THE STATE OF TEXAS, PETITIONER V. CLIFFORD JAMES BROWN

   No. 81-419

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the Court of Criminal Appeals of Texas

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      The Fourth Amendment permits the warrantless seizure of
      property based upon probable cause to believe that the
      seized item contains narcotics, even if the narcotics
      themselves are not visible
   Conclusion

                          QUESTION PRESENTED

   Whether the Fourth Amendment permits the warrantless seizure of a
tied-off balloon observed by a police officer in plain view during a
lawful stop of respondent's car, upon probable cause to believe that
the balloon contains narcotics.

                     INTEREST OF THE UNITED STATES

   This case presents an important question concerning the authority
of law enforcement officers to seize items that they observe in plain
view.  Past decisions of this Court and the federal appellate courts
have upheld the warrantless seizure of items that are observed in
plain view, provided the officer has probable cause to believe that
the item is contraband or evidence of a crime and that the officer is
located where he has a right to be at the time the item is observed.
The Court of Criminal Appeals of Texas has departed from the probable
cause standard, holding instead that in order lawfully to seize an
item in plain view without a warrant, the officer must "know that
'incriminatory evidence (is) before him * * * .'" J.A. 48 (emphasis
supplied;  citation omitted).  In the course of lawful investigative
and community caretaking activities federal agents frequently come
upon items that they have probable cause to believe are contraband or
fruits, instrumentalities, or evidence of a crime.  Because certainty
as to the incriminating nature of items discovered in this fashion is
rarely possible until they are subjected to closer examination or
analysis, effective enforcement of the federal criminal laws will be
severely hampered unless agents are permitted to seize evidence
discovered in plain view whenever they possess probable cause to do
so.  The holding of the court below represents a radical departure
from settled Fourth Amendment doctrine, with great potential for
unreasonable interference with federal law enforcement efforts.
Accordingly, the United States has a substantial interest in the
outcome of this case.

                               STATEMENT

   An indictment returned in the 213th District Court, Tarrant County,
Texas, charged respondent with possession of heroin in violation of
state law.  Prior to trial, respondent moved to suppress the heroin.
Following an evidentiary hearing, the district court denied
respondent's motion.  Respondent then plead nolo contendere to the
possession charge, reserving the right to appeal from the denial of
the suppression motion, and was sentenced to four years' imprisonment.
 The Texas Court of Criminal Appeals reversed the conviction on the
ground that the heroin had been illegally seized (J.A. 43-49).

   1. The evidence at the suppression hearing showed that on the
evening of June 18, 1979, Officer Harold Maples set up a routine
driver's license checkpoint on East Allen Street in Fort Worth, Texas.
 He and his fellow officers stopped every car travelling on the road
and inspected the license plate and inspection sticker of each car and
the operator's license of each driver (J.A. 6-11).  Sometime after
11:00 p.m., Officer Maples stopped a brown Buick driven by respondent.
 Respondent was alone in the car.  In response to Officer Maples
request that he produce his driver's license, respondent reached into
his right pants pocket.  When respondent kept his hand in his pocket
for longer than reasonably necessary to retrieve a license, Maples
shined a flashlight inside the car to see what respondent was doing.
As respondent withdrew his hand from his pocket Officer Maples noticed
that a green opaque balloon, knotted approximately one half inch from
the tip, was caught between respondent's two middle fingers.  The
balloon fell from his hand to the side of his leg (J.A. 12-16).

   Respondent next opened the glove compartment to look for his
license.  Inside the lighted compartment, Officer Maples saw several
small plastic vials, a lot of loose white powder, and a bag of party
balloons.  Respondent rummaged around the glove compartment and
finally told Maples that he did not have a license (J.A. 16-18).  The
officer instructed respondent to get out and to step to the back of
the car.  As respondent walked to the rear of the car, Maples noticed
the knotted balloon lying on the front seat.  Officer Maples had
participated in numerous narcotics arrests during his five and one
half years of experience as a patrol officer, including several in
which the contraband was found in a balloon.  In the year immediately
preceding the stop of respondent, Officer Maples had made an arrest in
which he recovered eight or nine multi-colored balloons containing
narcotics.  Based upon his experience and conversations with fellow
officers, the officer believed that the balloon on the car seat
contained narcotics (J.A. 14-15, 18, 21-22).  Officer Maples reached
in through the open window and retrieved it.  The bulging portion felt
as if it contained a powdery substance.  Officer Maples silently
displayed the balloon to another officer upon the scene.  The fellow
officer acknowledged that he "understood the situation" (J.A. 18-22,
25, 28).

   Officer Maples advised respondent that he was under arrest.  Maples
called for a tow truck and took an inventory of the passenger
compartment of the car.  He seized the balloon and vials from the
glove compartment, a large bottle of milk sugar from the back
floorboard, and several baggies containing a green leafy substance
that looked like marijuana.  The powder contained in the knotted
balloon was subsequently analyzed and determined to be heroin (J.A.
19-23, 32, 36).

   2. At the close of the evidentiary hearing the district court
denied respondent's motion to suppress the evidence seized from the
car (J.A. 41-42).  Respondent was convicted on his ensuing plea of
nolo contendere, but the Court of Criminal Appeals of Texas reversed.
Purporting to follow Coolidge v. New Hampshire, 403 U.S. 443, 468
(1971), the court held that the seizure of the knotted balloon was not
authorized by the plain view exception to the warrant requirement
(J.A. 48;  footnote and citation omitted):

         For the plain view doctrine to apply, not only must the
      officer be legitimately in a position to view the object, but it
      must be immediately apparent to the police that they have
      evidence before them.  This "immediately apparent" aspect is
      central to the plain view exception and is here relied on by
      (respondent) * * * .  In this case then, Officer Maples had to
      know that "incriminatory evidence was before him when he seized
      the balloon." DeLao v. State, 550 S.W.2d 289, 291 (Tex. Crim.
      App. 1977).

   Because it was impossible to be certain from its outward appearance
that the seized balloon contained contraband, the Court of Criminal
Appeals held that the warrantless seizure of the balloon was
impermissible.

   Petitioner sought leave to file a motion for rehearing, but this
application was denied with three judges dissenting (J.A. 50-54, 55).
Speaking for the dissenters, Judge McCormick wrote that the "judicial
inquiry (should focus) upon the State's ability to prove the officer
has probable cause to associate the party balloon with criminal
activity.  * * * The issue turns on whether an officer, relying on
years of practical experience and knowledge commonly accepted, has
probable cause to seize the balloon in plain view" (J.A. 51;
footnotes omitted;  emphasis in the original).  Judge McCormick
concluded that the record supported a finding of probable cause,
noting that balloons are "commonly associated with the distribution,
packaging, and transportation of controlled substances -- usually
heroin" (J.A. 53).  He distinguished respondent's tied-off balloon
from other items the majority had treated as analogous (J.A. 52-53):

      Photographic negatives can and do represent such diverse subject
      matters that they cannot warrant a "man of reasonable caution"
      to believe they contain any contraband.  Similarly, translucent
      vials which commonly contain legally obtained prescriptions
      render the presence of contraband vague and uncertain.  The
      officer knows the vials contain drugs or even narcotics for that
      is their purported use.  However, without other supporting
      facts, it is this inherent use that prevents the "man of
      reasonable caution" from having probable cause to believe the
      presence of contraband.

   By contrast, Judge McCormick concluded that here "the incriminating
nature of the balloon was immediately apparent" to Officer Maples in
light of "his specific knowledge and prior experience with the drug
culture," and that the seizure was accordingly lawful (J.A. 54).

                          SUMMARY OF ARGUMENT

   The only issue presented for review in this case is whether, as the
Texas Court of Criminal Appeals held, the Fourth Amendment precludes
seizure of an item observed in plain view by law enforcement
officials, based upon probable cause to believe that it contains
contraband or evidence of crime, simply because the officer cannot be
certain at the time of the seizure as to the actual identity of the
contents seized.  The decision of the Texas court is not merely
inconsistent with the directly relevant decisions of this Court and of
other courts that have considered this issue, it shreds the fabric of
applicable general Fourth Amendment principles, producing an anomalous
result that threatens wholly unjustified injury to law enforcement
efforts.  In the specific context of this case, for instance, the
court's holding that probable cause is insufficient to support a
seizure effectively requires police to allow a container that more
probably than not contains contraband drugs to be returned into the
community.

   1. In Payton v. New York, 445 U.S. 573, 586-587 (1980), the Court
made clear that probable cause is a sufficient level of suspicion to
support a plain view seizure.  And in Colorado v. Bannister, 449 U.S.
1 (1980), the Court upheld a plain view seizure on facts similar in
material respects to those present here.  Moreover, this Court's
decisions requiring warrants for certain searches of movable
containers, United States v. Chadwick, 433 U.S. 1 (1977), and Arkansas
v. Sanders, 442 U.S. 753 (1979), make clear that seizure of an item
observed in plain view or in a public place based upon probable cause
is permissible.  Indeed, any workable view of the warrant requirement
presupposes that a warrantless probable cause seizure is permitted
while a warrant is sought.  A seizure is similarly permissible when
the search is one for which no warrant is required.

   The plain view doctrine simply recognizes that the privacy
protection function of the Fourth Amendment has no application to
seizures of items found in plain view or in a public place.  Such
seizures are in this respect to be distinguished from searches, which
do implicate Fourth Amendment privacy concerns.  G.M. Leasing Corp. v.
United States, 429 U.S. 338, 351, 354 (1977).  Because a seizure
implicates only property interests any injury to which can be fully
remedied in a post-seizure judicial proceeding, the reasonableness
criterion of the Fourth Amendment is fully satisfied by the simple
requirement that a seizure be supported by probable cause.

   2. The decision of the court below rests entirely upon an
elementary misinterpretation of language pulled out of context from
the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443,
466-467 (1971), which indicates that the plain view doctrine applies
only to seizures of items the evidentiary value of which is
immediately apparent to police.  But even a casual reading of the
language in question reveals that Justice Stewart did not mean that
certainty or any species of super-probable cause is required to
validate a plain view seizure.  Rather, the plurality opinion simply
reflects the concern that the plain view doctrine not be enlisted as a
pretext for conducting unauthorized searches of items that are in
plain view but not themselves suspicious.  In short, as the courts of
appeals have uniformly agreed, the requirement noted in Coolidge is
simply that the probable cause upon which a seizure rests must be
apparent to the officer upon a casual inspection of the item not
entailing any additional search.

   The plain view seizure in this case was clearly proper.  Officer
Maples was entitled to be where he was when he observed the balloon in
plain view.  There is no dispute that he had probable cause to seize
the balloon.  Accordingly, he acted properly in doing so.

                               ARGUMENT

 THE FOURTH AMENDMENT PERMITS THE WARRANTLESS SEIZURE OF PROPERTY
BASED UPON PROBABLE CAUSE TO BELIEVE THAT THE SEIZED ITEM CONTAINS
NARCOTICS EVEN IF THE NARCOTICS THEMSELVES ARE NOT VISIBLE

   The only issue presented in this case is whether the Fourth
Amendment requires that a standard h.gher than or different from
probable cause be satisfied to justify the arrantless seizure of an
item that falls into plain view during the course of a lawful stop of
an automobile or other lawful police activity.  here is no claim here
that the fixed-point roadblock stop of respondent's automobile was
unlawful.  Nor would such a claim have merit.  See Delaware v. Prouse,
440 U.S. 648, 663 (1979).  Consequently, Officer Maples had a right to
be standing next to respondent's car as he was when he first saw the
knotted balloon.  And it is uncontroverted that the discovery of the
balloon was inadvertent (compare Coolidge v. New Hampshire, 403 U.S.
443, 469-473 (1971) (opinion of Stewart J.)), and that the balloon was
plainly visible to the officer from his lawful vantage point.

   Furthermore, no question of the validity of any search is presented
here.  Officer Maples was not searching the automobile when he saw the
balloon (see Ker v. California, 374 U.S. 23, 43 (1963) (opinion of
Clark, J.)), and the respondent has not challenged the authority of
the state to empty the balloon and assay its contents following its
seizure.  /1/ Indeed, the Texas court did not condemn the "search" of
the balloon;  rather, it deemed the seizure unlawful ab initio.  But
the Fourth Amendment does not require certainty to justify seizures,
whether warrantless or otherwise;  rather, probable cause is the
governing standard.  The Texas court accordingly applied the wrong
standard to the facts of this case.

   1. The decision of the Texas court represents a sharp break with
past decisions of this Court.  The Court stated in Payton v. New York,
445 U.S. 573, 587 (1980) (emphasis added), "(t)he seizure of property
in plain view involves no invasion of privacy and is presumptively
reasonable, assuming that there is probable cause to associate the
property with criminal activity." Recently, in Colorado v. Bannister,
449 U.S. 1 (1980), the Court upheld a warrantless seizure on facts
very similar to those of the instant case.  In Bannister, a police
officer stopped a speeding automobile.  While talking to the occupants
of the car, the officer observed in plain view chrome lug nuts in an
open glove compartment and two lug wrenches on the floor of the back
seat.  449 U.S.at 2.  Because the occupants fit the description of
individuals reported to have stolen motor vehicle parts, the officer
seized the items.  This Court held that "if there was probable cause
'that the contents of the automobile offend against the law,' Carroll
(v. United States, 267 U.S. 132, 159 (1925)), the warrantless seizure
was permissible,' 449 U.S.at 3 (footnote omitted).  The Court
explained the rationale for permitting such warrantless seizures (449
U.S.at 3 n.2):

         Another factor that contributes to the justification for the
      absence of a warrant in such a situation is that "the
      circumstances that furnish probable cause to search a particular
      auto for particular articles are most often unforeseeable."
      Chambers (v. Maroney, 399 U.S. 42, 50-51 (1970)).  See also
      Cardwell v. Lewis, 417 U.S. 583, 595 (1974).  This factor
      applies with particular force in this case.  As the reason for
      the stop was wholly unconnected with the reason for the
      subsequent seizure, it would be especially unreasonable to
      require a detour to a magistrate before the unanticipated
      evidence could be lawfully seized.

   After reviewing the evidence, the Court determined that the seizure
was supported by probable cause and hence was lawful.  449 U.S.at 4.

   Colorado v. Bannister should control the instant case.  Like the
officer in Bannister, Officer Maples' approach to the side of
respondent's car was entirely legitimate;  the stop was not a pretext
to look for narcotics.  Moreover, neither officer undertook a search;
the balloon, like the lug nuts, was in plain view.  Also, both
officers had probable cause to believe that the items before them were
evidence of a crime, yet neither officer could be certain that such
was the case.  Indeed, probable cause was arguably stronger in the
instant case than in Bannister.  Lug nuts and wrenches are not
suspicious in and of themselves, and innocent people commonly possess
them.  On the other hand, a knotted, bulging, uninflated balloon is
almost always connected with narcotics.  To be sure, individuals may
innocently possess inflated balloons or untied, uninflated balloons;
when filled with air or water, a balloon is a common toy.  But
otherwise balloons are rarely used as repositories for anything except
narcotics.  Further, the probable cause in the instant case was
enhanced by Officer Maples' observation of the powder, vials, and bag
of balloons in requires that a standard higher than or different from
probable cause be satisfied to justify the warrantless seizure of an
item that falls into propbably contained an illegal drug.  See United
States v. Cortez, 449 U.S. 411, 418 (1981).  Indeed, it has long been
settled that the kind of lawful police activity.  There is no claim
here that the fixed-point to justify a probable cause seizure.
Brinegar v. United States, 338 U.S. 160, 173-176 (1949).

   In addition to Colorado v. Bannister, the Court has upheld other
warrantless seizures based on probable cause.  For instance, in Warden
v. Hayden, 387 U.S. 294 (1967), the officers were searching a house in
hot pursuit of a robber when they discovered some clothing of "the
type the fleeing man was said to have worn,' Id. at 298.  The officers
were permitted to seize the clothing without a warrant because they
"could reasonably believe that the items would aid in the
identification of the culprit." Id. at 307.  Warden v. Hayden thus
established that even "mere evidence" may be seized without a warrant
upon probable cause.

   In United States v. Chadwick, 433 U.S. 1, 3 (1977), the Court
recognized that the Fourth Amendment was not offended by the
warrantless seizure of a footlocker when the agents had probable cause
to believe that it contained contraband.  Nevertheless, the Court
invalidated the subsequent warrantless search of the lawfully seized
footlocker, because the Fourth Amendment recognizes a difference
between seizures and searches.  See also Arkansas v. Sanders, 442 U.S.
753, 761-762 (1979).

   The Fourth Amendment principally protects legitimate privacy
interests.  See Rakas v. Illinois, 439 U.S. 128, 152-153 (1978)
(Powell, J., concurring).  It is ordinarily the search rather than the
seizure that intrudes upon that protected interest, and accordingly
the warrant requirement is interposed to ensure that only justifiable
searches are undertaken.  Because the seizure of property from an open
place upon probable cause does "not involve any invasion of privacy,"
and because any unjustified infringement upon property interests due
to a seizure can be fully remedied by post-seizure proceedings, a
warrantless probable cause seizure does not offend the Fourth
Amendment.  G.M. Leasing Corp. v. United States, 429 U.S. 338, 351,
354 (1977).  Similarly, police may seize a person upon probable cause
in a public place without a warrant (United States v. Watson, 423 U.S.
411 (1976)), although they must have a warrant to search for that
person inside a home in the absence of exigent circumstances.  Payton
v. New York, supra, 445 U.S.at 590;  Steagald v. United States, 451
U.S. 204, 221-222 (1981).

   The plain view doctrine is simply an acknowledgement of this
distinction between searches and seizures.  It authorizes the
warrantless seizure of contraband or evidence upon probable cause when
the legality of the means by which the object is discovered is not in
question.  The discovery may occur in one of two ways:  the police may
come upon it while lawfully searching for something else (see, e.g.,
Warden v. Hayden, supra), or the police may notice the evidence while
not conducting a search at all, but instead in the course of some
other legitimate activity (see, e.g., Colorado v. Bannister, supra;
Harris v. United States, 390 U.S. 234 (1968) (registration card
discovered while rolling up the windows of an impounded car)).  A
contemporaneous seizure is permitted because" it would be especially
unreasonable to require a detour to a magistrate before the
unanticipated evidence could be lawfully seized." Colorado v.
Bannister, supra, 449 U.S.at 3 n.2.  Consequently, a warrantless
probable cause seizure of property in open view or in public is
"presumptively reasonable" unless it is the fruit of an unlawful
search.  Payton v. New York, supra, 445 U.S.at 586-587.

   2. a. The ruling of the court below that something more than
probable cause is needed to support a seizure construes the Fourth
Amendment to produce the entirely unreasonable result that police must
allow a container that probably contains illicit drugs to be released
into the community.  This decision rests on a misinterpretation of
language taken out of context from the plurality opinion in Coolidge
v. New Hampshire, supra.  Justice Stewart wrote (403 U.S.at 466;
emphasis added):

      Of course, the extension of the original justification (for the
      search or other police presence) is legitimate only where it is
      immediately apparent to the police that they have evidence
      before them;  the "plain view" doctrine may not be used to
      extend a general exploratory search from one object to another
      until something incriminating at last emerges.

   Ignoring the second clause of the quoted sentence, the Texas court
interpreted the highlighted text to require that the police officer
must "know" that the item seized is incriminating.  As the quoted
language in its entirety makes clear, however, the plurality was
simply expounding the prohibition against general searches by
underscoring that police may not ignore the limitations of a warrant
or other authority for their presence in a particular location or
vantage point by examining every innocuous article in a location,
hoping that closer inspection will disclose that it is related to some
crime.  If they do so, any discovery of incriminating evidence would
raise a question of the lawfulness of the search that revealed the
incriminating nature of the evidence, and not simply of the lawfulness
of the seizure resting on probable cause obtained without a search.
Thus, to guard against the conduct of exploratory searches in the
guise of "plain view" seizures, the law requires that the suspicious
nature of the object that falls into the plain view of the officer
must be immediately apparent before it can be seized -- but this means
nothing more than that the seizure must be based upon probable cause
acquired without further search.  Read in context, nothing in Coolidge
supports application of a standard higher than probable cause to
determine the lawfulness of a plain view seizure.

   The federal appellate courts have uniformly held that probable
cause suffices to authorize a plain view seizure.  See, e.g., United
States v. Chesher, 678 F.2d 1353, 1357 (9th Cir. 1982):

      (W)e know of no authority suggesting that Coolidge requires that
      an object be conclusively incriminating.  We agree with the
      Second Circuit that "under the plain view doctrine . . . the
      incriminating nature of an object is generally deemed
      'immediately apparent' where police have probable cause to
      believe it is evidence of crime." United States v. Ochs, 595
      F.2d 1247, 1258 (2d Cir. 1979).  This is consistent with the
      rationale for allowing plain view seizures.  If the benefit of
      permitting warrantless seizure in narrow circumstances is
      avoidance of the inconvenience of obtaining a warrant for
      inadvertently discovered evidence, Coolidge, 403 U.S.at 467-68,
      * * * it follows that an object's possible relevance as evidence
      need not be shown to any greater degree than would be sufficient
      to obtain a warrant were one sought.  We hold that if facts
      sufficient to provide probable cause to believe an object is
      incriminating are immediately apparent to the officer, the third
      Coolidge requirement is met.

   Accord, United States v. Hillyard, 677 F.2d 1336, 1341-1342 (9th
Cir. 1982);  United States v. Strahan, 674 F.2d 96, 100 (1st Cir.),
cert. denied, No. 81-6571 (June 1, 1982);  United States v. Irizarry,
673 F.2d 554, 558 (1st Cir. 1982);  United States v. Tolerton, 669
F.2d 652, 654 (10th Cir.), cert. denied, No. 81-6451 (Apr 26, 1982);
United States v. Heldt, 668 F.2d 1238, 1267 (D.C. Cir. 1981);  United
States v. Sanders, 631 F.2d 1309, 1314-1315 (8th Cir. 1980), cert.
denied, 449 U.S. 1127 (1981);  United States v. Miller, 608 F.2d 1089,
1099 (5th Cir. 1979), cert. denied, 447 U.S. 926 (1980);  United
States v. Ochs, 595 F.2d 1247, 1258 (2d Cir. 1979) (collecting cases).
 See also, United States v. Scarfo, No. 81-2181 (3d Cir. July 22,
1982), slip op. 24 (Gibbons, J., dissenting);  2 W. LaFave, Search and
Seizure Section 7.5(b), at 593-595 (1978).  /2/

   Indeed, not even the prior state decisions relied upon by the Texas
court (J.A. 48) adopt a standard stricter than probable cause.  For
example, in Howard v. State, 599 S.W.2d 597 (Tex. Crim. App. 1979),
the court invalidated a warrantless seizure because "at the moment
that the (brown plastic medicine jar) came into 'plain view' Officer
Holland had no basis for believing that its contents were inherently
suspicious or that they were in fact contraband." Id. at 602.  In
overruling the State's motion for rehearing, the court further
explained the basis for its decision:  "Holland did not have probable
cause to seize the bottle * * * ." Id. at 605.  Likewise, in Nicholas
v. State, 502 S.W.2d 169 (Tex. Crim. App. 1973), the court suppressed
photographic negatives because "the officers had, prior to examining
the negatives, neither knowledge nor mere suspicion of an offense
related to the film." Id. at 172.  Hence, neither of these cases at
all supports the result reached by the Texas court in the instant
case.

   Likewise, in the two other cases relied upon by the Texas court,
plain view seizures were condemned because the State failed to prove
that the items were suspicious to the officers observing them.  First,
in Duncan v. State, 549 S.W.2d 730 (Tex. Crim. App. 1977), the officer
saw the defendant slip a plastic bag into his pocket, but the officer
was unable to see what it contained.  The court found a Fourth
Amendment violation (id. at 732):

         In the instant case, the officer was legitimately in position
      to view any contraband;  however, by his own testimony, he did
      not know what the plastic baggie contained and he expressed no
      suspicion as to what it might contain.

   Also, in DeLao v. State, 550 S.W.2D 289 (Tex. Crim. App. 1977), the
defendant prevailed because the prosecution had not proved that an
officer, who seized a red balloon, knew that heroin is commonly stored
in balloons.  Nor did it offer any evidence showing that balloons are
frequently used in the narcotics trade.  Instead, it asked the court
to take notice of this fact, which the court refused to do.  Id. at
291.

   b. In contrast to the above cases, the prosecution here provided
ample evidence of probable cause.  It showed that Officer Maples knew
that narcotics are commonly stored in balloons and that he had
participated in previous arrests in which such balloons were seized.
Indeed, the significance of the ballon was so obvious that when
Officer Maples silently showed the balloon to his colleague, he too
instantly recognized its incriminating nature.  Moreover, Officer
Maples' suspicion was buttressed by the narcotic paraphernalia
observed in the glove compartment.  The totality of the circumstances
supplied ample probable cause for the seizure of the balloon.  Under
the Fourth Amendment no more was needed to permit a prompt,
warrantless seizure.

   In sum, the Fourth Amendment was not offended by the warrantless
seizure of the knotted balloon from respondent's car.  The seizure was
not the fruit of a search because Officer Maples was lawfully standing
next to respondent's car when he saw the balloon in plain view.
Accordingly, respondent's legitimate privacy expectations have not
been breached.  Officer Maples had ample reason to believe that the
balloon contained narcotics.  He properly rested his conclusion on his
past experience with narcotics traffickers and was not foreclosed from
making reasonable inferences about the balloon merely because it was
opaque.  /3/ And insofar as the court below may have based its ruling
on the lack of a warrant, that result cannot be squared with the
Fourth Amendment;  it would have been a needless and unreasonable
inconvenience to require other police officers to guard the accessible
contraband while Officer Maples secured a warrant authorizing seizure
of the balloon.  /4/

                              CONCLUSION

   The judgment of the Court of Criminal Appeals of Texas should be
reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   JOSHUA I. SCHWARTZ

      Assistant to the Solicitor General

   PATTY MERKAMP STEMLER

      Attorney Attorney

   August 1982

   /1/ So far as we are aware, the record does not reveal where and
when the balloon was opened, although it appears that Officer Maples
did not do so on the spot (J.A. 30).  Even assuming that the balloon
was subsequently opened without a warrant, any search entailed is
justifiable on several rationales.  Examination of the contents of the
balloon falls within the automobile exception to the warrant
requirement.  See United States v. Ross, No. 80-2209 (June 1, 1982).
Once Officer Maples saw the knotted balloon on the seat and the vials,
powder and package of balloons in the glove compartment, probable
cause focused on the car itself.  From the evidence before him,
Officer Maples could reasonably conclude that the car was being used
as a packaging site for narcotics.  Thus, without a warrant, police
were permitted to search the automobile, seize any incriminating
evidence, and open for further examination any container, including
the knotted balloon, that was reasonably suspected of containing
evidence or contraband.  Id. at 19-25.  The fact that the "search" of
the balloon may not have been conducted at the scene of the auto
search is, of course, of no moment.  Chambers v. Maroney, 399 U.S. 42,
51-52 (1970).

   Alternatively, irrespective of its setting in an automobile, a
knotted balloon containing a powdery substance may be searched without
a warrant because it is rarely associated with anything other than
narcotics.  Like a gun case or a kit of burglar tools, a knotted,
bulging balloon "by (its) very nature cannot support any reasonable
expectation of privacy because (its) contents can be inferred."
Arkansas v. Sanders, 442 U.S. 753, 764-765 n.13 (1979).  Finally, if
the balloon was opened at the arrest scene, the search is justifiable
as a contemporaneous incident of the arrest.  New York v. Belton, 453
U.S. 454 (1981).

   /2/ Because probable cause arose prior to the time Officer Maples
touched the balloon, this case does not require the Court to decide
the extent to which police may examine any item found in plain view in
order to determine whether it is incriminating.  Compare, e.g., United
States v. Crouch, 648 F.2d 932 (4th Cir.), cert. denied, No. 81-5009
(Oct. 19, 1981), with United States v. Scios, 590 F.2d 956, 963 n.15
(D.C. Cir. 1978).  In addition, because the discovery of the balloon
was inadvertent, there is no need to consider the soundness of the
suggestion of the Coolidge plurality that inadvertent discovery of an
item is required for a valid plain view seizure (a suggestion that may
in any event be limited to seizures made during the execution of a
search warrant naming items other that that seized).

   /3/ Indeed, even if the balloon had been transparent, Officer
Maples could not conclusively ascertain that it contained heroin
without opening it and testing the contents.  Almost any article will
require further examination before its evidentiary value may be
definitely established.  The Court of Criminal Appeals' decision
accordingly threatens the viability of the plain view doctrine itself.

   /4/ Of course such detention of the balloon pending resort to a
magistrate could be deemed a seizure as well.  The implication of the
Court of Criminal Appeals' decision is accordingly that no action
could be taken to secure the balloon.

   We note that the seizure of respondent's balloon in this case may
also be justified as incident to respondent's arrest.  New York v.
Belton, supra.  Because probable cause to arrest respondent on a
driving charge, as well as on the drug charge, arose prior to the
seizure of the balloon, it is immaterial that the formal arrest
followed the seizure.  Rawlings v. Kentucky, 448 U.S. 98, 110-111
(1980).  This alternative justification for the seizure simply
illustrates the anomalous nature of the ruling below.  Similarly,
because respondent was the sole occupant of the car and had been
lawfully arrested, some seizure of the car and its contents, including
the balloon, was undoubtedly a reasonable exercise of community
caretaking responsibilities.  Cady v. Dombrowski, 413 U.S. 433,
443-448 (1973);  cf. South Dakota v. Opperman, 428 U.S. 364, 367-372
(1976).  Accordingly, the effect of the decision below is to attribute
constitutional significance to the fact that the balloon and
automobile were seized separately.