SOLDAL ET UX. v. COOK COUNTY, ILLINOIS

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Argument of John L. Stainthorp

Chief Justice Rehnquist: We'll hear argument now in No. 91-6516, Edward Soldal v. Cook County, Illinois.

Mr. Stainthorp.

Mr. Stainthorp: This case involves the issue of whether the Fourth Amendment to the United States Constitution protects the law abiding against unreasonable seizure of their home and effects by state officers.

If we look at the history of the enactment of the Fourth Amendment and the historical events that gave rise to its enactment over 200 years ago, if we look at the text of the amendment itself, and if we look at the decisions of this Court construing the Fourth Amendment, then the answer is unequivocally yes, the Fourth Amendment does apply in situations such as my clients' and a seizure unaccompanied by a search must nevertheless satisfy the Fourth Amendment's command that it be reasonable.

The Seventh Circuit decision from which this petition for certiorari is taken is therefore wrong in saying first of all that the law enforcement context of the case is relevant in terms of whether the Fourth Amendment applies, and also is wrong in saying that the Fourth Amendment does not protect possessory interests of persons, and also is wrong in saying that the Fourth, that the privacy rights of my clients in this particular situation were not violated.

Unknown Speaker: You know just that the Fourth Amendment protects possessory rights in a piece of personal property just anywhere, do you?

Mr. Stainthorp: The Fourth Amendment would protect possessory rights in the type of property which is protected by the Fourth Amendment.

Yes, that would be my contention.

Unknown Speaker: Let's assume the officers enter an open field and run off with a mowing machine.

Do you think that's a Fourth Amendment violation?

Mr. Stainthorp: I think if that is a seizure--

Unknown Speaker: Well, it's an effect, isn't it, and it's a seizure.

Mr. Stainthorp: --If it is a seizure, if it is an effect, and if in fact that seizure is unreasonable, then it would apply.

And this Court has held that it would apply in that situation in cases such as G.M. Leasing where there was a seizure of cars that were on the public street yet nevertheless that was analyzed as a possible Fourth Amendment violation, conceptually no different than the case that you are proposing here.

If you look at Jacobsen, United States against Jacobsen, there you had seizure of a, what turned out to be cocaine, an effect, and yet that was again analyzed as a possible Fourth Amendment violation.

Unknown Speaker: Well, there's no doubt that if you seize something incident to an invasion of privacy in the home or some other protected place like a car, why the Fourth Amendment does, is implicated.

Mr. Stainthorp: But the point of those places was that there was no invasion of privacy.

In fact in Jacobsen the court only got to the possible invasion of possessory rights after concluding that there was no invasion of privacy because of the involvement of, in that case of the private parties and for various other reasons.

Unknown Speaker: So a law enforcement officer walks up to a person on the street, grabs his briefcase out of his hand and walks off with it, and then gets a warrant to open it?

Mr. Stainthorp: Yes.

Unknown Speaker: And he had probable cause to have it opened.

But you think just seizing the briefcase on the street is a Fourth Amendment violation?

Mr. Stainthorp: Yes.

Yes, I do.

Unknown Speaker: Even if it's never opened?

Mr. Stainthorp: Even if it is never opened because this Court has consistently held that the Fourth Amendment does protect possessory rights as well as in addition to privacy rights.

In many cases those two types of rights are intertwined, as I submit they clearly were in this particular situation.

But a mere violation or a sole violation of possessory rights brings the Fourth Amendment into play.

If that is not so then the whole line of cases of this Court which are known as the plain view seizure cases make no sense.

Unknown Speaker: But if that is so how do you explain that there hasn't been, that this is the first time that a case like this should have come up in a couple of hundred years?

I mean, sheriffs have been seizing and repossessing goods since the beginning of the Republic and we don't have a case in which it has been asserted there's a violation of the Fourth Amendment.

Why not?

Mr. Stainthorp: I think that's not accurate, Justice Scalia.

Unknown Speaker: Okay.

Why not?

Mr. Stainthorp: Because the G.M. Leasing case, which was a seizure for tax purposes, in that case by IRS agents, did analyze the seizure itself, not any search but the seizure itself as a possible Fourth Amendment violation, held that it must satisfy the command of the Fourth Amendment that it be reasonable and held eventually that it was reasonable.

Unknown Speaker: What was the date of that?

Mr. Stainthorp: The G.M. Leasing was--

Unknown Speaker: 1977.

Mr. Stainthorp: --Okay, 1977.

Unknown Speaker: So it's not 200 years.

190 or--

Mr. Stainthorp: Well, Judge, I don't think that's true too, either.

Excuse me, Justice Scalia.

In fact if you look at the history as laid out in the, in my brief, in my opening brief there is a consistent line of cases which hold that the Fourth Amendment first of all is applicable in a non-criminal context and is--

Unknown Speaker: --I'm talking about sheriff seizures.

These things have been going on all the time and very often the person says no, that property was wrongly taken, that they shouldn't have had it.

Mr. Stainthorp: --Well, most--

Unknown Speaker: I assume that there's a state remedy and it seems to me the reason has probably been that there is a state remedy for those seizures.

If they are wrong you'll get your money back, and therefore the state hasn't taken anything without due process of law.

Mr. Stainthorp: --And for that reason I have not brought a procedural due process claim before this Court, and it is a Fourth Amendment claim that is before this Court and not a procedural due process claim.

Unknown Speaker: How do you, how does the Fourth Amendment apply to the states?

Mr. Stainthorp: Through the Fourteenth Amendment.

Unknown Speaker: Which reads--

Mr. Stainthorp: Which is due process.

Unknown Speaker: --no one shall be deprived of life, liberty, or property without due process of law.

Mr. Stainthorp: Correct.

Unknown Speaker: Right.

So you are ultimately bringing a due process claim before this Court.

Mr. Stainthorp: In that sense, but this Court has always been clear that civil rights actions, there are basically three types.

There is, Zinermon points out that there are actions based upon a violation of a substanded provision of the Bill of Rights such as the Fourth Amendment, actions based upon--

Unknown Speaker: Which is what you're claiming here, isn't it?

Mr. Stainthorp: --Yes.

Unknown Speaker: I mean, you're bringing an incorporation argument, not a procedure argument.

You're claiming corporation due process.

Mr. Stainthorp: That is correct, Justice Souter, yes.

But that issue has really not been raised about whether a Fourth Amendment claim is somehow nixed if the state were in fact to provide some process for violation of that right.

Unknown Speaker: Well, should we address that question here in answer to this case?

Mr. Stainthorp: Justice O'Connor, I really think you have addressed it at great length in any number of cases, from Monroe against Pape to more recently Zinermon against Burch.

Unknown Speaker: Well, the state in this instance does give your client a civil damages action for the trespass, I assume?

Mr. Stainthorp: That is correct.

There's no question about that.

Unknown Speaker: So you could have filed that claim.

And why didn't you?

Mr. Stainthorp: I didn't because under Section 1983 the Congress has very clearly, in my view, given me a Federal remedy for this type of action.

I therefore choose to have this Federal remedy.

Unknown Speaker: Well, do you think that the action of the officers was basically random and unauthorized in the sense the court talked about in Parratt or Williamson County?

Mr. Stainthorp: In terms of it not being pursuant to an established state procedure?

Unknown Speaker: Right.

Mr. Stainthorp: Yes.

Yes, that is correct.

In fact there is a state procedure--

Unknown Speaker: So perhaps then that's all the process that is due.

Mr. Stainthorp: --If I were bringing a procedural due process claim that would be true.

Unknown Speaker: But then you're making the law turn just on the technicality of pleading.

You create a gaping hole in Parratt because it's just how you allege the violation, and Parratt becomes pretty much a dead letter, doesn't it?

Mr. Stainthorp: It doesn't at all, Justice Kennedy, and if you look at the cases that have construed Parratt, for instance if you look at Daniels against Williams, where the prisoner slipped and fell, that clearly would not, which was dismissed on Parratt grounds, that clearly would not be a Fourth Amendment case.

There was no seizure that occurred in that case.

In the limited number of cases in which a seizure within the Fourth Amendment has occurred the existence of the possibility of state process has always been held to be irrelevant and should be irrelevant because the Fourth Amendment itself does not concentrate on the process.

The Fourth Amendment itself concentrates on the seizure or the search itself.

If that seizure or search is termed unreasonable, then there is a violation of the Fourth Amendment.

It does not create gaping holes in the Parratt line of cases, which is a very precise holding in those cases which is that when there is a procedural due process case if the state gives post deprivation process then in several instances that is all that you are entitled to.

Unknown Speaker: But I take it the procedural violation is necessarily hypothesized on some substantive constitutional violation having occurred.

Mr. Stainthorp: Well, under a procedural due process claim you would obviously have to show some deprivation of life, liberty, or property.

That is certainly true.

But when you're dealing with the much narrower question of a Fourth Amendment violation which deals only with searches and seizures and deals only with searches and seizures of a small category of things, persons, houses, papers, and effects, when you are dealing with that there is no requirement that you, that you first file in state court and find that you have no remedy in state court or that your Federal remedy is diminished by the existence of state remedies.

And indeed it really makes no sense that that should be so.

The Fourth Amendment itself has no provision which in itself provides for there must be process.

The Fourth Amendment looks to a seizure.

It doesn't look to process.

And it looks to whether that seizure or search is reasonable.

So... and then if you look at Section 1983, through which obviously I am seeking to vindicate the Fourth Amendment rights of my client, that also has no provision that it is applicable only in the absence of a state remedy.

Unknown Speaker: That's what Monroe v. Pape held, wasn't it?

Mr. Stainthorp: Yes it was, Chief Justice.

Unknown Speaker: But that dealt with a statutory question basically, not a constitutional one.

Mr. Stainthorp: Well, Monroe v. Pape was, my understanding of Monroe v. Pape was that it was they were alleging a Fourth and Fourteenth Amendment violation.

Unknown Speaker: Yes.

And I think the argument on the other side was that since there were state remedies 1983 wasn't really apt, and then the court said no, that the existence of state remedies doesn't prevent as a matter of statutory construction the application of 1983.

You don't have to exhaust.

Mr. Stainthorp: That is correct, Chief Justice.

So certainly with respect to the, yes, the interpretation of 1983, there is no such provision.

Unknown Speaker: But 1983 doesn't create any substantive rights and so there was a Fourth Amendment, was that the basis there?

Mr. Stainthorp: Monroe v. Pape I think alleged both Fourth and Fourteenth, although I'm not going to swear to that.

Unknown Speaker: Yes.

Well, the Fourth was there.

Mr. Stainthorp: Yeah.

As it is here.

Unknown Speaker: And of course if the Fourth, if the Fourth Amendment required first resort to state remedies there wouldn't be a 1983 action.

Mr. Stainthorp: Well, that, for all practical effects that would be true because in a vast majority of situations where you have violations of civil rights that also does amount in some sense to a violation of state law.

So yeah, if you had that provision in 1983 that it was only operative if there was no state remedy, first of all I would expect to find that in the wording of Section 1983 and it just isn't there, and secondly that would mean that the vast majority of Section 1983 cases would not be, you could not litigate them with Section 1983 cases.

But this Court has really consistently held that that just is not the provision, as the Chief Justice recognizes.

Unknown Speaker: Yes, but the holding in Monroe against Pape was a statutory one.

It said 1983, as I recall, 1983 does not require that before you resort to it you must resort to state remedies that might have given you the same relief.

Mr. Stainthorp: Okay.

Unknown Speaker: But 1983 did not, rather Monroe against Pape did not address the contours of the Fourth Amendment.

Mr. Stainthorp: Yes, I understand the distinction that you're making there.

If however you look at the Parratt, the Daniels, that line of cases, Zinermon against Burch, the Court has been quite clear that there is, for a Fourth Amendment violation the existence of possible state remedies is generally irrelevant.

And once more that makes a lot of sense because how can a state statute authorize a violation of the Constitution?

How can a, the existence of a state statute make retrospectively a constitutional violation okay?

It can't.

The only--

Unknown Speaker: Well, in Parratt, in that line of cases, and Hudson against Palmer, tend to cut against that argument, perhaps in a rather limited field.

Mr. Stainthorp: --Well, they cut against that argument in a procedural due process case, there's no question about that, and set forth that in such a case post deprivation process may be all the process to which a person is due.

Unknown Speaker: But that just means there's no constitutional violation.

There's no violation of procedural due process if due process is provided, whether it's before or after the deprivation.

Mr. Stainthorp: That's correct.

But there's all the difference in the world between that case, where you are attacking the process and whether or not you are given process, and this case, where you are attacking the seizure itself of a home, a home which comes within the express wording of the Fourth Amendment, which is given heightened protection by the Fourth Amendment.

Unknown Speaker: Are you just, are you basing your primary argument on the fact that this was a seizure of property which would qualify as an effect or as of a house?

Just property?

Mr. Stainthorp: No.

House.

It's house and effect, but I think--

Unknown Speaker: Well, I know, but house and effects, they're all property.

They're all property.

Mr. Stainthorp: --That's correct.

Unknown Speaker: Are you indicating there was any invasion of privacy in this case?

Mr. Stainthorp: Yes.

There was an invasion of privacy if you view privacy as broader than secrecy, which this Court has historically done.

Unknown Speaker: Well, they got thrown out of their house, didn't they?

Mr. Stainthorp: That's right.

And their lives were disrupted, they couldn't--

Unknown Speaker: Isn't that a fairly egregious invasion of privacy, to get thrown out of your own house?

Mr. Stainthorp: --It always seemed to me, Justice White, that it was.

Unknown Speaker: So you don't need to really rely on just the fact that this was a seizure of a piece of property, do you?

Mr. Stainthorp: I don't need to rely on that but I think I have an extremely strong case based upon that also.

Unknown Speaker: Is that your strongest?

Is that your strongest?

Mr. Stainthorp: I would say they're both extremely strong.

But I certainly rely upon the invasion of privacy in here in disrupting these people's lives, preventing them from living their everyday lives, making them go live somewhere else--

Unknown Speaker: And what did the Seventh Circuit say about that aspect of the case?

Mr. Stainthorp: --It said there was not an invasion of privacy here, that this type of activity did not invade the privacy because it didn't invade my clients' secrecy.

And there's no question, I'm not saying that anyone looked into the trailer home or did this as part of an investigation.

That is not part of my case.

I'm quite clear that this was an invasion of privacy because it disrupted their life, because it prevented them from pursuing their lawful activities.

And certainly this Court has previously held--

Unknown Speaker: When somebody stops me from doing a lawful activity do I say you're invading my privacy?

Mr. Stainthorp: --In certain situations--

Unknown Speaker: I mean, I don't know what that, that doesn't mean anything to me unless by privacy you mean the right to be let alone, I suppose, and then everything invades the right of privacy.

Mr. Stainthorp: --And this Court has analyzed and defined the right of privacy in much narrower terms than that, notably in United States against Place where it held that the detention of baggage for 90 minutes was an invasion of privacy of the defendant in that case.

So, no, I'm not saying that any, any involvement or any disruption of lawful activities is an invasion of privacy.

In the fact situation here, however, the prior holdings of this case and I would submit the history of the Fourth Amendment and the words of the Fourth Amendment would say that there is such an invasion in this situation.

That is it's an extremely grievous--

Unknown Speaker: The words of the First Amendment don't say anything about invasion of privacy, do they?

They say search or seizure.

Mr. Stainthorp: --And they also say secure.

And they don't say a right not to be arrested, but they say the right of the people to be secure in their persons, houses, papers, and effects.

And it is certainly my contention here that the action of the sheriff's police in throwing them out of their house and making them move to a motel for several days, disrupting their life, was a great violation of their right to be secure.

In terms of whether or not that disruption, that invasion of their privacy was reasonable or not, that isn't before the Court at this time.

Unknown Speaker: It doesn't say secure from everything.

It says secure from unreasonable searches and seizures, right?

Mr. Stainthorp: That's correct.

Unknown Speaker: And you say this is a seizure, which makes sense to me.

Mr. Stainthorp: Okay.

So my argument obviously then is that I come right down the middle on the Fourth Amendment, that this, the language of the Fourth Amendment applies precisely to this type of situation, and that if you look at the history of the Fourth Amendment... what was the history of the Fourth Amendment?

It wasn't criminal investigations that gave rise to the Fourth Amendment.

To a large extent it was writs of assistance and it was revenue offices going out and seizing uncustomed goods, I think notably cider, and taking it away.

And as my reply brief points out, those seizures did not occur in the context of an arrest of the person involved.

So in fact my situation here is very analogous to the history that gave rise to the enactment of the Fourth Amendment.

So it's not, it's not some extension of the Fourth Amendment that was uncontemplated by history.

It's not some extension of the Fourth Amendment that was uncontemplated by the words of the Fourth Amendment.

I come right down the middle of the Fourth Amendment.

And also it is not an extension in view of this Court's prior holdings.

And the decision of the Seventh Circuit is a very marked departure from the prior holdings of this Court.

Unknown Speaker: Do you agree with the Seventh Circuit's analysis on the takings issue?

Was this a taking in your view?

Mr. Stainthorp: I don't think it was a taking because it... and certainly I didn't plead that in the complaint.

I think it wasn't a taking.

Unknown Speaker: Your pleading was confined to the Fourth Amendment aspect of the case?

Mr. Stainthorp: No, my pleading, my original--

Unknown Speaker: You pled a conspiracy to deprive of property, didn't you?

Mr. Stainthorp: --I'm sorry, I couldn't hear.

Unknown Speaker: You pled a conspiracy to deprive of property, didn't you?

Mr. Stainthorp: Well, no, I don't think in so many words.

I pled violations of the Fourth and Fourteenth Amendments and alleged that it was an unreasonable seizure.

I also alleged that it was a violation of substantive due process.

I believe the original complaint alleged a violation of procedural due process, but that, I did not pursue that claim in light of this Court's--

Unknown Speaker: Would a taking in violation of the takings clause be a substantive due process violation under the Fourteenth Amendment?

Mr. Stainthorp: --Judge, I really don't... Justice, I really don't feel equipped to answer that question.

That was not a part of my lawsuit here.

It's not a part of my complaint and not part of the constitutional violation that I pled, that I pursued in front of the Seventh Circuit or in this Court.

The constitutional violations that I have pursued are primarily a Fourth Amendment seizure.

And you are correct, the Seventh Circuit did discuss whether it was a takings.

It always appeared to me that the problem with that was that it was not a taking by Government for its own purpose.

Unknown Speaker: If the Government demolishes a house and puts a public school on it, but without compensating, is that a seizure?

Mr. Stainthorp: Is that a seizure?

I think in certain situations that might be a seizure, yes.

That certainly could be.

But historically that, my understanding, has usually been analyzed as under the takings clause.

Unknown Speaker: And under the takings clause your remedy is an action for inverse condemnation usually.

I don't know the remedies in Illinois, but certainly under the Federal system.

Under your theory could a person bring a Fourth Amendment action to recover damages for what is basically an inverse condemnation?

Mr. Stainthorp: If there were a, what could be construed as a seizure, and if that seizure was unreasonable, yes, I think it could be.

Unknown Speaker: Well then you really are broadening the Fourth Amendment considerably because there's a whole class of cases where some agent of the Government goes out and purports to take or occupy private property that really he wasn't authorized to do.

And those things have been traditionally recompensed by inverse condemnation.

If a Fourth Amendment action is available to vindicate that, that's a use of the Fourth Amendment we haven't seen before.

Mr. Stainthorp: Yeah, well, I think you would need to look at whether the taking itself was, came within the definition of a seizure, and then look at whether the seizure was unreasonable.

Unknown Speaker: I don't know why you would have to proceed in that order.

Why don't you ask, why can't we ask first whether or not it's a taking, indicating that takings are usually exclusive of seizures, particularly because it's not for a law enforcement or investigative purpose?

It's to exercise the rights that an owner generally exercises, which it seems to me is what's happening here.

Mr. Stainthorp: Well, this is not a taking for a governmental purpose.

This shares more of the attributes of a seizure in the course of some kind of law enforcement work by these agencies.

Certainly that's the way they perceived it.

But the fact that it was not... that is the way that the sheriffs perceived it.

The fact that it was not in the course of a criminal law enforcement should not serve to bar the Fourth Amendment from this, and this particular seizure has much more in common with those, that type of activity by the governmental agency.

Unknown Speaker: We take this case on the hypothesis that the sheriff stands in the shoes of the trailer park owner.

Mr. Stainthorp: Correct, Judge.

Justice, excuse me.

Unknown Speaker: If this had been a state run trailer park and the sheriff had wrongfully evicted and removed the trailer pad wouldn't you say that that was a taking?

Mr. Stainthorp: If it... no.

If it had occurred in this type of context, wherein there was a towing away of the trailer, it seems to me that it should be more aptly analyzed as a Fourth Amendment seizure and fits very firmly within that line of cases.

Unknown Speaker: But why?

What is, I guess I'm not following you in the sense of understanding what your criterion is.

How do you think we should distinguish in a doubtful case between a compensable taking under the Fifth Amendment and a seizure under the Fourth?

Mr. Stainthorp: Certainly one thing to look at would be whether the taking was for the, for a governmental purpose.

Like if the Government was taking it for their own purpose that would seem to fit more accurately within the taking line of cases.

Unknown Speaker: When the Government takes evidence it is taking it for its own purpose.

Or do you mean its own purpose in the sense of as a property user?

Mr. Stainthorp: Yes, more the latter.

Unknown Speaker: Well, what do you do then in this case?

The Government was not taking it as a property user, and the Government wasn't taking it as evidence or as contraband either.

I mean, it doesn't fit neatly in any category.

Mr. Stainthorp: Well, it does fit within the line of cases that say that the non-criminal context of a seizure is irrelevant to whether the Fourth Amendment applies, and also the fact, as this Court held in O'Connor against Ortega, the non-investigatory context of the seizure is irrelevant in terms of the application of the Fourth Amendment.

Unknown Speaker: Well, I'll grant you that, which gets you to the point in effect of demonstrating that there is nothing in the purpose, in the civil nature of this that precludes a Fourth Amendment application, but it doesn't get to the point of saying how do we distinguish between a case appropriately brought under the Fourth Amendment and one that should be brought under the Fifth for compensation.

Mr. Stainthorp: Yeah, then I am left with the distinction that I drew initially there, that if it was for the Government to actually do something with the trailer or in some way convert it into something for their own use, then it would appear that the takings clause would be more appropriate.

Unknown Speaker: But why does it have to--

--It's fair to say then that you neither pled below nor contend here that there was a taking?

Mr. Stainthorp: Correct.

Yes, that is correct, Justice Kennedy.

Unknown Speaker: Why does it have to fall into one or the other?

Mr. Stainthorp: Why couldn't it fall into both?

Unknown Speaker: You concede that it cannot fall into both?

Mr. Stainthorp: No, I don't concede that at all.

In fact it seems to me that there are several cases where this Court has analyzed actions under several possible constitutional provisions, and it seems to me it could certainly fall under both.

I had pled it and litigated it as a Fourth Amendment claim in that it appeared to be very precisely within that amendment.

Mr. Chief Justice, if I have any time remaining could I reserve it?

Unknown Speaker: Yes, Mr. Stainthorp.

Mr. Stainthorp: Thank you.

Unknown Speaker: Mr. Gillis, we'll hear from you.

Argument of Kenneth L. Gillis

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

The county officers here do not waive their state action argument.

On that the trial judge found that there was no evidence of conspiracy and dismissed the lawsuit on that basis.

However, we move onto the issues that have been--

Unknown Speaker: xxx thought there was plenty of state action?

Mr. Gillis: --They advanced a number, I think two or three positions.

One, they said that they would look at light, in the best light favorable to the petitioners here, which I think is the standard--

Unknown Speaker: Well anyway they didn't decide the case on the basis that there was not state action?

Mr. Gillis: --That's right.

Under one theme or another they went, they assumed there was state action and then went to the issue of whether the Fourth Amendment is implicated by the conduct here and secondly whether there was a violation of the due process clause.

We believe that the Fourth Amendment, protecting liberty and privacy interests, was not implicated by what occurred here.

The--

Unknown Speaker: How about its protection of property?

Mr. Gillis: --The Fourth Amendment's protection of property?

Unknown Speaker: Yes.

Mr. Gillis: We do not think the Fourth Amendment protects basic property interests.

The Katz decision states that those interests are largely to be left to the states.

Here there is an adequate state remedy.

Unknown Speaker: So that seizure basically is a dead letter unless it's accompanied by a privacy violation on your view?

Mr. Gillis: Yes.

Unknown Speaker: To me it's one thing to say that, as we have in Katz and later cases, that a violation of privacy constitutes a search and a seizure, or a seizure, even if there isn't any physical violation of property rights.

But it's quite another proposition to say that when there is a violation of property rights there is not a search and seizure, that privacy, in other words an invasion of privacy is an essential condition for a violation of the Fourth Amendment.

We have never said that before, have we?

Mr. Gillis: I admit that to put any type of ceiling on that conduct would be risky, but on the facts we have here where there is no prying or snooping, invading or inspecting, we think the Fourth Amendment is not involved.

It may be difficult to say--

Unknown Speaker: Well, what about the classic English case challenging general warrants, which is what this provision of our Constitution was all about, was a case alleging trespass, a violation of property interests.

I don't know how you can say that mere violation of property interest has nothing to do with the Fourth Amendment.

It's its whole background.

Mr. Gillis: --I think it was trespass to gain information that should be kept private, that persons have a right to keep private.

If it were just merely--

Unknown Speaker: Yes, but that was no part of the old trespass action, was it?

Mr. Gillis: --I'm sorry.

Unknown Speaker: That was no... I mean the intention to gain information was not part of the cause of action in Entick and Carrington, and there's no indication that that was, that that policy was somehow narrowed when the Fourth Amendment got adopted, was there?

Mr. Gillis: I think you have to look at the objective acts of the police officers or sheriffs.

Did they go there with an intent to gain evidence in some broad sense to use against the house holder?

And I say broad sense, I mean to include the health cases like Camara v. Municipal Court and Yee v. Seattle, as well as the more typical law enforcement case.

But I think in each instance the Fourth Amendment is protecting the--

Unknown Speaker: Mr. Gillis, could I give you an... we had an argument this morning arising out of a drug seizure in that the law enforcement agency took possession of a home that had been purchased with the proceeds of, allegedly, of drug transactions.

Supposing you had a yacht sitting in a harbor that was just bought with proceeds of crime and the Government wanted to go out and seize it to forfeit, and forfeit it.

Would you say there was a seizure or not when they go on board and take over the boat?

Mr. Gillis: --I think that could be a Fourth Amendment seizure if the Government is following through on some interest.

The early Fourth Amendment cases substantiate that.

Unknown Speaker: Even though there is no criminal proceeding, just that it's the proceeds of criminal conduct?

Mr. Gillis: I think that it, the Fourth Amendment should not be limited to the strict--

Unknown Speaker: To evidentiary searches, right?

Mr. Gillis: --Right.

But it should be viewed more in the sense of a Government end or a Government mission.

Unknown Speaker: So if this precise seizure we have in this case, to use the colloquial term rather than the constitutional term, had been for the purpose of forfeiting the trailer you would agree that would have been a seizure?

Mr. Gillis: Yes, or any typical police activity.

Unknown Speaker: So taking the trailer for the Government to keep does constitute a Fourth Amendment violation, but taking the trailer in order to give it back to the, well, they're taking it to get it off of the property--

Mr. Gillis: We think this is like the Cardwell case where the police car was parked on the public lot and then the police officers took paint scrapings from it and used those.

That was held not to be a search because there was nothing about that that invaded the privacy.

No peeking within it, no inspecting it.

The trailer here was sitting in plain view.

It was moved.

No officer looked inside it or attempted to introduce anything into evidence in any type of proceeding.

Unknown Speaker: --They didn't succeed in carrying it off either, did they?

Mr. Gillis: No, they... it was moved temporarily and given back to the petitioners in this case.

Unknown Speaker: Well, how was it moved?

It was not moved by mental telepathy or anything.

They seized it and moved it, didn't they?

Mr. Gillis: The trailer park people put a hook on it with a tractor, moved it off on its wheels to a nearby lot where it was kept safe.

Unknown Speaker: Isn't the theory of this case and wasn't the theory of the judgment below that it was in the possession of the police officers, that they took possession of it and moved it out of there?

Mr. Gillis: If you adopt the theory of the Seventh Circuit it was temporarily in their possession, but turned over again to the plaintiffs, unlike--

Unknown Speaker: I understand, but it seems to me that's at least a temporary seize.

I mean, you know, if words mean anything they seized it and moved it.

Mr. Gillis: --I think you could, using the common meaning of words it was a temporary seizure.

But what, we do not believe it was a Fourth Amendment seizure because it doesn't implicate the purposes of the Fourth Amendment.

We also believe that this is not a violation of the cases that this Court has handed down on substantive due process.

There is nothing about this activity that was fulfilling any Illinois policy, and we think the case cited by petition, Moore v. the City of East Cleveland, is far from the situation here.

Illinois had an adequate remedy for this.

In its forcible detainer and entry act, an eviction that goes ahead without a proper court order can be the subject of a damage action.

That remedy was always available, as was pointed out earlier.

If there are no other questions we would ask this honorable Court to affirm the conviction.

Unknown Speaker: In Texas against Brown Justice Stevens said that the Fourth Amendment protects two interests of the citizen, the interest in retaining possession of property and the interest in maintaining personal privacy.

You disagree with that?

Mr. Gillis: I think we do.

We would say that it should be--

Unknown Speaker: You have to, I suppose.

Mr. Gillis: --Yes.

We contend it should be limited to privacy interests and to liberty interests such as those involved in United States v. Place.

Unknown Speaker: Thank you... excuse me.

Have you got something?

Horton against California, that was something said by the court, wasn't it?

Mr. Gillis: Horton against California was the search where they were, the search warrant said rings and they also took guns.

Unknown Speaker: Well, the court said the right to security and person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures.

Mr. Gillis: Yes, we agree with that.

But that, the question is whether that involves cases where things are moved and implicating just the property or possessory interest rather than the typical motives behind the Fourth Amendment.

Unknown Speaker: Thank you, Mr. Gillis.

Mr. Stainthorp, you have 1 minute remaining.

Rebuttal of John L. Stainthorp

Mr. Stainthorp: Thank you, Your Honor, Mr. Chief Justice.

The respondents have now acknowledged that this was a seizure which occurred in this case but have held that it was, but have argued to Your Honors that it was not a Fourth Amendment seizure.

This is a wholly unnecessary gloss to put on the Fourth Amendment and the type of gloss which has never been placed on the Fourth Amendment before, that some seizures are Fourth Amendment seizures, other seizures are not Fourth Amendment seizures.

And it will further complicate a lot of Fourth Amendment litigation if this is allowed, if this kind of differentiation is allowed to continue.

Clearly the seizure in this case did violate the possessory interests that this Court has previously held are protected by the Fourth Amendment, and I think equally as clearly violated the privacy interests.

Therefore we would ask that the decision of the Seventh Circuit be overturned and this case remanded for trial on whether it was reasonable.

Chief Justice Rehnquist: Thank you, Mr. Stainthorp.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 91-6516, Soldal versus Cook County Illinois will be announced by Justice White.

Argument of Justice White

Mr. White: For the reasons stated in an opinion for unanimous Court which is on file with the Clerk and the judgment of the Court of Appeals for the Seventh Circuit in this case is reversed and the case is remanded for further proceedings.