UNITED STATES v. CHADWICK
Legal provision: Amendment 4: Fourth Amendment
Argument of A. Raymond Randolph
Chief Justice Warren E. Burger: We will hear arguments next in 75-1721, United States v. Chadwick.
Mr. Randolph, you may proceed when you are ready.
A. Raymond Randolph: Mr. Chief Justice and May it please the Court.
This case is here on writ of certiorari to the First Circuit.
The issue is whether a search warrant is required before federal agents may open a locked trunk of footlocker that they properly seized and that they had probable cause to believe it contained contraband.
The District Court suppressed the 200 pounds of marijuana found inside the trunk.
On the government’s appeal, the Court of Appeals affirmed with one judge dissenting.
The relevant facts are these: On May 8 about four years ago, May 8, 1973, Amtrack officials told federal agents in San Diego that defendants, Machado and Leary, had loaded a trunk on a train bound for Boston.
They believe the trunk contained marijuana for three reasons.
First of all, it was leaking talcum powder which is often used to cover the odor of marijuana.
The trunk had an unusual weight for its size and Machado’s description tallied with a profile used by the railroad to spot drug traffickers.
The federal agents relayed this information to their counterparts in Boston.
I should describe the footlocker.
It was described in the record as old and brown.
According to Ms. Leary’s suppression motion, it was 2’11” wide, 1’9” high, and 1’8” deep.
Unknown Speaker: Does the record show the source of origin of the shipment?
A. Raymond Randolph: It was San Diego.
Unknown Speaker: Origin or?
A. Raymond Randolph: It was shipped from San Diego to Boston on an Amtrak train.
The latch was locked and there was a padlock on it.
Chief Justice Warren E. Burger: There is nothing in the record to show that it was transshipped, that is it came from somewhere else to San Diego?
A. Raymond Randolph: No, there was not.
Chief Justice Warren E. Burger: And then San Diego on to Baltimore.
A. Raymond Randolph: There is not, Mr. Chief Justice.
The latch was locked.
Justice Thurgood Marshall: Baggage accompanying means the owners of the baggage, was it not?
A. Raymond Randolph: Yes.
Justice Thurgood Marshall: It was checked baggage?
A. Raymond Randolph: There were two suitcases and for the purpose of this case, we do not think the suitcases are relevant.
We had not brought an issue to the Court that concerns it.
Justice Thurgood Marshall: I got that from reading the brief.
The suitcases were not checked and the footlocker was by the owners traveling on the same Amtrak train.
A. Raymond Randolph: The footlocker traveled across the country in a baggage compartment.
The Machado and Leary traveled across the country in the passenger compartment on the same train.
The footlocker, as I have said, was locked.
It had a padlock over it and the latch on it was locked as well.
Justice Thurgood Marshall: So it was not a question of sending by freight a container from one point to another.
It was a baggage accompanying the travelers, exactly?
A. Raymond Randolph: It accompanied the travelers.
On the evening of May 10, two days later, the train arrived at Boston South Station.
Federal agents were there to greet it.
Within the next 15-20 minutes, the following events occurred.
It was 8:50 p.m. in the evening.
The agent saw Machado and Leary leave the train, claim the trunk, move it against the wall, and sit down on it.
Machado left to make a telephone call and returned.
The agents had a dog with them trained to recognize the smell of controlled substances.
The dog went to the footlocker and started scratching on it, which is considered an alert to the presence of such substances.
Unknown Speaker: The agents were still sitting on it?
A. Raymond Randolph: Well, Ms. Leary and Mr. Machado were sitting on the footlocker.
The dog approached it and started scratching.
Chief Justice Warren E. Burger: Did the record show what their reaction was to the dog’s conduct?
A. Raymond Randolph: What the record does show is that a car pulled up outside the train station quite quickly thereafter.
In the car was Mr. Chadwick, he opened the trunk of the car.
He went into the train station, talked very quickly with Mr. Machado and Ms. Leary, went outside and proceeded to open the trunk of the car.
With the help of a porter then, Ms. Leary and Mr. Machado accompanying the footlocker took it outside of the train station to Mr. Chadwick’s waiting car.
Defendant Leary sat down in the car while Mr. Chadwick, Mr. Machado and the porter lifted the footlocker into the car’s trunk.
When the porter left, the agents moved in.
All three defendants were arrested.
The footlocker was seized from the open trunk of the car.
It is now 9:10 p.m.
The agents testified that they decided not to open the footlocker on the spot for a number of reasons.
Number one, it was dark outside.
The area was dimly lit.
Many pedestrians were passing by and there was heavy automobile traffic on the street.
The three defendants and the footlocker were taken to the agents’ office in Boston about five minutes away from the train station.
The footlocker was still leaking talcum powder.
At the office, in the presence of the three defendants, the agents opened the footlocker.
Inside, as I have said before, they found 200 pounds of marijuana.
According to Ms. Leary’s suppression motion, what they actually found were 85 packages each wrapped in blue paper and sealed with a piece of tape and those 85 packages tallied to 200 pounds of marijuana.
The next morning, this is not in the appendix that the court has, the next morning the defendants, all three of them were arraigned before a magistrate on a complaint and an affidavit of the arresting agent.
Bail was set, they were bound over and later there was an indictment.
The government in this case, wants to introduce that marijuana and indeed the footlocker itself into evidence at defendants’ trial.
The defendants opposed this.
They opposed the introduction of the marijuana on the basis that the agents should not have opened the footlocker without first getting a search warrant.
Our brief advances a number of reasons why we think the opening of the footlocker without a warrant was not an unreasonable search under the Fourth Amendment.
As a preliminary matter, I ought to say that our purpose in advancing these arguments is to try to provide a coherent analysis to guide the decision in these kinds of cases.
The Courts of Appeals and the Court will notice from my brief, have dealt with this type of situation.
Moveable objects found outside the home in countless cases, the results, we think generally support the government’s position in this case, although the rationale is sometimes difficult to discern, I might point out that, in fact respondents in their brief not sited a single lower court decision in their favor.
Justice Thurgood Marshall: How long after the loading of the locker into the trunk of the car did the officers open it and where?
A. Raymond Randolph: The loading took place at 9:10 which is the time the arrest took place.
The footlocker was searched, the testimony is, shortly after 9:30 Mr. Chief Justice.
Chief Justice Warren E. Burger: After they have arrived?
A. Raymond Randolph: After they have arrived at the office of the federal agents in Boston, five minutes away form the train station.
Chief Justice Warren E. Burger: The argument of your friends is that they should have retained possession while they proceeded to go and get a warrant.
A. Raymond Randolph: That is right.
I might point out that the factual patterns in all these cases are endless of course and to make our position clear, in this case alone, for example, after the agents had probable cause, Mr. Machado, for instance, could have been arrested and the footlocker seized while he was sitting on it in the train station or while he was moving it out to the car or while Mr. Chadwick’s car was pulling away with the footlocker in the trunk.
Under our view of the case, the search without a warrant in all these situations would be reasonable under the Fourth Amendment, not unreasonable and so we draw on distinction between this.
We do not think they are constitutional distinctions and let me explain why.
First of all, this is not strictly a search and seizure case.
The sequence is reversed.
It is a seizure and search situation.
Like the cases dealing with automobiles and unlike the cases dealing with hounds or houses, the seizure came first here.
We think it was a lawful seizure and we do not think there could be any doubt whatever that the agents had probable cause to believe that the footlocker was loaded with contraband.
Unknown Speaker: Is that a counter worded issue in this case whether or not there was probable cause to seize the footlocker?
A. Raymond Randolph: Yes, in the suppression motion filed by Mr. Chadwick and joined by Mr. Machado, they sought not only to suppress the contents of the footlocker, but also the footlocker itself.
Unknown Speaker: I wondered if in the present posture of the case, if that is counter worded issue.
A. Raymond Randolph: Well, they did not cross-petition and the Court of Appeals decided that there was probable cause.
Unknown Speaker: So, that is a given in this case, is it not?
A. Raymond Randolph: It is a given.
Unknown Speaker: There was probable cause to seize the footlocker.
A. Raymond Randolph: It is a given as the case is presented to Court.
Unknown Speaker: That is my understanding.
A. Raymond Randolph: In fact, the conclusion of the probable clause to seize the footlocker obviously was the very reason for, for example, Mr. Machado’s arrest, the two are intertwined.
We think, it is clear as can be, that the agents did not need the authority of warrant to take that footlocker into their possession and the reason is the same as in the automobile cases.
Aside from the fact that the footlocker was evidence, in obvious view it was movable and there can be no doubt about its movability.
The footlocker had just traversed the entire continent, you will recall and it appears that it still has not reached its final destination.
Once that footlocker was in the agent’s lawful possession, our position is that they did not have to treat it like a child treats a Christmas package on Christmas Eve, shake it and everything, but they could not open it.
We believe they could open it.
We believe they could open it on the spot or we believe that it was reasonable for them to open it back at the station house or at the office, as occurred in this case.
It is at this point in the events that the respondents in this case invoked the warrant requirement.
Chief Justice Warren E. Burger: Did I understand you to say that your friends concede that if the footlocker had not been taken while the respondents were sitting on it around the time when the dog identified it, that that would have been appropriate without a warrant?
A. Raymond Randolph: I do not know what they concede Mr. Chief Justice.
Chief Justice Warren E. Burger: I got some impression that you intermitted that they concede that.
They said that is when it should have been seized, that was perhaps the way you put it.
A. Raymond Randolph: I am sorry if I mislead the Court.
All I intended to state was that under the government’s position, the validity under the Fourth Amendment of the seizure and search of the footlocker in this case would be the same if it were seized at the time after probable cause while the defendants were siting on the footlocker.
Unknown Speaker: Well, the issue in this case involves the opening and the search of the footlocker and not the seizure of the footlocker, am I correct?
A. Raymond Randolph: But it is important that the seizure occurred and it is important and I have explained precisely what lead up to that.
Unknown Speaker: The footlocker was in a lawful possession or custody of the federal agents and the issue involves the opening and search of it, is that not right?
A. Raymond Randolph: It was in the lawful possession of the federal agents, not just simply for the moment or for the time being.
They could have kept that footlocker, they had probable cause to believe that that footlocker was being used to transport contraband.
That made it forfeit.
Beyond that, it was evidence of the commission of the crime.
They knew that it was leaking talcum powder, they knew that dog alerted to it.
It was not a temporary seizure of that footlocker, they could have kept that footlocker, they could have kept it at least through trial.
Unknown Speaker: For a long, long time, plenty of time to get a warrant.
A. Raymond Randolph: Yes.
We do not believe that is the test.
We believe that this case, if this were a search of a home, of course there is no question, a warrant would be required.
Justice Thurgood Marshall: Mr. Randolph, you keep mentioning they opened the locker.
How did they open it, did they break those locks?
A. Raymond Randolph: It is not clear on the record.
I think our brief or at least our petition said that they used the keys seized from Mr. Machado.
But, actually, I do not think that is correct in light of the testimony.
The testimony was that the keys were seized after the footlocker was opened.
So if that testimony is accurate from the agent that testified, then it is not clear on the record how it was opened.
Justice Thurgood Marshall: There is some information at some point in the record that they picked the lock.
That was the phrase used.
In other words, used a wire or a screw driver or something.
As a substitute for a key.
A. Raymond Randolph: The reason we think that this is not to be treated like a home where a warrant is required is the same reason that I might say Mr. Justice Black in his dictum stated for the Court in the Preston Case.
He said that common sense dictates that questions involving searches of motor cars or other things readily moved cannot be treated identical to questions arising out of searches of fix structures like houses.
Justice Thurgood Marshall: Mr. Randolph, how can it be readily moved if it was in the FBI office?
A. Raymond Randolph: Because the reason for the search it could not be readily moved once it was resting in the office of the agents, I agree just like the automobile in chambers could not be readily moved once the police had possession of it, the automobile in Texas v. White.
But the seizure itself bringing it into their lawful possession justified, we think, the search as well because once an automobile has been properly seized under the Fourth Amendment, Mr. Justice Marshall, the court has ruled that it can be searched.
The search of it is not unreasonable if the police had probable cause and there are other cases where even when they do not, when they are taking an inventory in South Dakota v. Opperman, for example and the same is true here.
Justice Thurgood Marshall: Where was the FBI office?
Was it near the courthouse?
A. Raymond Randolph: Five minutes away.
Justice Thurgood Marshall: I said the courthouse.
A. Raymond Randolph: The courthouse, yes, it was nearby.
Justice Thurgood Marshall: Was the magistrate in the courthouse?
A. Raymond Randolph: I have not idea it was 9:10 at night.
There was a magistrate there the next morning.
Justice Thurgood Marshall: Would it not be important for us to know?
A. Raymond Randolph: I do not think so.
Justice Thurgood Marshall: Where you could have gotten a search warrant.
A. Raymond Randolph: We will concede that a search warrant would have and should have been theirs for the asking.
But we think that the reason a search warrant is not required is the same reason a search warrant was not required in the automobile cases.
There is, we submit, no rational distinction between the footlocker involved in this case and the glove compartment of an automobile or the trunk of an automobile which can be opened without a warrant.
Justice Thurgood Marshall: Well that supports the original seizure of the footlocker.
There was an automobile and that the seizure of the footlocker took place without a warrant because it was an automobile and because it was incident to a lawful arrest.
So that supports the seizure, but as I understand that the issue is not the seizure of the footlocker, but the opening and the search of it?
A. Raymond Randolph: We think that could be opened back at the agents’ office for the same reason that the trunk of an automobile can be opened back in the police impoundment lot.
The glove compartment as in Cooper v. California could be opened back at the police station, and so on and so forth.
On page 38, is it?
No, I am sorry.
We have a list of cases.
Justice Thurgood Marshall: Your brief or your petition?
A. Raymond Randolph: Of our brief.
At the top of 38, Texas v. White, the search was at the front seat console.
Justice Thurgood Marshall: It was not in the (Inaudible), obviously.
A. Raymond Randolph: No, absolutely not and Cady v. Dombrowski was a locked trunk.
In Sher v. the United States was locked trunk, in Chambers v. Maroney it was a glove compartment and one case that was just enlisted here is Cooper v. California, that was a glove compartment as well.
We see no rational distinction between the two, but we do see a distinction between what happened here and the search of, for example, a person’s bedroom.
In that case, you would be at the core of the First Amendment where the most protection is reasonably demanded.
Here, we are not at the core of the privacy interest of the Fourth Amendment.
We are on the periphery, I do not think respondents reasonably dispute that, it is not the same as a house.
The Court has said that and it said it in Preston.
Unknown Speaker: Is it important that the locker was seized incident to arrest, or not?
A. Raymond Randolph: That is one of our arguments.
Unknown Speaker: You will be making the same argument I take it, if it had been seized in somebody else’s possession.
A. Raymond Randolph: That is right.
We would, the first part of our argument.
We think it adds to the reasonableness to the fact that they were arrested.
Unknown Speaker: Are there any cases that you know of or what is the established rule in the event you arrest a man and find a locked small box in his pocket?
Now, you can search him incident to arrest, I think, but if you find the locked box, will you open it?
Are there some cases on that?
A. Raymond Randolph: I do not know about locked.
Is Robinson the case where there was probable cause?
Unknown Speaker: How about a sealed envelope in his pocket?
A. Raymond Randolph: Well, there was a case, I think it was Robinson, where they found a crumpled cigarette pack which was closed and the court upheld the opening of that.
I think it contained pills or narcotics.
Unknown Speaker: On the incident to arrest theory?
A. Raymond Randolph: Yes, I believe.
Unknown Speaker: Because it was in his possession and under his control?
A. Raymond Randolph: Because it was in his possession, yes.
Unknown Speaker: In his pocket?
A. Raymond Randolph: Yes.
Unknown Speaker: But you do not know any cases about -- how about arresting a man carrying a locked briefcase?
How about that?
A. Raymond Randolph: Well, Draper is a case that involves that type of situation, whether it was a locked briefcase or not, I do not know, it was a brown leather bag that was zippered close and the court upheld the search of that.
I think it was incident to arrest.
There is another case that we have not cited.
The Court has cited it usually for the proposition that involves plain view doctrine.
In fact, when you look at the record, it involves something different, it is a case called United States v. Lee which is the coast guard shined a light on a boat and they saw, the way the case is described, illicit alcoholic beverages and grain alcohol on the boat.
It has always been a question to me how they possibly can see it, the search was upheld, the seizure was upheld because the alcohol was in cans, it was not in bottles and some of the search took place back at the docks.
So I think that is probably another example, Mr. Justice, although it has not been used for that proposition.
Unknown Speaker: If that is a sound approach, you do not need to go any further to uphold this as incident to arrest search, so you, simply argue on the basis that you could have searched it when you arrested them?
A. Raymond Randolph: If they would argue that, we have to go no further, but they said that it is not incident to an arrest because it was not in the immediate control of the people that were arrested.
We think that is irrelevant.
We think that that rule was set down so that arrest would not be used as pretexts for general searches, which was the case under the Rabinowitz rule and it was overruled in Chimel, but these people were caught red-handed, so to speak.
If you talk about expectation of privacy, could anyone reasonably expect that the contents of that footlocker would not be revealed?
They were caught red-handed.
They were taken back to the station house.
Did they reasonably expect that that footlocker was going to be inviolate, that the police were not going to open?
Unknown Speaker: That could become a self-fulfilling prophecy.
If the FBI agents opened it and it sustained, presumably the next people have no expectation of privacy.
The concept of privacy must mean something more than that?
A. Raymond Randolph: Yes, I think it does, the Court has used the phrase “the expectation of privacy” in a number of recent cases, I believe.
Justice Thurgood Marshall: But not quite in such a tautological way, I guess?
A. Raymond Randolph: Would a reasonable man have an expectation of privacy that once he is arrested?
I do not know, I think that the privacy still continues and I think the only point we have to sustain is that he has no more expectation or the privacy interest in no greater than it is in an automobile or in a trunk of an automobile or in the glove compartment of an automobile.
I noticed that the dissenters in the dissenting opinion in South Dakota versus Opperman points out that personal effects and papers are carried from time to time in the glove compartment of an automobile and I suppose that is true with footlockers as well.
I would like to come back to the question, Mr. Justice Marshall that you asked, which is that, well, if the agents could have gotten a warrant, why should we not require them to go get one?
Justice Thurgood Marshall: It is not whether or not we require them, it is whether or not the constitution requires them.
A. Raymond Randolph: We think the constitution does not require it.
The agents could have gotten a warrant, as I have said in Cooper v. California, in Texas v. White and in Chambers v. Maroney or even in regard to the clothing in Edwards, yet the warrantless searches were upheld in all those cases.
Justice Thurgood Marshall: Which one of those cases was the material in the FBI office?
A. Raymond Randolph: Edwards would be like that, Mr. Justice Marshall.
Justice Thurgood Marshall: Was it in their office?
A. Raymond Randolph: Yes, I believe.
It may have been in a station house or in the jail, I am not sure.
The test the Court had said in Cooper and Edwards, in South Dakota v. Opperman is not whether it was reasonable to procure a warrant, but whether the search was reasonable.
That is of course we think what the Fourth Amendment in fact says.
The Court has also said, on a numerous occasions that searches without a warrant are per se unreasonable under the Fourth Amendment subject only to a few established and well-delineated exceptions.
Well, of course, the Court has never had a case like this before so it has not created an exception, had no case.
Justice Thurgood Marshall: Well, you concede, do you not, that under that standard that you had just quoted, this does not fall within any of the exceptions so far established?
A. Raymond Randolph: So far, the Court has never had occasion to pass on this issue and that if it had established an exception, it would have been dictum so, we agree.
Justice Thurgood Marshall: It is not your argument that this case is governed by any existing exception to the basic rule?
A. Raymond Randolph: If it were, we think the Court of Appeals would have gone the other way.
Chief Justice Warren E. Burger: I understood you to say that you thought that this footlocker was analogous to automobiles?
Justice Thurgood Marshall: That is right.
Chief Justice Warren E. Burger: And certainly this Court has not upset any search in the past five years of an automobile where there has been probable cause, has it?
A. Raymond Randolph: We agree it is analogous, but it is not exactly directly a statement.
Although the Court has said in South Dakota v. Opperman, for example, Mr. Chief Justice, you have quoted an opinion by a Judge Wisdom that talked about containers such as automobiles drawing no line between what the container was.
There are indications in the opinions going our way, we think.
Chief Justice Warren E. Burger: Do you think this footlocker is very much like an automobile, it does not have any motor or wheels?
In other words, it is not mobile?
A. Raymond Randolph: If I may, may I quote your opinion in Coolidge v. New Hampshire which said “it is true the automobile has wheels and some locomotive power, but given the virtually universal availability of automobiles in our society, there is little difference between driving the container itself away and driving it away in a vehicle brought to the scene for the purpose.”
We think there is no relevant difference.
Unknown Speaker: Well that is a container in an automobile, this one is out and in the custody of the FBI?
A. Raymond Randolph: But it just traversed the entire continent and it was on its way for another destination.
It was like a car stopping at the traffic light.
Unknown Speaker: It was not at the time it was searched, was it?
A. Raymond Randolph: No and neither were the cars in Chambers v. Maroney or Texas v. White and Cady v. Dombrowski, and so on.
Unknown Speaker: Mr. Randolph.
A. Raymond Randolph: Yes?
Unknown Speaker: Do you think the expectation of privacy is as great with respect to a footlocker as it might be with respect to, say, the personal suitcase of a traveler?
A. Raymond Randolph: I would think, as some would suggest, that if I have personal belongings on me, I would be carrying them.
I would want them close to me.
When I go on a plane, those personal documents accompany me.
I keep them close to me and there is a curious thing about that because if it had been the case here, this people had been arrested with a suitcase or a briefcase.
It would have been a search incident to an arrest, it could have been opened up.
I think the courts are fairly unanimous on that and they would not have even needed a probable cause to open that briefcase up.
Justice Thurgood Marshall: You want us to say that this opinion, if we go with you, applies only to footlockers and does not apply to other bags?
You do not want us to do that, do you?
A. Raymond Randolph: No, I would not like you to do that, if that is all you would do.
Unknown Speaker: If your case would be different, Mr. Randolph, if the footlocker had not been traveling with the individual who was arrested?
A. Raymond Randolph: The fact of the arrest, we think, adds to our argument.
We have argued in our brief and I rely upon that, that even without the addition of the arrest which brings the people quickly before a magistrate, they were brought the next morning which diminishes, we think, the privacy interest and so on, but even without that, the seizure would have been proper, once the item is lawfully in the government’s possession, yes.
I would like to just say a word.
Unknown Speaker: Mr. Randolph, I just want to get one thing straight.
Now, you cited the Preston Case and Mr. Justice Black’s remarks in that case.
Does Preston not dispositively against you on the question whether it is incident to an arrest because they have invalidated the search?
A. Raymond Randolph: But the reason for the arrest was not the same reason as the reason for the search and Cooper v. California which came down later, also written by Mr. Justice Black is precisely the type of situation we have here.
The reason for the arrest was the reason for the search.
The search took place back at the station house and the Court upheld it.
Unknown Speaker: Well, Preston certainly does not help you though, does it?
A. Raymond Randolph: I think the common sense language does.
Unknown Speaker: I see.
A. Raymond Randolph: I would like to reserve my raining time, Mr. Chief Justice.
Chief Justice Warren E. Burger: Very well Mr. Randolph, Mr. Weinberg.
Argument of Martin G. Weinberg
Mr. Martin G. Weinberg: Mr. Chief Justice and May it please the Court.
The government on three separate occasions, twice at the District Court and once at the Circuit Court, has tried to persuade the Courts that this search falls within the established standards, the presumptive requirement of the Fourth Amendment.
They have explicitly conceded today that it does not and it has asked this Court to use this case as a vehicle to make major incursions into the warrant clause of the Fourth Amendment.
There is a coherent standard which prevails on even warrantless searches and that is the Katz standard, the expectation of privacy standard and by admitting that no existing exception to the search warrant, justifies this search as the law now stands.
There are tremendous consequences towards an individual’s expectation of privacy.
Here, there was a seizure as there are frequently in automobile cases.
Ipso facto, the government says you can therefore search.
Well, it is the position of the defendants that there was a constitutional distinction of great importance between an automobile and a footlocker.
With a footlocker, a briefcase, and a trunk, and all kinds of other containers which, unlike a car, are often a repository for private property which unlike a car are not constantly the subject of non-criminal investigations of contact with the police, with regulations, with inspection, with motor vehicle laws, with all he various indicia which this Court in the Cady Case and in the Opperman Case have said reduces one’s expectation of privacy in an automobile.
That the government has conceded and as those cases state that the mobility of a vehicle, like the arguable mobility of a trunk, has grounds for seizure, it is grounds for immobilization of the property, but the Court has stated and the government concedes in their brief on page 35 that mobility in and of itself is not a justification for a search.
The justification for the search following the seizure in the automobile cases is the reduced expectation of privacy which an individual has in a vehicle, particularly following the decisions of this Court in Cady and in Opperman.
Those justifications for the reduced expectation of privacy in automobile are not present in the case with the footlocker or not present in the case of a brief case.
Unknown Speaker: Mr. Weinberg, let me ask you the same question I asked Mr. Randolph.
You say the reduced expectations of privacy are not present after Cady and Opperman.
Well, if we decide this case against you and the next case against your counterpart, presumably there will be reduced expectations of privacy in footlockers.
That is kind of a self-fulfilling prophecy, however you argue it?
Mr. Martin G. Weinberg: But it is true that if this Court did in fact make that decision, that the citizens would, from here on and have a reduced expectation of privacy.
The real question is, whether or not the constitutional standards of the Fourth Amendment justify a decision which in fact reduces the expectation of privacy and we would state that the entire body of jurisprudence starting with ex party Jackson, through Katz, the US v. Van Leeuwen, does not justify that kind of decision, Your Honor.
Unknown Speaker: But the same kind of argument could have been and was made to us in Cady and Opperman.
The right of privacy, protected searches of automobiles even though there might be probable cause, if you did not have a warrant?
Mr. Martin G. Weinberg: If I was arguing those cases, I would make the same argument, but henceforth that argument cannot be made.
There were distinctions why this Court found a lesser expectation of privacy in the automobile.
What I am suggesting is those distinctions which justify the automobile cases are not present in this case and that I would argue that this Court should not establish a lesser expectation of privacy in a brief case, in a footlocker trunk, in luggage.
Unknown Speaker: What if the Fourth Amendment were appealed, there could not be a reasonable expectation of privacy by anybody anywhere, could there?
Mr. Martin G. Weinberg: That is correct and the Fourth Amendment at its very basis, up until this time creates a presumptive warrant requirement in the cases under the Fourth Amendment, particularly the ex party Jackson case, the Van Leeuwen case, do not restrict the Fourth Amendment privacy protections of the warrant clause to homes.
They very explicitly state that sealed packages, mail, letters can be taken out of the home wherever they maybe found, people have the justification of privacy and the right to the protection of the warrant clause.
Unknown Speaker: Could I ask you the same question I asked your opponent?
What do you think the established rule is in the lower courts or maybe here otherwise we do not think we probably settled it, about closed containers in the possession of a person when he is arrested?
Mr. Martin G. Weinberg: To the extent that the lower courts have developed any coherent philosophy surrounding their holdings in these cases, they have been generated by the Chimel Case and that has been an immediate control case.
Unknown Speaker: Yes, well, let us assume there is no question about immediate control, but the only thing is, the container is closed?
Mr. Martin G. Weinberg: What they have really done is frozen the situation at the time of the arrest and asked the question, could the arrested defendant put their hand into a briefcase or into a suitcase and take out evidence to destroy or remove or could they take out a gun which would?
Unknown Speaker: Well, here the briefcase is just closed.
Nobody knows whether it is locked or not.
May the officer look in the briefcase or not, is there some established rule about it?
Mr. Martin G. Weinberg: I would argue that there is really a —
Unknown Speaker: I know what you would argue, but what about...
Mr. Martin G. Weinberg: There is no established rule.
There has never been a coherent rule, there has never been a decision of this court.
Unknown Speaker: How about a sealed envelope?
Are there some cases about sealed envelopes found on somebody?
Mr. Martin G. Weinberg: The government would argue that...
Unknown Speaker: Are there some cases on it?
Mr. Martin G. Weinberg: No, I do not think there is, Your Honor.
Unknown Speaker: How about when you search a car on the spot when there has been probable cause to arrest and there is probable cause to believe that there is some seizable material in the car and you open a locked trunk and you find a closed container.
Is there some established rule about that closed container?
Mr. Martin G. Weinberg: There is no established rule.
That is some of the issues left opened in various decisions.
Unknown Speaker: I suppose the issue we have here is rather relevant to those situations?
Mr. Martin G. Weinberg: It is relevant.
By analogy to any kind of container where there is indicia of privacy, a double locked footlocker would perhaps contain the most drastic indicia of privacy.
It is the least accessible to an arrested defendant.
It is the most secure even if it was in a trunk of a vehicle.
Unknown Speaker: Do you think if the rule were that you can open a closed container found in the possession of a person and under his control when he is arrested, if the rule were that you can open that, would that govern this case?
Mr. Martin G. Weinberg: No, it would not.
If it was in the person’s control, there was at least accessibility to it at the time of arrest.
Unknown Speaker: What about if you could open a closed container found in a trunk of a car and the car was otherwise searchable, would that cover this case?
Mr. Martin G. Weinberg: It would not because in the auto-search reduction of expectation of privacy could be used as the basis for that decision.
So, there are distinctions.
Justice Thurgood Marshall: In the Draper Case, what was the situation, I am a little cloudy on that.
Was it not a zippered bag like a briefcase that has a zipper on it?
Mr. Martin G. Weinberg: My recollection is that it was being held by the traveler who was arrested in Draper.
It was a zippered bag and it was not locked to the best of my recollection.
Justice Thurgood Marshall: Would you think there is any analogy between the zippered bag in Draper and the box with Mr. Machado sitting on it?
Mr. Martin G. Weinberg: The two crucial distinctions are, here we have a double locked, really unportable footlocker.
It is so heavy to move and second one is...
Justice Thurgood Marshall: It was not too heavy to move.
Obviously, they moved it, maybe too heavy to move for one ordinary man?
Mr. Martin G. Weinberg: Right, that would be the principal distinction as a distinction of degree.
Justice Thurgood Marshall: How does the size of it bear on the right to, I suppose instead of lock it had a zipper as some large lockers do.
Mr. Martin G. Weinberg: We are talking here specifically of when Mr. Machado was sitting on it as opposed to where it was at the time of the seizure and arrest?
Justice Thurgood Marshall: After the dog had identified it, they concluded there was probably cause as the Courts below have done and they said, “Mr. Machado, you are under arrest,” and then searched it right then and there?
Mr. Martin G. Weinberg: Firstly, this Court could justify that search without necessarily justifying the Chadwick search because of the location of the search and because of the double locks.
Justice Thurgood Marshall: You mean they could search it at the depot, but not after they got back to the FBI office?
Mr. Martin G. Weinberg: I would argue they could not search it, but if this Court decided otherwise, it does not govern the Chadwick situation.
I would suggest that under the Chimel situation, you really do need an infactability at the time of the arrest when the positions of the people are frozen to reach in and get either evidence.
Justice Thurgood Marshall: You would not argue that your position today, if sustained, would necessarily overrule a case authorizing the seizing?
Mr. Martin G. Weinberg: That is correct Your Honor, there are distinctions both at the time of the arrest, the fact that the footlocker trunk was not being held and the fact that the double locks made it impossible under any conceivable circumstances to have the contents of the trunk accessible.
What the government has asked for here...
Justice Thurgood Marshall: Could they not have picked the lock at the Depot as readily as they could at the FBI office?
Is that really a controlling factor?
Mr. Martin G. Weinberg: The double lock is Your Honor and back at the FBI and the DEA office, they already had the key which had been seized from Mr. Machado and used that key.
Justice Thurgood Marshall: Now, the evidence that I read here is that they picked it with means other than the key.
Mr. Martin G. Weinberg: My recollection is that that was the suitcases, but I maybe mistaken.
Justice Thurgood Marshall: What difference does it make really of how they opened it?
Mr. Martin G. Weinberg: The difference, again, is that the freezing effect under the Chimel Case at the time of arrest, could a person go into the container with any kind of likelihood at all and comport with the justifications for the search incidents or arrest theory which now are, which is removal and destruction of evidence or the protection of the officer?
There is no justification under Chimel as now stands for search incident to arrest, the immediate control area except those justifications.
It is not a search aimed necessarily at obtaining evidence for the government.
It is a search aimed at preserving evidence from the danger of an arrested person.
Justice Thurgood Marshall: But in Robinson, we said rather clearly that whatever the reason behind the allowance of a search incident to arrest, the government did not have to show in every individual case that a particular reason was there, that it was lawful just by virtue of the fact that was incident to arrest?
Mr. Martin G. Weinberg: That is correct, but when speaking in terms of expanding the search incident to arrest theory, I think it is important to go back to the original justifications for the exception.
Robinson was really decided by saying we do not want police officers to have to make justifications, every time when someone is arrested, they protect themselves to form the intent as to why they are searching.
But, when we are asking to make a major expansion of the Chimel Doctrine here which would state that the government, when there is an arrest and has probable cause of contraband, can search not only a footlocker, but all the suitcases.
Under the government doctrine, anything that they have probable cause contains contraband is susceptible to search.
There is no limitation upon that.
That is an expansion of the Chimel Doctrine in a very dramatic way, it is an expansion which is overruled, it is where Chimel overruled Rabinowitz.
That was the same theory that this court recognized before Chimel.
It is almost trying to be resurrected by the government in this case.
The government forms a distinction, but in the home and that is a distinction which is just not justified either by history or by the expectation of privacy cases which have emanated from the Fourth Amendment.
The distinction that you have a greater degree of privacy in an envelope, a briefcase, a trunk at home rather than outside of the home is really the very basis of the government’s theory.
That is a basis which history does not support because the searches which history was directed to occurred both in the home and outside the home and it is also a theory which is not justified by the mobile society we now live in.
Unknown Speaker: There is some truth in fact to it, is there not?
In Coolidge, search of an automobile was upset and the automobile was on the premises of the owner.
Subsequent cases have sustained not really distinguishable searches of automobiles where they were in public ways.
Someone who carries a sealed envelop on a 3,000 mile journey is probably more opt to have things happen to it than somebody who simply leaves it in a drawer at home.
Mr. Martin G. Weinberg: They are more likely to have something happen to it but, under the prevailing standards of this Court what would happen to it, would have to happen to it pursuant to a search warrant.
In the home situation like Coolidge, those cases held the Coolidge Case, the Jeffers Case, the Taylor Case that you have to immobilize the object of a search, that there is a constitutional distinction between the intrusions of a seizure of an immobilization, of standing guard at the door, of standing guard at the driveway and incurring the second search, the greater search which is opening up the seized or immobilized container.
To that extent, a home is important, a home is indicia of privacy.
But this society, both in its history, in its jurisprudence and most importantly in the policy justifications of why we need a warrant and what kind of society we live in, it is no longer a society of homes, it is a mobile society.
The government’s theory is if a police officer thought they had probably cause of something in a lawyer’s briefcase or a judge’s briefcase as they left their office or left their courthouse contained evidence, contraband that would be immutable to a search without the necessity of going to a court.
That is the basic difference.
Unknown Speaker: Draper holds that, does it not, if it is a search incident to arrest?
Mr. Martin G. Weinberg: Draper requires the arrest, which is the government’s fallback theory.
Unknown Speaker: You are saying that the government’s theory would support that even though there was not probably cause for arrest?
Mr. Martin G. Weinberg: Yes, under their request for a luggage exception or for a briefcase exception to the search warrant.
Justice Thurgood Marshall: Mr. Landburg, your real problem, is it not, the dog?
Once the dog scratched that trunk, your clients were gone?
Mr. Martin G. Weinberg: The Court made a finding of no probable cause.
When that dog scratched the trunk, if the police...
Justice Thurgood Marshall: They should have said, “I wonder whose trunk this is.”
Is that not true?
Mr. Martin G. Weinberg: If the police comported themselves with the Fourth Amendment and made a lawful search.
Justice Thurgood Marshall: All they had to do was wait until the next morning and any magistrate in the world on the basis of that dog would have granted the search warrant?
Mr. Martin G. Weinberg: That is correct Your Honor.
However, the fact that they did not do it is of the highest constitutional significance because decisions are made to regulate police conduct and they are made for innocent people, as well as people that are likelier, have probability, have contraband in their suitcase.
Unknown Speaker: Mr. Weinberg, could I ask you a question about the Draper Case?
I don not know whether you have conceded or not that that holds that, incident to an arrest, it was appropriate to open the brown zippered bag.
The actual facts of that case were that the heroin was in the man’s left hand and the syringe was in a brown zippered bag and I do not think there is any argument about whether or not it was proper to open the brown zippered bag?
Mr. Martin G. Weinberg: That is correct.
Unknown Speaker: So there really is no holding on the point that is before us?
Mr. Martin G. Weinberg: That is correct, it is a factual situation which has been relied on by lower courts.
What I am stating is that is firstly – second thing is that this case is different.
It is different in qualitative ways because of the privacy indicia of the trunk and because of its general inconsistency with the justifications under Chimel for the search incident to arrest.
Unknown Speaker: Do you agree with the Solicitor General that the footlocker could have been held indefinitely pending the attaining of a warrant, the locker having been seized, pursuant to a probable cause?
Mr. Martin G. Weinberg: No Your Honor.
The longest period of time, we had anything other than an automobile held, is a 29 hours that a 12-pound package would state a claim on the outside in US v. Van Leeuwen was held.
Unknown Speaker: You had no problem withholding it for a sufficient period of time to obtain a warrant?
Mr. Martin G. Weinberg: Excuse me, Mr. Justice?
Unknown Speaker: The question really addresses whether or not your client could have walked away with the footlocker, under your submission or did the government had the right to retain the footlocker?
Mr. Martin G. Weinberg: The government had the right to retain the footlocker for a reasonable amount of time.
There has never been a case which really says it is 30 hours or 40 hours.
Unknown Speaker: I understand that.
Mr. Martin G. Weinberg: The government, once having seized the footlocker whether the pursuant to forfeiture or to exigency, then had an obligation to get judicial permission to create the greater intrusion which is the search intrusion.
Unknown Speaker: That brings you back to Mr. Justice Marshall’s comment, does it not, that your argument really would not really help your client very much in this case, would it?
Mr. Martin G. Weinberg: The argument would help my client a great deal in this case because if the conduct of the government was improper in the method in which they searched and seized, in particular searched, then the exclusionary rule permits the exclusion of evidence and that is the deterrent effect that it regulates police conduct and that is one of the purposes of the Fourth Amendment.
Unknown Speaker: The only misconduct here is the failure of the government to have obtained a warrant and you concede that the government would have had time to obtain it and had the government obtained it in view of the evidence in this case, the magistrate certainly would have issued the warrant.
Mr. Martin G. Weinberg: That is correct, that is true in almost every case.
In the Katz Case, there was clearly gambling information being transmitted over the phones, but the government improperly electronically surveilled the conversation.
The Fourth Amendment does not rely on the subjectively known by the possessor of a trunk.
It relies on certain guidelines and standards, which, in this case were not comported, within the failure to comport, within the results of the exclusion of the crucial evidence.
Whereas, I concede that under the facts of this case a search warrant would have been issued and the government had the right to lawfully hold the property.
That just goes to show the lack of necessity, the lack or exigency, the lack of emergency of not obtaining a warrant, not obtaining that prior judicial approval which this Court has held so often as necessary for the searching of private goods.
Once again, the luggage is no different under these circumstances than a home search, a briefcase search and any of the other searches which the Supreme Court has held are protected by the expectation of privacy.
Justice Thurgood Marshall: It could not be the home because you could not carry the home into the FBI office?
Mr. Martin G. Weinberg: That is correct.
Unknown Speaker: Assume for a moment that, well, you need not assume it, the fact is clear that upon opening this locker and finding that the substances in it were totally innocent, powdered sugar, talcum, whatever.
These gentlemen could have been on their way within an hour of so, could they not?
Mr. Martin G. Weinberg: That is correct Your Honor.
Unknown Speaker: With the apologies of the agents and perhaps a potential case against them, but holding it until they could find a magistrate the next morning.
Would that not be a greater intrusion than the intrusion of opening it immediately?
Mr. Martin G. Weinberg: That is what the consent exception is for.
The person has the right to require the government when they are intruding on private property, except in very limited circumstances, to get a search warrant.
They can consent to the warrantless opening, that is one of the exceptions, these individuals did not consent.
They implicitly asserted their right to privacy and their right to require the government under the presumptive warrant standard of this Court to get a search warrant and that is just the calculus made by defendants in trouble.
Unknown Speaker: For purposes of this case, I suppose you would agree that it would make no difference whether the contents of the footlocker were marijuana, heroin or a small tactical atomic bomb?
Mr. Martin G. Weinberg: That is correct, Your Honor and nor would it have mattered whether it was one ounce of marijuana or broken talcum powder bottle or 199 pounds of diaries, books and the most private possessions.
That footlocker trunk is imbued with the privacy that the case is ex party Jackson, United States v. Van Leeuwen and Katz, given in this society at this point.
The government’s attempt really here is to use the cases of vehicle to make a major incursion in when they have to go get a warrant without, as all other exceptions, the least bit of need.
That was only a minor inconvenience in this situation to get a search warrant.
They go right past the federal courthouse in Boston on the way to the DEA building.
Unknown Speaker: Well, mind that at 10:00 at night you do not find magistrates or, do you in Boston?
Mr. Martin G. Weinberg: They have found at all kinds of hours, Your Honor.
Unknown Speaker: In the courthouse?
Mr. Martin G. Weinberg: Hardworking magistrates, Your Honor and they are available by telephone.
The warrants are issued at all hours in Boston and again, the footlocker could have been held until the next morning barring consent and a warrant then could have been requested.
Unknown Speaker: What do you conceive to be the basis for the decision in Cooper?
What justified the search of the automobile?
That was not the automobile theory, was it?
Mr. Martin G. Weinberg: It was the caretaking function in combination with the reduced expectation of privacy in automobile.
Unknown Speaker: It was based on the idea that the car had been used.
They had probable cause where either car had been used to transport contraband?
Mr. Martin G. Weinberg: The car was seized pursuant to a state forfeiture statute, it had been held for at least a week.
Unknown Speaker: Do you think the trunk in this case is in the position of the car in terms of the right of the United States to forfeit it?
Mr. Martin G. Weinberg: It is only in terms of there is a forfeiture statute governing the containers of contraband.
However, that statute only goes for seizure, it does not go to search and the justification for the search in Cooper.
Unknown Speaker: I know and then I am just asking why would Cooper not pick up, if the United States has the right on probable cause to seize the footlocker and hold it pending of forfeiture proceedings?
Mr. Martin G. Weinberg: Because, Cooper is an automobile and automobiles have a less of an expectation of privacy than luggage and footlocker.
Unknown Speaker: That was not the Court’s rationale in that case, was it?
Mr. Martin G. Weinberg: The rationale which was stated in Opperman was that it was a caretaking function.
Unknown Speaker: I am talking about Cooper.
Mr. Martin G. Weinberg: Opperman related to Cooper and held that it was a caretaking function and that is the reason why the police were allowed to go into the car.
Unknown Speaker: So the Copper, Opperman approach would cover anything, not just cars, it would cover a footlocker, would it not?
Mr. Martin G. Weinberg: Because, of the privacy interest in the footlocker are far different than the privacy interest in the car.
Unknown Speaker: Well, if you are holding the footlocker pending forfeiture proceeding, your submission is nevertheless that you may not search it without a warrant?
Mr. Martin G. Weinberg: If it is being held prior to a search, that is correct, Your Honor.
Unknown Speaker: Prior to forfeiture, pending to a forfeiture proceeding you still say that the government needs a warrant to search it?
Mr. Martin G. Weinberg: That is correct.
The statute permits seizure.
The next step is a search.
The search requires a warrant.
If the search discloses contraband, then you would not need a second warrant.
Then, it could be held pursuant to the forfeiture statute, but until then it is a temporary hold on the seizure powers until the search discloses what is in it.
Unknown Speaker: So again, it is a difference between the car and footlocker?
Mr. Martin G. Weinberg: That is correct, that is the distinction that is critical.
Unknown Speaker: If this footlocker had been held, Mr. Weinberg subject to a forfeiture proceeding as the vehicle or container of contraband
Would it be necessary to open it before the forfeiture proceeding?
Mr. Martin G. Weinberg: Yes Your Honor.
Unknown Speaker: Why, why could not the government not go into the courts and simply say here, we have probable cause to believe that there is contraband in here and then and there could not the judge say alright, we will have to open it to find out.
Now, would that be a “judicial warrant”?
Mr. Martin G. Weinberg: It goes to the limits of the seizure power which have not yet been definitively decided.
Unknown Speaker: But do you concede that the Court could say, having brought it into the courtroom as you would not trouble to do with the automobile, alright, now we will now have the Marshall of the court open it up and have someone decide whether it is contraband?
Mr. Martin G. Weinberg: If consistent with the Fourth Amendment, the judge may begin to pen down an impartial decision.
Unknown Speaker: On what subject?
Mr. Martin G. Weinberg: On the basis of whether or not there is probable cause the container in fact contained contraband.
Unknown Speaker: I thought it has been conceded now that there is probable cause at this stage.
Mr. Martin G. Weinberg: That is correct Your Honor.
At this stage it is stipulated.
Unknown Speaker: That footlocker then is in the courtroom in the forfeiture proceeding.
Could the court direct it to be opened to determine whether there were machine guns or whatever inside of it?
Mr. Martin G. Weinberg: Yes, Your Honor.
Unknown Speaker: And that would be lawful?
Mr. Martin G. Weinberg: That would be lawful.
It is the involvement, again, of the judiciary and not merely the opinion of a police officer and his involvement in an investigation.
That would decide when the search occurred because we are conceding the seizure, a police officer because of the exigencies can make a seizure, but because of the lack of exigencies, once having made the seizure, judicial permission is needed for the search which is the greater intrusion.
Thank you very much.
Unknown Speaker: Mr. Weinberg, would it make any difference in your argument if there were a provision in the ICC that permitted the carrier to open materials such as this in its custody for inspection at its discretion?
Mr. Martin G. Weinberg: Once again, that would be a search by a private party and not by the government.
Unknown Speaker: Right, I am talking about expectation of privacy.
Mr. Martin G. Weinberg: It might change the expectation of privacy of an individual regarding what the common carrier can do, but it would not change the expectation of privacy regarding the intent by the government to find evidence of a crime.
Chief Justice Warren E. Burger: Very well.
Mr. Randolph, do you have anything further?
Rebuttal of A. Raymond Randolph
A. Raymond Randolph: Yes, just a few points.
Mr. Justice White, in response to your question, I think it is fair to say the Courts of Appeals are unanimous.
I know no decision going the other way that when a person is arrested, a closed container on his person can be opened.
You would ask me whether this Court had dealt with that and I gave you the cases.
Unknown Speaker: Unanimous like one court or incident?
A. Raymond Randolph: I think we cited a number of the cases in our brief like US v. Hanz or Soriano stands for that, Schleis is another case, and Zaicek.
Unknown Speaker: Does any of it have a footlocker in these cases?
A. Raymond Randolph: Yes, as a matter of fact, the Second Circuit’s decision in Zaicek, I guess it is.
That was an attaché case.
I might point out to the court there is a decision of the First Circuit where this case comes from after we filed our brief called United States v. McCambridge, it is not cited, it was just decided late March.
It is 76-1147 and that Court, in an opinion by the same judge that wrote this opinion, upheld the opening of a closed briefcase in the trunk of an automobile that was properly seized and I think that points up a fact.
Unknown Speaker: Did they do that on the automobile?
What about on the searching closed containers in possession when you are arrested, is that strictly on the incident to arrest basis?
A. Raymond Randolph: In the Courts of Appeals, it is on a variety of different theories, Mr. Justice.
Sometimes it is not very articulated.
Unknown Speaker: But no court, I take it, has embraced your luggage exception?
A. Raymond Randolph: No, I think the courts generally do embrace it.
As a matter of fact the only court that I know that does not speak of it as luggage exception.
Unknown Speaker: Let us assume, do you know of any court that has embraced this notion that the government has probable cause to believe that a certain briefcase checked in a hotel has got contraband in it and the checker gives the government the briefcase?
There they have it and let us assume they are in lawful possession of it.
May anybody justify opening it without a warrant?
Do you know any cases like that?
A. Raymond Randolph: Unless you want to restrict me to hotels, I think that it would be analogous to the baggage cart on a train that has not pulled away where they could seize it.
Unknown Speaker: How about that?
A. Raymond Randolph: As a matter of fact, there is a case.
Unknown Speaker: Is that your theory?
The government would like to be able to search any effects that are found outside the home, if they have got probable cause to search it?
A. Raymond Randolph: If it is lawfully in their possession?
Unknown Speaker: Yes and I think that the contrary rule.
A. Raymond Randolph: Probably in the government’s possession?
Unknown Speaker: In the government’s possession, the contrary rule that respondents urge has a delusive exactness to it.
It sounds very precise, just notable perceptions, but then when you start thinking about it, he makes a distinction between whether the footlocker was weighed 2 pounds or 20 pounds, or even if Mr. Machado was a defensive lineman for a pro football team and had it under his arm as he walked out, it would make a difference.
It would make a difference if the car were pulling away.
The First Circuit has said that makes a difference, if the car were pulling away, then you can open up the closed container.
These kinds of fine-line distinctions, we think do a couple things.
One, they lead to a lot of litigation.
Second, they do not give the police any real guidance because they are not analytical.
I cannot see the line between those events and I think the Court would have difficulty doing so as well.
We think not only that, but finally, maybe this is the most important thing, they take away the importance and the seriousness of the warrant requirement because they burden the warrant system with these kinds of cases and I think that may not help to instill the kind of responsibility that we want to instill in magistrates, when they are dealing with very serious intrusions where the Court has held a warrant is required in the home, in the office, and private communications.
For that reason, we urge the decision of the Court to be reversed.
Justice Thurgood Marshall: In response to Mr. Justice White you said that there was a specific Court of Appeals case I believe.
A. Raymond Randolph: Yes.
Justice Thurgood Marshall: Relating to a locked briefcase, would you identify that case for us please?
A. Raymond Randolph: Yes, the case which was not cited in our brief, it is almost exactly like this case.
As a matter of fact it took place in San Diego Train Station about two weeks after this shipment took place, except for one difference.
The baggage was on the baggage car, they had a dog walk up, smelled it, the police went or the agents went and seized the luggage.
They got the luggage before the train pulled away rather than at its destination.
The case is United States v. Johnstone, 497 Fed 2nd 397, the Ninth Circuit, 1974 and the case is indistinguishable from this one even on the facts.
Chief Justice Warren E. Burger: Thank you, Gentlemen.
The case is submitted.