this case when Robinson’s had a different trial counsel where he suggested that perhaps the scope of the routine traffic check was excessive.
That it was permissible and under the Mincey case in the District, it has been held permissible to make these stops.
But he suggested that having received the temporary operator’s permit, he had no right to look at the draft card.
Now that argument did not prevail in the District Court and has not been advanced since that time.
And I think for the purposes of this Court, we have to assume as the Court of Appeals did and as has every Court which has considered the matter that this routine traffic check was permissible and lawful.
Justice William J. Brennan: But whether it was or not, I gather there's no challenge to the arrest here, is it?
Mr. Allan A. Tuttle: There is no challenge to the arrest here in this Court.
I want to come to a question which is brooded in the brief a little bit about the question of whether this second arrest might have been a pretext for a narcotics search.
And with the Court’s permission, I’ll come to that in the course of my exposition.
After he had determined that there had been revocation of Robinson’s regular operator's permit.
The next day after he made that determination in the traffic records, Officer Jenks saw Robinson again driving not far from here, on 8th and C Streets, North East and pulled the respondent over for -- in order to arrest him for the crime of driving after revocation of his temporary operator's permit.
Now the respondent got out of the car and walked toward the police officer.
The police officer then asked Robinson for his operator's permit, the temporary operator's permit, which he’d previously seen and upon receiving it informed Robinson that he was under arrest for driving after revocation of his regular operator's permit and for obtaining his temporary permit by misrepresentation.
Now at that point, as required by the standing orders of the Metropolitan Police Department, he proceeded to search Robinson.
In this case, they were standing face to face outside the automobiles.
And Officer Jenks placed his hands on the respondent’s chest.
His left hand -- his right hand on the respondent’s left breast and almost immediately, he felt an object inside the pocket of the car coat that Robinson was wearing.
He felt an object in the left breast pocket.
Now the record shows that Officer Jenks didn’t know what that object was, he couldn’t tell its size or he couldn’t tell whether it was hard or whether it was soft.
Officer Jenks then reached into the pocket and pulled the package out.
The package was a crumpled up package of cigarettes.
Officer Jenks at that point, the record shows knew that the package did not contain cigarettes because of its crumpled condition and he didn’t know what it did contain.
He opened it up and he found the heroin, which is the subject of this prosecution.
Now, in light of some of the questions asked in the previous argument, I think I should state that the record indicates that Officer Jenks was not in any imminent sense of danger to not feel in any imminent sense of danger.
He had a substantial weight advantage over the respondent and wasn’t in any particular fear in conducting this arrest.
Nor did he have any specific purpose in mind when he conducted the arrest.
What he said was when asked I just searched him, I didn’t think about what I was looking for, I just searched him.
He did say that he recognized that the rules which required the search were designed for his own safety and were designed to uncover any weapons which might have been used to harm him.
Now, if I may mention one or two preliminary matters.
First of all, unlike Gustafson, the Government here does not advance any evidentiary basis for this search.
We predicate the search entirely on the right to search for weapons.
We believe that he had all the evidence he needed when he had the temporary operator's permit.
Now, going to an argument I mentioned --
Justice William J. Brennan: You mean the right to search for weapons but incident to a lawful arrest?
Mr. Allan A. Tuttle: Oh, of course, I’m a -- the arrest was conceded by the Court of Appeals to be lawful when they remanded it.
They didn’t remand it to determine the lawfulness of the arrest.
They remanded it because the original record didn’t show enough facts about the scope of the search.
Now, the search here --
Justice Potter Stewart: Well, I thought you --
Mr. Allan A. Tuttle: Or the arrest here was not a pretext for a narcotic search --
Justice Potter Stewart: General Tuttle, I thought you're argument was and maybe it’s what you’ve said that if there is a valid arrest of a person, then the law -- the settled law is that there is -- there can be a constitutionally a valid, complete search of his person.
The rationale for that being that he might have weapons that that there might be destructible evidence, but what is the rationale --
Mr. Allan A. Tuttle: Well, it--
Justice Potter Stewart: The law, the constitutional law is that there can be a complete search of his person, isn’t it right?
Mr. Allan A. Tuttle: It’s conceivable to me that there might be a search which would exceed the scope of a permissible search for weapons.
If I see a folded piece or a -- not a folded, but a piece of paper in a person’s pocket which might be a written confession of a crime, if I were conducting an evidentiary search, I might want to look at it.
If I were conducting a weapon search --
Justice William J. Brennan: How about a sealed envelope?
Mr. Allan A. Tuttle: Well, we -- I’d have to develop the hypothetical a little bit if it were solid or had any kind of solidity to it --
Justice William J. Brennan: What’s that sealed envelope, that --?
Mr. Allan A. Tuttle: That it might contain a razor blade or some such thing then I would say it’d be a permissible weapon search.
But as I say, it is conceivable and that’s why I say that I don’t go quite as far as you suggest Mr. Justice because it’s conceivable that an evidentiary search might in certain circumstances be of a broader scope than a permissible weapon search.
Justice Potter Stewart: Well a broader search looking in body cavities and what not, we’re talking -- not talking about that.
Mr. Allan A. Tuttle: Well that -- of course we’re not because that would raise the Rochin kind of problem and that would be beyond the scope of a permissible weapon search.
Our basic position is that it’s not only where there is an arrest that we feel that a complete search for weapons is permissible but it is where there is a custodial arrest.
It’s important to realize that in this case, we’re not dealing with a minor traffic offense.
The crime of driving after revocation of your operator's permit is a statutory offense defined by Congress.
It carries a minimum of 30 days in jail and a maximum of a year.
Justice William J. Brennan: What’s the distinction between arrest and a custodial arrest?
Mr. Allan A. Tuttle: Well, I would as -- I would not want to argue that when a police officer stops a car to issue a summons that that was not an arrest.
There is after all a restriction on the person’s movement.
And yet we concede and it is the practice here in the District where there is an issuance of a summons not to conduct the full custody -- field search is required in the case of custodial arrest.
That’s why I want to make the distinction that the regulations of the police department require that this individual be taken into custody, require that he’d be taken down to the station house for booking and also the regulations of the Police Department require that whenever such an arrest is made, a so-called full custody arrest that a full field search be made of the individual for anything that he might have on him, be it evidence or be it weapons.
Justice Thurgood Marshall: Could he be handcuffed?
Mr. Allan A. Tuttle: Excuse me?
Justice Thurgood Marshall: Could he handcuff him?
Mr. Allan A. Tuttle: He did -- could he or did he?
Justice Thurgood Marshall: Could he?
Mr. Allan A. Tuttle: He could but Your Honor, I think that that --
Justice Thurgood Marshall: Would the officer be pretty safe then?
Mr. Allan A. Tuttle: Well, officer -- the court is probably aware that last month, Officer Pamraning (ph) in the Police Force in Arlington was shot and killed by a man that he handcuffed.
I think that handcuffing --
Justice Thurgood Marshall: I also am aware of a prisoner that was shot and killed while handcuffed and shackled.
What's that got to do with my point?
Mr. Allan A. Tuttle: It has to do Mr. Justice with the point I believe that handcuffing is not an adequate protection for police officers conducting custodial arrests and I just cite that as a single recent example.
Justice Thurgood Marshall: Well, I ask you what I asked in the other case, once he had this crumpled package of cigarettes in his hand, I understand you're not relying on the evidentiary search, am I right?
Mr. Allan A. Tuttle: That’s correct.
Justice Thurgood Marshall: Well, once he had this possible weapon in his hand, how could the prisoner use that weapon?
Mr. Allan A. Tuttle: He could not use that particular weapon, but I believe that the search of that container which could’ve contained the weapon was wholly justified for a number of reasons.
First of all, every search which is conducted by any officer is different and everything an officer sees tells him something about how far he has to go to be safe in conducting the search.
And I think an examination of a closed container on a person is part of the -- helps the officer to know by looking at it whether or not he’s dealing with a dangerous person.
If there's nothing dangerous in that container, he would return it presumably.
If there is, he may feel the need to go further.
Justice Thurgood Marshall: Would that go for a wallet?
Mr. Allan A. Tuttle: It might if the officer --
Justice Thurgood Marshall: Well, is there anything on the man’s possession -- in his possession that is safe from search and seizure, anything?
Mr. Allan A. Tuttle: Anything that could contain a weapon, subject or possibly -- that could possibly --
Justice Thurgood Marshall: That would include a handkerchief?
Mr. Allan A. Tuttle: Subject the officer to injury.
Justice Thurgood Marshall: Wouldn’t include a handkerchief?
Mr. Allan A. Tuttle: I -- if it were folded, possibly.
Justice Thurgood Marshall: So nothing safe?
Mr. Allan A. Tuttle: Well, the -- there are number of reasons --
Justice Thurgood Marshall: I’m just trying to have something in mind that would be safe.
That’s all I’m trying to do.
Mr. Allan A. Tuttle: Well, it’s all safe.
Nothing happens to it presumably if it’s an innocent object, a key case with nothing but keys then it would be returned to you.
Justice Thurgood Marshall: Oh, then it depends on what you find in it.
That -- what’s found in it justifies the search.
You're not --
Mr. Allan A. Tuttle: Absolutely not.
Justice Thurgood Marshall: I’m sure you're not. [Laughter Attempt]
Mr. Allan A. Tuttle: (Voice Overlap)
Chief Justice Warren E. Burger: If you find a razor, suppose you find in that cartoon a razor with a small holder so that it could be used as a weapon --
Mr. Allan A. Tuttle: Would certain -- which could certainly be introduced an evidence against the person for carrying concealed weapon.
Chief Justice Warren E. Burger: And would it suggest to the officer as I think Mr. Justice White brought out in the prior case that if the man had an a razor in a holder that could be used as a weapon, he might have some other weapons on him that would justify a more extensive search.
Mr. Allan A. Tuttle: That was the point Mr. Justice I -- Mr. Chief Justice, I was trying to make by suggesting that the search of these containers gives the officer information about the kind of possible dangers he maybe facing.
I also think that the suggestion that Mr. Justice Marshall made would create substantial custodial problems with the police.
In order to be safe, they would have to remove anything that was a closed container from the person arrested and somehow try and handle that while they were handling the individual subject to arrest.
Justice William H. Rehnquist: Mr. Tuttle, wouldn’t the proposition put to you by Mr. Justice Stewart earlier and put to counsel in the proceeding here by Mr. Justice Brennan that is that where you have a valid arrest, you may have a full field search without further inquiry, solve a lot of the kind of parsing of factual situations and at least offer a certain simplicity of administration (Voice Overlap).
Mr. Allan A. Tuttle: Well, we -- we do think that such a rule of course would be understandable and manageable by a police officers attempting to deal with situations on the street.
And that a rule which required an officer in every instance to determine that a search has an evidentiary purpose or has a weapon’s purses -- purposes perhaps going to con -- be confusing for police officers.
In fact the record supports your point Mr. Justice.
There was testimony from an Officer Donaldson, a police instructor, who testified that time is of the essence in conducting a custodial arrest.
And that if an officer had to stop and think; now I’m searching for this, now I’m searching for that then he wouldn’t be able to react in a manner that would enable him to conduct the safe and speedy arrest.
It’s also true that if we do adopt the kind of distinctions that the respondent is urging here, we are going to be faced with a whole new set of problems in litigation.
We’ll be litigating in every instance whether a particular kind of crime is one that’s likely to produce evidence.
And even where it’s conceded that the crime has evidence, I believe one of the Justices mentioned the possibility of an arrest for stealing a television or some such thing, they’ll be -- we’ll be litigating whether or not evidence of a particular size and consistency was likely to have resulted from a given kind of crime.
And I think that to require officers to try and make these judgments every time they impose a custodial arrest in a street situation would be an unmanageable problem and would also as I’ve indicated create a whole new set of litigation problems for this Court.
Justice Potter Stewart: Well, that’s what I thought your argument was and that’s the reason I didn’t really quite understand your question of one of the -- your answer to one of the questions from the bench that it might make a difference whether a razor blade were found or were not found in the scene, the cigarette --
Mr. Allan A. Tuttle: No, it did not.
We have never make the (Voice Overlap).
Justice Potter Stewart: Because I thought your basic argument was that when there's a valid custodial arrest, there can be a full field search.
Isn't that your argument?
Mr. Allan A. Tuttle: That that’s -- that is our basic argument.
Justice Potter Stewart: That’s what I thought.
Mr. Allan A. Tuttle: But we do concede that searches could be excessive.
Justice Potter Stewart: Well, search --
Mr. Allan A. Tuttle: And searches are justified -- in our view, searches are justified by the reason which gives rise to the right to make the search and --
Justice William H. Rehnquist: And what reason do you need under your (Voice Overlap) valid arrest?
Mr. Allan A. Tuttle: If it is, as in this case, a search for weapons then the reasonable possibility of finding weapons would indicate the -- would indicate the reasonable extent of the search.
Justice Byron R. White: Well, then you apparently want to litigate the specific facts of every arrest when there's a search for weapons?
Mr. Allan A. Tuttle: Well, I recognize Mr. Justice White that there are two possible -- there's more than one ground upon which the court could sustain the search here.
If the court is prepared to hold that as Mr. Justice Rehnquist has suggested that a valid arrest ends the inquiry then there would not be -- then we would solve certain problems --
Justice Potter Stewart: That’s been the law until now, hasn’t it?
Mr. Allan A. Tuttle: It has been the law since the Weeks case.
That’s was far back as I was able to (Voice Overlap).
Justice Potter Stewart: Alright and until this case in the Court of Appeals.
Justice Byron R. White: That’s right, that’s fairly wrong.
Mr. Allan A. Tuttle: This is the first case that I know of where a challenge has been made and made successfully in the court below that there ought to be limitations on the scope of a search incident to an arrest.
Justice William H. Rehnquist: Well it’s the decision of the court below that’s the aberration, certainly not the Weeks case --
Mr. Allan A. Tuttle: Absolutely and I would call the court’s attention to the decision in the Worthy case, which was a decision of the Court of Appeals in which the Chief Justice sat on the panel where the court below, a panel of the court below rejected an attempt to impose limitations on a search incident to a vagrancy arrest there.
And I think it's very significant that the dissent in that case was written by Judge Wright who wrote the majority opinion below and in the descent in 1969, Judge Wright was prepared to say that there was no law supporting his view that a search for an arrest for vagrancy was impermissible.
In 1972, he has the majority of the court with him, but it's unquestionably true Mr. Justice Rehnquist that this is a new idea.
Justice William J. Brennan: Do you think Preston in anyway turned on the fact that the arrest there was for vagrancy?
Mr. Allan A. Tuttle: The question where?
Justice William J. Brennan: You recall in Preston --
Mr. Allan A. Tuttle: Yes.
Justice William J. Brennan: -- you remember, we held invalid an automobile search --
Mr. Allan A. Tuttle: Yes.
Justice William J. Brennan: -- and that search while not at the scene as I recall it --
Mr. Allan A. Tuttle: It was back at the police station.
Justice William J. Brennan: -- I could be wrong about that, but nevertheless the original arrest was for vagrancy?
Mr. Allan A. Tuttle: And the court held that there was no reason to think that evidence will be found in the car that would --
Justice William J. Brennan: Well, I just wondered, do you think that Preston in anyway rested on the fact that the arrest there was for vagrancy?
Mr. Allan A. Tuttle: I think it did.
The -- but there the question --
Justice Potter Stewart: (Voice Overlap) holding one --
Mr. Allan A. Tuttle: There it was a question of an evidentiary search --
Justice Potter Stewart: And it was not --
Mr. Allan A. Tuttle: It wouldn’t be found.
Justice Potter Stewart: The court held there that it was not a search incident to an arrest.
It’s the same as Stoner against California.
It was simply not a search incident to an arrest.
Mr. Allan A. Tuttle: Well, but under --
Justice Potter Stewart: But that question doesn’t exist here --
Mr. Allan A. Tuttle: Under Chambers v. Maroney, if we were to take the case forward to today, the Court -- this question where the court would come out the same way.
But if they did come out the same way as they did in Preston, it would be because there was no reason to believe that evidence of vagrancy would be found in a search of an automobile.
Chief Justice Warren E. Burger: Well didn’t the time factor enter into it also that they didn’t search the car in Preston until either several hours or some substantial time after the original arrest?
Mr. Allan A. Tuttle: Yes, and which made it not incident --
Chief Justice Warren E. Burger: So, it wasn’t incidental to the original arrest --
Mr. Allan A. Tuttle: No.
But I’m saying that perhaps that that analysis of Preston is affected by the Court’s decision in Chambers which would have a lot of search a few hours later at a different place where there's a valid reason for search.
Whereas in Preston, since it was a vagrancy arrest, there was no valid reason for search.
I’d like to make one final point about Mr. -- relating to Mr. Justice Marshall’s suggestion about keeping the object away from the person and that is that this Court has never made such a suggestion before and indeed as I think held the opposite in one case that comes to mind.
Your Honors, if we recall, we’ve been discussing this morning the Peters Case.
Well, in Peters, Officer Lasky was conducting a weapon search and he patted Peters down and he felt an object which under Terry, he had the right to remove, namely a hard object which could’ve been a weapon.
He removed it but what is significant for the purposes of our present argument is that what he found was a closed opaque plastic envelope.
And of course, he then opened it and discovered not a weapon but a burglary tools.
And at that time, no one questioned that having taken that object away from Peters, Officer Lasky should simply have held it at a distance. It was considered reasonable for him to look at that time.
I suggest the same analysis apply here.
That it was reasonable for the officer to look inside this package once he had it out of -- in his hands and out of the reach of --
Justice Thurgood Marshall: And what could he have found in there that would’ve endangered him?
Mr. Allan A. Tuttle: Well --
Justice Thurgood Marshall: You said it was folded up like this, right?
Mr. Allan A. Tuttle: Yes --
Justice Thurgood Marshall: Folded up like this.
Mr. Allan A. Tuttle: (Voice Overlap)
Justice Thurgood Marshall: So, it wasn’t razor blade, was it?
Mr. Allan A. Tuttle: That was in it?
Justice Thurgood Marshall: Yes.
It could’ve been that many.
Mr. Allan A. Tuttle: It -- perhaps could’ve been.
Justice Thurgood Marshall: A collapsible razor blade.
Mr. Allan A. Tuttle: Your Honor, we attempted to develop a record on the question of what kinds of things might be found in a small container in the hearing on remand and Officer or rather clandestine weapons expert Mr. Newhouser (ph) --
Justice Thurgood Marshall: I understand with things taped all over his body.
Mr. Allan A. Tuttle: He had approximately 25 weapons that were puffed -- had the possibility of subjecting --
Justice Thurgood Marshall: Did he have a letter bomb on him?
Mr. Allan A. Tuttle: He did not have a letter bomb --
Justice Thurgood Marshall: Then how did he forget that?
Mr. Allan A. Tuttle: He could have but as a matter of fact, he didn’t have such an item on him.
He testified that many of these weapons were small enough to fit inside a cigarette package and in fact, one of them I think was carrying it in the cigarette package.
And I think it’s significant that he testified that only a really thorough going search which would’ve included going under his belt, going in the waistline and it turning out in examining all pockets.
Justice Thurgood Marshall: My point is --
Mr. Allan A. Tuttle: Whatever it be, the weapons.
Justice Thurgood Marshall: But granting that he had the right to take the package out, a crumpled (Inaudible), why did he have to open it, that’s my only point?
Mr. Allan A. Tuttle: I’ve suggested --
Justice Thurgood Marshall: Other than to search for evidence?
Mr. Allan A. Tuttle: I’ve suggested several considerations.
One is to assure himself that there was nothing like the weapon inside it.
I’ve suggested that if he couldn’t do --
Justice Thurgood Marshall: Would he have given it back to him if there was nothing in it?
Mr. Allan A. Tuttle: Yes he would have and if he couldn’t, he’d be subjected to all kinds of difficulties of a custodial obligations attaching to it and I’ve suggested that in the Peters case, the Court has suggested that that is a perfectly permissible practice.
Now, I’d like to point out one fact that is argue -- an argument which is made by the respondent’s counsel.
Well, he argues that this expert’s evidence shows really the opposite of what we argued that it shows.
He argues that it shows that a pat down is adequate and I suggest that the confusion there arises from a confusion as to what a frisk really is.
And a search of the record indicates that in this case, Mr. Gartlan quoted some language from Terry to the police officer, excuse me, the weapons expert which involved a thorough search of the body and the groin and the testicles and it goes on to describe that search.
Now the expert there testified that that was not a frisk and was not in his view of a frisk and I attempted to demonstrate in the brief that that language was never intended to be a definition of a frisk.
And I think that if the Court reads the record with that in mind and with the fact in mind that the expert did testify that it would be required in order to conduct a really thorough search that the officer go into the pockets.
That it’s quite clear from the record that a Terry type frisk would be inadequate to reveal all the weapons that could be hidden.
Now, there is a second point that we raise in the brief relating to the question that if the Court finds that reaching into pocket did infringe Robinson’s Fourth Amendment rights, it would've been a minimal violation at most.
And we suggest that the deterrent purpose of the exclusionary rule would not be well served by excluding evidence which is the result of a policeman’s protective search.
But I don’t believe that I have to go into that at this point because I believe first of all, my time is about to expire and secondly, I believe that this search was thoroughly reasonable and that the conviction ought to be sustained on that ground.
Justice Potter Stewart: That last branch of your argument would -- is in effect asking us to overrule Weeks against United States, isn’t it?
Mr. Allan A. Tuttle: I would ask you to modify it, yes.
Because it -- we don’t have --
Justice Potter Stewart: Decided 1914, right?
Mr. Allan A. Tuttle: We -- if the Court reached that point, it would not be that that we will be asking for the total abolition of the exclusionary rule, but for a consideration of the extent of deviation from normal --
Justice Potter Stewart: Yes, but Weeks established the exclusionary rule as such in the lower courts.
Mr. Allan A. Tuttle: And there's no question that every case including up to -- I think a recent example is Davis, indicates that the Court has never adopted such a rule, that’s quite true.
Chief Justice Warren E. Burger: Mr. Gartlan.
Argument of Joseph V. Gartlan, Jr.
Mr. Joseph V. Gartlan, Jr.: Mr. Chief Justice and may it please the Court.
As we understand the government’s position in this case, it basically takes three themes.
First of all, that there is nothing in the Terry case, the Sibron case or the Peters case which limits the scope of a post to rest search.
And that the United States Court of Appeals for the District of Columbia confused two distinct sets of principles applicable to Fourth Amendment searches by disregarding the significance of a lawful arrest.
The second theme of the Government’s argument is that the Metropolitan Police Departments of the District of Columbia, instruction to its police officers with respect to the extent of a search in this case, this type of case is a reasonable type of instruction and approach that a Terry type frisk is not adequate protection in the instance of a full custody arrest.
And finally, the attack upon the exclusionary rule and the request that it'd be modified in cases of this type.
It seems to us clear addressing myself to the first point that in Terry, this court rejected a notion advanced by the State of Ohio that the Fourth Amendment doesn’t even come into play as a limitation upon police conduct if the officer stopped short of something called a technical arrest or a full blown search.
And this Court went further to say that the sounder course of analysis in Fourth Amendment cases is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security and to make the scope of a particular intrusion in the light of all of the exigencies of the case a central element in the analysis of reasonable arrest.
Then in Peters we had a case wherefore the purposes of constitution analysis, an arrest had taken place when Officer Lasky apprehended Peters in the hallway of his apartment.
And this Court said with respect to the pat down type of search that was conducted by Officer Lasky that this was reasonably limited in its scope to its evidentiary and protective purposes and was not an unrestrained and thorough going examination of the arrestee and his personal effects.
Now the government has pointed out in this case, Mr. Justice Harlan’s observation of that language in the Terry decision.
Mr. Justice Harlan said, “That’s all it was, an observation” and that the Court was -- and in other words, the Court was not saying in Terry that a protective search incident to a lawful arrest is limited to a frisk.
But this Court in Chimel shortly after Terry said as to its decision in Peters and I quote, “We sustain the search in Peters, however, only because its scope had been reasonably limited by the need to seize weapons and to prevent the destruction of evidence.”
We emphasized, again quoting from this Court’s decision that the arresting officer did not engage in an unrestrained and through going examination of Peters and his personal effects.
So it seems to me that in -- certainly in Peters, this case was -- this Court was taking the scope limitation principles applied truly enough in a different context in Terry and making an application of them in a new context, a post arrest situation.
And in Sibron, the third case in the trilogy, while there, the Court found that -- this Court found there was no probable cause for the arrest and that the circumstances were there for the equivalent of the stop and frisk situation confronting the officer in Terry.
In its opinion, it assumed arguendo that would -- even though if the circumstances of apprehension and fear had been present in the Sibron case as they had been in Terry, thus making it for the purposes of protection of a police officer the equivalent of a post arrest situation, then the search into Sibron’s pockets was going too far. (Voice Overlap)
Chief Justice Warren E. Burger: While you -- are you reading the Terry case type of search as a limitation defining the outer boundaries of the kind of a search which can be made after a lawful arrest?
Mr. Joseph V. Gartlan, Jr.: I am reading it as an articulation of principles Mr. Chief Justice that apply to all intrusions and since a search incident to a lawful arrest is an intrusion, yes and I think that the language in Terry is rather explicit in that regard.
Justice Potter Stewart: Peters is, if I remember it correctly, tell me if I’m wrong, but the Peters case did involve a lawful arrest, did it not?
Court here --
Mr. Joseph V. Gartlan, Jr.: The Court found it (Voice Overlap) --
Justice Potter Stewart: Court here found that there was probable cause to arrest and that -- in that search therefore was by definition incident to a lawful arrest.
Mr. Joseph V. Gartlan, Jr.: That’s correct but they did -- this Court did take pains to know that Officer Lasky's search in Terry, even though incident to a lawful arrest --
Justice Potter Stewart: In Terry or in Peters?
Mr. Joseph V. Gartlan, Jr.: I’m sorry, in Peters.
Justice Potter Stewart: That’s what I thought.
Mr. Joseph V. Gartlan, Jr.: Was not thorough going and unrestrained and was limited to the purposes for which it could be made which justified it in its inception.
This Court said in Terry -- this Court has held in the past and that is why I think the decision of the United States Court of Appeals for this circuit was not in aberration.
This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope, citing authorities.
The scope of the search must be, “Strictly tied to and justified by the circumstances which rendered its initiation permissible quoting authorities that go all the way back to the Agnello case.”
This -- the decision of our Court of Appeals was not in aberration if Terry was not an aberration because what Terry was, was an articulation of scope limitation principles applicable to these kinds of intrusions and our case presented the first opportunity to apply those limitation principles to a post custody arrest explicit --
Justice William H. Rehnquist: And if you’re relying on --
Mr. Joseph V. Gartlan, Jr.: Was done implicitly in the Terry, Sibron, Peters --
Justice William J. Brennan: I gather -- I need make this argument without regard to what the offense was for which the petitioner was arrested -- responded to.
Mr. Joseph V. Gartlan, Jr.: Yes.
I think there are scope limitation principles even where a search is justified by an evidentiary purpose.
Justice William J. Brennan: In other words, it's not -- there's no significance here that the arrest was connected only with an alleged traffic offense?
Mr. Joseph V. Gartlan, Jr.: Yes there is.
In our case in terms of a reasonableness of the arrest by all means because --
Justice William J. Brennan: I know.
Assuming (Voice Overlap).
Mr. Joseph V. Gartlan, Jr.: The reasonableness of the search.
Justice William J. Brennan: Assuming that were -- you mean, it does -- the scope of the search, assuming a valid arrest maybe one thing if the arrest is for a minor traffic offense and something else if its for an armed robbery?
Mr. Joseph V. Gartlan, Jr.: Yes sir.
Yes Mr. Justice Brennan and for this reason.
An arrest for an armed robbery clearly would justify an evidentiary search of the persons for the fruits or the instruments or the instrumentalities or evidence of that crime.
And to the extent that those might reasonably be expected to be found upon the person of the arrestee given the circumstances at the time and execution of the arrest, certainly, he could be searched for that purpose.
Justice Byron R. White: Like, you could search in a crumpled cigarette package?
Mr. Joseph V. Gartlan, Jr.: Why could not?
Justice Byron R. White: You -- could you search in a crumpled cigarette package?
Justice William J. Brennan: In the case of the armed robbery?
Mr. Joseph V. Gartlan, Jr.: Of armed robbery?
Justice William J. Brennan: Yes.
Mr. Joseph V. Gartlan, Jr.: Yes.
In my view --
Justice William H. Rehnquist: If you're relying on Terry, as you say to support the judgment of the Court of Appeals, that would be dicta I take it, since in Terry there was no lawful arrest?
Mr. Joseph V. Gartlan, Jr.: As I -- I haven’t looked up recently the technical law dictionary definition of dicta.
Yes, it was dicta in that the facts of the Terry case Mr. Justice Rehnquist did not involve the precise facts of this case.
But I think this Court was teaching the federal judiciary system in Terry, the scope limitation principles applicable as it said explicitly to all intrusions --
Justice William H. Rehnquist: Well, one can teach --
Mr. Joseph V. Gartlan, Jr.: Without limitations.
Justice William H. Rehnquist: Well one can teach by dicta as well as by holding?
Mr. Joseph V. Gartlan, Jr.: That’s correct and I think that our Court of Appeals in the District of Columbia was not guilty of an aberration.
It listened to that teaching in this decision.
Justice Potter Stewart: And the Peters case is really an all force with your case, isn’t it, constitutionally because there, there was a valid arrest?
Mr. Joseph V. Gartlan, Jr.: That's right.
Well, but factually, in Peters Mr. Justice there was a justification because of the circumstances for a search evidentiary in nature and we don’t have that evidentiary in purpose.
Justice Potter Stewart: That was a prowler in the Bronx apartment, if I remember the case, was it not?
Mr. Joseph V. Gartlan, Jr.: Yes sir.
And we don’t have that in this case.
Justice Byron R. White: Yes, but the Court justified it as a weapon search in Peters?
Mr. Joseph V. Gartlan, Jr.: No, the court in Peters, Mr. Justice White said that the -- that deci -- that search be properly limited to its evidentiary and protective purposes.
Justice Byron R. White: And protective?
Mr. Joseph V. Gartlan, Jr.: Yes sir.
Justice Byron R. White: Now so in the example awhile ago, you said that you might be able to search in a cigarette package in case of arrest for some purposes, but not further.
Now, if you arrest a man in his house for stealing television sets and there's a crumpled cigarette package in his pocket, you would say you couldn’t search in the package in that case?
Mr. Joseph V. Gartlan, Jr.: Examine its contents incident to the arrest for the theft of the television set?
I wouldn’t think so and I don’t think that this is what -- as a matter of law --
Justice Byron R. White: So it would -- really would depend in each case on what the arrest was for and what kind of evidence there might be of a particular kind of crime?
Mr. Joseph V. Gartlan, Jr.: I would not want to get that particularized.
I would say obviously when the arrest is for a crime for which there is no evidence as with the situation in Willie -- with Willie Robinson there can be no evidentiary justification for the search.
Where there is a -- an arrest for a crime where a -- an experienced police officer may reasonably expect to find fruits, instrumentalities or evidence of the -- of that crime, not something he imagines may have happened, but of that crime for which the arrest is being made on the person or the defendant, then he may go into his pockets.
He is not restrained and if it were a -- for the crime of stealing money, I would think if he discovered a cigarette package in a pocket, he could examine that for that purpose.
Justice William J. Brennan: Well, let’s see, in dealing with our case, this Robinson case, your submission is that a search with an evidentiary purpose could not be permissible in the circumstance?
Mr. Joseph V. Gartlan, Jr.: The government stipulates that in that case.
Justice William J. Brennan: Now -- does that go as far to suggest that it was wrong even to go into Robinson’s pocket for the crumpled up cigarette package or is it wrong only to open the package?
Mr. Joseph V. Gartlan, Jr.: I think in the light of the record in this case, it was wrong to go into that pocket.
On cross-examination at the remand hearing, Sergeant Donaldson was asked by me whether if Officer Jenks at the scene had in fact been conducting a frisk instead of what he termed a full search and had encountered what Officer Jenks had encountered when he placed his hand on Robinson’s left breast pocket, namely a package that was -- that gave when it was squeezed, had no sharp edges, didn’t appear to be of appreciable size and or a mass, what should he have done?
And Officer Donaldson who instructs Metropolitan Police Officers in search techniques said he should have gone on.
He shouldn’t have even gone into the pocket.
Now that’s in the record of this case --
Justice William J. Brennan: Well, may I ask this Mr. Gartlan, this is not your case.
You take the previous case.
Suppose what Mr. Robinson had in his pocket was the stiff box of cigarettes rather than the crumpled package.
In that circumstance, would -- the officer would have been testified in going into his pocket?
Mr. Joseph V. Gartlan, Jr.: If I may ask the question Mr. Justice Brennan by coming really I think to what the heart of this case is as far as the reasonableness of the search -- of this search is the balancing job placed upon courts which this Court did when it articulated the scope limitation principles.
It -- that in -- by articulating those principles, this Court did not set out a definite limited -- limit for every kind of search.
The world of the streets of the District of Columbia is not the fictional world of Ian Fleming. Our streets are not populated by James Bond type characters or like Mr. Newhouser who customarily walk about the streets with 25 lethal weapons taped or secreted upon their person.
One can imagine that a James Bond character would secrete in a stiff cigarette package a potentially lethal weapon.
But I just don’t think in the light of the street experience of police officers that they get apprehensive of danger to themselves even in a close proximity custodial situation because they feel what their experience and common everyday knowledge tells them is a cigarette package.
Justice William J. Brennan: So your answer to me then is it wouldn’t make any difference to your case?
Mr. Joseph V. Gartlan, Jr.: That’s correct.
Justice William J. Brennan: If it had been the box rather than (Voice Overlap).
Mr. Joseph V. Gartlan, Jr.: It would not.
Not because that’s a division line that this Court is going to recognize henceforth but it's one that police officers do as a practical matter.
Justice Lewis F. Powell: Mr. Gartlan, do you concede that a pat down always maybe made in a custodial arrest?
Mr. Joseph V. Gartlan, Jr.: Yes sir, I do.
That was the common ground of the plurality and the dissenters in the decision of the United States Court of Appeals.
It is a position not as extreme as one taken in an amicus brief in this case which contends that not even a Terry type frisk maybe made unless there is that apprehension of danger which the officer in Terry experienced.
I would agree that the necessity for protection of a police officer in the full custody situation whether he is frightened or not in the light of common experience is serious enough to warrant at least of the Terry type frisk as an initial search following where it will with reasonably aroused suspicions on the part of police officers.
Now, the second thing to the government argument is and I’m not going to dwell on this too much in view of the Court's questions because I think basically, we have covered it.
Counsel has referred to Metropolitan Police Department standing orders and Metropolitan Police Department regulations with respect to the scope of the search of a person incident to an arrest.
There simply is no standing order.
There's simply is no regulation.
What this record refers to is the practice of the Metropolitan Police as revealed through the testimony of Sergeant Donaldson as to the manner in which it instructs its police officers and it’s true that Sergeant Donaldson did say that in a custodial arrest situation, we require a full search, but where that particular bid of lore grew up and how it came to be escalated to the status of a standing order, this record is totally silent.
Chief Justice Warren E. Burger: Well, if they teach all of policemen to do that, what’s the real difference then Mr. Gartlan between whether it’s a standing order or a standing practice?
Mr. Joseph V. Gartlan, Jr.: Because I think that if there were a -- I think this Mr. Chief Justice, the difference is that when he was explored -- when his testimony was explored on cross-examination, Sergeant Donaldson came out as a much more sanguine individual about the circumstances of an arrest than the instructions he gave would make him to a rookie policeman.
We have to keep in mind that a warrantless search that what this instruction contemplates is a warrantless search to begin with.
And this Court has consistently held that that being an exception to the Fourth Amendment prohibition against such searches must come within a -- places upon those who would come within it, the burden of meeting the zealously drawn outlines of the exception.
Chief Justice Warren E. Burger: Well, you're not questioning that a search is permitted incidental to a lawful arrest, are you?
Mr. Joseph V. Gartlan, Jr.: No.
No Mr. Chief Justice.
Chief Justice Warren E. Burger: You are -- well, do you --
Mr. Joseph V. Gartlan, Jr.: We are saying --
Chief Justice Warren E. Burger: You regard that as an exception to some rule.
Is that the way you frame it?
Mr. Joseph V. Gartlan, Jr.: Yes, as this Court has on a number of occasions framed the search incident to arrest as described and as an exception to the prohibition of the Fourth Amendment and I --
Chief Justice Warren E. Burger: It’s a warrant -- it’s a warrantless arrest to be sure, but it's -- no question about its standing and it's being recognized, is there?
Mr. Joseph V. Gartlan, Jr.: No there is not Mr. Chief Justice and what this case is all about is whether or not there should be some limitation on the scope of that search.
Justice Potter Stewart: Chimel put a limitation upon the geographic scope of the -- of such a search?
Mr. Joseph V. Gartlan, Jr.: Exactly.
Justice Potter Stewart: Only, it only dealt with the geographic scope did it not really and your submission today is that there ought to be a limitation upon the scope of the intensity of the search within that geographic area?
Mr. Joseph V. Gartlan, Jr.: Exactly.
Now, I do think that I have to devote some of my time in argument to the question of the exclusionary rule because even if in the light of the record of this case, this Court should find that the search of officer -- of Willie Robinson exceeded permissible limits, there is still another hurdle that we must overcome to assure his continued liberty.
The government urges that this search of Mr. Robinson was that at most a minimal violation of his rights, that it was neither willful nor flagrant and that the exclusionary rule justified as a deterrent to illegal searches and seizures as a demonstrable failure.
And considering the substantiality of this violation, this evidence even though illegally seized should be admitted.
I need not remind this Court of its constant and necessity for its constant vigilance with respect to intrusions on personal liberties.
As long ago as 1886, it held in Boyd versus the United States, an illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes and procedure.
It is the duty of courts to be watchful for the constitutional rights of the citizens and against any stealthy encroachments there off.
If we are to be left to the good faith of police officers, this Court has already dealt with that situation because in Terry it said, “Simple good faith on the part of the -- of the arresting officer is not enough.
If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate and the people would be secured in their persons, houses, papers and effects only in the discretion of the police.”
I think that it can be fairly said that the government stretches a point when it says in its brief that what Mr. Justice Powell has described in the Schneckloth case as the most searching empirical study of the efficacy of the exclusionary rule when the government suggested it is a failure.
Professor Oaks, the author of that article does argue that it is a failure, but he says that the empirical data fall short of establishing that the rule does not discourage illegal search.
But deterrences by no means, the only justification for the rule. 60 years ago as Mr. Justice Stewart pointed out in Weeks, this Court took care to define the issue in these Fourth Amendment cases this way.
The question is the right of a court in a criminal prosecution to retain for the purposes of evidence the papers of the accused seized in his house without his authority and without a warrant for his arrest and none for the search of his premises.
This Court then held in that case that if a trial court had such a right, the protection of the Fourth Amendment is of no value, it might as well be stricken from the Constitution.
Six years later, Mr. Justice Holmes said if that would be the case, the Fourth Amendment would be reduced to a mere form of words.
For almost 60 years, this Court has not departed from this essential core of Weekes.
And over those decades, it has thundered to every court in the federal system and since 1961 to the states, you have no right, the courts, to obtain and you shall not keep and use against an accused the ill gotten gains of searches which violate the Fourth Amendment.
This -- the Weekes' Court said, is one of those great principles established by years of endeavor and suffering and it must not be given up lightly even in a case where constitutional liberty and the violation of constitutional right are separated by the fabric line of a coat pocket.
This Court has urged to analogize to those cases in which less than perfect Miranda warnings have not resulted in the exclusion of admissions or confessions.
I respectfully submit that that analogy limps rather bad.
The Constitution does not require Miranda warnings, but it does require a warrant from a magistrate to permit a search unless the exigencies of the case demand otherwise, the exigency being an arrest.
The Fifth Amendment Right is not violated absent Miranda warnings until the incriminating statement is used in the trial against the defendant to making a witness against himself.
Justice William H. Rehnquist: Well, Mr. Gartlan, the Constitution doesn’t require Miranda warnings, how do you explain the Miranda decision?
Mr. Joseph V. Gartlan, Jr.: The Miranda decision I explain Mr. Justice Rehnquist as a tool to ensure the voluntariness, an informed making of incriminatory -- incriminating statements before they are used against the defendant.
The Fifth Amendment plainly does not say that a person has to be warned, but this Court has held that unless informed of his rights, the incriminating statement may not be used against him.
But the Fifth -- Fourth Amendment situation is a totally different thing.
Justice Byron R. White: Well, the Constitution doesn’t say that warrant shall issue for every search?
Mr. Joseph V. Gartlan, Jr.: That’s --
Justice Byron R. White: It says that warrants shall not issue except for probable cause?
Mr. Joseph V. Gartlan, Jr.: That’s correct, via magistrate, but it is all -- it is all inclusive with respect to that requirement, but the Fourth Amendment transcript --
Justice Byron R. White: (Voice Overlap) says when the warrants have to issue?
Mr. Joseph V. Gartlan, Jr.: Pardon?
Justice Byron R. White: It doesn’t say when warrants have to issue.
Mr. Joseph V. Gartlan, Jr.: I didn’t mean to imply that it did.
Justice Byron R. White: I thought you said that it did?
The Constitution said warrants have to issue?
Mr. Joseph V. Gartlan, Jr.: Before a search can be made unless the search --
Justice Byron R. White: That isn't what the Constitution says?
Mr. Joseph V. Gartlan, Jr.: Pardon?
Justice Byron R. White: That isn't what the Constitution says?
Mr. Joseph V. Gartlan, Jr.: The courts have carved out the exception to the Constitution, no doubt.
But the Fourth Amendment right is violated when this literally, a trespass is committed.
And that is why the Miranda argument I don’t think provides an adequate guide for the Court in this case.
What we seek here in sum is a limit to the scope of a protective search to what is reasonably necessary for protection.
We ask for a rule which as this record shows is reasonable and compatible with -- in the light of the street experience of police officers and can be simply stated, “officer where there are no fruits, instrumentalities or evidence of a crime to be gained by a search, limit yourself to a thorough feeling of the defendants outer clothing and if you feel anything you think maybe a weapon, follow the lead of this suspicion until your suspicion leaves.
Take away from the defendant any package, purse or other container, which might contain a weapon, but do not intrude upon his person or effects any further than is necessary to protect yourself.”
Chief Justice Warren E. Burger: If the arrest had been made here Mr. Gartlan explicitly for driving while under the influence of some intoxicating substance, wouldn’t all of your arguments be the same?
What do you -- what effect do you think that it have on your case, I'll put it that way?
Mr. Joseph V. Gartlan, Jr.: I think that is a crime for which there maybe corroborating evidence.
Obviously you don’t prove a crime of driving under the influence except by blood test or breath test, but the presence of alcohol in a flask might well be corroborating evidence to support charge.
Chief Justice Warren E. Burger: Or heroin, on marijuana, the same?
Mr. Joseph V. Gartlan, Jr.: That’s correct, but while I’m not an expert in the matter, I think that the discernable odor of at least on the breath [Attempt to Laughter] of an arrestee in a drunk driving case is different.
Chief Justice Warren E. Burger: But here, the evidence -- there were some indication that there was no odor of liquor and therefore the officer was --
Mr. Joseph V. Gartlan, Jr.: In this case?
Chief Justice Warren E. Burger: Yes.
So that -- does that arise or -- I might be confusing that with preceding case?
Mr. Joseph V. Gartlan, Jr.: Mr. Justice -- Chief Justice Burger, the arrest was solely because Officer Jenks had checked the Metropolitan Police traffic records and knew that Robinson had had his permit lifted and had obtained a new one under false pretext and he stopped him after having ascertained that three or four days later.
To make the arrest for specifically that charge, there was no improper driving or any other indication.
And so we say this police officer do not intrude upon the person of the arrestee or his effects any further than is necessary to protect yourself.
This is part of the law.
Justice William J. Brennan: Mr. Gartlan, I am clear that you do concede the validity of the arrest?
Mr. Joseph V. Gartlan, Jr.: Yes.
Justice William J. Brennan: But -- yes, well, I thought --
Mr. Joseph V. Gartlan, Jr.: This is part of the law and that you are sworn to up -- that you are sworn to uphold the rights that you have committed to defendant.
Chief Justice Warren E. Burger: Mr. Tuttle, do you have -- just two minutes left.
Rebuttal of Allan A. Tuttle
Mr. Allan A. Tuttle: I’ll try and cover a few very brief points.
The first with respect to Mr. Justice Stewart’s comments on Chimel or the Chimel case, I believe that that opinion itself made it very clear that a search incident to an arrest --
Justice William J. Brennan: You have that same problem don’t you, is it Chimel -- [Laughter]
Mr. Allan A. Tuttle: I wish (Voice Overlap).
Justice William J. Brennan: What we were told here one day, it was Chimel by by someone who said he knew Chimel.[Laughter]
Mr. Allan A. Tuttle: Knew the individual? [Laughter]
I -- that case itself makes clear that a search of the person is permissible and then there's language to that effect also in Mr. Justice White’s dissent.
Secondly on the comment that Mr. Donaldson was a sanguine individual about searches.
I would call the Court's attention to page 101 of the appendix when he is asked what kind -- whether a Terry search is adequate in a Terry situation, and he says, “My opinion would be that before I would put anyone beside me in a cruiser, I’d like to be able to search him completely but we can't.”
I don’t -- I think -- I don’t think he even feels safe in the Terry situation according to that record.
Justice Potter Stewart: The Terry situation, you don’t put him beside you in a cruiser. That’s just a brief straight encounter.
Mr. Allan A. Tuttle: It contemplates with ticketing to do that Mr. Justice.
When you're issuing a speeding ticket, you have the individual sit in the cruiser next to you.
Justice Potter Stewart: Oh I thought you meant to take him down to jail?
Mr. Allan A. Tuttle: No, no.
Justice Potter Stewart: No.
Mr. Allan A. Tuttle: And that’s what he was referring to.
Justice Potter Stewart: I see.
Mr. Allan A. Tuttle: Now, there is also the point about the concession that a search of a cigarette package would be permissible in the case of an armed robbery.
I would call the Court's attention to the decision in Schmerber and also the decision of the Court of Appeals in New York in 6057.
Both of which articulate the basis of an evidentiary search as being that which is found in plain view during a weapon search.
In other words, that a weapon -- that the justification for searching at all maybe a search for weapons and I find it strange that there is a concession that you can do anything you want to an individual whether some conceivable notion that there might be a weapon, but that you're terribly restricted when the idea is protecting yourself from possible dangers of weapons.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.