Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CALIFORNIA, Petitioner, v. CHARLES B. CARNEY

No. 83-859

October 30, 1984

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:05 o'clock a.m.

APPEARANCES:

LOUIS R. HANOIAN, ESQ., Deputy Attorney General of California, San Diego, California; on behalf of petitioner.

THOMAS F. HOMANN, ESQ., San Diego, California; on behalf of respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: You may proceed whenever you are ready.

ORAL ARGUMENT OF LOUIS R. HANOIAN, ESQ., ON BEHALF OF PETITIONER

MR. HANOIAN: Thank you, Mr. Chief Justice, and may it please the Court:

This case is here on the State of California's petition for writ of certiorari to the California Supreme Court. After a brief review of the facts below, the petitioner will advance two contentions: that there is a need for bright line guidance in the area of search and seizure under the Fourth Amendment reasonableness standard. Secondly, that this Court's decisions in Carrol v. United States, Chambers v. Maroney, and United States v. Ross provide bright line guidance in their use of inherent mobility as the underlying basis for the vehicle exception to the Fourth Amendment's warrant requirements.

Had Your Honors been at Port and Clausa in San Diego on May 31st of 1979, you would have seen Charles R. Carney, a 50-some-year-old man, approach a Mexican youth in the area of downtown. He talked with the young boy, and then he and the boy retreated to Mr. Carney's parked vehicle, which was in a parking lot on the corner of 4th and G Streets in downtown San Diego.

Mr. Carney and the boy entered the vehicle and stayed in the vehicle for approximately an hour and a quarter. Agent Robert Williams of the Drug Enforcement Administration witnessed Mr. Carney's contact with the young man, and watched Mr. Carney and the boy go into the vehicle.

He noticed the license plate on the vehicle, and recalled that he had specific information regarding the vehicle. Specifically, that there had been individuals who were providing young boys with marijuana or drugs in exchange for sex in the van; and that typically a situation would involve an individual and a young boy entering the van for a period of 10 minutes to 2 hours, and then they would exit after that time.

QUESTION: How long was this vehicle on the parking lot?

MR. HANOIAN: The record does not show how long it was there, Your Honor. There was -- Mr. Agent Williams witnessed the vehicle in the parking lot for a period of an hour and a quarter, and it had been there prior at various times. It had been observed in the parking lot at that place, but there was no indication that it was at any time permanently attached to that parking lot.

QUESTION: Does the record tell us the character of the parking lot? Was it public, where you had to pay so much an hour? Or was it an empty lot?

MR. HANOIAN: The record doesn't specifically say that. It is, however, Your Honor, a public parking lot right at the corner of 4th and G Streets in downtown San Diego. It's privately owned, as I believe the record indicates.

QUESTION: It wasn't a trailer parking lot?

MR. HANOIAN: No, it was not, Your Honor. It was a parking lot which is typically populated with cars. When people go to work in downtown, they will pull their car into the parking lot and then go off to work, come back after work, take their car, and drive home.

QUESTION: And this mobile home was not a tractor-drawn, was it?

MR. HANOIAN: Pardon me, Your Honor?

QUESTION: This mobile home was not a tractor-drawn motor home?

MR. HANOIAN: No, it was not. It was an integral vehicle with an engine and wheels and a back portion.

QUESTION: And not tied up to any water or electric facilities, or anything like that?

MR. HANOIAN: That's correct, in this particular instance.

After an hour and a quarter, Agent Williams noticed the young boy come out of the motor home, and he and another agent followed the boy and, about a block later, stopped the boy and asked him what had been going on in the motor home. The young boy told the agents that he had received a small bag of marijuana in exchange for allowing the man to perform a sexual act with him.

At that point in time, they asked the boy to come back to the motor home with them. The boy did that. He knocked on the door of the motor home. Mr. Carney stepped out. Agent Clem looked into the motor home, saw two bags of a green leafy substance which was later identified to be marijuana on a table inside the motor home, saw a scale on the table, and then some zip-lock bags.

Agent Clem reported what he saw to Agent Williams, who placed Mr. Carney under arrest. He was then under arrest. The agents took some photographs of the interior of the van. Agent Williams then drove the van to the narcotics task force headquarters in National City, and then searched the van. And in the course of the search, they found a total of about two pounds of marijuana in the refrigerator and in some cupboards in addition to the two bags that were found on the table.

At the lower court level, the Superior Court held a statutory motion to suppress under California law. The Superior Court denied the motion to suppress. Following the denial of that motion, Mr. Carney entered a plea of nolo contendere, reserving the search issue for appeal.

In the Court of Appeal in California, the judgment was affirmed. The order of probation was affirmed, and then Mr. Carney petitioned for the California Supreme Court to hear the case.

QUESTION: What ever happened to the charge of the sexual charge?

MR. HANOIAN: That was dropped, Your Honor. My understanding is that the young boy was a Mexican National and he was not to be found at the time of the preliminary hearing. So there was no evidence to proceed with on that particular charge.

The California Supreme Court heard the case and reversed the order of probation, and subsequently the People petitioned this Court to hear the case.

The People asked this Court to hear the case because there is a need for bright line guidance that is essential to ensure the proper implementation of the Fourth Amendment. This proposition doesn't need to be restated. It's been emphasized again, and again, and again by this Court and by the commentators, that to ensure the proper implementation of the Fourth Amendment, we have to provide law enforcement officers with the guidance by which they know the limits of their power, and so that the people know the limits of their protection.

If you will, the police officers are the workmen in the scheme of the law enforcement. They are the carpenters, and they are the plumbers, and they are the electricians. And the courts are the architects. What we need to do is to ensure that the workers have the correct plans in order to implement the building of the law. And if they aren't provided with the plans, then the building that they implement -- the building that they build, will not provide adequate protection from the elements outside.

So it is essential that they be provided with bright line guidance, and guidance which is workable. For, if it is not workable, there is no way to ensure the implementation.

QUESTION: Would you buy the guideline of wheels?

MR. HANOIAN: As the sole limitation?

QUESTION: That if the vehicle has wheels on it, it's not a home.

MR. HANOIAN: If the vehicle has wheels on it, I think that that makes it mobile and it would be subject to the exception.

QUESTION: Would you be satisfied with that guideline?

MR. HANOIAN: I think I would, Your Honor, yes. That would provide a bright line. But I am looking a little bit more beyond just wheels. We are looking for self-locomotion, self-propelling.

QUESTION: You want to cloud it up now.

MR. HANOIAN: Not at all. I think that is easily attainable. You examine a vehicle, and if it objectively appears to be mobile, if that thing is capable of movement, then you're entitled to search it with probable cause.

QUESTION: Did this vehicle have a motor vehicle license on it issued by the State of California?

MR. HANOIAN: Yes, it did, Your Honor, and that was one of the ways that Agent Williams identified this particular vehicle as the one that was referred to in the WETIP information sheet that was provided. It had a vehicle registration, and in fact in California this type of a vehicle requires a special registration. They have to pay more money in order to get it on the road.

It also requires that the individual who drives this vehicle have a Class III driver's license. That's a special kind of license with a large vehicle, and it requires, again, a larger fee.

QUESTION: You mean something like a truck driver's license.

MR. HANOIAN: That's correct.

QUESTION: But not quite that high?

MR. HANOIAN: I didn't read the entire section on the licensing of Class III to determine if truck drivers were involved. I would suggest that that is a close analogy, if it's not right on.

QUESTION: Mr. Hanoian, the Solicitor General has filed an amicus brief in the case and suggests apparently a somewhat different approach than you are urging, and an approach that would suggest that under some circumstances a mobile home could result in an expectation of privacy that could be respected.

Do you reject that approach?

MR. HANOIAN: Not in total, Your Honor. The Solicitor General's approach, like our approach, suggests that there is some point in time where what is objectively identifiable as a vehicle ceases to be a vehicle. And in our position, we would --

QUESTION: Well, what if the vehicle is in one of these mobile home parks and hooked up to water and electricity but still has its wheels on?

MR. HANOIAN: If it still has its wheels and it still has its engine, it is capable of movement and it is capable of movement very quickly.

QUESTION: Even though the people are living in it as a home and are paying rent for the trailer space, and so forth?

MR. HANOIAN: Well, I'm not certain that we're talking about the same thing, then, Justice O'Connor, because the mobile home parks that I envision are prevalent all across the country. What is generally placed in a mobile home park is a trailer that has wheels, but it is placed upon on blocks --

QUESTION: Well, there are places where people can plug into water, and electricity, and do. There are many places, for example, in the state I came from where people go and spend the winter in a mobile home. And you think there would be no expectation of privacy in such circumstances?

MR. HANOIAN: Well, I am not suggesting that there is no expectation of privacy in those circumstances, Your Honor. What I am suggesting is that society -- this Court has determined that society is not willing to recognize that expectation of privacy as justifying a different rule from another motor vehicle; and that, because of its mobility, the capacity for it to move --

QUESTION: Well, it just seemed to me that your approach and that offered by the Solicitor General were rather different in that area.

MR. HANOIAN: Yes. That is the precise area where our approaches are different.

QUESTION: You prefer a single rationale for the exception to the warrant requirement. Namely, you think "mobility" is practically the sole criteria; and the Solicitor General at least thinks that there are two.

MR. HANOIAN: Well, I think there is more than one, and I think they're independent of one another, Your Honor.

QUESTION: Well, anyway, you certainly would differ with the Solicitor General as to the application of the exception in a park, in a mobile home park?

MR. HANOIAN: Under the circumstances that's been presented, yes, I would.

QUESTION: Of course that isn't the issue here, is it? This is in a public parking lot.

MR. HANOIAN: That's correct, Your Honor. That is not presented in this case. And if I might address the Solicitor General's position and explain why ours is a little bit difference: The reason for our difference with the Solicitor General is because the analysis that's required in the Solicitor General's approach suffers from the same failures as the California Supreme Court's.

That is, that a law enforcement officer in the field has to determine whether or not this vehicle is now placed in a constitutionally protected parking spot.

QUESTION: Well, the inquiry there might be, did it come in in the afternoon and hock up with the electricity and so forth, but leave the following morning if there was drug activity, drug sales activity suspected. Then the attachment to the electric power would be less significant than if they were there all winter, as Justice O'Connor suggested.

MR. HANOIAN: That's correct, Your Honor. And typically in these situations -- and what happened in this particular case -- is that an individual is going to come upon this vehicle and he's not going to know whether it's been parked in this particular motor home lot for a period of three months, or two weeks, or how long. He'll have probable cause. He'll be asked to react immediately. And under those circumstances, he won't know what the expectations of the individuals who own that vehicle are.

They are subjective thoughts the officer is not privy to. He cannot make his decision on whether or not to search that vehicle based upon the subjective thoughts of the individual inside. That's another reason why we would differ, if you will, with the Solicitor General's approach, which we feel is far superior to that of the California Supreme Court or to that that has been proposed by the Respondent in this case. But the problem with the approach is twofold:

One, it requires that you make some differentiation between a vehicle based upon configuration. Under the Solicitor General's approach, there are some vehicles which have the capability of an expectation of privacy and some that do not. That requires a determination by an officer.

Then secondly, there is the more fundamental problem of which one of these parking spaces is or is not entitled to the added protection.

QUESTION: May I inquire, just so I understand your position? Is it that the vehicle have wheels? Could a trailer without a tractor in front of it qualify?

MR. HANOIAN: No, I don't think it would, Your Honor, because it would be more or less like the suitcase.

QUESTION: I'm sorry? What is your position. You tell me your position.

MR. HANOIAN: Our position is that if the officer looks at this conveyance and determines that it has the objective indicia of mobility --

QUESTION: Now does that mean self-propelled?

MR. HANOIAN: Self-propelled.

QUESTION: It has to be self-propelled?

MR. HANOIAN: Yes. I would agree with that.

QUESTION: So you wouldn't apply your thought to a trailer park?

MR. HANOIAN: Not when it's parked, no. When it's attached, yes, in the same way that one would --

QUESTION: But when what about a self-propelled vehicle that's plugged into the plumbing and the electricity?

MR. HANOIAN: I think that that would be covered under the exception that we proposed.

QUESTION: Be covered? You mean they could search it without a warrant? Or they would need a warrant?

MR. HANOIAN: They could search it without a warrant --

QUESTION: I see.

MR. HANOIAN: -- because the same reasons are available in that instance.

QUESTION: Okay.

MR. HANOIAN: That particular vehicle is capable of movement, and it is capable of movement very quickly.

QUESTION: And you would apply it, even if it had been parked there three months or so, because your officer wouldn't really know how long it had been parked?

MR. HANOIAN: That's correct.

QUESTION: Thank you.

QUESTION: What about a camper's tent, if the camper takes his things out of the motor home and pitches a tent next to it?

MR. HANOIAN: The motor home would be subject to search, but then the tent --

QUESTION: But not the tent.

MR. HANOIAN: Not the tent, not under this particular exception. There may be some other exception that would allow the search of the tent.

One of the things that we want to avoid is the inherent problems in determining what configurations of vehicles are subject to the exception, and which ones are not.

QUESTION: May I just ask why -- Justice O'Connor's question intrigues me. Why wouldn't the tent be just as mobile as the self-propelled vehicle? I gather you can pull it down pretty fast --

QUESTION: It doesn't have wheels, right?

QUESTION: -- and throw it on the back.

(Laughter.)

QUESTION: Pardon me?

MR. HANOIAN: That's right.

QUESTION: I didn't hear that.

MR. HANOIAN: It doesn't have wheels.

(Laughter.)

QUESTION: But you can surely move it just the same.

QUESTION: But it is moveable.

MR. HANOIAN: It is moveable.

QUESTION: And I should think your reasoning would apply. I'm not saying you are right or wrong.

MR. HANOIAN: Well, I think the reasoning does apply. But again, this Court has been very careful in drawing the lines to vehicles. For example, the suitcase in the Chadwick case. That's capable of movement, but the Court was reluctant to apply the analysis of allowing a warrantless search of the suitcase. However, when the suitcase is placed into the trunk of a car, or placed into the cab of a car, and the probable cause arises afterwards, the suitcase is subject to search.

QUESTION: But your analysis -- and maybe you're right -- but you entirely omit any consideration of the magnitude of the privacy interest, the fact that somebody lives in it, like a tent, wouldn't make any difference.

MR. HANOIAN: We asked that the officers not be required to make that evaluation, because we don't think that they're equipped to do it, for one. Secondly, I think that this Court has already done the analysis for them. It seems to me that --

QUESTION: Well, the thing I'm puzzled about is, I understand the value of a bright line test certainly, but I'm not sure that -- the California court may be wrong, but it's test is also a bright line test, too, isn't it?

MR. HANOIAN: That's true, Your Honor.

QUESTION: So that arguing for a bright line test really doesn't help us decide which test is the best one.

MR. HANOIAN: That's correct. And although California has a bright line test by saying motor homes cannot be searched, they don't define what a motor home is. So their bright line is very fuzzy, I would suggest, since they have not defined their term.

We think that mobility provides the bright line. If I might get back to the point I was about to make in terms of the privacy interests, that in the Carroll case in 1925, Chief Justice Taft analyzed the particular vehicles that were applied.

In particular, of course, Carroll involved an automobile. But he found it significant not to differentiate between an automobile, and a wagon, and a ship, and a motorboat, yet the ship, the wagon, and the motorboat are clearly capable of serving a residential function. Yet they were not to be treated any differently than an automobile, because both of those things, all of those conveyances, had the ability to move. And it was that ability to move which caused the privacy expectations to yield to the exigency created therein.

As I believe it is footnote 8 in the Ross opinion suggests, that if you give probable cause to believe that you're transporting contraband in a vehicle, then you're not entitled to the added protection that a warrant provides if there is probable cause.

And of course the probable cause determination is going to be evaluated by a magistrate at some point in time anyway. The question is, are we going to provide the added protection of the magistrate evaluation before the search or after the search. And of course if the probable cause analysis by the officer was faulty, that evidence is going to be lost to the exclusionary rule, and there will not be any -- certainly there will be an inconvenience to the party because of the unlawful search, but he will not suffer a criminal ramification as a result of that.

The protections are provided under that situation, and we think that that's a good place to draw the line because it is capable of being properly enforced, and it is capable of a bright line approach.

QUESTION: But you can't really argue that it doesn't matter whether the probable cause determination comes before or after the search. We're mainly interested in the innocent person, not the guilty one.

MR. HANOIAN: Certainly we are.

QUESTION: And if you have it before, presumably the search won't take place.

MR. HANOIAN: And it is certainly preferable, Your Honor. I am not going to argue whether it is preferable or not to have the probable cause determination first, because of course it is. But the exigency created by mobility -- and indeed all of the exceptions to the warrant requirement -- are based upon the probability that you can't get the warrant beforehand and ensure that the other policies of the Fourth Amendment, ensuring the public safety and the safety of the officers, will be implemented.

That is what the reasonable approach entails. And I think Chief Justice Taft talked about the rule. What he said is, it's a wise one because it leaves the rule one which is easily applied and understood and is uniform. And that is what we are proposing: a uniform rule.

And it's really not the rule that the California courts, or the California Attorney General's office is proposing. It's the rule that this Court has articulated and rearticulated in Carroll, and Chambers, and Ross. And we are asking that it be applied to all vehicles, regardless of their configuration, or regardless of what the people who are driving those vehicles think.

I mean, what they expect personally is really not terribly important, because there is no way to confirm those facts objectively.

QUESTION: What would you do with a houseboat?

MR. HANOIAN: A houseboat? I think that would be covered, and I think that the --

QUESTION: It has wheels?

MR. HANOIAN: No, it's a vessel, and it is covered by the same rule. In fact, the circuit courts have dealt with ship cases in the past, and they have applied the Carroll reasoning to a vessel because of its inherent mobility, as well.

QUESTION: Well, I want to be more specific. There is a houseboat. It's tied up to a dock that's got no motor on it at all. It's just sitting there. And it's hocked up to the sewage, electricity, et cetera, and it's right beside a house. The house is covered, and the boat is not?

MR. HANOIAN: That's correct. It's sort of like an automobile that is parked right next to the house in the driveway. The automobile might not be covered, and the house is.

QUESTION: But the automobile has a motor in it--

MR. HANOIAN: That's correct.

QUESTION: -- and the houseboat does not.

MR. HANOIAN: No. There may be oars. There may be some way to move that from one place to another.

QUESTION: There "may be." May be. I've seen houses moved, too.

(Laughter.)

MR. HANOIAN: As have I. I've passed a few of them on the beltway.

QUESTION: You've got to get more than that.

MR. HANOIAN: Certainly. Again, the objective indicia of mobility would be what the officers are looking to. Perhaps in Your Honor's example, they would be looking to see if there's oars there. There's no motor. There's no way to move that thing.

QUESTION: Well, let me add one more thing. It's been tied up there for the last 36 years.

(Laughter.)

MR. HANOIAN: If the officer doesn't know that, I don't see why he should be called to that particular knowledge. One thing he does know about when he is dealing with a house --

QUESTION: The moral is, don't live in a houseboat.

MR. HANOIAN: People choose to live where they want to live. There are some risks associated with where one will live. People who live in glass houses don't have the expectation of privacy someone else does unless they do something to black out the glass, to prevent people from looking in; but they choose to live there. And individuals may choose to live in a recreational vehicle, or a houseboat, or something else, but when they make that choice it is a conscious choice, because they've been on notice that ever since the adoption of the Fourth Amendment, if a vehicle or vessel has been used to transport contraband or evidence, it's been subject to seizure and subsequent search without -- with probable cause, without a magistrate's prior approval.

QUESTION: Well, Mr. Hanoian, I guess we didn't authorize -- the Court didn't authorize that in Coolidge v. New Hampshire where Justice Stewart, writing for the Court, said we attach no constitutional significance to the mobility of the vehicle.

Now is there any life left to Coolidge?

MR. HANOIAN: Well, I would suggest that perhaps there's not. Coolidge is not a good case for a number of reasons, I think. You know, Coolidge was more of a warrant case than it really was an automobile case. And once the warrant failed because it wasn't issued by neutral and detached magistrate, they went through all the possible reasons to justify the search of that vehicle, and they didn't find any in that particular case.

I note that the Coolidge Court was unable to garner a majority of this court. I think that the Ross case --

QUESTION: Yes. It was a plurality opinion.

MR. HANOIAN: Yes, Your Honor. I think the Ross case stands in stark contrast to Coolidge, and that there is --

QUESTION: Well, in Ross the car wasn't parked in the driveway.

MR. HANOIAN: That's true, it was not.

QUESTION: So the facts are different.

MR. HANOIAN: But the analysis of Ross stands in stark contrast to Coolidge. Also, I might add that in Coolidge the officers knew about that particular car for a long period of time. In fact, they knew about it for long enough to get the warrant from the attorney general, which was not issued by a neutral magistrate and therefore invalid. They had prior knowledge about that.

It wasn't the situation where they came upon it suddenly and were faced with a situation where they had to decide what to do right now. In that particular case, this Court found that it was an improper search under any number of reasons, including that it was improper under the vehicle exception.

I see the light is on, so if I might, I would like to reserve the rest of my time for rebuttal.

CHIEF JUSTICE BURGER: You may.

Mr. Homann.

ORAL ARGUMENT OF THOMAS F. HOMANN, ESQ., ON BEHALF OF RESPONDENT

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

This case concerns the physical entry of the living compartment, the residential area of the motor home which was parked for an unknown but extended period of time in a parking lot. Unfortunately, and not withstanding Mr. Hanoian's representation to which I know to be accurate, the character of that particular parking lot does not appear in the record in this case.

QUESTION: The location does, doesn't it?

MR. HOMANN: The location does.

QUESTION: Do you think we could take judicial notice of the fact that they don't let people stay indefinitely on a parking lot in downtown San Diego?

MR. HOMANN: I'm not sure that's absolutely correct, Your Honor, that they don't.

QUESTION: You think we can't take judicial notice?

MR. HOMANN: I would think not.

The motor home was parked; the drapes were closed. It contained upholstered furniture. It contained a table, kitchen features, a refrigerator. It contained all of the indicia of a home.

The time of the entry was on a Thursday afternoon, a working day. The motor home was parked within a few hundred yards of the courthouse. It's the main courthouse in San Diego. Over 60 magistrates were available there ready, willing, and able to issue the warrant if a proper showing had been made.

Rather than seeking the authorization of the warrant before entering into the residential compartment of the vehicle, the officers entered themselves. This is not a case like United States against Ross involving search of a passenger car, or indeed of any vehicle which was stopped while speeding down the highway, with probable cause to believe that it was transporting contraband.

In this case there is nothing in the record to indicate that this particular motor home was ever used to transport contraband. There is indications that it was used as a distribution point, but not that it was used for transporting contraband, and I think that is somewhat key.

Perhaps I read United States against Ross too narrowly, but the Court over and over again in the opinion mentions and reiterates the fact that the car was stopped while transporting contraband on an open highway. The entire genesis and development of the automobile exception from Carroll on forward I think has frequently, if not always, turned on the fact of mobility in the context of a car stopped on a highway.

Carroll itself, of course, involved the Oldsmobile Roadster speeding down the highway --

QUESTION: I thought all those cases said that the possibility of them moving was the issue. Isn't that right?

MR. HOMANN: The possibility of movement was--

QUESTION: Good enough.

MR. HOMANN: -- was good enough.

QUESTION: Well, you had the possibility of movement here, didn't you?

MR. HOMANN: There was no possibility of movement after the driver, the only occupant of the motor home, left it. As a matter of fact --

QUESTION: Why not?

MR. HOMANN: The motor home was inoperable. There had been curtains closed across the front -- the front of the -- the front of the vehicle itself.

QUESTION: Well, couldn't somebody have pulled the curtains back and driven off?

MR. HOMANN: But there was no one there.

QUESTION: How do you know?

MR. HOMANN: At least the California Supreme Court found that the police had no reason to believe that there was anyone there. As long as there was no one there, the fact of the -- the mobility factor itself was substantially diminished when it's parked, when it's inoperable at least by virtue of the curtains across the front windshield, when there's on one there to drive it down the street.

QUESTION: I thought the boy went back and he knocked on the door and the owner came up?

MR. HOMANN: That's correct. He had been in it. He was not under arrest at that time and the motor home had not been searched at that point. He came out and, at that time, Officer --

QUESTION: I don't understand your earlier statement that nobody was there. He was there.

MR. HOMANN: Once he came out, there was no one else in there, though.

QUESTION: Oh, in other words you're saying that -- well, what was the officer supposed to do, then? Just hold him there while they went and got a warrant?

MR. HOMANN: We have suggested that they go get a warrant at that point. The whole issue of probable cause, which as I -- I agree not raised here, we have consistently contested all the way up through the courts --

QUESTION: But your point is he should have gotten the warrant after he knocked down the door, not before? That the boy's testimony, or the boy's comments weren't enough?

MR. HOMANN: Well, the officers themselves never attempted to arrest Mr. Carney until after the entry was made and after they saw the marijuana on the table. The issue of whether they needed a warrant to get Mr. Carney out of the motor home has not been raised. My only contention is, before they actually made the physical entry into the living compartment, that a warrant would have been required.

The attorney general's argument, and the rule that they propose I think is insufficiently sensitive to the reasonable expectations of privacy. The central purpose of a Fourth Amendment, I think the Court has recognized on numerous occasions, is to protect reasonable expectations of privacy.

An automobile is one item, but a home has always been treated differently. Society has traditionally recognized the greatest of privacy interests and privacy rights in the sanctity of a person's home, even if it's only a temporary home.

The tent, I agree with Mr. Hanoian, is entitled to be free from warrantless seizure, warrantless search, unless there has been a warrant issued, or unless there is some genuine need to enter it.

Likewise, I think the motel room, which the Court has recognized as a place entitled to the dignity equivalent to that of a home, cannot be entered without a warrant. Here also we have --

QUESTION: Those exceptions you mentioned do not have the factor which has distinguished the mobility. Hasn't it been constantly in all the cases the mobility of the vehicle that is the basis for the exception?

MR. HOMANN: Not in all the cases, Your Honor. The example that comes to my mind is Cady v. Dombrowski, I believe, where the automobile had been in a crash and was inoperable at the time that it was subjected to the warrantless search.

So certainly mobility has not been the beginning and the end of the automobile exception.

QUESTION: But I think mobility may have been the end, not the beginning, though. Because a case like Cady says that there are some unusual circumstances where, even though not mobile, the automobile exception applied. But I am hardpressed to think of a case where we have said that, even though mobile, the automobile exception does not apply.

MR. HOMANN: Mobility itself, though, apart from an automobile, has never been a justification for all warrantless searches. The example that we always rely on is the trunk in the Chadwick case, for instance.

QUESTION: Well, but you would say this mobile home was closer to an automobile than to a trunk?

MR. HOMANN: In many respects it was not closer to an automobile. I think if we look --

QUESTION: Than to a trunk?

MR. HOMANN: Pardon me?

QUESTION: Than to a trunk. It seems to me it is sensible to start with the automobile and say, you know, this may differ, it has similarities, it has differences, rather than start with something else that it really doesn't resemble at all.

MR. HOMANN: Well, insofar as the motor home contains dresser drawers, cabinets, all sorts of intimate personal items that one ordinarily carries around in a trunk or a suitcase, they certainly also carry them around in the storage compartments of --

QUESTION: Do you carry around a lot of intimate items in your trunk?

MR. HOMANN: I don't mean a trunk of a car. I mean the trunk, as in United States against Chadwick. And in Chadwick, even though the trunk was mobile, the expectations of privacy were considered to outweigh the necessity for an immediate entry, warrantless entry of the trunk.

QUESTION: Do you think the Chadwick case is still good law?

MR. HOMANN: It's my understanding that Chadwick is still good law, yes.

QUESTION: In any event, Chadwick involved a trunk that it took two men to lift. That isn't terribly mobile, is it?

MR. HOMANN: It's not terrifically mobile, but it is --

QUESTION: It has no wheels.

MR. HOMANN: It has no wheels, but it's still designed to be transported from one place to another. The purpose of the trunk is to move things. So in that respect, it is similar to the motor home.

QUESTION: We're getting closer to your case. Suppose somebody drives a great big stretch Cadillac down and puts it in a parking lot, and pulls all the curtains around it, including the one over the windshield and around all the rest of them. Would that be a home?

MR. HOMANN: It comes closer to a home, but I don't think that that necessarily satisfies the California Supreme Court.

QUESTION: What else?

MR. HOMANN: I think what they want is some kind of -- in the first instance, some kind of outward indicia that it is capable of being used, or is designed to be used as --

QUESTION: Well, it has everything in the back of it that your car has.

MR. HOMANN: Does it have a bed?

QUESTION: Yes, yes.

MR. HOMANN: If it is reasonably objectively observable that it has the attributes of a home in it, then I think we have to give it those -- I think we have to give it the same protections that we ordinarily give dwelling compartments.

QUESTION: That would be a home.

MR. HOMANN: I'm satisfied that it would be, yes.

QUESTION: It would be a home?

MR. HOMANN: Yes.

QUESTION: You just can't say it would be a home, can you?

(Laughter.)

MR. HOMANN: I have a harder time saying it would be a home. What you have to look at, I think, first of all -- and under the California Supreme Court's analysis -- what you look at first is what it looks like. If it looks like it's a motor home, and I can tell the difference between a Ford LTD and a motor home, then I think you have to give it the respect that a home is due.

On the other hand, if it doesn't look like one, but if it's being used as a home, if it's being used as residential purposes, you're sleeping in it, whatever, then I think the person has exhibited the kind of expectations of privacy in it that are going to make a police officer's warrantless entry a little more suspect, a little more suspect at least --

QUESTION: Well, Mr. Homann, in answering Justice Marshall's question just now, you said if this thing looks like a motor home. Now can you say in a couple sentences what you think a motor home looks like?

MR. HOMANN: The motor home in this case I can moderately describe. It has trailers. It's large enough to stand up in. It looks like a trailer-trailer type walls.

QUESTION: You say it has trailers?

MR. HOMANN: It looks like a trailer, rather. That's what I mean.

QUESTION: It is a self-contained single unit?

MR. HOMANN: It is a self-contained single unit.

QUESTION: With the cab in front from which you drive?

MR. HOMANN: A cab in front, and a door into the living compartment and the rear, which was where the entry was made in this case; and curtains, upholstered furniture, kitchen facilities. Frequently motor homes have bathrooms.

QUESTION: Of course you can't always tell that from the outside. I thought your description would enable us to tell from the outside whether or not it was subject -- or should get this --

MR. HOMANN: I think ordinarily it is obvious. It becomes a closer question, of course, when we see a van, for instance, which could have the acoutrements of a home, but which are not obvious from the outside that it contains those kinds of features.

QUESTION: How would your test decide the van question where all you see is a closed van?

MR. HOMANN: Under my test, I think that once it becomes obvious to the police that it is being used for residential purposes as opposed to being used for transportation, then I think you have to look to determine whether there is exigency which justifies the entry or not. And if there was no exigency, then a warrant would be required. That is of course the bottom line on my test.

QUESTION: Would it be enough under your test if the defendant claiming the right testified that he simply has a sleeping bag, sleeps in the back of his van, but drives from place to place. But that's the only living place he has according to his testimony.

MR. HOMANN: All of the indicia of a home are not present when it's a sleeping bag in the back of a van. Among other things, I think that the compartments for storing personal items are somewhat key to a determination that it is being used residentially.

The kitchen features are significant. The fact that it's got a bed is also significant. The fact that it can be closed off from view with curtains I think is important, thereby exhibiting a reasonable expectation that the world is being shut out when one goes inside.

QUESTION: What about the old covered wagons?

MR. HOMANN: The covered wagon problem -- perhaps I'm not as familiar with my history as I ought to be. I was under the impression that the covered wagons were used for to transport the items, and that you slept outside around the campfire rather than in the covered wagon.

But insofar as the covered wagon served or functioned as a person's temporary residence while they were making the treck across the country, then I think we have to give it at least some of the dignity that we give a home. Certainly the covered wagon, even when it is traveling along the trail, is a repository for all of the personal effects. And unless there's a need, I doubt that we would want the police to be able to rummage through all of those items, as in this case they did when they rummaged through all of the cabinets and the cupboards without first obtaining the authorization of the warrant.

I think that the critical question here is whether an invariable and automatic application of the vehicle exception to all vehicles, without regard to the circumstances of how they're being used, without regard to any expectations of privacy in the vehicles; because ultimately I think that the State Attorney General's position here is the privacy interests in this vehicle should be totally disregarded, that it has no part in the analysis of whether the item should be searched, whether the Court should ignore all of those interests and sacrifice what I think are important Fourth Amendment privacy protections merely for the sake of police expediency and police convenience, for the sake of the bright line rule.

Let me talk about the privacy interests just briefly. The Court I think in a number of decisions has pointed out various factors in a passenger vehicle which diminish the expectation of privacy, and which at least help justify an automobile exception. Among other things, a passenger car's function is principally transportation.

That is also true of a motor home, the type of vehicle which was involved here. However, transportation is not its sole function, whereas a passenger automobile, it's principal function, if not its exclusive function, is transportation. Here, the vehicle is stopped. The vehicle is used for sleeping, for all sorts of intimate activities.

The public nature of automobile travel and the visibility of the occupants in an automobile are said to diminish expectations of privacy in a passenger automobile. That's not true in the passenger compartment of a motor home.

The private passenger automobile is not ordinarily used as a repository of personal effects. I have already addressed that. As far as a motor home is involved, it does involve a repository for personal effects.

The configuration of a passenger automobile is a factor that the Court has suggested diminishes expectations of privacy. The configuration of a motor home is designed to ensure privacy in many respects. And finally, and I guess most significantly, the Court has noted that a car seldom serves as one's home, and I think that's true, even though it is possible to live in a stretch limousine.

QUESTION: Mr. Homann, what about a van? You see thousands of them on the road.

MR. HOMANN: I think that's true. A van ordinarily would not be subject to the motor home exception.

QUESTION: Well, I've seen some with the chairs, all upholstered chairs in them.

MR. HOMANN: And I think that once it becomes obvious to searching police officers that the item is being used as a home for its residential purposes, then I think the search has to be -- the search has to be limited. Ordinarily, the situation in which I would anticipate that would arise, the police officers --

QUESTION: In order to help you out, the van is running down the road at 55 miles per hour.

MR. HOMANN: That helps me tremendously. That helps me tremendously, because the rule that I've proposed at least is not going to preclude the police from entering the van or the motor home, for that matter, when it is speeding down the highway in most circumstances.

QUESTION: Well, could they have waited? In your case, could they have waived until he moved the van?

MR. HOMANN: I think that if the van --

QUESTION: Would that have been all right?

MR. HOMANN: If the van was being moved, then I think that a real danger of loss or destruction of evidence would have been presented, assuming they had probable cause to get in, and they probably could have searched it without a warrant if it was moving, if there was a danger that it was going to be lost.

That's all -- under current law --

QUESTION: So your bright line is that it has to move?

MR. HOMANN: Ordinarily, the mobility factor when it actually comes into play, when the vehicle believed to contain contraband is being moved, there is a need for an immediate search at that point because there is a genuine danger that the evidence is going to be lost. Here that is not what was happening. There was no danger that the vehicle was going to be moved. It was parked. The windshield was covered, and there was no real danger that the evidence would be lost.

QUESTION: Well, where do you draw the line between the situation that you say obtains here where it was parked and there was no indication it was about to be moved, and the fact that it is actually in movement?

MR. HOMANN: I think that once the key is in the ignition, once the vehicle starts or advances into its use as a vehicle, as opposed to its use as a use in its residential qualities, then I think there is sufficient exigency, there is a real necessity to dispense with the warrant requirement at that time.

If the police officers have reason to believe that evidence inside the house is being destroyed, they can obviously enter the house without a warrant. And I think the same thing applies when the vehicle starts to move.

QUESTION: Mr. Homann, maybe I am incorrect, but I think I understand your position to be substantially the same as the Solicitor General's second position -- not the one he favors, but the one he advocates in his long footnote toward the end of his brief. Am I correct?

MR. HOMANN: Yes. I like the Solicitor General's brief, and I agree that there is more than one position in there. That is essentially what I am --

QUESTION: But your position is basically his fallback position?

MR. HOMANN: That's correct.

QUESTION: So you would say that if there's a car, if there had been a car parked alongside the motor home in this case in the same parking lot and the police had probable cause to search them both, they could enter the car but not the motor home?

MR. HOMANN: Exactly. The expectations of privacy I think the Court has recognized in the automobile are substantially less than what we would --

QUESTION: The possible mobility or the potential mobility doesn't override the privacy interests?

MR. HOMANN: The privacy interest overcomes --

QUESTION: But it does -- as soon as the mobility becomes mobility, it overrides it?

MR. HOMANN: As soon as the mobility becomes something more than theoretical or hypothetical mobility --

QUESTION: Well, it isn't theoretical. It's something more than potential.

MR. HOMANN: All right.

QUESTION: Because you know that very soon it's going to move. It's not going to stay there very long.

MR. HOMANN: Right.

QUESTION: Assume now that Justice Wright's automobile vehicle is the tractor that would pull the otherwise immobile motor home, or whatever you want to call it. Now you could search the tractor, but not the --

MR. HOMANN: I think that's true. And the reason is --

QUESTION: The tractor can take off down the street and go 70 miles an hour on the highway?

MR. HOMANN: The reason is, the tractor has a privacy interest which society is less prepared to recognize. It's a diminished privacy expectation, as opposed to the motor home or the trailer itself.

QUESTION: Well, they're equally -- when they're attached, they're equally moveable, aren't they?

MR. HOMANN: Exactly. But one is used for private living residential purposes, and the other is used for transportation. As a matter of fact --

QUESTION: The other one isn't used for transportation in the abstract, but only in connection with what it pulls. Isn't that so?

MR. HOMANN: Yes, that's correct.

QUESTION: People don't go out on the highway on the tractor alone, do they?

MR. HOMANN: Ordinarily not. The tractor partakes more of the automobile, because it doesn't have -- it is not the kind of repository for personal effects. It's not surrounded by glass. The glass house illustration is good here. People who live in glass houses shouldn't have reasonable expectations of privacy, and the cab is surrounded by glass. But the motor home is not. It is surrounded by curtains, which were designed specifically to ensure expectations of privacy.

I want to speak to the bright line rules very briefly, because I've mentioned in the brief that I think the California police officers, at least, and I suspect others as well, are currently required to distinguish between "motor homes" and "passenger automobiles" between the living quarters of what the California Vehicle Code defines as a "house car."

A house car is a vehicle which has either been designed or permanently altered for human habitation. The importance of the definition that they have adopted in the California Vehicle Code is this: that it is a criminal offense to possess an open container of alcoholic beverage, to consume an alcoholic beverage in a vehicle, except in the living quarters of what the legislature defines as a house car.

This is a criminal law that the California State Police officers are currently required to enforce on an everyday basis. They can, and I think that it's reasonable to expect them to distinguish between what is a motor home, what is being used as residential quarters, and what is not.

The rule that I suggest is that before warrantless entry of a motor home can be accomplished, there must be some showing of a genuine need, more than a theoretical need. I agree that ordinarily, and in most circumstances, that need is going to be easily demonstrated by police.

The two Ninth Circuit cases involving motor homes which were stopped on a highway where the Ninth Circuit refused to apply the automobile exception to justify the searches, in both of those cases, Williams and Wiga, the police ultimately were justified in making their warrantless entry on another basis other than the automobile exception.

The point is this: There is no need for an automobile exception if none of the justifications and none of the reasons for its necessity are present.

If the motor home is traveling down the highway, if it's likely that evidence is going to be lost, if it's going to explode, if the officers need to enter it for their own safety, existing law permits them to do that even if we apply ordinary Holmes rules to the case.

The interests at stake, the interests in the privacy of a home-like place even if it's on wheels, I think require a higher showing than the relaxed standard which has justified warrantless searches of automobiles in most circumstances.

Thank you.

CHIEF JUSTICE BURGER. Do you have anything further, Mr. Hanoian?

MR. HANOIAN: Yes, I do, Your Honor.

ORAL ARGUMENT OF LOUIS R. HANOIAN, ESQ., ON BEHALF OF PETITIONER -- REBUTTAL

MR. HANOIAN: Thank you, Your Honor.

In rebuttal, the State of California would like to advance four positions.

First of all, with regard to the specifics in this particular case, counsel has referred to the living compartment in this case as supporting the residential purpose. But the record does not at all support this particular assertion. And in particular, if one examines the photographs that are a part of the record in this case that were submitted to this Court, looking at the picture of the refrigerator will show that there is marijuana in the refrigerator, but there is no food.

And when they examined the cupboards in this case, there's no underwear, there's no sheets, there's marijuana. There's nothing in the record to suggest Mr. Carney was using this as his home, and in fact that is the problem. There is no way to determine, in these particular class of vehicles, when they are and are not being utilized as a home, objectively.

Secondly, Justice Marshall's concern with the Cadillac stretch car points out the flaw in the reasoning of the Respondent, because it is our impression that more people in this country live in cars and live in pickup trucks. The poor people that can't afford motor homes live in those vehicles. More of them live there than live in motor homes, which are typically more expensive. Yet they are to be accorded a different expectation of privacy merely because they can't afford the trappings that a motor home would provide them with. I think that that's an unfair application of the rule.

Thirdly, the definition that Mr. Homann gives with regard to house cars. The California Supreme Court did not use that term in the Carney opinion. They talked about "motor homes." They didn't talk about "house cars." That definition was not promulgated to apply to search and seizure law. That definition was promulgated in order to register these vehicles and to show that those vehicles would be accorded a certain registration fee, and that in certain circumstances, particularly when there is open alcohol containers, that an individual that has that container in the back is not going to be cited for that particular violation.

QUESTION: But the California court did rely on the statutory definition. They didn't use the term that your opponent used, but they did on page A-18 they talk about Section 3.96 of the Health and Safety Code, and Section 18.008 of the whole home -- referring to --

MR. HANOIAN: Yes, Your Honor.

QUESTION: So they did have, it seems to me, a legislative determination of the kind of vehicle they had in mind.

MR. HANOIAN: Well, the vehicle --

QUESTION: And it's licensed. It has a special license.

MR. HANOIAN: Right. It does have a special license. But I might add that the Vehicle Code section that the California Supreme Court refers to is not the code section defining "house car." It's a different code section that defines "mobile home." And the house car section is Section 3.84, I believe, of the vehicle code, and 3.62 of the vehicle code is the house car definition.

I might also add that the legislature has also determined that, for purposes of burglary, that the burglary of a residence is burglary in the first degree in California. Yet the burglary of a house car or an automobile, it lumps it into the category of second degree burglary. They don't provide that with the trappings of a residence in the penal code, even if there may be some provision in the vehicle code determining -- with licensing involved.

And finally, if police officers are going to be allowed to ensure that a vehicle does not move, if they are going to be able to get the evidence in there, they have to be allowed to seize it. It has to be stopped. And once that seizure is made, this Court has determined in the past that there is no difference constitutionally between seizing and holding that vehicle while one awaits for a warrant, and subjecting it to an immediate search at the officer's option.

There is a reason for that difference. Different policy provisions come into play once you seize and hold. Because at that point in time, if one is to require the officers to hold the vehicle while awaiting a warrant, they are going to be subjected to danger; they are going to be subjected to the possibility that --

CHIEF JUSTICE BURGER: Your time has expired, counsel.

MR. HANOIAN: Thank you, Your Honor.

CHIEF JUSTICE BURGER: The case is submitted. Thank you, gentlemen.

(Whereupon, at 12:02 o'clock p.m., the case in the above-entitled matter was submitted.)