ILLINOIS v. LAFAYETTE

Print this transcript Transcript: 

ORAL ARGUMENT OF MICHAEL A. FICARO, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Illinois against Lafayette.

Mr. Ficaro, you may proceed whenever you are ready.

Mr. Ficaro: Mr. Chief Justice, and may it please the Court.

The Fourth Amendment, through the requirement of warrants based upon probable cause, seeks to protect citizens and their effects from governmental intrusions by unreasonable searches and seizures.

But not all searches and seizures without warrant offend the limits imposed by the Fourth Amendment.

We submit that Illinois v. Lafayette is one such case that does not offend the limits of the Fourth Amendment.

We urge this Court to find that the delayed search at the station house of the purse of the Respondent, Ralph Lafayette, after a valid custodial arrest was reasonable under the Fourth Amendment.

We submit to this Court that this post-arrest warrantless search was permissible both as incidental to arrest and as a valid inventory search.

Unidentified Justice: Now, Mr. Ficaro, you did not make that search incident to an arrest argument below, did you?

Mr. Ficaro: Yes, Your Honor, that argument was made in the trial court.

Although in one line of the Appellate Court opinion, the Appellate Court found that it was waived, the Court went on to discuss the issue citing Ross, Belton, Sanders, Chadwick, Edwards, and then in its conclusion in the holding of the case the Court said that we find that this search is not incidental to arrest and thus violates the Fourth Amendment.

So under Jenkins v. Georgia, the Appellate Court of Illinois reached and decided the constitutional issue.

The fact--

Unidentified Justice: Before it got to the end of its opinion on page 3A of the cert petition it said we find the state has waived this argument for the purposes of appeal by falling to raise it at the suppression hearing.

Don't we have to take that at face value?

Mr. Ficaro: --There are three ways that this case is before this Court.

One is on the theory of valid... the inventory search which was not--

Unidentified Justice: I understand.

This only goes, as Justice O'Connor's question, only to the question of search incident to arrest.

On that they say in so many words you waived that.

Mr. Ficaro: --Although they said that under Jenkins v. Georgia, they reached the issue.

The question of waiver, whether or not this is an independent and adequate ground... this is not an independent ground, the issue of waiver.

The Illinois courts follow procedural and substantive laws to find under the Fourth Amendment.

In People v. Clark, in appellate courts, People v. Renke, the courts of Illinois have said that their interpretation of the Fourth Amendment is coextensive with the scope of the federal interpretation by this Court of the Constitution.

Unidentified Justice: But that has nothing to do with whether an argument might be waived, does it, the fact that the two constitutions might be coterminous?

Mr. Ficaro: The Illinois courts follow the procedural rules, so this Court under the holdings of Steagald which establishes the standard for waiver in Illinois... the Illinois courts in People v. Keller which explicitly says we follow the federal guideline of Steagald for the waiver principles, thereby allows this Court to reach the question of whether or not it was waived.

By a clear examination of the record in this case, the issue was not waived although the Appellate Court in one simple sentence said it was waived.

Unidentified Justice: But assuming we ought to take the word of the Illinois Appellate Court in this particular case on these particular facts as to whether something was waived under Illinois law, shouldn't we?

Mr. Ficaro: I believe, Your Honor, it is not an independent ground because they use the federal standard of waiver in Steagald, and, therefore, in applying the federal standard in Steagald this issue was not waived because it was raised in a timely fashion.

Unidentified Justice: Without getting into all this Steagald underbrush, didn't your Illinois Appellate Court go on and say and reach the issue anyway--

Mr. Ficaro: Yes, that is correct.

Unidentified Justice: --by saying that we assume arguendo that it was not waived and then went ahead and decided it.

Is that enough for you?

Mr. Ficaro: That is enough under Jenkins v. Georgia if they reach the constitutional issue and more significantly--

Unidentified Justice: But you have not mentioned it in so many words.

Mr. Ficaro: --I apologize to the Court.

I thought that was my first reference.

But what they have said is, in applying the principles of the Supreme Court cases, we find that this was not a search incidental to arrest.

The facts of this case are that on September 1 a sergeant of the Kankakee City Police was called to a disturbance at a movie theater in Kankakee.

Upon his arrival he saw the Respondent at the theater having words with the theater manager.

As he approached the theater manager, the manager requested that the sergeant file a complaint against the Respondent, Ralph Lafayette, for disorderly conduct.

Sergeant Mitzner tried to straighten out the matter there, in his own words, but the Respondent continued yelling and screaming and Sergeant Mitzner then placed him under arrest, did not search him at that time, handcuffed him, took him to his car, and brought him to the police station.

At the police station the Respondent was unhandcuffed and taken into the booking room where the standard police booking procedure began.

The Respondent was told to remove his clothing, to put on jail garb, to take the things out of his pockets, and he began filling out forms.

Then, according to Sergeant Mitzner, the Petitioner or the Respondent placed his purse on the counter before him, took out a pack of cigarettes.

The sergeant touched that purse, felt something inside and reached in.

According to the Petitioner, the purse was taken from his shoulder and searched.

But it was uncontested that inside that purse at the time... after a valid custodial arrest, were ten amphetamine pills.

A motion to suppress was heard, was taken under advisement by the trial court.

Twenty days after being taken under advisement, the state filed a brief in opposition to the motion to suppress.

The Appellate Court then affirmed the holding of the trial court suppressing the evidence.

Leave to appeal to the Supreme Court of Illinois was denied, and this matter is before the Court on a writ of certiorari.

The reasonableness of a post-arrest warrantless search of the Respondent's purse is predicated upon the right of the state to search the Respondent after his valid custodial arrest for disorderly conduct.

The validity of Sergeant Mitzner's authority to search this individual after the arrest has remained virtually unchallenged in this Court.

As this Court noted in Robinson, the right to search is not to be doubted.

The arrest is a reasonable intrusion as this Court has said in the initial stage of prosecution which may lead to the ultimate relinquishment of liberty of this individual.

When Sergeant Mitzner observed the Respondent's disorderly conduct and arrested him for that, Ralph Lafayette's expectation of privacy in the contents of his purse became subordinated to the legitimate and overriding interests of the state to search that purse.

Those interests, as stated in this Court, that are monitored by police officers each day are the interests to disarm the person arrested, to protect the police officers and those around them, to remove the means of escape from the arrested person, and to prevent destruction of evidence that can be used against the person arrested.

Now these interests that were monitored by Sergeant Mitzner were not tailored specifically for Ralph Lafayette.

These are the interests served in every arrest and search incidental thereto.

The interests served are not the justification for the search of Ralph Lafayette.

The valid custodial arrest as this Court has indicated is the justification for that search, and the search needs no further justification.

The breadth of authority to search is not limited, as this Court has held, by the crime arrested for.

Despite the trivial nature of a crime that a police officer arrests an individual for, an officer never knows if he is facing the infamous, as this Court put it, trojan horse.

It is of no moment to a post-arrest warrantless search that there may be an absence of the fruits of the crime arrested for or no evidence of the crime that can be seized in relation to the crime, although in this case the bizarre behavior of the Respondent could have been found in the evidence of amphetamines found in his purse.

The Justification to search is not based upon the probability of finding weapons and evidence and means of escape in each and every case, but is based upon the valid custodial arrest.

The state's interests to be protected after a valid custodial arrest are constant whether or not in a hindsight glance we can say that the interests were unlikely to have been served in that particular search incidental to arrest.

Unidentified Justice: What was this man custodial arrested for?

Mr. Ficaro: He was arrested for, Your Honor, disorderly conduct which was a city ordinance which was subject to incarceration.

Unidentified Justice: And what evidence could you find of disorderly conduct by searching him?

Mr. Ficaro: I do not believe that is an issue, Your Honor.

However in this case--

Unidentified Justice: But it is a question--

Mr. Ficaro: --Yes, it is.

Unidentified Justice: --which I am asking.

Mr. Ficaro: And the answer to that question is that the evidence of his bizarre behavior may have resulted from the use of narcotics, in this case amphetamines.

So in this particular case there could be established evidence of his bizarre behavior, that his yelling and screaming in a public place and acting as what is described as disorderly in this specific case.

It was conceded by the Respondent if Sergeant Mitzner arrested him at the movie station, he could have conducted a search contemporaneous with that arrest, but because the search was at the station, the Respondent says it violated the Fourth Amendment.

The Court has ruled in United States v. Abel that a valid custodial arrest can justify a search in a place other than the place of arrest, and the Court has allowed a delay of ten hours in a search after a valid custodial arrest, in Edwards.

The delayed station house search in this case does not change the fact that the arrest justifies the search.

It does not impose on Ralph Lafayette in any manner greater than it would have imposed upon him at the time of his arrest at the movie house.

It does not enlarge the scope of permissible search of Ralph Lafayette.

Unidentified Justice: May I ask you one question about the scope of the permissible search?

Supposing that the purse that this man was carrying contained a lot of letters in envelopes, some of which were sealed and some were not.

Could the police open and read the mail?

Mr. Ficaro: I believe the answer to that question is if it is pursuant to a valid custodial arrest, the police have a right to examine the contents, not to read the contents of the letters, as this Court has indicated in other decisions, that there is a certain amount of scrutiny available to the police.

What is reasonable and what may shock the conscience by a broaching--

Unidentified Justice: Suppose the envelopes were sealed, could they rip open the seals and look inside?

Mr. Ficaro: --I believe they could, Your Honor, and it is the arrest that justifies this intrusion because the expectation of privacy of an arrested individual is diminished and the contents of his personal belongings are also diminished.

Unidentified Justice: Do we have to go that far in this case?

Mr. Ficaro: No, Your Honor, we do not have to go that far in this case.

Unidentified Justice: What if in feeling the envelopes they felt some kind of a granulated powder inside.

It might be sugar, and it might be salt, and it might be narcotics.

Would they be able to open that one?

Mr. Ficaro: I believe they would, Your Honor, in this case under these facts because the valid custodial arrest, just like searching into the pocket of Robinson to find a cigarette pack and then opening a cigarette pack to find narcotics inside would be the same as the Court's example or hypothetical to me.

Allowing searches incidental to arrest at a place other than and a time other than the arrest has been recognized by this Court based upon the practical considerations that a police officer has to face every day.

Unidentified Justice: Is incident to arrest your principle submission?

Mr. Ficaro: No, Your Honor, that is the first submission.

The reasonableness of what a police officer does in light of the facts and circumstances of each case is the basis of this practical consideration the Court has in allowing a search at a place other than and at a time other than arrest.

The Court has found warrantless searches reasonable that took place seconds after the arrest as in Lavinson and Gustafson, minutes later as in Belton, or hours later in Edwards.

What these searches incidental to arrest share in common with the search of Ralph Lafayette is the reasonableness under all the circumstances of the time and place of the search.

Looking through this... looking at this search rather through the eyes of Sergeant Mitzner, it would have been unreasonable and impractical for him to conduct a search in a movie theater lobby where he had been called to quell the disturbance, where a disturbance was taking place, where the defendant may have other friends or associates among the patrons of the theater.

It was unreasonable, and the Court has recognized this unreasonableness in demanding that the search incidental to arrest be at the time and place of the search incident.

Now the Respondent also concedes that the arrest in this case was valid.

Now the Court has reasoned in Robinson that a search into a pocket to get a pack of cigarettes and then searching the cigarette pack to get a container crushed around narcotics is reasonable.

Then in this case the search into a purse after a valid custodial arrest to take out a cellophane with narcotics in it is also reasonable.

Both the pocket and the purse are repositories of personal effects.

There can be no distinction, as this Court has indicated in Ross, between worthy and unworthy containers in relation to the unreasonableness of a search and seizure in the protections of the Fourth Amendment.

When Sergeant Mitzner placed the Respondent under arrest in that lobby, the Respondent had a diminished expectation of privacy in the contents of his purse because--

Unidentified Justice: Is it limited to the purse or--

Mr. Ficaro: --No, Your Honor.

Unidentified Justice: --diminished expectation of privacy of everything on his person?

Mr. Ficaro: Everything on his person and within the scope of allowable search, under Chimel.

Unidentified Justice: How about a separate locked trunk as in Chadwick:

Mr. Ficaro: It depends upon the association of that locked trunk with the person at the time of his arrest.

But we do not have to reach that issue in this case--

Unidentified Justice: --You mean if it were nearby it could be opened and searched?

Mr. Ficaro: --If it were in the permissible scope of Chimel if Chimel is... if the language of Chimel means a foot locker.

Unidentified Justice: Even if it is locked?

Mr. Ficaro: If that is what the interpretation of Chimel means, even if it is locked.

Under the valid custodial arrest theory, there is really no distinction between going into someone's pocket and a foot locker that they are carrying down the street.

But in Chadwick that issue was not addressed because it was not a search incidental to arrest.

Unidentified Justice: Are you suggesting that... in Chadwick didn't the encounter begin when they were standing in the depot or the station?

Mr. Ficaro: The encounter began in an observation in another city, I believe, but the arrest took place... there was probable cause to search--

Unidentified Justice: From where?

Where was there probable cause?

Mr. Ficaro: --Based upon observations by agents in, I believe, San Diego following it through to Boston where the foot locker was observed.

A dog was used to verify the presence of narcotics--

Unidentified Justice: As soon as the dog sniffed the foot locker, where were the people when the dog sniffed the foot locker?

Mr. Ficaro: --That was unclear, Your Honor, but that issue--

Unidentified Justice: They were close by, weren't they?

Mr. Ficaro: --That issue was not addressed.

Unidentified Justice: Do you think they could have... suppose the dog had sniffed the foot locker when they were sitting on the foot locker and they arrested them right then.

Could you have searched the foot locker?

Mr. Ficaro: I believe within the holding of Chimel that foot locker could have been searched as valid, incident to a custodial arrest.

The question is whether or not this Court in their language of Chadwick meant closely associated with the person to be a foot locker, but certainly under this situation a purse is an item both closely associated with the person as well as within the scope of Chimel.

Unidentified Justice: In Chadwick the police did not know of any... of the connection between Chadwick and the foot locker until he exercised dominion over it--

Mr. Ficaro: That is correct.

Unidentified Justice: --by taking possession, and the police deferred their arrest until he claimed the container that the dog had indicated had drugs in it.

Mr. Ficaro: But I believe this Court has distinguished Chadwick in that it was not a search incidental to arrest.

Unidentified Justice: And it was not an automobile search.

Mr. Ficaro: That is correct.

So then based upon the necessity for probable cause under the facts and circumstances of Chadwick, the Court's holding in relation to the search of that item was correct.

Unidentified Justice: Did the Ross case possibly have some impact on Chadwick?

Mr. Ficaro: I believe Ross merely indicated the worthiness and unworthiness of containers for the purposes of describing, as I have, a purse or a double locked foot locker.

It is the nature of the container... it is not the nature of the container that retains the expectation of privacy in the container.

It is what is done with that container, it is our position, that reduces the expectation of privacy.

Unidentified Justice: Are you going to come to your theory on the inventory search--

Mr. Ficaro: Yes, Your Honor.

Unidentified Justice: --or have you said all you were going to say about that?

Mr. Ficaro: No, Your Honor, I will.

The search of the Respondent's purse at the station house after his valid arrest was a post-arrest warrantless search of property under his control and immediately associated with his person.

The authority to seize was not questioned by the Respondent.

The Justification to search is based upon the valid custodial arrest.

The search of the purse was also justified as a valid inventory search because the Respondent was carrying it when the police took him into custody.

When Sergeant Mitzner reached into that purse, his stated intent was to conduct an inventory search according to standard police booking procedures.

This Court has said in Opperman--

Unidentified Justice: Do we know from the record in this case what the details of the standard procedure were that were used by the Kankakee Police Department?

Mr. Ficaro: --We do not know from the record, Your Honor, other than the facts of removing the contents from the pockets of the individual, placing this individual in jail garb or jail attire, and taking all the personal belongings of that individual in inventory.

Unidentified Justice: And we do not know to what property it extends or whether a form is filled out or anything of the kind?

Mr. Ficaro: In the amicus brief filed before the Court, there is a copy of the inventory form used by the Kankakee Police Department which line by line designates questions to be answered and items to be inventoried and property to be received and that the Respondent in each and every case or the person arrested must sign that inventory to verify the contents.

Unidentified Justice: What is in the course of the inventory process?

Mr. Ficaro: The inventory process, Your Honor, Mr. Justice, is a caretaking administrative practice.

It is not based upon the probable cause, but it is based upon serving the legitimate interests of the state as well as an arrestee.

The interests served are those listed in Opperman, to protect the valuables of the arrestee from theft, loss or damage, to protect also the police officer from any harm due to the contents of that property seized.

We are not talking about the subjective fear of a particular police officer.

What we are talking about is the objective harm that may occur if that item and the contents are not inventoried.

The interests served by inventory include protecting against false claims that the property of the arrestee was either stolen, damaged, or lost by the police, and this cannot be underestimated, the problem this causes both in morale and in the drain of resources in responding to frivolous claims by persons arrested.

We cannot also deny the fact that an interest served by the inventory search of an arrestee is to secure the security of the jail cell or the jail house.

Unidentified Justice: May I ask you a question?

Is this the inventory card that was used in this case?

Is that the--

Mr. Ficaro: I believe that is the inventory card.

Unidentified Justice: --It describes the property as b-l-k, black shoes, $79 U.S.C., brown pouch, three keys, pants, I guess, vest, and something else.

Does this... the three keys, is that within the pouch or are they three keys outside the pouch?

Mr. Ficaro: It is not clear from the record, Your Honor, where those keys--

Unidentified Justice: Can you tell what was in the pouch from the inventory card?

Mr. Ficaro: --I do not believe so, Your Honor--

Unidentified Justice: Did they just inventory the pouch and I assume they leave the contents inside it?

Mr. Ficaro: --If that would not--

Unidentified Justice: I mean, this is their regular procedure, I guess.

Mr. Ficaro: --That is their regular procedure.

Unidentified Justice: But you cannot tell from the card what is in the pouch and what is not in the pouch?

Mr. Ficaro: I do not think it is of significance whether it is in the pouch or not.

The significance is whether it remains the property of this arrestee.

Unidentified Justice: The other side argues that all you really have to do is describe the pouch and keep that separate, and you are arguing you have got to know what is in the pouch--

Mr. Ficaro: Yes, Your Honor.

Unidentified Justice: --and if the ordinary record does not even show what is in the pouch, I wonder how valid your argument is.

Mr. Ficaro: I believe in the record it indicates that every item of property of an arrestee must be inventoried.

That would include by its very nature the contents of the pouch.

Unidentified Justice: So if he had a pouch with nothing in it but three keys?

They did not even inventory the drugs.

Mr. Ficaro: I do not believe that I understand the question, Your Honor, in that they inventoried all items of personal property in his possession.

It did not have to indicate from where those items came because it serves no purpose.

Unidentified Justice: And I am saying they apparently do not inventory the contents of the pouch.

They just inventory the pouch as one item.

Mr. Ficaro: You mean they do not specifically indicate that the contents are the following?

Unidentified Justice: If this is your regular form, they do not.

Mr. Ficaro: But they do, which is the basic consideration, inventory each and every item taken from the arrestee at the time of his arrest.

Unidentified Justice: Including the pouch but not the contents of the pouch, which would seem to suggest you do not have to look inside the pouch to comply with your inventory regulations.

Mr. Ficaro: I believe you would have to look into the pouch or you cannot list each and every item taken from the arrestee at the time of his arrest.

In weighing the state's interests in the Respondent's expectation of privacy in the contents of his purse, there is no doubt that the Respondent who is a pre-trial detainee has a lesser expectation of privacy that justifies the overriding state interests to search and inventory the contents of that purse.

I would seek leave of this Court to retain the remaining portion of my argument for rebuttal.

Chief Justice Burger: Mr. Carusona.

ORAL ARGUMENT OF PETER A. CARUSONA, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Carusona: Mr. Chief Justice, and may it please the Court.

The Petitioner, the State of Illinois, asks this honorable Court to reverse the decision on two grounds.

It alleges two grounds, that it is a valid inventory in this case, or there is a valid delayed search incident to the arrest.

It is our position as developed in part two of our brief that the question of whether the search can be justified as one incident to the arrest is not properly before this Court since the Appellate Court held that that issue was waived.

The fact that after the Court held that it was waived, as the state concedes in both its petition for certiorari and its brief, and then went on to note and discuss the issue, that is purely a hypothetical discussion prefaced with the phrase, assuming arguendo, that the state had not waived the issue.

Unidentified Justice: Why did they indulge in that waste of time?

Mr. Carusona: I do not know, Your Honor.

It is just common for them to do that.

[Laughter]

Not to waste their time, but to go on to discuss that.

Unidentified Justice: We won't push you.

Mr. Carusona: Thank you.

Hypothetical discussions do occur perhaps even in this Court's decisions, but in Herb v. Pitcairn that is one case where this Court recognized that there was a hypothetical discussion in the case, as there was in this case, and the Court said that we are not in the business of issuing advisory opinions.

Any opinion by this Court would be purely advisory since it was waived under state law.

Unidentified Justice: How about Jenkins v. Georgia which the other side relies on?

Mr. Carusona: In that case the Court in that case went on to reach and decide the question.

There is nothing in there to the... there is no waiver holding in that case.

There is no question that that case was decided on the merits of the Fourth Amendment or the Constitution.

Since the focus of this case really should be inventory, I would like to limit my comments to that.

I would rely on part three of our brief where we discuss the search incident to arrest question, and there is another reason in this case why the focus of the case should be on inventory.

That is what the facts show it is.

The officer testified he searched the contents of this shoulder bag because, pursuant to Kankakee Police Department policy, everything had to be inventoried.

As Your Honors will recall, there was an arrest in this case, and I must dispute the facts as supported by the Petitioner this morning.

The arrest in this case was for disturbing the peace.

It was not subject to incarceration.

That was a petty offense punishable by a fine only.

It was a violation of the Kankakee Municipal Code, and petty offenses in Illinois are punishable by fine only.

Unidentified Justice: How about the custodial nature of an arrest made for a violation of that ordinance?

Is it totally unknown to make a custodial arrest?

Mr. Carusona: Certainly not, Your Honor, and this is the... you can have a custodial arrest for a misdemeanor, and this is not even a misdemeanor.

It is even lower.

It is simply a petty offense carrying no subject of incarceration.

In fact, there is a bail schedule for this offense, and the defendant could have obtained his release by posting $35 bond money.

Unidentified Justice: If he had it.

If he had it.

Mr. Carusona: If he had it.

That is correct, Your Honor.

In that regard, there has been some discussion this morning of his property index card in the brief of the amicus.

That is not in the record.

That card apparently was obtained by the amicus writing to the Kankakee Police Department.

That is not evidence in the record, and I wanted to point that out.

But, however, that card indicates that he did have $79 and enough to make bond.

Following the arrest in this case--

Unidentified Justice: May I ask you if the record tells us what he had in the purse other than the cigarettes, which I guess are mentioned, and the--

Mr. Carusona: --The record does not show.

Unidentified Justice: --Because neither the cigarettes nor the drugs are listed on the card.

Was there anything else in the purse?

Mr. Carusona: There is no indication in the record.

Following the arrest in this case, the Defendant was taken down to the police station.

At that point, he was allowed to fill out some forms.

After he filled out some forms it eventually was determined that he was going to spend the night in jail or going to spend some time in jail.

They took all of his belongings, and at that point they decided that they were going to search them because they were safeguarding them.

I would like to point out what this search is not, in this case.

This is not a search based on probable cause.

This is not a search based on any exigency.

This is not a search of any property that was going to accompany the Defendant into the jail cell.

What this is is simply a search pursuant to the Kankakee Police Department policy to inventory everything that they are going to be safeguarding, and I would also point out that this is not a search which could ever be justified by a warrant.

With respect to this inventory question, the state--

Unidentified Justice: What did you say?

Suppose right at the time of arrest, would they have been able to search the purse?

Mr. Carusona: --Perhaps as a search incident to arrest under the Fourth Amendment, yes.

Unidentified Justice: So--

Mr. Carusona: We are not disputing a contemporaneous search.

Unidentified Justice: --All right.

Thank you.

Mr. Carusona: I might add, however, that such a search might be illegal under Illinois law because it is controlled by state statute.

With respect to this inventory question, the state asked the Court to fashion a rule which requires the police, just as the Kankakee Police Department policy, to open up every container, every repository of personal effects, and this would have to include an envelope because you would have to open up an envelope to check to see whether or not there was currency in it or some type of bearer bond.

Our position, on the other hand, is that this Court should approve or affirm the decision in this case and approve the majority rule and that is that the contents of these containers should not be searched as part of an inventory.

Unidentified Justice: Now, you have said, if I understood you correctly, that the police would not even have been able to obtain a search warrant for that bag that he was carrying.

Mr. Carusona: That is correct, Your Honor.

Unidentified Justice: What if, in fact, there was $20,000 worth of raw heroin in it and the police do not know that when they arrest him but his conduct was such that they might reasonably think he was influenced by drugs.

Are you telling us that under Illinois law there was no way that the police could ever search that shoulder bag to see, either to inventory it or for any other purpose?

Mr. Carusona: What we are saying, Your Honor, is that such a search would not be an inventory search.

That would be a criminal search, and it would have to go by the Court's normal standard and perhaps the warrant would apply as in Chadwick.

Unidentified Justice: Suppose... you are suggesting that they should have put it in a sealed wrapper and put it away and not looked inside of it.

That is part of your point, is it not?

Mr. Carusona: As far as the inventory issue is concerned.

Unidentified Justice: Now suppose after he posted his bond and had been fined he then claimed that he had had $10,000 in currency in it but that the $10,000 in currency was missing.

Are you suggesting the police did not have the right to protect themselves from such a claim?

Mr. Carusona: What we are suggesting, Your Honor, is the right... the police do have a right to protect themselves from a claim, and they could have done it exactly as the officer testified in this case by placing the shoulder bag in an inventory bag, which were available, and securing it in a locker.

Unidentified Justice: Would that prevent this gentleman from claiming afterward that he had $10,000 when he put it in, that the $10,000 was missing when he was released?

Mr. Carusona: Your Honor, absolutely no procedure would prevent that from happening.

Unidentified Justice: Well, the inventory at the time and place at the police station, spreading the things all out on the table and counting the money would protect them, would it not?

Mr. Carusona: That would not protect a false claim.

I mean, a claim could be made at that time that the money was taken when it was handled.

Unidentified Justice: Even if the person arrested had to sign the form and say I acknowledge this is what I had and here it is and you have listed it on the inventory and yes that is right?

Mr. Carusona: Well, Your Honor, in this case the shoulder bag could have been placed in an inventory bag and that could have been sealed and the Defendant could have initialed that and then--

Unidentified Justice: Yes, but that does not do away with the type of claim the Chief Justice was inquiring about.

Mr. Carusona: --I understand.

Perhaps Your Honors may even feel that it is slightly better to search every thing, but that slight interest cannot outweigh the privacy that we are talking about here, and, in fact--

Unidentified Justice: Well, it is not the function of judges to try to say how it should be done.

The only function of this Court would be to say is the way they are doing is the procedure they are following, a reasonable procedure given all the circumstances.

Mr. Carusona: --I agree with Your Honor.

In a majority of the jurisdictions today they do not search these contents.

They do not search the contents of these containers.

They are the ones that are faced with these false claims, and they do not find them significant.

For the moment or during this discussion we have been assuming that they are, in fact, significant.

Unidentified Justice: Well, in Opperman we said that an inventory search is a constitutional means for several purposes, one of which is the protection of the police from false claims, but that is only one of the purposes.

Mr. Carusona: That is correct, Your Honor, and we feel that that interest is served exactly as the majority of courts have been holding.

It is better served by simply putting it in a bag and initialing it.

They find that... Actually the courts are saying that claims are more likely when the contents are handled, and, in fact, in regard to whether that is a significant risk there is no evidence that it is a significant risk in this case.

The state has cited some federal cases in their reply brief, but none of those involve a claim from a container and most of them involve property taken from someone's cell, not property which was being stored.

The evidence that it is not significant comes from two Supreme Courts and that is Minnesota and Delaware, excuse me, and Wisconsin where the courts have indicated that they have never seen such a claim.

They were sure they existed, but they had never heard of one.

Unidentified Justice: Is that the sort of a record upon which this Court could say that as a matter of constitutional law you have to inventory one way rather than another?

Mr. Carusona: Certainly not, Your Honor.

We are not asking this Court to do that.

What we are asking in this case is to apply the balancing test of Opperman and that is what is the need to search and balance that against the high privacy interest involved, and there is no need to search to prevent these false claims.

Even if there is a slight need or even if it is better by having some type of rummaging through letters and everything, and as I said you would have to open up a letter to check it and read papers to make sure they were not a stock certificate or some type of bearer bond--

Unidentified Justice: But we do not reach the question of opening up letters in this case.

Mr. Carusona: --That is correct, Your Honor, but that is the rule that the Petitioner is advocating.

Unidentified Justice: Well, we do not have to take in haec verba either your submission or Petitioner's, I take it, to decide the case.

Mr. Carusona: That is correct, Your Honor.

Unidentified Justice: Would you say that if the arrestee has in his pocket a little box that is wrapped up with strings, it looks like a little box with a present in it or something, would the police be permitted to open that or not?

Mr. Carusona: No, Your Honor.

We are saying that they should not be able to open any container.

Unidentified Justice: And, how about his wallet?

Mr. Carusona: The same goes to that, Your Honor.

Again, we are talking about containers which the police have in their custody, and the Defendant is going off to jail.

Unidentified Justice: They get him into the station.

They have arrested him and take him to the station house and they tall him to empty his pockets and he does, and there is his wallet, and you say they just must put the wallet in a bag and not look in it.

Mr. Carusona: That is correct, Your Honor.

Unidentified Justice: But why isn't the wallet like the cigarette package in Robinson?

Mr. Carusona: Well, Robinson was a search incident to arrest case, and it involved a contemporaneous search.

It was a criminal search.

We are not talking about any type of criminal search in this case.

Unidentified Justice: So you are saying... What case is it that holds, do you think, that... You would think that if they arrested him out on the street corner they could then search his wallet.

They take it out of his pocket and search him right then and there, and say this is a search incident to arrest.

Now, you say that is permissible, and they find this little package in his pocket when the arrest him out on the street.

May they search the box right them?

Mr. Carusona: Sometimes they can, Your Honor.

Unidentified Justice: And it was because of incident to arrest,--

Mr. Carusona: Right.

Unidentified Justice: --But they would not have to have probable cause or anything to believe anything is in the box.

Mr. Carusona: That is correct.

Under Robinson in search incident to arrest, we excuse the need for the moment because actually as Justice Frankfuter--

Unidentified Justice: Now, tell me the case that says that with respect to a personal article that is intimately connected with a person like a wallet that could be searched in the field, the arrest was in the field.

Tell me the case that says you cannot search that at the station house if you have not searched it before.

Mr. Carusona: --We would submit as far as search incident to arrest goes that that would be controlled by Sanders and Chadwick.

I realize that it is an extension of those cases perhaps.

Unidentified Justice: What about Opperman?

Mr. Carusona: Opperman for inventory purposes, we submit that Opperman does not allow opening containers that are to be stored in the station house.

Unidentified Justice: Why should Justice White's hypothetical be controlled by Sanders and Chadwick rather than, which you consider to be extensions, rather than by Robinson for purposes of search incident to arrest?

Mr. Carusona: Because Robinson is a case which allows... There is no need.

There is no... There has to be no justification other than the fact of arrest.

In other words--

Unidentified Justice: I thought Chadwick carefully put aside those items that were intimately connected with the person and did not say that those could not be searched at the station house.

Mr. Carusona: --There is some language in Chadwick to that effect, but it is our position that that just applies to clothing.

There is no need for this Court to make any kind of container rule on clothing, and, in fact, I think as the Chief Justice wrote in Sanders is what we are talking about here and that is that items carried on, accompanied or being carried by the person when they are arrested that a search of those items cannot be justified by any reduced expectation of privacy.

Unidentified Justice: Let me take you back to the wallet that Justice White postulated to you.

A man puts the wallet down on the table, and you say they must wrap that up in some kind of a seal and not look inside of it.

All right, they do that.

Two days later he is released and they hand him his billfold and ask him to sign a receipt.

He looks at it and said, well, I had $10,000 in here when I left it, and now there is only $3.

You mean to tell me that they cannot inventory the contents of that wallet in order to protect the police from that kind of a claim?

Mr. Carusona: That is correct, Your Honor, because we feel that they are protected by sealing--

Unidentified Justice: Well, then that is... You are running counter to Opperman.

Mr. Carusona: --Excuse me, Your Honor?

You are running counter to Opperman.

Opperman allowed the search of an automobile--

Unidentified Justice: The entire of everything in the automobile including things that were in the--

Mr. Carusona: --Glove compartment.

Unidentified Justice: --glove compartment.

Mr. Carusona: That is correct, Your Honor, but there was essential need in that case.

In fact, the state courts... This is the reverse of Opperman.

The state courts have said... In Opperman, the majority said the search was essential.

Why?

Because of the need to protect from vandalism.

Unidentified Justice: Also to protect the police.

Mr. Carusona: That is correct, Your Honor, but the idea was that a car is stored outside.

That involves significant burdens.

There are two key factors why the courts have not found Opperman to extend to this situation, and again one is the significantly higher expectation of privacy in the contents of these repositories, and the second one is that it involves no burden to secure them.

In this case they simply put it in a locker.

An automobile, on the other hand, is subject to vandalism, and when there is vandalism that is when false claims are even more likely because you have an insurance fraud type claim.

But the idea of the security of the station house and this higher expectation of privacy is what has made the scales tip the other way.

Again, we are talking about... The test here is the need to search versus the privacy interest involved, and we must consider as one of those factors the scope of the search, and as I pointed out the state's search is virtually unlimited in scope.

The scope of their rule is unlimited.

Another interest which has been advanced is normally the idea that you have to protect the police from injury and so on.

In other words, that interest, too, is served by securing the property in a locker.

Once you have secured the property in the locker, you have maintained jail security.

You have protected the owner's property from theft and vandalism.

You have also protected the police from the idea that someone is going to obtain a weapon from the container and use it against the police.

Unidentified Justice: And to you it would not make any difference if they had a probable cause to search the purse?

Mr. Carusona: Probable cause would be a different case, Your Honor.

It would not be an inventory case.

Unidentified Justice: But you would just say they would have to go get a warrant.

You would not say they could make a warrantless search?

Mr. Carusona: If there were probable... That is correct, Your Honor.

If there were probable cause to search for contraband, this case would be controlled by Chadwick and Sanders at the station house now.

Again, this is something that is securely in their control.

But once... We are not suggesting that there cannot be a search for these other reasons once you get out of inventory context.

One example is the idea that there is a bomb in every type of container.

That is true.

Every container is a potential bomb.

However, it is very remote that the Defendant would have planned his arrest with a bomb in there and secondly, we have to understand that it is foolhardy to routinely open up containers looking for a bomb because it may be booby-trapped, and you would have one injured officer.

Unidentified Justice: In Washington just recently a young man was arrested and he had a package and it was discovered that there were two venomous, poisonous snakes which had inflicted very serious injury on him endangering his life.

Now would you suggest that police should not have done a little checking on that, the contents of that bag?

Mr. Carusona: Certainly, I do not think it would be wise--

Unidentified Justice: In this case it was a translucent bag, and they could see what was there, but suppose it had been a bag that was not translucent.

Mr. Carusona: --If the officer has reason to think that there is a poisonous snake in there or any other dangerous instrumentality--

Unidentified Justice: The whole point is that he might not have any reason to think there was a bomb or a poisonous snake any more than you would have any reason to think there was $10,000 in the man's wallet, but is it not the business of the police to find out?

Mr. Carusona: --Yes, Your Honor, and I submit it would be foolhardy to open up a container where a snake jumps out and bites you.

[Laughter]

Unidentified Justice: It would be embarrassing.

The young man nearly died as a result of this.

Fortunately, the policeman knew what to do with the snake, but I think the Chief Justice means if an ordinary policeman had put his hand in there he would be dead.

Mr. Carusona: That is correct.

Unidentified Justice: So what is your answer?

Mr. Carusona: That he should not be opening... He is better protected by putting it in a locker.

[Laughter]

Unidentified Justice: Letting the custodian deal with them.

Mr. Carusona: Excuse me, Your Honor?

Unidentified Justice: Letting the custodian deal with them.

Let the Attorney General get in there.

[Laughter]

Mr. Carusona: It is... I do not know how else to answer this potential bomb or potential dangerous instrumentality except to say that it is foolhardy to routinely open these up and how it should be dealt with is if there is a reasonable suspicion then, of course, he should do something.

He should not open it up.

He should have an expert come and take it.

Your Honors, I would like to talk a little about the waiver question in this case and that is review of the search as incident to the arrest should be precluded because the Appellate Court rejected that theory on an adequate and independent state ground which served legitimate state interest, and as I noted the Court's discussion was purely hypothetical.

And I think it is important to note here that are extreme legitimate state interests in this case.

We have the normal state interest that there is an inadequate record.

We do not know exactly what this container is.

It is called a shoulder bag or a purse.

We do not know the exact circumstances at the time of the search whether or not the Defendant was in the middle of taking off his clothes--

Unidentified Justice: Who are you talking about?

The state?

You say state interest?

Mr. Carusona: --That is right.

The waiver rule serves legitimate state interest.

Unidentified Justice: Well, we have the state represented here.

Mr. Carusona: The legitimate state interest served, Your Honor, is that the courts should not be deciding--

Unidentified Justice: So the state gets a judicial interest?

Mr. Carusona: --A judicial interest as the interest that this Court recognizes in Tyler.

It is a judicial interest.

They should not decide cases on piece meal litigation or with an inadequate record.

Unidentified Justice: Well, they did.

It was not the... The burden was on your client to show that the evidence should be suppressed, I take it, and that would be the rule in Illinois as elsewhere, and if you were to make a claim that could be sustained on appeal, it is up to you to make the record that would justify sustaining the claim.

If the Illinois Appellate Court upholds that claim on the basis of a record that will not support it, then it seems to me it is you who suffer and not the other side.

Mr. Carusona: That is not the rule in Illinois, Your Honor.

Unidentified Justice: The rule is that the burden is on the state to defeat a motion to suppress?

Mr. Carusona: The burden on the state is to raise questions in a timely fashion.

The Defendant walked into the hearing in this case with a case in his hand, and that was People v. Bayles, an inventory case.

The discovery says this was an inventory search.

He did everything he had to do to win.

Had the state brought up this question, he could have asserted the state statute which controls this question.

Unidentified Justice: You are talking about the waiver argument now?

Mr. Carusona: That is correct.

Unidentified Justice: I am sorry.

I misunderstood you.

Mr. Carusona: The important legitimate state interest here is that he could have asserted a state statute.

Searches incident to arrest in Illinois are controlled by statute, and in a strikingly similar case, People v. Helm, decided by the Supreme Court, the Illinois Supreme Court, they held that a search almost identical to this one violated that statute.

Unidentified Justice: Well, when the Illinois court, though, said even if it was not waived this is not a search incident to arrest, it did not talk about Illinois law did it?

Mr. Carusona: That is correct, Your Honor.

They went on to hypothetically--

Unidentified Justice: Why didn't it?

Why didn't it?

I would think it certainly could have avoided a lot of talk about federal law if it was controlled by an Illinois statute.

Mr. Carusona: --There was no need for the court to talk about... I mean, what we are talking about is in the trial court we were denied our opportunity to present that statute.

Unidentified Justice: Yes.

Mr. Carusona: In the Appellate Court we contended that the state had waived the theory--

Unidentified Justice: Yes, and your court said it had.

Mr. Carusona: --That is correct.

Unidentified Justice: And then it nevertheless decided the question?

Mr. Carusona: We did not decide the question, Your Honor, and, in fact, the--

Unidentified Justice: Well, what did they say?

Mr. Carusona: --Exactly what the state says they said, and they held that it was waived and then they went on to note--

Unidentified Justice: Assuming it was not waived, it nevertheless... We reject the state's position.

Mr. Carusona: --That is correct.

Unidentified Justice: They did not say a word about Illinois law during that discussion.

Mr. Carusona: That is correct.

Unidentified Justice: I am not sure it is right to call that a hypothetical, that alternative ground, because they were subject to review by the Illinois Supreme Court which might have disagreed with them on waiver so they had a perfectly good reason for putting another reason in the record if they wanted to avoid review by their superior court.

Mr. Carusona: I think Your Honor brings up a good point, and that is that in the petition for leave to appeal the state did not raise the waiver question.

In fact, they never disputed the waiver contention until the brief that they filed in this Court, and that is something that this Court noted in Tyler was significant.

With respect to this search incident to arrest question, it is our position that we must look at what Justice Frankfuter stated in United States v. Rubinowitz and that is that the exception has its basic root on need, and there was no need to conduct a search in this case.

That need exists at the time of arrest as in Robinson, but once the item, the container, is secured at the station, is in custody of the police that there is no need then to conduct a search for that reason.

And if we just facially look at this case compared with Chadwick and Sanders, this is a stronger case.

There is no probable cause to search in this case.

There is no exigency.

The idea that the Defendant in Sanders could have got to his suitcase was much greater than in this case.

Accordingly, Your Honors, we would ask that this Court affirm the decision of the Appellate Court finding that the inventory question was rightly decided, and also we think review of the search incident to arrest question is precluded.

Thank you.

Chief Justice Burger: Mr. Ficaro, do you have anything further?

ORAL ARGUMENT OF MICHAEL A. FICARO, ESQ. ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Ficaro: Brief response, Mr. Chief Justice.

Whether we wish to call this a search incidental to arrest or a valid inventory search, the search is based upon the validity of that arrest, and the Justification then is existent in an inventory search the same as it is in the search incidental to arrest.

When Justice White addressed the question of what do we do with the wallet, if we follow the counsel's least restrictive rules test, we must ignore that there are 10 million arrests annually that involve custodial taking of a person into custody or taking him into custody.

Unidentified Justice: In Chicago do you mean or--

Mr. Ficaro: In the United States--

Unidentified Justice: --the United States--

Mr. Ficaro: --according to the FBI uniform crime statistics, although at times it seems that there are that many in Chicago.

[Laughter]

If we take counsel's less intrusive means test, we do not balance the state's interests because we are dealing with a pre-trial detainee whose expectation of privacy in the contents of his purse or wallet have been severely restricted.

So we must balance the state's interest to search as provided for in the interest named in Opperman versus the rights of a pre-trial detainee.

And finally as this Court has questioned the waiver issue by the state, the importance in my statement of facts and the relation to a brief being filed after the court took this matter under advisement in the trial court was that the state raised this issue of search incident to arrest eight days before the court decided this matter, and, therefore, it was timely raised in the trial court below.

Thank you very much.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until Mondey next at 10:00.