Illinois v. Andreas - Oral Argument

ORAL ARGUMENT OF RICHARD A. DEVINE, ESQ. ON BEHALF OF PETITIONER

Chief Justice Burger: We'll hear argument next in Illinois versus Andreas.

Mr. Devine, you may proceed whenever you're ready.

Mr. Devine: Mr. Chief Justice and may it please the Court:

The issue presented by this case is whether law enforcement officials must obtain a search warrant after a controlled delivery has been made to Respondent following a lawful customs search revealing marijuana within the container delivered.

The essential facts are as follows.

On February 21st, 1979, a customs agent stationed at O'Hare International Airport inspected a shipment from Calcutta, India, to Respondent consignee.

He did this in a customs bonded area.

The container inspected was sheet metal, approximately four feet square and 12 to 18 inches thick.

There were two locks affixed to the container, which the customs agent opened by keys which were accompanying the airline documents.

Inside the container he found a table top approximately three feet in diameter and eight to ten inches thick.

He removed the table from the container and drilled several holes in it, removing from inside a substance, which he field tested and found to be marijuana.

He then contacted agents of the Drug Enforcement Administration.

Soon thereafter DEA Agent Labek arrived at O'Hare Airport.

He saw both the table and the container in the customs bonded area.

He also performed his own field test on contents from the table top, which again showed marijuana.

On February 22nd, the next day, DEA Agent Labek picked up the container, which had been resealed at that time, from the customs area at O'Hare.

He was dressed as a delivery man and took the table and the container to 61 East Goethe Street in Chicago, Illinois, the address of Respondent given on the airline documents.

There he met officers of the Chicago Police Department, including Police Officer Wayne Lipsek, who was also dressed as a delivery man.

Agent Labek met an individual in the apartment building at that address who identified himself as Respondent.

The two walked outside and met Officer Lipsek.

While they were unloading the container from the back of the van, Respondent noted that there was a table top inside and that he had helped pack it.

The three carried the container into the apartment building and took it to the second floor.

Respondent directed the officers to leave the container in the hallway immediately outside his apartment.

They did so.

After leaving the container outside the apartment, they went around the corner and observed Respondent take the container inside the apartment.

While Officer Lipsek left to obtain a state search warrant, Agent Labek maintained surveillance within the apartment building.

Soon after Respondent took the container into the apartment, Agent Labek saw him come out of the apartment, go to a window in the hallway, look to the side and look down, turn and go back into the apartment.

Approximately 30 to 45 minutes later, Respondent came out of the apartment with the container.

At that time he was arrested.

Agent Labek was present at time time of the arrest and Agent Labek later testified that the container with Respondent at that time was the same container that had been delivered to him.

Officer Lipsek was radioed and told to return to the scene.

He did so, and Officer Lipsek and Agent Labek accompanied the container to Chicago police headquarters.

At Chicago police headquarters the container was opened, the table top was found within, the substance was removed from within the table top and again field tested and found to be marijuana.

Officer Lipsek was present during this entire process and testified that the container which was opened was the same container that had been delivered to Respondent.

Respondent was charged with possession of controlled substances and with possession of a controlled substance with intent to deliver.

The trial court granted Respondent's motion to suppress evidence.

The Illinois appellate court affirmed that decision.

The State's petition for leave to appeal to the Illinois Supreme Court was denied, and this Court granted certiorari.

It is the State's position that no warrant was required for the second opening of the container at police headquarters.

There had been a lawful customs search which clearly established that contraband was within the container, and this knowledge was within law enforcement's area of understanding.

There was then a controlled delivery of the container and its contents, during which the officers maintained reasonably continuous surveillance.

Thus the second search constituted not a new search but a reassertion of control over that which the Government had already seized.

This Court has for many years and in many cases held that a search at customs is reasonable by the fact that it occurs at the border.

It does not require probable cause, it does not require a warrant.

Thus any individual shipping a container which will cross a border has no legitimate expectation of privacy that the container will not be searched.

At the time that the search took place here at customs, it was performed by a customs agent, it was performed in a customs area.

It revealed contents which were contraband and field tests confirmed that it was contraband.

At that stage the Government had the right to seize the container and its contents.

They also had the right to conduct a controlled delivery, which they did.

A controlled delivery is an accepted police activity where there is delivery by law enforcement and there is a serving of a legitimate law enforcement purpose.

In this case, two purposes could be to confirm the identity of the recipient of the container and also to identify any confederates which might be involved in the criminal enterprise.

Thus the seizure had taken place at the time of the initial legal search and it remained in the Government's constructive control throughout.

Here there was a valid controlled delivery.

Markings were not necessary on this container because it was of a distinctive type.

It was a four by four metal container used for shipping, used to ship large objects.

Therefore it was sufficiently distinctive that no special markings on the outside or in the interior were necessary.

The law enforcement agencies involved had collective knowledge that was sufficient through the continuum of delivery here so that there was no break.

All relevant actions taken from the time of the search at customs were by customs agents, Chicago police department officers, or agents of the Drug Enforcement Administration.

The critical point here is the 30 to 45-minute interval during which Respondent had the container in his apartment.

It is our position that this did not create any legitimate expectation of privacy on the part of Respondent in the contents of the container.

The fact of possession clearly does not defeat a controlled delivery, because it takes place in almost every controlled delivery.

At least for some point, the individual recipient does have the package.

Constant observation of the package and the recipient are not required in a controlled delivery.

Quite frequently during this process, there is transfer from one agent to another, law enforcement agency to another, by a common carrier.

It is not required and it has never been required in these cases that there be continuous Government observation of the object while it is being transferred.

Unidentified Justice: In this case would your analysis be any different had it been a small suitcase?

Mr. Devine: I think, Your Honor, the situation might be different if you had a common suitcase which could not be clearly identified and which would allow readily easy transfer of the contents.

We submit, however, that when you have a container which is clearly identified and there is reasonably continuous surveillance by law enforcement officials, with that knowledge and then a retaking after a relatively short interval, that the second taking is merely a reassertion of control.

Unidentified Justice: So in this case much depends on the facts, then.

Mr. Devine: I think, Your Honor, that the Court could, because of the unusual nature of the type of search which can occur at customs under the law and which can give law enforcement officials specific knowledge of the contents of the container, could take the position that once the Government finds contraband in such containers and the container is identified, even if it were a suitcase, were clearly identifiable, then Government, if it maintained reasonably continuous surveillance, could retake that container and open it up because there had been that specific knowledge and there had not been a legitimate expectation of privacy about the contents in placing it at an international border.

Unidentified Justice: That would be true, following up in Justice Blackmun's question, only so long as there were probable cause to believe that whatever had been in the container was still in it.

If it had been in the guy's apartment for two days and he comes out with a container, he may just be throwing it in the trash.

Mr. Devine: I think that the time factor, Justice Rehnquist, plus the type of container are items to consider.

But I think the basic standard which the Court could look at is one that is premised on the actual knowledge at customs.

Of course, if it were a container that could easily be changed and were in the specific control of Respondent for a long period of time, those are considerations which the Court would have to apply to the case.

Unidentified Justice: Counsel, while you're interrupted, you said the keys were along with the shipment papers?

Mr. Devine: That's correct, Justice Marshall.

Unidentified Justice: I don't understand that.

Mr. Devine: At the time... the shipment was made from Calcutta, India, to Chicago via Lufthansa Airlines.

The Lufthansa documents for the shipment included the keys to open the container.

Unidentified Justice: For anybody to open it?

Mr. Devine: Presumably for customs to open it, Your Honor.

Unidentified Justice: I see.

Mr. Devine: Here both Chadwick and Sanders, which were cases cited by the Illinois appellate court in ruling on this matter, both noted that a reasonable expectation of privacy relates to what is known about the container.

Chadwick specifically refers to the fact that the container itself is known to the public and can be seen by the public.

Here law enforcement had seen the contents of the container.

In the Sanders decision it was noted that certain types of containers, such as gun cases, do not create a reasonable expectation of privacy because of their nature.

If that is true with a gun case where the contents are not known, it is certainly true of a situation such as this, where law enforcement has with validity gone into the container in a reasonable way and determined what the contents are.

Unidentified Justice: Mr. Devine, can I ask you a question there?

The question I guess that Justice Rehnquist focused on is you said it would have to be at least probable cause.

How would you frame the standard of the degree of certainty that there hasn't been a changing in the contents of the container?

Here you've got 30 minutes to deal with and that's the problem I guess the appellate court had, the interval.

Mr. Devine: I certainly think... pardon me, Your Honor.

I certainly think in this case if one applied just about any reasonable test, such as the substantial likelihood test suggested by the Solicitor General--

Unidentified Justice: Do you endorse that test?

Mr. Devine: --I think it is a narrow but proper holding in this case, Your Honor.

I think if applied to this case with the type of container you have, with a table inside it, and inside of the table, hardly easily accessible, you find the contraband, and if you couple that with the suspicious behavior of Respondent in going to the window, looking out, making a... whether a coast is clear look, and then coming out with the container, coupling all those items together, plus the fact that the police after seizing the container could tell whether it weighed relatively the same, I think all those things clearly suggest here that there is very little likelihood of change.

Unidentified Justice: Well, I understand that, but their test, and I guess you're willing to endorse it, is quite different from merely a probable cause test.

It's a higher standard, and you say on these facts you meet it.

Mr. Devine: We think we meet that test, yes, Your Honor.

Unidentified Justice: You're not arguing for a probable cause standard, is what I'm really trying to find out.

Mr. Devine: Well, I would argue... I would argue for more, Mr. Justice Stevens, yes.

I would suggest that where you have a situation of actual knowledge by law enforcement, finding contraband--

Unidentified Justice: Once you have actual knowledge, is that all you need at any time after that, is probable cause to believe there hasn't been a change in the contents?

Mr. Devine: --If the container is identified, either because it's distinctive, because it's marked, or because a beeper, for example, might be placed in it.

Yes, if law enforcement at that point has nothing affirmative presented to them to take away their legitimate expectation that that container still has contraband within, we think it can be searched without a warrant.

Unidentified Justice: I think you responded to one question by saying that if there had been a lapse of two or three days that would make it quite a different case.

From that is it correct to assume that you are saying that the observation of the officers, plus the short lapse of time, was sufficient to give them probable cause to believe that the container was in the same condition and had the same contents when it came out of the apartment as when it went in?

Is that your argument?

Mr. Devine: I think essentially, Chief Justice Burger, it would amount to that, but I would phrase it in the sense, there is nothing that happened that took away from their actual knowledge because of the reasonably continuous surveillance, the type of container, and the amount of time that was involved here.

Having had actual knowledge, it was certainly legitimate for them after this container came out, with all the facts that I've described, for law enforcement to seize the container and to search it without a warrant.

Unidentified Justice: Well, certainly if it had been a cardboard carton, for example, and a half an hour had elapsed, it would be pretty easy, if it were not within the officer's view, to change the contents of the container, would it not?

Mr. Devine: I think the ease of ability to change the contents, Justice O'Connor, is a factor to consider.

And it is one of the things that I would suggest could be brought forward as an affirmative statement by Defendant or Respondent to show that there were reasonable factors that law enforcement people could be aware of to change their understanding of what might be in that container.

However, if there were a beeper inside the cardboard box that might create a different situation.

I think this kind of case does require an examination of all the circumstances that are involved, but I think the standard I suggested provides a basis for looking at those various factors.

Unidentified Justice: Was the container here one to which items could have been added within the half hour or so?

Perhaps not possible to take out all of the contents of the table, but could other items have been added?

Mr. Devine: I would expect that, based on the size of the container and the size of the table, it might have been possible to put something in.

But at the same time, I would, looking at the type of container, not expect that someone would readily use that as a piece of hand luggage.

It is obviously designed for shipping large items and, based on the circumstances of this case, I think it is highly remote that anything was done that would have been a transfer of a large item of contraband or something other than that inside that container, and then have it come out and be approximately the same weight it was when it went in.

Unidentified Justice: How much did they get out of the table?

Mr. Devine: The street value estimate by the Chicago police officer on the scene was $100,000.

Unidentified Justice: How much... what was the weight?

Mr. Devine: The weight does not show up on any of the common law record at this stage, Your Honor.

Unidentified Justice: Was it all the same material?

Mr. Devine: Yes, hashish.

Unidentified Justice: Was a drill required to get to the inside of the table?

Mr. Devine: It is my understanding from the record, Justice Powell, that a drill was used by the customs agent, probably on the underneath side of the table, to open up holes, first to determine if it was hollow, and then to remove an amount of substance that could be field tested.

Unidentified Justice: Were any drills found in Respondent's apartment?

Mr. Devine: There is no evidence in the record that anything such as a drill was found with the container.

Unidentified Justice: Was it openable in some other way besides a drill?

Mr. Devine: Well--

Unidentified Justice: Do you know?

Mr. Devine: --We don't know from the record, Justice White.

Unidentified Justice: What authority did they have to drill into my furniture?

When you're bringing it in customs, they can take it apart and make a French Connection search, can't they?

Mr. Devine: It is our understanding from Ramsey and other cases that go back to Boyd, Justice Marshall--

Unidentified Justice: Can you give me any better, authoritative answer than a moving picture?

Mr. Devine: --Than a... I didn't give you that authority, Justice Marshall.

[Laughter]

I think the case--

Unidentified Justice: Customs just has that broad authority, right, it's your position?

Mr. Devine: --There may be... certainly this Court commented in Ramsey in a footnote that allowing the customs agent to inspect in effect any baggage, any person that comes across the international border--

Unidentified Justice: But this is drilling, this is drilling.

Mr. Devine: --Yes, and then replugging the holes by the customs agent after the drilling took place.

But the case is quite clear that customs can inspect a table top or anything that comes through to determine if in fact, as here, there is contraband inside.

Unidentified Justice: My question is, what case or what other authority do you have to drill into a piece of furniture?

Mr. Devine: Well, I think that I would cite to Ramsey, which this Court has made, a decision which this Court has made.

I would cite to Section 1582 of the U.S. Statutes, the U.S. Code, and the regulations adopted thereunder.

They don't specifically say you can drill inside, but they do give customs the clear power to search any baggage and any person that comes in.

Now, that has to be done reasonably, I would suggest, and that to just bash open any piece of baggage that came through, as this Court perhaps noted in Ramsey, is not something which the Court has approved.

But this was done reasonably.

Drills were used which customs agents apparently frequently use.

The table was plugged up again.

Presumably it was done on the under side so it would not damage the table.

And in fact, if you did not do that, if you did not have the authority to do that, any time someone wanted to be sure they could smuggle something into the country they would put it inside something like a table top.

So I think it is historically and under the case law quite well established that customs can do what is necessary to make a reasonable inspection.

We are not arguing here for a controlled delivery exception to the warrant requirement.

Rather, we are arguing that the customs exception quite clearly applies here and that after that inspection at customs had reveal contraband within the table top and it was placed back in the container, law enforcement could carry out a controlled delivery of that container by maintaining reasonably continuous surveillance, and under all the circumstances that have been described here allow for a second search, which is not a new search but rather a reassertion of control by Government.

This Court has in other contexts, such as Edwards and Tyler, noted that constant possession, constant visual surveillance of an area searched, is not necessary in order to retain the custody that is sufficient to allow Government to go in.

Specifically, in Tyler this Court noted that a second search several hours later of an arson scene constituted a continuation of the fire personnel's activity on the scene, and that it was not a new search and not subject to a warrant requirement.

Unidentified Justice: But in that case the individual searched was still on the premises.

Mr. Devine: The firemen had left the scene, Chief Justice Burger, and came back some four hours later after the smoke and steam had cleared away, made one search, went away again and came back an hour later.

And the Court held that the early morning searches several hours later were a continuation of the first search.

Unidentified Justice: Why are you arguing an extended border search rather than a controlled delivery?

I don't understand.

Mr. Devine: That argument, Justice O'Connor, was made by the Solicitor General and, while we certainly believe we could withstand analysis under an extended border search theory, Illinois is basically arguing the customs exception plus the controlled delivery.

We think the difference here is there was an actual search at the border, whereas in the extended border search cases there has not been and you are setting forth--

Unidentified Justice: You are arguing the controlled delivery?

Mr. Devine: --We are not arguing a controlled delivery exception, Your Honor.

We are arguing a customs exception plus a legitimate controlled delivery.

Unidentified Justice: I suppose analytically one might have a controlled delivery in connection with some other valid search that wasn't based on customs.

Mr. Devine: I think that's certainly correct, Justice Rehnquist.

In fact, I think the most common way they occur is if a common carrier has for some reason had cause to inspect an item coming aboard a train or a plane and the police officials see it in plain view.

That seems to be numberwise the most common way that this happens.

Here the search at the police headquarters was not an incremental intrusion into an area of privacy concerning which Respondent had legitimate expectations.

When one is balancing that lack of intrusion, lack of any further intrusion beyond what had already been searched, against the burden which would be placed on law enforcement by requiring that a warrant be obtained, the balance clearly is in the favor of law enforcement.

We would therefore pray that this Court reverse the judgment of the Illinois appellate court and remand this matter to the Circuit Court of Cook County for further proceedings.

Thank you.

Chief Justice Burger: Mr. Reardon.

ORAL ARGUMENT OF PATRICK G. REARDON, ESQ. ON BEHALF OF RESPONDENT

Mr. Reardon: Mr. Chief Justice and may it please the Court:

The Petitioners have reiterated today that the facts of this case show what they've called a controlled delivery, and I agree with some of the questions and with the Petitioner when he said this case is controlled by the facts.

I think the facts in this case do not show that a controlled delivery occurred, regardless of whether we accept the reasoning of the controlled delivery as an exception to needing a warrant.

The facts that we look to to that position are the following--

Unidentified Justice: What do you understand... at some point will you give your definition of what you think a controlled delivery is?

Mr. Reardon: --Well, I think they have based, and I think the Illinois appellate court based its understanding of a controlled delivery upon the cases in the various courts of appeals, such as--

Unidentified Justice: What I was driving at is, when you use the term what do you mean by it, not what the courts meant.

Mr. Reardon: --I think that a controlled delivery, if there is one, must entail a constant, close surveillance and control over the contents that are to be seized, at whatever time they are eventually seized and taken into police control permanently.

Unidentified Justice: How do you keep control over the contents?

How do you observe the contents when they're sealed?

Mr. Reardon: Well, I think that over the years the cases have given us imaginative ways that the Government has found to do that.

One is that when a package is found the Government, either by virtue of plain view doctrine or customs search or whatever, sees the contents of the container, they then mark that container in such a way so that at a later time when they have delivered the container into someone else's possession and watched it closely, as all the courts have demanded, they can then tell whether that container has been opened or closed, therefore whether the contents of that container are the same.

Unidentified Justice: What problem, if any, do you have with the fact that they also had the keys?

Mr. Reardon: Well, at the time of the customs search apparently the keys were attached by Lufthansa as a part of the shipment and were with the tin package, so that when it came to customs all the customs agent had to do was to take the keys and open the package.

Once the package--

Unidentified Justice: Did the customs... did the Government keep the keys?

Mr. Reardon: --Well, there's no evidence as to even whether the container at the time it was delivered was in fact locked.

All that's said is the container was closed and opaque at the time it was delivered.

I suggest to the Court that, on the issue of bringing the container from the customs depot to the address on Goethe Street, that there are several occasions when we have problems with the analysis of the facts that has gone before.

For example--

Unidentified Justice: Mr. Reardon, would you want us to draw a bright line where there is any period of time whatsoever when the package is out of eyesight of the authorities?

Mr. Reardon: --Well, I think you're asking me to go beyond the facts in this case, which I think give us an opportunity to clearly see a line.

Unidentified Justice: Well, at least that would be an easy approach, a bright line is drawn and it's easy to be enforced that way.

Mr. Reardon: Well, possibly that would be the way this Court could go.

But in this case there is such a bright line that I don't think there's any problem with drawing it.

Unidentified Justice: 45 minutes?

Mr. Reardon: There's at least a half hour to 45 minutes where the container is not just handed to someone and then that someone, as in many cases, walks out of the airport with agents trailing him and following him by radio.

The container is handed to him at the door of his own home, an apartment but nevertheless a home, a Fourth Amendment protected area.

He went inside that home with a closed container and closed the door, and at that moment I think that he manifested an expectation of privacy that is protected by the Fourth Amendment.

And during an interim of a half an hour, there was no evidence in this case that there was any particular problem emptying out that container.

I take exception to the statements of the Petitioner on that score.

There was no information given to us that there was any difficulty in opening this ordinary shipping container that Lufthansa uses to ship furniture and to take out the table.

There was no evidence at any time as to the fact that this is a heavy object or a difficult object to move.

That is not in the record.

In fact, if we are to look to the record for anything at all, it is the statement given to us by Agent Labek that he says the Respondent gave him, and that is.

Oh, it's not heavy, I'll take it myself.

I packed it myself before.

Now that's what Agent Labek tells us.

Unidentified Justice: So he may open it up and empty it, and then he had to fill it up again.

Mr. Reardon: There's no evidence that it was even full at the time it was seized, other than it was, of course, later opened.

Unidentified Justice: Well, later.

But when it was taken... when it was searched at the police station it certainly had something in it.

Mr. Reardon: Oh, it certainly did.

But at the time of arrest--

Unidentified Justice: And there's no indication... and if there was something in it, it was either put in it in his apartment or before?

Mr. Reardon: --But at the time that is relevant to the seizure and to the opening of that container, no evidence has been given to us that the police weighed it, checked the weight against any earlier time when it was--

Unidentified Justice: Well, all we're talking about is probable cause.

We're not talking about, I would think, the kind of chain of possession that you have for a chemist to testify at a trial.

This is strictly probable cause.

Mr. Reardon: --Well, first of all, if we are talking--

Unidentified Justice: More likely than not is the standard, is it not, more likely than not, as distinguished from beyond a reasonable doubt?

Mr. Reardon: --Well, if we are talking about probable cause, obviously the standard is less than reasonable doubt.

But I suggest to you that under the cases that the Illinois appellate court relied on and that I believe applied in this situation, both U.S. v. Chadwick and Arkansas versus Sanders, the doctrine there is that probable cause does not excuse the warrant requirement.

Unidentified Justice: I got an impression that you've suggested that when this man took the container out of the hall and took it into the apartment, then it achieved some new changed status or cloak of privacy.

Mr. Reardon: I suggest that that--

Unidentified Justice: Is that your position?

Mr. Reardon: --I do say that, yes.

And I say that because that has been an attack made by the Petitioners, that for some reason there can be no objective expectation of privacy in a package, in a container once it has gone through customs.

Apparently Petitioners feel that an objective expectation lies upon the package, rather than on the possessor or recipient, and that there's some sort of halo that surrounds a suitcase or container once it goes through customs, that halo is erased and forever more that container can never be an object of privacy again.

Unidentified Justice: Well, I think their argument is that you lose the expectation of privacy so long as there's some surveillance of it thereafter until the point that it's seized.

That's how I understand the argument.

And the tough part of this case is that break in time and the level of certainty that's required to be sure something hasn't been taken out or added.

Mr. Reardon: Well, I agree with that.

I think--

Unidentified Justice: What level of certainty do you think the cases show has to be applied?

Mr. Reardon: --Well, Justice O'Connor, once that door closes to a private Fourth Amendment area... that is why I responded as I, did to Chief Justice Burger--

Unidentified Justice: Well, do you think if the door were closed for 30 seconds that that would somehow magically change this case?

Mr. Reardon: --Well, let's assume that... you're making me do things that are not in the case, and that I find difficult because then I would be in a different position, of course.

Unidentified Justice: But that's the fun we have in asking questions.

[Laughter]

That's what we're here for, to test your arguments with hypothetical questions.

Counsel, when you get a package from overseas and you are an average intelligent person, don't you assume that someplace along the line the customs agents have taken a look at it?

Mr. Reardon: Well, I think that it would be a reasonable assumption, yes.

Unidentified Justice: Well, how do you escape it here?

Mr. Reardon: Well, let us assume--

Unidentified Justice: As of right now, with what your associate tells me, I have to also assume that somebody drilled into my furniture.

Don't you have to assume that?

Mr. Reardon: --Both at the trial level and at the appellate level and in our briefs in this Court, we have specifically prescinded from any discussion of whether or not the customs search was a lawful search by a governmental agency.

We have conceded for purposes of argument that it was.

Unidentified Justice: Could there be any possible question about it?

Mr. Reardon: Well, I think Justice Marshall raised one, whether or not--

Unidentified Justice: Well, do you raise a question?

Mr. Reardon: --I suggest that a customs search must be reasonable.

I think that that at least must be a standard.

I think that customs--

Unidentified Justice: Well, are you aware that they sometimes take a suitcase and take the lining out?

First they take the contents out, then they tear the lining out, and--

Mr. Reardon: --Oh, I think great latitude is given--

Unidentified Justice: --Unlimited latitude.

Mr. Reardon: --but nonetheless there could be such a thing as an unreasonable customs search.

That's all I'm suggesting.

And I'm not suggesting in this Court that the search of the table at the O'Hare customs depot was such an unreasonable search.

Unidentified Justice: And with a person they sometimes take the people into a private area and have a physician or a nurse strip them and examine them.

Now, is there any question about the right of customs to check everything they want to check?

Mr. Reardon: Well, once again you're asking me to go into hypotheticals.

Unidentified Justice: Yes.

Mr. Reardon: But I suggest that there may be a Rochin versus California situation at a customs depot some day that could be so extreme that it would offend this Court.

On the other hand, I am aware that there are far, far greater latitude given to customs agents than in any other search that I know of.

I agree with the Court on that basis.

Unidentified Justice: Well, could I return to a question I asked you a while ago.

This won't be a hypothetical.

I take it there was hashish found in the table at the police station?

Mr. Reardon: That is correct, that was the evidence that was elicited.

Unidentified Justice: And is it a fair inference from the record that the hashish was either placed in the table in your client's house or it was... or what was found in the table, whatever it was might have been taken out, was there before it got there?

Mr. Reardon: Oh, it's quite possible that the--

Unidentified Justice: Possible?

I mean, aren't there only two alternatives as to where that hashish came from?

It was either added in his house or it was there before it got there.

Mr. Reardon: --Or it was there before the customs search, correct.

Because customs found that hashish at the airport.

Unidentified Justice: Well, suppose it had never been out of anybody's sight, and suppose a friend of your client's who was... this is a hypothetical.

Suppose a friend of your client went in the house with him and he just happened to be an informer for the police, so it was always under observation and he testifies that nothing was taken out or put in.

And then it was searched at the police station.

Mr. Reardon: Then I agree--

Unidentified Justice: Then you would have no... then you might be in--

Mr. Reardon: --Then we are in an extremely different case than we are today.

Unidentified Justice: --All that would then show is that the hashish was in there when it was delivered to him and it was never taken out.

That's all it would show.

Mr. Reardon: Yes.

Unidentified Justice: Now, on the facts of this case it seems to me that you are stuck with the unquestionable fact that hashish was either put there by him in the house or it was there when it was delivered.

Mr. Reardon: Well, the question, though, I believe is whether at the time he walked out of that door--

Unidentified Justice: Yes.

Mr. Reardon: --into the hallway with a closed opaque container, that at that point the police agents who seized the package had a right to search it under Chadwick, because at that point, did they have such certainty?

First of all, did they have such close control as the cases require for them to say that this is nothing more than a continuation of our earlier customs search or this is nothing more than a reassertion of immediate control versus surveillance control.

Unidentified Justice: Well, you certainly then, you certainly want to cut off a so-called controlled search, a controlled surveillance.

You just want to put that aside and say that this expectation of privacy takes over as soon as the door closes and that's the end of the case.

Mr. Reardon: Well, I do for the following reasons, because--

Unidentified Justice: Well, why would you then... why would you say that you would lose the case if a friend was there with him and later testified that they never touched the table?

Because as soon as the door closed there was an expectation of privacy that the police should not--

Mr. Reardon: --I'm sorry if I misunderstood your hypothetical, but I assumed that this friend was continuing the surveillance on behalf of the police.

Unidentified Justice: --Well, he was, he was.

But nevertheless, the door was closed, and in his house an expectation of privacy should cut off the entire customs rationale excuse.

Mr. Reardon: Well, the question then for this Court would be whether the controlled delivery cases of the courts of appeals should be ratified in this Court.

I don't think that question has ever been answered and I think Justice Rehnquist pointed that out in a grant of stay to a California case, that this Court has never addressed the problem directly.

Unidentified Justice: Well, let's suppose we do adopt it.

Then the question still becomes whether that break in time is sufficient to say that there isn't a controlled delivery.

Mr. Reardon: Well, your original hypothetical was to me how long a break in time is necessary, and I--

Unidentified Justice: Might that not depend on the nature of the container and the likelihood that it could have been... something taken out or added in that interval?

Mr. Reardon: --I suggest that if that would be the rationale upon which the lower court or this Court should rule, then that should have been developed by the state as a way of showing that this container had to be in the same condition that it always was.

Unidentified Justice: Well, why shouldn't the question be, was there an opportunity for somebody else to put in the table what was later found in the table?

Why shouldn't that be the question if there's going to be a... if you're going to examine a break, you should examine it from that standpoint.

They unquestionably found something later in the table, and if somebody else might have put it there that's another matter.

But if you know it's always been in your client's possession--

Mr. Reardon: The question, however, is not whether it's been in my client's possession, but whether the contents of that table are available for search without a warrant.

Unidentified Justice: --Your theory is that it's perfectly conceivable that he himself might have taken it out in his house, in the apartment, and emerged with the thing just unchanged, at any rate, from the way it had been delivered to him?

Mr. Reardon: I think that's true.

Unidentified Justice: But it wasn't empty.

It wasn't empty.

It was full.

Yes, but you don't find out until you search it.

That's right.

Mr. Reardon: But no one at the time that that package was seized outside his door at the time of arrest, no one ever testified that the contents of that container were the same, nor could they have, if you examine the facts, because that was an ordinary shipping container.

All you had to do was take the top off as the customs agent did, take out the contents, put in anything else you wanted.

Unidentified Justice: None of the controlled delivery cases have required absolute certainty.

That's just not an argument that's a winner.

It's a question of the level of certainty you're going to require.

Is it going to be probable cause, is it going to be substantial likelihood, is it going to be reasonable certainty, what is it?

Mr. Reardon: Well, I suggest to the Court that the controlled delivery cases that I have seen have required such close surveillance that there could be no change in the contents of the package.

That's what U.S. v. DeBerry said, that's what Ford said.

In all of those cases--

Unidentified Justice: It's almost a chain of possession reasoning, like you have to have--

Mr. Reardon: --That's what the courts have searched for in the Court of Appeals, and I think it is reasonable because--

Unidentified Justice: --But when you're talking about probable cause... I mean, the whole gist of what you can search in the Fourth Amendment area depends on probable causes.

Why should a different standard apply in this one little nook of the Fourth Amendment?

Mr. Reardon: --I'm not sure that that is the standard as I read it in Arkansas versus Sanders.

The probable cause by itself does not excuse the warrant requirement.

That is the way I read Sanders, and I believe that is the way... that is what the Illinois court relied on, that probable cause is not a sufficient standard for excusing a law enforcement official from obtaining a warrant, except where there are exigent circumstances, and there were none here.

So that I'm not sure that I can agree with that understanding of the--

Unidentified Justice: But you treat this as if it were simply a probable cause like they had to search the suitcase in Arkansas against Sanders.

But here you have a customs search which demonstrates beyond peradventure of a doubt that at that point there's contraband in the package, and so the question is what standard of knowledge are you going to require to assume that the package is still in the condition it was in at customs some time later.

I don't see why probable cause shouldn't be that standard.

Mr. Reardon: --Well then, of course we are backing away, I believe, from the standard in Chadwick, which was that probable cause is insufficient.

Unidentified Justice: But certainty wouldn't have been sufficient in Arkansas against Sanders.

A warrant... certainty without a warrant would have done the officers no good.

Mr. Reardon: Well, my response to that would be that if we then wish to be consistent, if that is the consistency that the Court wishes, then we should say that under controlled delivery cases a warrant is required.

Unidentified Justice: You're free to argue that if you want to.

Mr. Reardon: I can only say that I believe that is the logical consistency that I'm confronted with by the decisions in this Court, and I suggest that, whatever we look to as a standard in this case, the facts of this case... I think I agree with counsel--

Unidentified Justice: May I ask you a question about your theory on the time interval?

Do you think there's any relevance to the reason why the police did not apprehend him immediately upon the delivery?

As I understand the facts, what they did was they did then take the time to send someone out to get a warrant and then he unexpectedly emerged from the apartment before they could get the warrant.

Is that relevant at all in the analysis?

Mr. Reardon: --I think the fact that the officers went to get a warrant once that apartment door was closed indicates to me that those officers, as well as I, knew that they had lost control at that point and that they need a warrant at that point to reassert control and to research that package.

Unidentified Justice: Well, they hadn't lost control at the time they handed him the package and he said, it's not too heavy, I can handle it myself.

Mr. Reardon: But they didn't reseize it at that point.

That's my point.

Unidentified Justice: But apparently the reason they didn't at that point in time was they decided that it would be better police procedure to get a warrant, and I certainly don't think you'd criticize them for doing that.

Mr. Reardon: No, I don't think I'd criticize for going and getting a warrant.

That's what I'm arguing for.

Unidentified Justice: And certainly while the table was in the house there's no way they could get in the house without a warrant.

The warrant they went to get was to search the house.

Mr. Reardon: Well, and to--

Unidentified Justice: And you couldn't enter the house, I guess, without a warrant.

Mr. Reardon: --For the purpose of seizing a container within which was another container, within which was the object of the warrant.

Unidentified Justice: Suppose they'd waited until he had taken the package out, put it in his automobile, and then started off.

Given the background, given the background, would you say there was no probable cause for the officers to believe that when he was transporting that package he was transporting an unlawful drug, and that therefore if there was no probable cause to believe that, that they couldn't stop him without a warrant?

Mr. Reardon: I suggest that they could stop the car under case law relating to cars, Carroll, et cetera, and the new cases on that point.

I suggest, however, that the probable cause that they would have even under the most recent cases of this court on the searches of autos would give them probable cause for a package, rather than for the generalized search of the auto, and that since it was a package it would then need a warrant.

Unidentified Justice: But don't you read our cases as having, recent cases, as having largely, very, very largely, expanded what can be searched in the car without a warrant?

Mr. Reardon: I do.

Unidentified Justice: Once the car has been lawfully stopped.

Mr. Reardon: I do.

Unidentified Justice: I do.

Mr. Reardon: So you concede the car would be lawfully stopped on the belief that it was probably transporting drugs, but you say they couldn't open the package without a warrant?

I suggest that even under Ross the package would be the object of the probable cause, rather than the generalized interior of the vehicle, and on that basis Ross would not authorize a generalized search of the car or opening of any or all packages or compartments, but would rather require a seizure of the package and a reduction of that package to the immobility and total security of the Chadwick situation and an obtaining of a warrant, as in Chadwick and as in Sanders, which distinguished specifically the Carroll doctrine from this type of container situation.

I suggest that, like Chadwick, when John Andreas had a half hour with that package or more alone in his home and when he came out that package was seized, the same as it was in Chadwick, he stood in the same relative position as the defendants in Chadwick.

And like in Chadwick, that package was taken to the police station and reduced to total police control and security.

The police had no reason to suspect that that package contained explosives or other dangerous articles.

The police had no exigent circumstances.

They opened it without a warrant.

The warrant was required under both Arkansas versus Sanders and under United States versus Chadwick.

And our position is that once agent Labek left the floor of that building, if there were any vestige of surveillance going on, he said he didn't even keep the apartment under his personal surveillance during that half hour.

There was no evidence in this case that the package could have had any problem being opened or changed or whatever.

There was no certainty at all by that point.

Chief Justice Burger: We'll resume there at 1:00 o'clock.

You may continue, counsel.

ORAL ARGUMENT OF PATRICK G. REARDON, ESQ., ON BEHALF OF RESPONDENT -- RESUMED

Mr. Reardon: Thank you.

In the remaining moments, I would like once again, if I may, to address the question of Justice O'Connor's as to the time lapse, the short time lapse after the closing of the door.

I think perhaps a review of the Petitioner's reasoning that they urge us to accept relating to the expectation of privacy may help us in this area, and that is, the Petitioner urges us that there is no expectation of privacy.

We have urged that there is and that the Respondent at the point that he closed the door to his apartment stood in the same position relative to an expectation of privacy as Mr. Katz did in Katz versus United States when he closed the door to that telephone booth.

The Court said in that case that up until the moment that Mr. Katz entered that phone booth there was no expectation of privacy that he could have in that booth.

But when he went in, closed the door and paid his dime, the Government could not enter, and it was at that moment that the Government could no longer violate that expectation of privacy.

I suggest that John Andreas at the time he took the closed opaque container from the Government agents and rolled it into the closed door of his own apartment, that at that moment he manifested the expectation of privacy and that it wouldn't matter from that moment on how long we talk about or whether there's a short time gap or a long time gap, because at that moment the Government does not have control, there is no longer any exception that they can claim to the otherwise always supreme warrant requirement.

And on that basis I hope my answer at least clarifies it, whether or not it is acceptable to all members.

Unidentified Justice: Well, having observed him putting some contraband drugs into the apartment in an identifiable package and then 30 minutes later seeing him take that same package out, was there reasonable grounds to believe that there might be drugs in the package that he carried out?

Mr. Reardon: I think it's possible to make an argument that there's probable cause at that point in fact for believing that there may be some contraband in that package, based on earlier knowledge.

The Illinois court said that that's a possible argument, but it doesn't apply here because probable cause does not excuse the warrant requirement as long as there is no controlled delivery in this case.

We go back to the standard of Chadwick and Sanders, and in this situation that standard is that a warrant is required absent exigent circumstances.

It is our position that this is not a controlled delivery case, the facts do not demonstrate it.

And so to begin to elaborate as to how much control or how little, this purely and simply is not a controlled delivery case, and in that setting the Government or the State of Illinois relies on an improper premise in asking us to excuse the otherwise necessary warrant.

Unidentified Justice: Well, it certainly could fit the definition of a controlled delivery under any view, couldn't it, until the arrival at the apartment?

Mr. Reardon: No.

We have alleged that there are two reasons for the loss of control.

There is certainly the loss of control at the door of the apartment, but we have alleged an earlier reason.

The State never did establish that on February 22nd, when Agent Labek went to the customs depot, that he had any direct knowledge of what was inside the package that he told us was closed and opaque at the time he picked it up on February 22nd.

So there really is a gap from February 21st at some point during the day up until the search the following evening of the 22nd at the police station.

Unidentified Justice: Don't you think he can rely on what customs officials told him?

Mr. Reardon: There's no evidence that they told him anything.

Facts in this case were never brought forward by the prosecution at the trial level to show any communication--

Unidentified Justice: Well, what were they following him for?

Mr. Reardon: --I'm sorry?

Unidentified Justice: What were they following him for?

Mr. Reardon: What were they--

Unidentified Justice: You answered Justice O'Connor, said the customs agents never told him they had contraband in the--

Mr. Reardon: --The customs agents told the agent Labek on the 21st to come out to the airport and see the package that we opened.

He then tells us he did.

He went out, he looked at the package.

It was already open.

The table was out of the package and he made a test that confirmed to his satisfaction contraband as part of that shipment.

He never repackaged the table.

There's never any testimony by either Agent Labek or Agent Grosek of customs--

Unidentified Justice: --The question is, why are they wasting the time and the manpower to conduct surveillance on this fellow?

Mr. Reardon: --Well, perhaps they had what you've already described as probable cause to know what's in that package.

But it seems to me that under the cases relating to controlled delivery more is needed.

We cannot just assume that Agent Labek at the time he takes the package on the 22nd has any direct knowledge of what's inside that package, without evidence on that point.

And none was presented to the court at any time.

Unidentified Justice: This didn't trouble... the point you make did not trouble the Illinois appellate court, did it?

Mr. Reardon: Oh, it did.

It did.

The Illinois appellate court related two specific areas where there was a problem, and they suggested that the main one was at the time, the 30 to 45 minutes.

But they also in the opinion point to the fact that at the time of the initial pickup during the early afternoon hours on the 22nd Agent Labek received no communication and therefore had no direct knowledge.

And they were troubled by that as well.

That is, I believe, in the opinion.

Chief Justice Burger: Thank you.

ORAL ARGUMENT OF RICHARD A. DEVINE, ESQ., ON BEHALF OF PETITIONER -- REBUTTAL

Mr. Devine: Thank you, Mr. Chief Justice.

I'd just like to respond to two points.

With regard to the earlier so-called interval in the controlled delivery, the only point really that Respondent is making is that Agent Labek was not present watching the container at the time that the customs agent picked up the table top and put it back in.

The container was resealed and remained in a customs bonded area, from which Agent Labek picked it up the next morning.

He had, as we have noted, seen that table top, seen that container the prior day, in fact tested the substance from the table top.

To impose the kind of standard of continuity by one individual in law enforcement to justify a controlled delivery, as Respondent would, would in effect remove controlled deliveries.

It's a totally absurd standard, I think is the only way to really characterize it.

The second point is that Respondent refers to Katz and going into the telephone booth.

Well, the man going into the telephone booth did not bring a container with him which had been inspected and which had shown that the contents were contraband.

The only reason at all that there was any added factor here by going into the apartment was under Payton principles.

There was nothing about the container or the contents that required the police to go for a warrant.

It was the location of that container in the apartment which the police, in exercising professional judgment and acting as we would want them to act, sought a warrant to enter.

It had nothing to do with the container, the contents, or anything that might have happened to either the container or the contents.

Thank you very much.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.