OKLAHOMA v. CASTLEBERRY

Transcript: 

ORAL ARGUMENT OF DAVID WILLIAM LEE, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Oklahoma against Castleberry and Raineri.

Mr. Lee, I think you may proceed whenever you are ready.

Mr. Lee: Mr. Chief Justice, may it please the Court, the issues in this case which primarily arise under the principles announced by this Court in United States versus Ross are as follows: first, whether there was probable cause to believe that the defendants' vehicle in this case contained contraband, and secondly, assuming there was such probable cause, whether the police acted properly in searching without a search warrant three suitcases in the trunk of the car and the bandaid box which was found on the dashboard of the car.

Of course, the state contends that the answer to these questions is in the affirmative.

The facts in the present case are that at noon on the day in question, Officer Taylor, a narcotics officer with the Oklahoma City Police Department, received a telephone call from a confidential informant.

The informant stated that he had been within the room in question, Room 113, within the last ten hours and had observed a large quantity of marijuana, some cocaine, and some other white pills.

The informant stated that some of the drugs in question were in a blue suitcase.

The informant gave the officer a description of the men that were in the room.

The informant also stated that one of the names of the men who were in the room was named Tim Castleberry, and that the other man was named Nick.

The informant stated that these men were driving a blue 1980 or '81 Thunderbird with Florida license plates.

Officer Taylor took this information and immediately proceeded to the motel in question, which is located on an interstate highway in Oklahoma City--

Unidentified Justice: Didn't the informant add a little more, that they were carrying this material in suitcases that were a particular color?

Mr. Lee: --Yes, Your Honor, the informant specifically told the officer that some of the narcotics was in a blue suitcase which was... which the informant stated that he had observed in the last ten hours.

Officer Taylor drove to the motel, went in, and drove through the parking lot and observed parked in front of Room 113, the room which the informant had referred to, he noticed parked immediately in front of the room a blue 1980 or '81 Thunderbird with Florida license plates.

Taylor parked his car, went in, and found out from the room clerk that the room was registered to Tim Castleberry, which is the name of the person referred to by the informant.

He said Castleberry had paid for only the previous night, and that checkout time was at 1:00 p.m., and that he would be leaving at 1:00 p.m. At this time, it was approximately ten minutes until l: 00 o'clock.

The officer then returned to the car, which was approximately five space away from the blue Thunderbird, and called for a backup.

While waiting there for his backup to arrive, he observed the defendant Castleberry come from Room 113 carrying a blue suitcase which matched the description of the one given to him by the informant which stated that some of the narcotics were in that particular suitcase.

Taylor watched him put the blue suitcase in the trunk of the Thunderbird.

He then saw the defendant Raineri also leave Room 113 carrying two green plaid suitcases, which he also observed him place these in the trunk of the car.

He then observed Castleberry come out of the room a second time and place a blue suitcase in the back seat of the car behind the driver's side.

At this time Officer Taylor felt like he needed to take action.

He got out of the car.

He drew his gun.

He approached the two men.

He advised them he was an Oklahoma City police officer.

He stated that... he had his badge displayed and his gun pulled.

He asked both men to place their hands on the car.

It should be noted that there was a third person come out of the room who at this time stated,

"I am not involved in any of this."

"I am scared."

"I am not any good at this."

In response to the request by the officer... and I need to add that Officer Taylor testified that as he approached the trunk of the car, he was able to detect a strong odor of marijuana coming from the trunk of the car, which was open.

He said after he gave his command, Castleberry, who was standing on the driver's side of the car, near the trunk, slammed the trunk shut.

He said that the defendant Raineri, who was standing on the passenger side of the car, immediately complied with the request, but Castleberry, after slamming the trunk shut, stepped back further toward the driver's side and placed his hands behind his back.

The officer testified that he gave Castleberry two more commands to put his hands on the car, and Castleberry refused, and finally threw an object into the car.

Officer Taylor approached and attempted to force him to place his hands on the car.

A certain amount of wrestling ensued, and they both went to the ground while Officer Taylor was trying to subdue Castleberry.

During this time, Castleberry was able to reach up, lock the inside of the driver's car, and slam the door shut.

The car keys to the car were at this time in the door on the driver's side of the car where the two men were.

At this time the backup, Officer Citty of the Oklahoma City Police Department arrived.

He stated and it was the testimony of both these men that he came up, that he was given the keys to the car by Officer Taylor, and advised by Officer Taylor that he had smelled an odor of marijuana coming from the trunk.

He took the keys, opened the trunk.

He, too, said he smelled an odor of marijuana coming from the trunk.

He unzipped the two plaid suitcases that the defendant Raineri had taken from the room and placed in the car, and he found there a large amount of marijuana.

There were 25 pounds of marijuana in one of the suitcases and 34 pounds of marijuana in the other.

He then proceeded to... he had to forcefully open the blue suitcase that the defendant Raineri had... defendant Castleberry had brought from the room and placed in the car first.

He forcefully opened that, and in that suitcase was found $2,700 in cash and approximately ten ounces of methaqualone.

The state contends, of course, that the search of these four containers, the three suitcases which were found in the trunk and the bandaid box on the dashboard, were properly conducted without a warrant.

Unidentified Justice: Mr. Lee, may I ask--

Mr. Lee: Yes, Your Honor.

Unidentified Justice: --what happened after the events you have just described?

Mr. Lee: They stated that... their testimony was that when they... after they found the money, the items were taken inside the motel room, and it was in the motel room that they found that... they counted $2,700 and found the methaqualone.

Unidentified Justice: Then what happened?

Mr. Lee: Then they arrested the defendants and they took them to the police department.

They testified--

Unidentified Justice: What did they do with the suitcases at that time?

Did they take them to the police department, too?

Mr. Lee: --I believe they did.

Unidentified Justice: So they kept all the stuff together, and took it down to the department at the time they arrested them?

Mr. Lee: I believe that is correct.

Unidentified Justice: So at the time they made the searches, would they have had sufficient probable cause to do all that without opening the suitcases?

Mr. Lee: At the time they made the search?

Unidentified Justice: Yes.

Mr. Lee: To arrest the defendants?

Unidentified Justice: Yes.

Mr. Lee: I believe, based particularly on the information given by the informant, and particularly when Officer Taylor approached the car and detected the odor of marijuana coming from the trunk of the car, certainly they would have had probable cause to make an arrest.

Unidentified Justice: And to take the suitcases to the police station?

Mr. Lee: Yes.

Unidentified Justice: As they did later?

Mr. Lee: Yes, as they did.

Unidentified Justice: And the car, too, I suppose.

Mr. Lee: Yes, the car could have all been taken, and the officers testified that they made an inventory search of the car at the police department.

Unidentified Justice: What happened to the suitcase in the back seat?

Mr. Lee: That is not mentioned in the record.

I presume there was nothing found in that.

The record doesn't even reflect whether it was searched.

Unidentified Justice: And what about the package?

Mr. Lee: Excuse me.

I forgot the part that Officer Citty stated that after he found the items in the suitcases, that he then looked in the interior of the car, found the bandaid box, and it was located on the dashboard of the car.

He opened it, and found an ounce of cocaine.

We contend that the search of the suitcases in the trunk of the car and the bandaid box which was found inside the car were all properly searched pursuant to the principles announced by this Court in the Ross case and--

Unidentified Justice: What about the package that was thrown in as they lay on the ground?

Mr. Lee: --Yes, we think that that--

Unidentified Justice: Is that the bandaid box?

Mr. Lee: --Yes, sir.

Unidentified Justice: Oh, I see.

Mr. Lee: It is the bandaid box.

We think that the suitcases and the bandaid box were all searched pursuant to the automobile exception rule in Ross and of course the more recent case announced by this Court, United States versus Johns.

We also feel that the bandaid box was properly searched as a search incident to a lawful custodial arrest under the doctrines of this Court in United State versus Robinson and New York versus Belton.

It is the state's position that the officers had probable cause to believe that the vehicle in question contained contraband, and that a search of the entire vehicle for drugs was justified by the facts.

The fact that checkout time was at hand, that the baggage had been loaded into the car, that the informant had stated that some... that one of the suitcases contained drugs, that a strong odor of marijuana was coming from the trunk, coupled with the actions of the defendant Castleberry and the third party as Officer Taylopr approached the car, all support the belief that the drugs had been removed from somewhere in the motel room and were now somewhere in the vehicle.

Therefore, the entire automobile could have been a hideaway for the drugs.

This Court specifically held in the Johns case that when the officers approached the trucks in question and detected the distinct odor of marijuana which was around the back of the truck, they had probable cause to search the entire truck.

The Court in Johns stated also that the officers in the Ross case had probable cause to search the entire vehicle in that case.

The state believes that the facts in this case present an even more compelling case involving probable cause.

In this case, the convictions of the defendant were reversed by the Oklahoma Court of Criminal Appeals in a two-to-one decision.

The court stated the reason why they reversed was because they felt like if an officer had tried to apply the Ross and the Sanders and the Chadwick doctrine, they felt like that taking all those cases together, that if an officer knows of the specific location within a vehicle where contraband is located, the officer should get a search warrant.

However, if he only knows that there is contraband generally in the vehicle, the officer can go ahead and search it without a warrant.

The court held in this case since the suitcases and the bandaid box were suspected locations of contraband, they should have been detained while the search warrant was being obtained.

However, in the Johns case, the Court observed that when the officers detected the odor of marijuana coming from the back of the trucks, they no doubt suspected that the odor was coming from the packages which were in the back of the truck, but the Court, of course, in that case did not require a search warrant.

In Ross, the police were advised of the specific location of drugs in that case.

In that case they were advised by an informant that the drugs were in the trunk, but this Court upheld the search of the brown paper bag and the zippered pouch in the trunk of the car without requiring a search warrant.

Under the same rationale, the search of the suitcases found in the trunk in the present case should be upheld.

The rule announced by the Oklahoma Court of Criminal Appeals we feel means that there would now be endless litigation over whether or not the police suspected of a particular location of contraband within a particular container in a vehicle.

Furthermore, this Court in Johns specifically noted that the fact that a container is involved does not in itself either expand or contract the well-established exception to the warrant principle recognized in the Carroll case.

In Ross this Court stated that there was no distinction between containers and compartments, and that the object of the search is limited... and that the officer's search is limited only by the object of the search, and the places in which there is probable cause to believe that that object may be found.

In both Ross and Johns and in Justice Powell's concurring opinion in the Robins case it was noted that in neither Sanders nor in the Chadwick case did the police have probable cause to search the vehicle or anything in it other than the footlocker in the Chadwick case and the suitcase in the Sanders case.

Unidentified Justice: Mr. Lee, may I ask one other question about the facts?

Mr. Lee: Yes, Your Honor.

Unidentified Justice: In addition to searching the suitcases and the bandaid box in this case, how extensive was the search of the vehicle.

Did they tear open the upholstery and things of that kind?

Mr. Lee: There is no record of that.

Of course, we think that on the basis of the Carroll search, where, as you pointed out in the Poss case, the police ripped open the upholstery in the back seat of the car, that that would have been proper, but there is no record there was anything like that done.

The suitcase in the trunk was forceably opened.

Unidentified Justice: Was there anything found any place except in these various containers?

Mr. Lee: The record doesn't reflect that, Your Honor.

We are talking about really four containers where something was found, three suitcases in the trunk and the bandaid box found on the dashboard.

Unidentified Justice: What would your view be if they had brought all these things out and set them down right beside the vehicle, and the officer then accosted them?

Would you agree that they could not have opened them and had to wait until they at least put them in the vehicle?

Mr. Lee: That is a question that is going to fall somewhere between the cases of this Court, in the Place case, and the Mendenhall, and the Jacobson case, where--

Unidentified Justice: I just wondered what your view is in your submission to the Court in connection with this.

Is it critical to your case that these materials had first been placed into the vehicle before the search began?

Mr. Lee: --Yes, I think the fact that it was placed into an automobile is the critical distinction there.

Unidentified Justice: And would you therefore concede that under Chadwick and Sanders, had they not been placed in the vehicle, they could not have been opened and searched?

Mr. Lee: Yes.

Yes, I think that if the officer had known nothing more than these were individuals who were carrying suitcases, the airport cases, that kind of thing would apply.

Unidentified Justice: Well, suitcases which they had probable cause to believe contained a lot of drugs.

Mr. Lee: Yes, I think the Court made clear in Place that they have got to get a search warrant.

However, when they were placed into the car, that coupled with the fact that when they approached the rear end of the car the officer detected a strong odor of marijuana coming from the trunk, that changes--

Unidentified Justice: Let me ask you another question.

Stick with my hypothetical for a minute, where they put everything down before they throw anything into the car.

Could they have then searched the car, in your view?

Mr. Lee: --No, I don't believe so, because--

Unidentified Justice: In other words, the justification for searching the car rests entirely on placing these containers in the car?

Mr. Lee: --Yes.

All the facts in this situation show that there were drugs in the motel room parked on the interstate highway in Oklahoma, in a room.

All the facts that were observed by the officer showed that the drugs were being moved from the room to somewhere in the car.

The informant made his observations within the last ten hours.

We think it is clear that there was at least probable cause to believe that the individuals with those drugs were going to place them from the motel room that they were just checking out of into the car.

That is why we think it is an automobile case.

Unidentified Justice: How do you distinguish this case from Sanders?

Mr. Lee: In Sanders there was no probable cause to believe that the drugs were in any other place other than the suitcase which the police had surveilled and watched them place--

Unidentified Justice: You just agreed that was true here also.

Mr. Lee: --No, I think we have a lot more in Sanders.

I think we have a situation where the individuals could have removed the drugs from the room to the car any time within the last ten hours.

Unidentified Justice: Those are two inconsistent answers.

That is inconsistent with what you have already said.

Mr. Lee: Well, I don't think it is.

I am saying if the officer had come up and observed nothing more than individuals with the suitcases, and that was--

Unidentified Justice: There would still have been the possibility you have just mentioned that meanwhile they have removed some of the drugs to the car.

Mr. Lee: --It is possible, but here we have a situation where the officer observed the individuals place four containers in the car.

Unidentified Justice: You think we should judge this case then on the basis that there was no probable cause to search the car other than the fact that these suitcases were in the car?

Mr. Lee: Well, plus the odor of marijuana coming from the trunk of the car, plus the actions of the defendant Castleberry and the third party as the officers approached the car.

Unidentified Justice: You can't have it both ways.

You can't say that there is probable cause to search the car because of the smell, and that there wasn't probable cause if the suitcases were just sitting outside.

Mr. Lee: Well, I am saying that... and I believe Justice Stevens' hypothetical was, if the only thing he would have known was, he pulls up and sees Castleberry with a suitcase getting ready to get into the car, I am saying that would probably fall more into the Place, and in your concurring opinion in the Jacobson situation.

Here we have much more.

We have him putting four suitcases in the car, one of which the informant had specifically told him within the last ten hours he had seen narcotics in the suitcase.

We have him approaching the car, detecting a strong odor of marijuana coming from the trunk, which I think puts it right on point with the Johns case, where the officers approached the trucks and detected the odor of marijuana, and the Court in that case said there was probable cause to search the entire trucks everywhere, and the Court specifically stated that contraband could have been concealed anywhere in the trucks.

Unidentified Justice: How much do you rely on the resistance and flight of the people involved?

Mr. Lee: Certainly resistance generally reflects a consciousness of guilt, and we think that the actions of Castleberry... we don't think a law abiding citizen who was not doing anything would react this way when he was approached by a police officer.

We think the fact that at gunpoint he refused two commands to place his hands on the car, that he finally threw the item, the bandaid box in the car, that he struggled with the police officer, that he locked the car and slammed the door shut in the process of this, he obviously didn't want the police to get the bandaid box, and he obviously didn't want them to get in the car.

He didn't want them to get in the trunk of the car, too, because the actions of Castleberry in slamming the trunk shut as he approached, as the officer approached the car, should also be considered, I think, to be a probable cause fact.

So here we have much more than just an individual who happens to be standing on a curb with a suitcase next to a car.

Here we have all these facts which I think and which we contend places it clearly within the Johns situation.

Unidentified Justice: Do you think the officers had probable cause to search the vehicle had the suitcases not yet been put inside it in this case?

Mr. Lee: If they had not been placed inside the car, and if there had not been a detecting odor of marijuana by the officer--

Unidentified Justice: Well, let's say they do detect the odor of marijuana, and all the other facts that exist in this case.

Mr. Lee: --I think that your decision in the Johns case would allow them to search the entire vehicle, because in that case all they had was a situation 50 miles from the Mexican border where there was a plane that landed, and trucks pull up to the plane, and then as the officers approach the trucks, they stated that they detected the odor of marijuana, and then your holding in that case was that the officers had probable cause to search.

Well, they also observed packages in the back of the truck, but you stated all these facts together said there was probable cause to make a search.

So, I think, yes, the odor of marijuana is a very critical fact, but in this case we have much more we feel like than the officers did in the Johns case.

Unidentified Justice: Mr. Lee, will you tell me once again what you think you answered to Justice Stevens.

Mr. Lee: In response to his hypothetical, if the police had had nothing more than if they had arrived at that motel and seen Castleberry with the suitcases, and he had not placed the suitcases in the car, and he had not taken any evasive action, and they had not detected the odor of marijuana coming from the trunk, I think this case would require them to get a search warrant for the suitcase, just as though they are always required to get a search warrant any time there is a handbag or suitcase at an airport, like in the Place case.

I think that all those facts move it completely into the automobile exception case, all those additional factors.

The fact that he saw him loading four suitcases into the car, the fact that it was checkout time, the fact that there was marijuana odor coming from the trunk.

Unidentified Justice: Mr. Lee, may I just refresh my recollection?

I think you also said that before anything was put in the car... and of course until the suitcases were put in the trunk there was no odor of marijuana from the trunk, as I understand it, at least there was no testimony there was... before they put anything into the car there was no probable cause to search the car.

Mr. Lee: That's correct.

Yes.

I may have misunderstood you.

I am sorry.

I thought you asked if they could search the suitcases.

Unidentified Justice: I asked both sides, and I think you are entirely consistent in your answer.

Mr. Lee, is there anything in the record that indicates whether the smell of marijuana coming from the car had any independent source other than the suitcases?

Mr. Lee: No, Your Honor, Officer Taylor just testified that he detected a strong odor of marijuana coming from the trunk.

He didn't specify whether he could determine whether or not it was coming from a particular package or not.

Unidentified Justice: Did this odor become apparent to him after the suitcases were in the trunk?

Mr. Lee: Yes, Your Honor.

Unidentified Justice: So you simply can't tell from his testimony as to whether it was necessarily traceable to the suitcases?

Mr. Lee: That's correct, Your Honor.

He stated that he detected an odor of marijuana coming from the trunk of the car.

This was after the three suitcases had been placed in the trunk, but it is unclear whether he was... he probably wasn't able to detect, be able to specify which of the suitcases the odor of marijuana came from.

Unidentified Justice: Well, however all this might be, what you really also want us to perform a small operation on Ross.

Is that it?

Mr. Lee: No, I think this falls flat within the holding of Ross, Your Honor.

Unidentified Justice: Well, I know you do, but do I understand you to... is that all you are asking in your brief?

Mr. Lee: No, I think that the case of Ross controls this case, and it is reaffirmed by what this Court said in the Johns case.

Unidentified Justice: You don't want either one of those modified to any extent?

Mr. Lee: I think that they control this.

I don't think we need to expand them or anything.

I think that the officer had probable cause to believe that somewhere in this vehicle, in one of more than four--

Unidentified Justice: You don't agree with... aren't there some amici in this case that suggest we modify Ross/+/.

Mr. Lee: --Well, I think that it is right on point with Ross, Your Honor, and Johns.

I think you have a situation in Ross where the informant told the police that the individual was selling drugs out of the trunk, and the Court in Johns and in Ross said that when the officers opened the trunk and saw the brown paper bag and the zippered pouch, they had probable cause to search both those containers, and then the Court came along in Johns and said they could have searched the entire car, and I think Ross also said that, too, although maybe not as directly as the Court did in Johns.

I think clearly in our case we have much more than the police officer did in Ross to believe that the trunk--

Unidentified Justice: --Mr. Lee, though, you just answered Justice Stevens' questions in a way to put this squarely within the statement in Ross distinguishing Chadwick and Sanders on the ground that in those cases the police did not have probable cause to believe the entire vehicle contained contraband, and you said here they didn't have probable cause to believe that.

All they had was what focused on the suitcases.

So, it seems to me that your own responses today bring this within Chadwick and Sanders.

Mr. Lee: --No, Your Honor.

I may have misspoke myself.

I believe--

Unidentified Justice: Well, you have been asked about it two or three times, and everything I have heard indicates that you have focused exclusively on the suitcases, and therefore Ross wouldn't save you.

Mr. Lee: --The fact is that the officer suspected of locations of contraband does not mean that they should be... that there is not probable cause to believe that there is contraband outside those suitcases.

Besides, the police were--

Unidentified Justice: Well, we asked you that question, whether there was probable cause to search the entire vehicle if the suitcases had been outside.

Mr. Lee: --Yes, I was assuming there was nothing more other than the suitcases being outside.

Unidentified Justice: Assuming the facts of this case, but the suitcases hadn't been put in the vehicle.

Mr. Lee: With or without the smell of marijuana, Your Honor?

I think the small of marijuana is critical to our case, too.

I think that if the officer had pulled up and seen nothing more than Castleberry--

Unidentified Justice: I am talking about the facts of this case, everything they knew from the informant, the timing, everything they knew except the suitcases hadn't been put in the vehicle.

Mr. Lee: --I think there is still probable cause to search the car, based on the odor of marijuana coming from the trunk of the car, Your Honor.

I think that was the holding of the Court in the Johns case, and should be the holding here.

I don't think there's any distinction.

Unidentified Justice: Can you really give that dogmatic an answer, that positive an answer?

Because as I understand it the officers' smell of marijuana coming from the trunk of the car was after the suitcases had been put in, and really you have to... if you address the situation then, you have to deal with all those facts, and you say there was probable cause then.

You don't really know on this record whether an officer, a hypothetical officer standing near the car at the moment the suitcases were outside but not in the trunk would have smelled marijuana coming from the trunk.

Is that a correct statement of the facts at any rate?

Mr. Lee: The officer would not have known specifically which container contained the marijuana.

The officer had only information that he had been told the blue suitcase contained some of the narcotics, which I take to mean that some of the other narcotics were moved from somewhere in the motel room to... placed somewhere in the car.

I mean, the car was an instrumentality of the criminal process in this case.

This is a car with Florida license plates.

It was checking out of a motel on an interstate highway, a major interstate highway in Oklahoma.

Drugs were removed from the motel room to somewhere in the car.

The police suspect the location of some of those drugs.

Unidentified Justice: Don't you have a lot more than the smell of marijuana in this case?

Mr. Lee: Yes, Your Honor.

Unidentified Justice: Maybe I am arguing your case, but you seem to me to be putting your entire case on that smell.

You have an informant saying there are drugs in the room.

You have the informant saying that some were in the blue suitcase, not all, but some, and you have the bandaid box incident.

I am trying to buttress your position and to take you off complete reliance on the smell of marijuana from the trunk.

If you have probable cause to believe these people are dealing in drugs, wouldn't there be a pretty good chance you would get a warrant to search the car, because that is just one of the normal places people keep drugs?

Mr. Lee: Well, of course, the question--

Unidentified Justice: Or not?

Mr. Lee: --in Ross is, you balance the privacy interests of the individual versus the administrative inconvenience to the police in getting a warrant.

Here we have a situation where the police, I presume, would have been required to get a warrant for five different containers plus any other, as Justice Powell in the Robbins case said, any other trivial containers.

There could have been a beer can, a crumpled up cigarette pack in the car, a wastebasket, a rolled up floormat, any other container they would have had to get a search warrant for.

We think that in Ross the Court made it clear that they are not required to take all these containers out of the car, try and guard them and safeguard them, and get a search warrant for who knows how many containers might be in a car.

Unidentified Justice: Mr. Lee, you said you have no quarrel with Ross.

I take it whatever obstacles are in your way here are created by the Sanders and Chadwick cases.

Mr. Lee: Yes, Your Honor.

Unidentified Justice: I take it you wouldn't have any great objection if those were even further cut back than they have been.

Mr. Lee: No, Your Honor.

I am attempting to do what the Court did in the Johns case, distinguish Chadwick and Sanders.

Unidentified Justice: But how many times can they be distinguished and still have--

Mr. Lee: Well, I think if there was a situation where there was no reason to believe that the contraband could have been anywhere other than in the suitcases, and the suitcases are placed immediately right in the car, I think that Ross and Sanders still apply.

But this case, we have... contraband could have... we all know that narcotics traffickers are liable to place narcotics anywhere in a car, in the hubcaps.

In Carroll, the individual put it in the back seat, in the upholstery.

Unidentified Justice: --I take it you wouldn't say that if you had independent probable cause to search the car, every hubcap, every piece of upholstery in it, if you also had probable cause to search a specific suitcase that was in the car, I take it your position is, you couldn't search the suitcase.

Mr. Lee: No, you could.

Unidentified Justice: Under Ross?

Mr. Lee: No, I think Ross allows that.

Even... in Ross they knew the specific location of the drugs.

They had been told by the informant that the drugs were in the trunk, and that is what we are arguing, that just because they suspected a particular location in a car or in a particular container in a car, they are not limited to that if probable cause supports the search of the entire vehicle.

Here we have a situation which for all the reasons I have stated, and I might add that the fact that the car has Florida license plates I think is relevant.

The Court in the Gates case said that Florida is a well-known source of narcotics.

I think that all these things, if they had been placed in an affidavit and presented to a magistrate, the magistrate would have issued a search warrant for the entire car to search for contraband anywhere in that car.

Therefore, under the principles announced by this Court in the Ross case, the police were not required to resort to the warrant process.

We think that the bandaid box in the car also should be upheld on the basis of it being a search incident to a lawful arrest under the Robinson case and the New York versus Belton case.

Chief Justice Burger: Mr. Cox.

ORAL ARGUMENT OF CHARLES FOSTER COX, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Cox: Mr. Justice Burger, and may it please this honorable Court, respondents' position in this matter is that the Oklahoma Court of Criminal Appeals was entirely correct in their analysis of the law and their application of the law to the facts of the case.

This quite simply is not an automobile exception case.

This is quite simply a container case that can be disposed of on the basis of Arkansas versus Sanders and Chadwick.

The government would argue that Johns and the Court's decision in Johns is analogous to the facts of the case at bar.

I would only remind the Court that in Johns the police had probable cause to search that truck long before they ever knew there were any packages around.

They discovered the packages only as a result of the search based on probable cause of the truck.

Here there was nothing, I submit, absolutely nothing to suggest to this police officer that there was any probable cause to search that automobile at any time.

The information provided to this police officer was from a confidential informant who had never been used before, who the officer did not know, who did not even identify himself to the officer, whose only--

Unidentified Justice: Then how do you know he has never been used before?

Mr. Cox: --Because the officer admitted so on the stand, Your Honor.

That is in the record.

He had never been used before.

It also said in the record that he had been referred... that was the way the officer put it... had been referred to him by another police officer.

I think it is significant to note that in that referral, the confidential informant never gave his name or mentioned the other officer, Officer Joe Smith or whatever told me I could call you.

The informant is unidentified.

There is no basis whatsoever to believe he even has any idea what he is talking about.

Unidentified Justice: Weren't the results rather perfect, the color of the car, the two different colors of suitcases, the time of the checkout, the location of the man, and his name?

How could you get a more accurate, more completely accurate piece of information in advance?

Mr. Cox: The clerk of the motel knew every one of those facts, and the clerk may never have been in the hotel room.

Those facts were perfectly obvious to anyone who knew that they were there.

Unidentified Justice: What fact that was given by the informant to the police was not corroborated as the picture unfolded?

Mr. Cox: I am not saying, Your Honor, that the facts were not corroborated, but I am saying that those facts by themselves--

Unidentified Justice: Isn't that quite important in the probable cause area?

Mr. Cox: --It is our position there was never sufficient probable cause even to justify the officer taking out his weapon and placing the defendants under arrest.

Unidentified Justice: Then you don't agree with the Oklahoma Court of Appeals' analysis of the case?

Mr. Cox: Not entirely as to probable cause.

If there was probable cause, then it most certainly went to the suspected locus of the contraband, that being the suitcases and the bandaid box.

Unidentified Justice: For purposes of this argument, don't you concede that there was probable cause to search the suitcases?

Mr. Cox: I have never conceded probable cause, Your Honor.

Unidentified Justice: Okay.

I am wondering whether there wasn't probable cause to search the entire vehicle, given the information the officer had and the fact that the defendants who were suspected on the basis of the tip of dealing in narcotics had been loading the vehicle and on the sight of one of the defendants tossing a package inside the car and trying to lock it and trying to put evidence out of the way.

Did that give rise to probable cause to search the entire vehicle?

Mr. Cox: I think not, Your Honor, and the reason for my answer is that in the very practical context of police enforcement, and particularly drug enforcement, very seldom do you see a police officer dressed in uniform step out of a marked vehicle and say, I am a police officer, pay me heed.

That doesn't happen.

As a practical fact, you have some guy in bluejeans with a beard and scruffy appearance who gets out of an unmarked vehicle which may be a '54 Dodge with a gun drawn and says, I'm a police officer.

The defendants' actions are entirely consistent with trying to protect their property from being robbed as opposed to protecting it from police officers.

I know police officers always say, and on television they always do draw their badge and their gun at the same time--

Unidentified Justice: Now, what you are telling us, is that the testimony of Castleberry and his friend?

Mr. Cox: --Castleberry and Raineri did not testify at trial, Your Honor.

Unidentified Justice: I did not think they had.

So what you are telling us is sort of a scenario from a television program, not the record of this case.

Mr. Cox: I am suggesting, Your Honor, that those are common facts in law enforcement, and although the record in this particular case does not speak to those issues, and perhaps I should not go that far--

Unidentified Justice: Well, as Justice O'Connor suggested, were not the immediate responses of Castleberry and his friends exactly the responses of criminals engaged in drug trafficking, if you want to engage in speculation?

Mr. Cox: --I think they were equally consistent with, one, he wanted to protect his privacy interests and property.

Unidentified Justice: What is your position if there was probable cause to search the car but also probable cause to search specific containers?

Mr. Cox: I think that under Ross--

Unidentified Justice: That you could search the car but not the containers?

Is that it?

Mr. Cox: --Well, I think under Ross, under the decision in Ross, if they had probable cause independent of any other matter to search that vehicle for contraband, under Ross they could search that vehicle and anything they found there--

Unidentified Justice: Even if they had probable cause to search also a container?

Mr. Cox: --Yes.

Unidentified Justice: Mr. Cox, does the record tell us whether the officer, Taylor, I guess his name was, was in uniform or not?

Mr. Cox: I am sure it does, Your Honor.

I can't specifically--

Unidentified Justice: Was he or wasn't he then?

Mr. Cox: --Pardon?

Unidentified Justice: Was he in uniform?

Mr. Cox: No, sir, he was not in uniform.

Unidentified Justice: Oh, he was not?

Mr. Cox: Neither of the officers who were in uniform... who were there were in uniform.

Unidentified Justice: How about the backup crew?

Mr. Cox: Neither of the officers were in uniform, Your Honor.

They were all members of the Oklahoma City Special Projects Unit, which was a special narcotics unit which has no uniforms.

They wear very scruffy street clothes.

Unidentified Justice: On the information that the police had when they saw Castleberry come out of the motel room, loading the precisely described suitcases into the precisely described car, would a reasonable officer had a reasonable basis to think that they were about to take off?

Mr. Cox: I think it is reasonable to assume anyone leaving a motel room and loading their luggage is about to leave that location, certainly.

However, just because they placed the suitcases into the automobile, and the only information they had regarding narcotics was either the motel room or the containers does not turn this into an automobile exception case.

The automobile, as the state of Oklahoma mentioned, was parked in a parking lot, and that parking lot of a motel was adjacent to an interstate highway, but it must be emphasized that the automobile was never entered by the defendants.

They never had that opportunity to get into the automobile as if they wanted to drive off.

Unidentified Justice: Was there a finding in the lower courts as to whether there was probable cause to search the car independent of the containers?

Mr. Cox: The only finding of a lower court, the Court of Criminal Appeals, was that the suspected locus of the contraband was the suitcases and the bandaid box, and did not run to the vehicle in general.

That was the specific holding of the Court of Criminal Appeals of Oklahoma, and the specific holding that we agree with.

Unidentified Justice: Does this record reflect that as the police officers approached they held out their badge and said that they were police officers?

Mr. Cox: Yes, it does.

Unidentified Justice: The absence of a uniform isn't really all that critical, then, is it?

Mr. Cox: I think it is, Your Honor.

Unidentified Justice: Do you think that would have... do you think they could acquire a uniform illegally just as they could acquire a badge or a gun illegally?

Mr. Cox: Certainly, but I just think as a practical matter if someone points a gun at you in a uniform, it carries a bit more authority than if he points a gun in bluejeans and a dirty sweatshirt.

Unidentified Justice: Even with a badge in his other hand?

Mr. Cox: From a distance, I am not sure a badge could be recognized anyway.

Of course, I am speculating here, but I think it is important.

Unidentified Justice: But... closeness to a gun, isn't it?

Chief Justice Burger: We will resume there at 1:00 o'clock, counsel.

Mr. Cox, you may continue.

ORAL ARGUMENT OF CHARLES FOSTER COX, ESQ., ON BEHALF OF THE RESPONDENTS -- RESUMED

Mr. Cox: Mr. Justice Burger, Chief Justice Burger, members of the honorable Court, if I may continue, I would like to begin once again by going back to a question, I think, from Mr. Justice White which I think I misinterpreted earlier, before our lunch break.

I believe you asked if I felt that if there were probable cause to search the automobile and also probable cause to search the containers therein, did I still feel that there was a warrant necessary to search those containers.

I think I answered in the negative this morning, and that is not my feelings at all.

It is my feeling--

Unidentified Justice: I thought your brief indicated to the contrary.

Mr. Cox: --Well, it does indicate to the contrary, Mr. Justice White, and I merely was flustered and didn't understand your question.

I would like to go on with the argument and address the point raised by the state of Oklahoma regarding the smell or odor of marijuana which the officer testified to, and it has been brought up in relationship to the Johns case.

I think it is particularly significant that the officer did not mention any odor of marijuana until after the trunks were placed in the trunk of the vehicle, the suitcases placed in the trunk of the vehicle.

The record is absent of any smell of marijuana prior to the time those containers were placed in the vehicle.

Unidentified Justice: Doesn't that go to the credibility of whom the jury was going to believe?

You are questioning whether that is true or not, I take it.

The testimony is--

Mr. Cox: I am not questioning, Mr. Chief Justice, whether it is true that he smelled marijuana or not.

I am saying that it is significant that the only smell that after the suitcases were placed in the vehicle, and that prior to that time there is nothing in the record to indicate that he smelled any marijuana.

Unidentified Justice: --How long was he on the scene before the suitcases were placed in the vehicle?

Mr. Cox: The record reflects five to ten minutes, Your Honor.

And I think that is significant, because that would further show an absence of probable cause to search the vehicle independent of the containers contained therein.

The state of Oklahoma mentioned at the very end of its argument that they thought that the search could be justified under Belton as a search incident to lawful arrest.

It is the respondents' position that the decision in Ross so effectively undermines Belton as to render it virtually ineffective.

We think that the facts of Belton could be decided under the automobile exceptions as delineated in Ross.

Unidentified Justice: Is it not clear now, whatever the law had been, that when there is probable cause to search a car, the search may be what could be called the French Connection search?

Justice White's question suggested that this morning.

You can take off the hubcaps, you can take off the tires, and you can tear the upholstery apart and see if the drugs are hidden in those places.

Now, of course, if it turns out that you don't find anything, someone has got quite a bill to repair the car, but that is a totally different matter.

You say there is no probable cause to search the car in the first place.

Mr. Cox: Yes, sir.

Your statement, Mr. Chief Justice, is correct.

Unidentified Justice: Even though... do you agree that it would be a reasonable inference to draw for the police to think that this was going to be used to facilitate a criminal act, the car was?

Mr. Cox: I think based on the information that the officer had, there was no probable cause to believe that, Your Honor.

Unidentified Justice: No probable cause to believe that the car would be part of the transferring, transporting the drugs?

Mr. Cox: Well, certainly if the container... they have probable cause to believe a container contains contraband, and that contraband, that container is then placed in a vehicle, then the logical extension of that is that if the vehicle moves, it is used to transport the contraband.

So, to that extent, Mr. Chief Justice, I would agree with you.

Unidentified Justice: As you have pointed out, they did not testify that they were certain about the marijuana until they detected the odor emanating from the trunk.

Mr. Cox: That is correct.

Unidentified Justice: Whether that testimony is true or not is not the question.

That is the record, is it not?

Mr. Cox: It is the record, Your Honor, Mr. Chief Justice.

Unidentified Justice: At that point, was there not before the officers probable cause to believe there was marijuana in the trunk of the car?

Mr. Cox: I think at that time, Your Honor, if there were probable cause, there was probable cause to believe that there was marijuana in the suitcases.

Unidentified Justice: Where were the suitcases?

Mr. Cox: They had fortuitously been placed in the trunk of that vehicle.

Unidentified Justice: Then what about the observation of throwing a package into the car and locking the door?

What inference should the policeman draw from that?

Mr. Cox: The only inference that I think can be logically drawn from that is that the respondent was displaying an increased expectation of privacy in that container by further separating it from whoever this person might have been.

Unidentified Justice: Are you going to address the question concerning the contents of the bandaid box during the course of your argument?

Mr. Cox: I am, Your Honor.

I address that from the standpoint of Belton, the decision in Belton which is based on and further follows the rationale of Chimel.

Unidentified Justice: Do you think that if the bandaid box had been kept on Castleberry's person, in a pocket, at the time he was arrested, could it have been searched?

Mr. Cox: I think under the current decisions of this Court probably so.

Unidentified Justice: Do you think that the result should be different if he throws it into the front of the car and locks it to try to prevent that from happening?

Mr. Cox: I do.

Unidentified Justice: He should be rewarded for disobeying the police officer's instructions?

Mr. Cox: I don't think of it in terms of being rewarded.

I think that it was no longer within the area with which he could reasonably gain control of it, possession of it--

Unidentified Justice: You don't think that his actual exercise of control and possession over the box in putting it in the passenger compartment and locking it is enough control to extend Belton to it in any event?

Mr. Cox: --No, I don't.

There are arguments in the brief by the state of Oklahoma and also in the brief filed by amici, the various amici, friends of the Court, which ask this Court to further expand the decision in Ross to eliminate any distinction between containers and automobiles.

I would only submit to the Court that I think this Court's decision in Ross is sufficiently clear that no further expansion or delineation is necessary.

The argument is made in the briefs that it is difficult to teach the principles, the teachings of Ross to police officers.

I think the decision in Ross is perfectly clear that if you have probable cause independently of anything, any containers, to believe that an automobile, not knowing whether it has any packages in it or not, any containers in it or not, contains contraband, that is the situation that Ross applies to, and it authorizes a search of that vehicle and any container found therein.

The contrary is true, that if you have knowledge of the suspected locus of contraband, that being in containers, then a warrant is required under the Fourth Amendment, the warrant clause of the United States Constitution.

I don't think that the argument made in the briefs by both the state of Oklahoma and amici that the police are encouraged to share less of their probable cause information with an examining magistrate according to Ross because they would be rewarded by sharing less is a valid argument.

I think that if officers cannot be trusted to tell the truth, and to tell what they know exactly about their probable cause information, then they should not be rewarded by an expansion of Ross to eliminate any distinctions whatsoever.

In total, I think the Court of Criminal Appeals of the state of Oklahoma was exactly correct in its application of the law, that this was a Chadwick, Sanders type case, a container case, and not in fact a Ross case.

This case falls on the Chadwick, Sanders side of the line as opposed to Ross.

Unidentified Justice: On whichever side, once he smelled the marijuana in the back of the car, it is your theory that he should have gone for a search warrant?

Mr. Cox: Yes, Your Honor.

Unidentified Justice: How long would it have taken him to get the search warrant, about?

Mr. Cox: I could only speculate based on my experience in Oklahoma County, but probably within the hour.

Unidentified Justice: And where do you think that car would be in that hour?

A Thunderbird?

Mr. Cox: It could very easily have remained right exactly where it was.

Unidentified Justice: Oh, he is going to leave it right there?

Mr. Cox: It was very possible to do that.

Unidentified Justice: Don't you think they could have held the car and the suitcases until a warrant was obtained?

Mr. Cox: Yes, they could have.

Unidentified Justice: They could have held the car?

Mr. Cox: I think they could have held the car if they had probable--

Unidentified Justice: And the suitcases.

Mr. Cox: --And the suitcases.

Unidentified Justice: If they had probable cause?

Mr. Cox: If they had sufficient probable cause.

Unidentified Justice: Well, did they?

Mr. Cox: I don't think they had sufficient probable cause.

Unidentified Justice: Then how could they hold it?

Mr. Cox: My statement was prefaced on if they did.

Unidentified Justice: Take one or the other.

They either had probable cause or they didn't.

I think if they had known that, they couldn't get the warrant either.

They couldn't get a warrant if they don't have probable cause.

Mr. Cox: But at least a neutral and detached magistrate would have made the decision that a warrant would not have issued.

Unidentified Justice: Are you telling us that this man could have driven the car off because you see no probable cause?

If he had not been forcibly detained, he could have just driven away?

Mr. Cox: As a very practical matter, I know that he would not have been allowed to.

Unidentified Justice: Well, but then what would your position be if they did get a warrant after that?

Would you say that the car was--

Mr. Cox: I think that they could have been detained, Your Honor.

Unidentified Justice: --Yes, but then what would you say about the warrant?

If they had forcibly detained them, are you saying that they had no right to forcibly detain them?

Mr. Cox: I think they had a right to forcibly detain them to present this evidence to a magistrate.

Unidentified Justice: Well, Judge Cornish concurred in this judgment below, didn't he?

Mr. Cox: That is correct.

Unidentified Justice: But he said,

"Although probable cause existed with regard to the containers, no exigent circumstances were shown as to justify a warrantless search."

Did the majority also say there was probable cause to search the containers?

Mr. Cox: The opinion of the Court of Criminal Appeals specifically states that the suspected locus of the contraband was the containers.

Unidentified Justice: And so there was probable cause to search them.

Mr. Cox: That is what the Court of Criminal Appeals said, Your Honor.

Unidentified Justice: And obviously the trial court thought so.

Mr. Cox: That is correct.

The trial court didn't think much of my argument.

Unidentified Justice: So you are asking us to overturn--

Mr. Cox: I am not asking this Court to overturn the Court of Criminal Appeals.

I may not agree--

Unidentified Justice: --So that if we accept the fact that there was probable cause, the suitcases and the automobile could have been held pending getting a warrant?

Mr. Cox: --Yes.

Unidentified Justice: And by that, he could have held the car and Castleberry and his friend?

Mr. Cox: Yes.

Unidentified Justice: Could have held them all.

Mr. Cox: Yes.

I have nothing further.

Chief Justice Burger: Very well.

Thank you, gentlemen.

The case is submitted.