THE PEOPLE OF THE STATE OF MICHIGAN, PETITIONER v. DAVID KERK LONG

   No. 82-256

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the Supreme Court of the State of Michigan

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      I. A police officer who has lawfully stopped a car
   and reasonably suspects that the occupant might be
   armed and dangerous may conduct a limited inspection
   of the car for weapons even if the suspect is no longer
   seated in it
      II. The Fourth Amendment permits an inventory
   search of the unlocked trunk of a car about to be towed
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether a police officer who has lawfully stopped a car to
question the driver, and who reasonably suspects that the car might
contain a weapon and that the driver might be dangerous, may conduct a
limited search of the car for the weapon even if the driver is
standing outside the car.

   2. Whether a search of the unlocked trunk of a car about to be
towed can be justified as a routine inventory.

                     INTEREST OF THE UNITED STATES

   This case presents an important question concerning the power of a
law enforcement officer to protect himself when he stops an automobile
on reasonable suspicion.  Various federal law enforcement authorities
routinely make such stops for investigative purposes, and the
resolution of this issue will determine the extent to which such
officers may protect their safety by conducting a limited weapons
search of the inside of the automobile.  This case also presents a
question concerning searches made for the purpose of taking an
inventory of a vehicle that is, or is about to be, impounded by the
authorities.  Federal law enforcement agencies have inventory
practices that share some of the characteristics of the inventory
search at issue in this case.

                               STATEMENT

   1. Shortly after midnight on the morning of August 25, 1977,
Deputies Howell and Lewis of the Barry County, Michigan, sheriff's
department saw an automobile speed past them in the opposite
direction;  their radar showed the car to be going 71 miles per hour.
Pet. App. 14, 36;  H. Tr. 4.  /1/ The deputies turned around and
pursued the car briefly.  They then saw it swerve and come to rest
with its front wheels in a shallow ditch beside the road.  The back of
the car was on the roadway.  Pet. App. 14.

   Respondent was the driver and only occupant of the car.  When the
deputies' vehicle parked behind his, respondent stepped from the car,
leaving the driver's side door open, and met the deputies near the
rear of his car.  Deputy Howell asked respondent for his driver's
license;  respondent gave no answer.  The deputy asked again, and
respondent produced his license.  Deputy Howell then asked respondent
for his vehicle registration;  again respondent made no response.
When the deputy repeated his request, respondent, without saying
anything, began walking toward the open door of his car.  Pet. App.
14-15;  H. Tr. 26.  By this time, Deputy Howell had concluded that
respondent "appeared to be under the influence of something" (Pet.
App. 15;  H. Tr. 20, 24).  /2/

   The deputies followed respondent back toward the car.  As they
approached the open door, Deputy Howell saw a large folding hunting
knife with a four-inch blade lying closed on the floor in front of the
driver's seat.  Deputy Howell immediately told respondent to halt and
to place his hands on the roof of the car;  he then patted down
respondent's clothing to see if he was carrying any weapons (Pet. App.
15 & n.1;  H. Tr. 6).  Deputy Lewis picked up the knife (Pet. App. 15;
 H. Tr. 48).

   Deputy Howell then shone his flashlight into the front seat of
respondent's car.  Pet. App. 15.  He explained that he was "looking *
* * (t)o see if there was another weapon in the car" (H. Tr. 6-27;
see Pet. App. 36).  Deputy Howell saw, in the flashlight beam, a
leather object protruding from under the fold-down armrest that
separated the driver's side of the front seat from the passenger's
side.  Pet. App. 15;  H. Tr. 22-23.  Because Deputy Howell could not
tell what this object was (H. Tr. 37), he knelt in the car and lifted
the armrest.  He then saw that the object was a leather pouch with a
plastic bag protruding from it.  Through the portion of the plastic
bag that was protruding Deputy Howell saw a substance that he
recognized as marijuana.  Pet. App. 15, 37;  H. Tr. 7, 37.  Deputy
Howell did not remove the pouch from the front seat until he had seen
the marijuana in it.  H. Tr. 30.

   While these events occurred, respondent was standing near the rear
of the car, two or three feet from the open door, with Deputy Lewis,
Pet. App. 15;  H. Tr. 27.  Respondent was not handcuffed, and Deputy
Lewis had not drawn his gun.  H. Tr. 25, 28.  /3/

   2. When Deputy Howell saw the marijuana, he seized the pouch and
placed respondent under arrest for possession of marijuana.  He
determined that respondent's car would have to be towed because
respondent was under arrest, there was no other driver, and the car
was partially blocking the road.  After searching the inside of the
car -- a search that did not uncover the registration -- Deputy Howell
walked to the rear of respondent's car and noticed, for the first
time, that the trunk lock had been "punched out" (Pet. App. 15-16).
He reached into the opening with a pocket knife and opened the trunk.
Deputy Howell explained his reasons for doing so (H. Tr. 10-11):

      It was unusual circumstances to me.  Also we check the vehicle
      to make sure there's nothing, you know, that's valuable.

                      * * * * *

      I can't speak for the other officers, myself I check the vehicle
      to make sure there's nothing of value in there that can be later
      claimed --

                      * * * * *

      (I opened the trunk n)umber one, because I already found (the)
      marijuana, suspected marijuana in the interior of the car, there
      may have been more in the trunk.  Secondly I check them for
      valuables.

   In the trunk Deputy Howell found two large paper bags that
contained approximately 75 pounds of marijuana.  Pet. App. 16.

   3. The Barry County Circuit Court denied respondent's motion to
suppress the marijuana.  The judge explained his determination that
the marijuana found on the front seat of the car was admissible as
follows (Op. Tr. 5):

      I'm satisfied the officers were justified in searching the
      automobile for their protection.  They observed this large knife
      and * * * they believed the defendant was under the influence of
      something from his actions.  As I remember, he refused to say
      anything.  * * *

         I'm satisfied that * * * the condition of the defendant, * *
      * his movement towards the automobile, and the view of the large
      knife, caused the officers to be apprehensive for their own
      safety, and therefore, they could make a search for weapons
      within the immediate surroundings of the defendant.

         I'm satisfied that this leather pouch could have contained a
      weapon * * * .

   The judge also found that Deputy Howell opened the trunk because he
was "concerned about valuables" (Op. Tr. 6).  He upheld the search of
the trunk as a lawful inventory search (ibid.).

   A Circuit Court jury convicted respondent of possession of
marijuana, in violation of Mich. Comp. Laws Section 335.341(4)(d).  He
was sentenced to two years' probation, a $750 fine, and $300 in court
costs.  Pet. App. 35.

   4. The Michigan Court of Appeals affirmed respondent's conviction.
It held first that under Terry v. Ohio, 392 U.S. 1 (1968), "Deputy
Howell's precautionary lifting of the frontseat armrest prior to
allowing (respondent) to reenter his automobile was constitutionally
valid as a protection search" (Pet. App. 39).  The court found that
Deputy Howell's inspection of the front seat was a "carefully
circumscribed intrusion" and that there was "no evidence of a
fullscale search of the automobile's interior" before respondent was
arrested (id. at 40).  The court noted that respondent had behaved
erratically and was about to reenter the car when Deputy Howell saw
the knife, and it ruled that the deputies were not "constitutionally
required to allow (respondent) access to the driver's seat of his
automobile without first taking the protective precaution of * * *
ensur(ing) that no weapon was readily available there to
(respondent's) grasp" (ibid.).

   The Michigan Court of Appeals also held that Detective Howell's
search of the trunk of respondents' car was a valid inventory search
under South Dakota v. Opperman, 428 U.S. 364 (1976) (Pet. App. 42-44).
 The court of appeals stated that the decision to impound the vehicle
was "clearly reasonable" in view of respondent's arrest and the car's
location and vulnerability to theft (id. at 42).  The court also found
it immaterial that the search was conducted at the scene (id. at
42-43).  The court noted the trial judge's finding that Deputy
Howell's decision to search the car was prompted at least in part by
his intention to take an inventory of valuables, and ruled that Deputy
Howell's reliance on an additional, "concurrent," and arguably valid
basis for the search -- that he could permissibly search for
additional evidence once respondent had been arrested for possession
of marijuana -- did not undermine the inventory search rationale (id.
at 43-44).

   5.  The Michigan Supreme Court, by a divided vote, reversed
respondent's conviction.  The majority did not question Deputy
Howell's pat-down of respondent's person, but it held that Terry v.
Ohio, supra, "authorized only a limited pat-down search of a person
suspected of criminal activity.  That case did not authorize the
search of an area" (Pet. App. 18;  emphasis in original;  footnote
omitted).  The court added that "(a)ny weapon which might have been
hidden in the car would have been out of the reach of (respondent) and
thus not a danger to the deputies.  Therefore, the sole justification
of the Terry search, protection of the police officers and others
nearby, cannot justify the search in this case" (id. at 18-19;
footnote omitted).  The court then held that the marijuana found in
the trunk was the fruit of the search of the front seat because the
state sought to justify the search of the trunk either as an inventory
search or as a search incident to arrest, and, the court ruled, both
justifications rested on the discovery of marijuana on the front seat
(id. at 19-20).

   Chief Justice Coleman dissented.  She first rejected the majority's
holding that Terry permitted only the search of a person, not the
search of an area.  She noted that in Terry itself the suspect wore an
overcoat that the officer patted down, but that "a different result
would not have been constitutionally required if the overcoat had been
carried, folded over the forearm, rather than worn" (Pet. App. 23).

   Chief Justice Coleman also disagreed with the majority's conclusion
that the protective search of the front seat was unjustified because
respondent was unable to reach any weapons in the car at the time.
She noted that had respondent not been arrested, he would have been
allowed to reenter the car;  in addition, she observed, respondent
might have broken away and attempted to reenter the car while the
deputies were still questioning him.  In either event, respondent's
"entry into the vehicle would have permitted him to gain possession of
any readily accessible weapons in the vehicle" (Pet. App. 24).

   Chief Justice Coleman also concluded that Deputy Howell's
inspection of the front seat was not excessive in scope.  She reasoned
that the circumstances surrounding respondent's encounter with the
deputies, including his erratic behavior and the knife on the floor of
the car, gave them ample reason to shine a light into the car to see
if other weapons were accessible.  When Deputy Howell did so, he saw
the leather pouch;  and "(c)onsidering all the circumstances,
including that one weapon had already been found and that the leather
pouch was large enough to hold another, the officer could have
reasonably concluded that safety required * * * (t)he lifting of the
armrest" (Pet. App. 25).  Moreover, she remarked, "(i)n contrast to
the gravity of the dangers confronting the officers, the raising of
the armrest was a minimal intrusion into (respondent's) legitimate
expectation of privacy.  The area underneath an armrest is not a * * *
common repository for personal effects" (id. at 26).  The marijuana,
she noted, was in plain view once Deputy Howell lifted the armrest
(ibid).  Chief Justice Coleman also concluded that the search of the
trunk was lawful (id. at 27).

   Justice Moody agreed with Chief Justice Coleman's analysis of the
inspection of the front seat.  He reasoned that the discovery of the
knife justified the deputies' decision not only to ensure that
respondent had no weapons on her person but "to conduct a brief search
of the interior of the automobile for weapons, limited to areas in
which a weapon could be concealed, yet accessible" (Pet. App. 28).
The reason for the search, Justice Moody stated, was that "the
officers might be endangered if (respondent) was permitted to re-enter
the vehicle to gather requested information or to drive away at a
later point" (ibid.).  Justice Moody further concluded that Deputy
Howell's inspection of the front seat "was confined in scope
reasonably designed to discover additional hidden instruments for
potential assault upon the police officers" (ibid.).

   Nevertheless, Justice Moody agreed with the majority that
respondent's conviction should be reversed, concluding that the search
of the trunk was illegal.  He noted in particular that in this case,
unlike South Dakota v. Opperman, supra, there was no standard
inventory policy applied by the police department (Pet. App. 32).

                          SUMMARY OF ARGUMENT

                                   I

   Terry v. Ohio, 392 U.S. 1 (1968), held that a police officer who
has lawfully stopped a suspect, and who believes that the suspect may
be armed and dangerous, may protect himself by conducting a limited
search of the suspect's person for weapons.  Deputy Howell's limited
inspection of the front seat of respondent's car was consistent with
the principles of Terry and the reasonableness standard of the Fourth
Amendment.

   A. It is undisputed that Deputies Howell and Lewis had ample reason
for the initial stop of respondent.  Their subsequent observation of a
large hunting knife in an easily accessible location, and of
respondent's erratic behavior, gave them reason to believe that
respondent might be armed and dangerous.  The Michigan Supreme Court
appeared to recognize as much, for it did not question the deputies'
decision to frisk respondent's person.  But the court held that Deputy
Howell violated the Fourth Amendment when he inspected the front seat
of respondent's car for weapons.

   B. Deputy Howell's inspection of the front seat was limited in two
important respects.  First, he inspected areas -- the front seat, and
the area beneath the armrest only when he saw a suspicious object
there -- in which respondent had, at most, a minimal expectation of
privacy.  Second, Deputy Howell's inspection extended only to areas
where a weapon might have been placed -- where, in fact, respondent
would very likely have placed a weapon if he wished it to be
accessible or if he had concealed it hastily when the officers
approached.

   The Michigan Supreme Court nonetheless invalidated Deputy Howell's
inspection for two reasons.  It first asserted that Terry applies only
to searches of a suspect's person and does not permit an area near a
suspect to be inspected for weapons.  This assertion is plainly
incorrect.  The purpose of a limited Terry search is to enable an
officer to protect himself from the risk of physical harm, and a
suspect can endanger an officer by obtaining a weapon from a nearby
area just as he can by using a weapon concealed on his person.

   Second, the Michigan Supreme Court disapproved Deputy Howell's
inspection of the front seat because, it asserted, respondent was
"under control," and any weapon in the car was therefore out of his
reach and not a danger to the deputies.  This conclusion is probably
incorrect as a matter of fact.  But the Michigan Supreme Court's more
fundamental errors lay in its attempt to reassess the danger faced by
the deputies in the particular situation, and in its suggestion that
they should have found some other way of protecting themselves, such
as placing respondent under more complete control.

   In our view, the correct approach is to apply a relatively simple
and clear rule analogous to that established in New York v. Belton,
453 U.S. 454 (1981).  Belton held that police officers may search a
car incident to arrest even when the arrestees have been removed from
the car.  Similarly, officers should be allowed to conduct a limited
Terry search for weapons in a car when they suspect that the person
they have stopped might be armed and dangerous;  courts should not
speculate, after the fact, about the alternative measures the officer
might have taken to prevent the suspect from gaining access to the
car.

   The reasoning that supported the adoption of such a rule in Belton
applies at least as strongly in this case.  First, when the police
have reasonable suspicion, and therefore may stop a suspect, but do
not have probable cause to arrest him, it is unclear to what extent
they may use various methods of controlling him -- such as handcuffing
him, drawing a weapon, or placing him in a police vehicle.  Officers
making an investigatory stop may hesitate to take measures lawfully
available to them because they do not want inadvertently to place a
suspect under arrest.  Moreover, an officer making an investigatory
stop may be face-to-face with a suspect for an extended time -- and
therefore highly vulnerable to an assault -- while he questions the
suspect to determine whether to release him or arrest him.

   Second, a limited weapons search of a car is far less of an
intrusion than the search incident to arrest authorized by Belton.

   Third, a brief inspection for weapons, unlike a search incident to
arrest, is often the only practical alternative to substantially more
intrusive action.  An officer who reasonably believes himself
endangered, but who cannot conduct a limited search for weapons, will
have to restrict the personal mobility of the suspect in ways that
most people would find far more intrusive than a limited inspection of
a car.  Moreover, if an officer has probable cause, the inability
adequately to protect his safety during an investigative stop will
prompt him to make a full arrest when he might otherwise simply have
stopped a suspect for further investigation.

   Finally, a stop, unlike an arrest, may culminate in a suspect's
being allowed to return to his car;  if he does, the suspect will have
immediate access to any weapon in the car.  Of course, if at the end
of a stop the suspect, instead of being returned to his car, is
arrested, Belton permits a full search of the car.  Whatever the
outcome of the investigative stop, it is therefore reasonable for the
officers to take the relatively modest self-protective measures at
issue here whenever they are confronting a potentially dangerous
individual.

                                  II

   Although we believe the search of the trunk of respondent's car can
be justified as a search incident to arrest, the State apparently
defends it solely on the ground that it was undertaken in order to
inventory the contents before impounding the car.  See South Dakota v.
Opperman, 428 U.S. 364 (1976).  The majority of the Michigan Supreme
Court did not consider either the inventory search or search incident
to arrest justification, because it believed that both rested on
Deputy Howell's discovery of marijuana on the front seat.  If this
Court rules that Deputy Howell's inspection of the front seat was
lawful, it may wish to permit the Michigan Supreme Court to consider,
in the first instance, the possible justification for the search of
the trunk.

   If the Court does address the legality of the search of the trunk,
however, we offer certain observations.  While Deputy Howell's search,
unlike the search upheld in Opperman, was apparently not conducted
pursuant to a regular departmental inventory procedure -- thus
significantly weakening the inventory search raionale -- the other
differences between this search and the search upheld in Opperman
strengthen the inventory search justification here.  First, the police
in Opperman searched the locked passenger compartment of a car,
including an unlocked glove compartment, while Deputy Howell searched
an unlocked trunk -- a place in which the owner of a car has less of
an expectation of privacy, and which is far more accessible to thieves
and more likely to give rise to claims against the police department.
Second, Deputy Howell searched respondent's car on the scene, instead
of waiting, as the police did in Opperman, until it was impounded;
such a search on the scene is no more intrusive and is in fact likely
to be far more effective in forestalling claims of theft.

                               ARGUMENT

 I. A POLICE OFFICER WHO HAS LAWFULLY STOPPED A CAR AND REASONABLY
SUSPECTS THAT THE OCCUPANT MIGHT BE ARMED AND DANGEROUS MAY CONDUCT A
LIMITED INSPECTION OF THE CAR FOR WEAPONS EVEN IF THE SUSPECT IS NO
LONGER SEATED IN IT

   In Terry v. Ohio, 392 U.S. 1 (1968), this Court held that when a
police officer has lawfully stopped a suspect, the Constitution
"permit(s) a r-asonable search for weapons for the protection of the
police officer, where he has reason to believe that he is dealing with
an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime." Id. at 27.  The
Court explained that in such circumstances, it would be "clearly
unreasonable to deny the officer the power to take necessary measures
to determine whether the person is in fact carrying a weapon and to
neutralize the threat of physical harm." Id. at 24.  See also Adams v.
Williams, 407 U.S. 143, 146 (1972).  The principal issue in this case
is whether Deputy Howell's inspection of the front seat of
respondent's car is valid under the principles of Terry.

   A. There is no question that Deputy Howell and Deputy Lewis had
sufficient reason to stop respondent;  he was speeding and he had
driven off the road.  Initially, the officers merely asked respondent
routine questions;  having received no indication that respondent was
armed or dangerous, they did not search either him or his car.  Cf.
Government of Canal Zone v. Bender, 573 F.2d 1329 (5th Cir. 1978)
(search of automobile for weapons held illegal when stop was made on
suspicion of nonviolent crime and officers had seen no weapons).

   But when respondent began to return to the car, the officers saw a
large knife on the floor in front of the driver's seat.  None of the
courts below questioned the fact, testified to by the officers, that
this knife was in plain view.  The officers also had observed that
respondent was acting erratically, as if he were under the influence
of alcohol or a drug.  These circumstances plainly could have led the
deputies "reasonably to conclude in light of (their) experience * * *
that the person( ) with whom (they were) dealing may be armed and
presently dangerous" (Terry v. Ohio, supra, 392 U.S. at 30).  In
Pennsylvania v. Mimms, 434 U.S. 106, 111-112 (1977), the Court held
that a bulge under the clothing of a person stopped for a traffic
violation creates a reasonable suspicion that the person is armed and
dangerous and justifies a frisk of his person.  The discovery of an
actual weapon is an even clearer indication of dangerousness than a
suspicious bulge.  See also State v. Luxem, 324 N.W.2d 273 (S.D.
1982).  It was surely reasonable for the deputies to conclude that a
person who kept one knife readily accessible might also keep another
knife or other weapon within easy reach, and respondent's behavior
gave them ample reason to fear for their safety if respondent should
gain possession of a deadly weapon.

   The Michigan Supreme Court apparently acknowledged that the
deputies had reason to fear for their safety, because it did not
question that Deputy Howell was justified in frisking respondent's
person for weapons.  Pet. App. 18 n.6.  But the court held that Deputy
Howell was not justified in shining his light into the front seat, and
then lifting the armrest when he saw a leather object capable of
holding a weapon protruding from beneath it.

   B. 1. Two aspects of Deputy Howell's search should be noted at the
outset.  First, that search constituted only a minimal invasion of
respondent's privacy.  It is by now well settled that an individual
has a diminished expectation of privacy in the interior of an
automobile.  See, e.g., United States v. Ross, No. 80-2209 (June 1,
1982);  Arkansas v. Sanders, 442 U.S. 753, 761 (1979);  Chambers v.
Maroney, 399 U.S. 42, 48-57 (1970).  While a full-scale search of an
automobile must ordinarily be supported by probable cause, this
diminished privacy consideration is nevertheless relevant in
determining the reasonableness of the relatively cursory "car frisk"
undertaken here.  Deputy Howell did not rip open the seats of
respondent's car (see Carroll v. United States, 267 U.S. 132 (1925);
he did not even open any container until he had ascertained that the
transparent plastic bag held contraband (see United States v. Ross,
supra).  By shining his light on the front seat of the car, Deputy
Howell saw nothing that a passer-by might not have seen in daylight or
if respondent had stopped near a light at night.  Deputy Howell did
not lift the armrest until he saw a suspicious object underneath it,
and in any event, as Chief Justice Coleman noted, the area beneath an
armrest is not a place customarily used for private objects.

   Terry emphasized that "the central inquiry under the Fourth
Amendment (is) the reasonableness in all the circumstances of the
particular governmental invasion of a citizen's personal security"
(392 U.S. at 19) and that "there is 'no ready test for determining
reasonableness other than by balancing the need to search * * *
against the invasion which the search * * * entails'" (id. at 21,
quoting Camara v. Municipal Court, 387 U.S. 523, 536-537 (1967)).  As
noted above, the Michigan Supreme Court apparently acknowledged that
the deputies had a sufficient reasonable apprehension of danger to
frisk respondent's person, an action that this Court has described as
"a serious intrusion upon the sanctity of the person, which may
inflict great indignity" (Terry, 392 U.S. at 17).  If it was
reasonable for the officers to frisk respondent's person, it is
difficult to see how Deputy Howell's limited inspection of the car
could have been unreasonable.  While weapons in the car would have
been less accessible to respondent than those on his person, at least
until he was released, inspecting the interior of the car was a great
deal less intrusive than frisking his person.  Moreover, the knife
that gave rise to the officer's apprehension was found in the car,
suggesting that another weapon might be there as well.

   Second, Deputy Howell's inspection of the front seat was "a limited
intrusion designed to insure his safety" (Adams v. Williams, supra,
407 U.S. at 148) -- 'limited to that which (was) necessary for the
discovery of weapons which might be used to harm the officer" (Terry,
392 U.S. at 26).  The front seat and the area around it were likely
locations for any weapon respondent customarily carried in the car, or
carried on his person and left in the car when he stepped from it to
meet the officers.  If respondent had wished to conceal a weapon
hastily when the deputies approached, the lowered armrest provided a
particularly convenient place.  See Brown v. State, 358 So.2d 596
(Fla. Dist. Ct. App. 1978).  And if respondent had reentered the car,
any weapons on the front seat would have been immediately accessible
to him.  Deputy Howell's search therefore constituted no more than "an
intrusion reasonably designed to discover guns, knives, clubs, or
other hidden instruments for the assault of the police officer"
(Terry, 392 U.S. at 29).

   2. The Michigan Supreme Court gave two reasons for its conclusion
that Deputy Howell's inspection of the front seat nonetheless violated
the Fourth Amendment.  First, the court asserted that Terry applies
only to searches of the person and simply "did not authorize the
search of an area" for weapons (Pet. App. 18) -- even, apparently, if
the area was accessible to the suspect and was a likely location for a
dangerous weapon.  In our view this premise is wholly untenable.  The
purpose of a limited Terry search is to enable an officer to protect
himself from the risk of physical harm, and a suspect can endanger an
officer by obtaining a weapon from a nearby area just as he can by
using a weapon concealed on his person.  See, e.g., United States v.
Johnson, 637 F.2d 532, 535 (8th Cir. 1980);  United States v. Rainone,
586 F.2d 1132, 1134 (7th Cir. 1978), cert. denied, 440 U.S. 980 (1979)
(footnotes omitted):

      (W)here the suspect is driving an automobile, a patdown of the
      outer clothing may not be sufficient to assure the safety of the
      police officer.  In those cases there is the real possibility
      that a weapon may have been secreted in a part of the automobile
      readily accessible to the suspect.  This is particularly true
      where the suspect remains in the car, but is also true even
      where the suspect has been removed from the car.  In the latter
      instance there is still a risk that the suspect may break away
      or that he may have a motive to kill the officer even after
      returning to his car.

   Because the suspects in Terry were stopped while walking on a city
street, Terry itself had no occasion to consider anything other than a
search of a suspect's person for weapons.  This Court's decisions
dealing with searches incident to arrest have considered a wider
variety of circumstances, however, and are a useful analogy.  There is
no question that a search incident to arrest may extend beyond the
arrestee's person to a nearby area.  See Chimel v. California, 395
U.S. 752, 762-763 (1969).  And while a Terry search for weapons is
more limited in scope because it cannot extend to objects or places
that could not hold a weapon, the Court's explanation for allowing the
area near an arrestee to be searched incident to arrest applies to
Terry searches as well (Chimel v. California, supra, 395 U.S. at
762-763):

      When an arrest is made, it is reasonable for the arresting
      officer to search the person arrested in order to remove any
      weapons that the latter might seek to use in order to resist
      arrest or escape.  Otherwise, the officer's safety might well be
      endangered, and the arrest itself frustrated.  * * * And the
      area into which an arrestee might reach in order to grab a
      weapon * * * must, of course, be governed by a like rule.  A gun
      on a table or in a drawer in front of one who is arrested can be
      as dangerous to the arresting officer as one concealed in the
      clothing of the person arrested.

   The Michigan Supreme Court did not even attempt to explain why this
reasoning should not apply to a Terry stop.

   The second basis of the Michigan Supreme Court's disapproval of the
limited search of the front seat was that because respondent was
"standing near the rear of the vehicle under the control of Deputy
Lewis * * * , (a)ny weapon which might have been hidden in the car
would have been out of the reach of (respondent) and thus not a danger
to the deputies" (Pet. App. 18-19;  footnote omitted).  As a factual
matter, the Michigan Supreme Court's assessment of the situation
appears to be incorrect;  respondent was standing near the car, was
not handcuffed or held at gunpoint, and apparently might have been
able to overpower at least Deputy Lewis.  In these circumstances a
weapon in the car would certainly have been a danger to the deputies:

      It takes little imagination to realize that an armed suspect
      might hide his weapon in a car before getting out in response to
      a police order.  Thereafter standing next to the car without
      handcuffs, (the suspect) * * * could have bolted to it, seized a
      weapon and fired before the officers could find cover.

   United States v. Wilkerson, 598 F.2d 621, 625 (D.C. Cir. 1978).
Had the respondent done so, the result could have been "at the least *
* * a dangerous scuffle for access to the weapon" (United States v.
McClinnhan, 660 F.2d 500, 504 (D.C. Cir. 1981)).

   3. The Michigan Supreme Court's more fundamental error, however,
was its attempt to reassess the degree of danger faced by the officers
in the particular situation, and its implicit suggestion that the
officers should have found some other way of protecting themselves,
such as placing respondent under more complete control.  This Court
has repeatedly emphasized the dangers of "litigat(ing) in each case
the issue of whether or not there was present" sufficient basis for a
police action.  United States v. Robinson, 414 U.S. 218, 235 (1973);
see, e.g., United States v. Ross, supra, slip op. 5;  New York v.
Belton, 453 U.S. 454, 458-459 (1981).  It is difficult even to
reconstruct the precise circumstances that existed when Deputies
Howell and Lewis stopped respondent, and more difficult to judge how a
reasonable officer would have reacted at the time.  See Terry, 392
U.S. at 13.

   The deputies had to strike a balance among several important
interests, not all of which could be fully protected -- respondent's
privacy interest in his car;  his interest in being free from
excessive restraints on his movement;  and their own safety.  The
situation was fluid, hazardous, and multifaceted;  to a great degree,
the officers' reactions were necessarily instinctive.  It is highly
desirable to have a relatively simple and clear rule to govern such
encounters, if a rule adequately reflecting constitutional values can
be specified, instead of leaving the officers at large and placing
courts in the position of second-guessing their judgments.

   We have already suggested above that a Terry stop is analogous to
an arrest for purposes of determining the allowable scope of an
incidental protective search.  In New York v. Belton, supra, the Court
dealt with a search incident to arrest in circumstances closely
resembling those present here, and adopted a bright line rule that
allows police officers to search a car incident to arrest even when
the arrestees have been removed from the car.  In our view, an
analogous rule should apply here:  officers should be allowed to
conduct a limited search for weapons in a car when they suspect that
the person they have stopped on reasonable suspicion of criminal
activity might be armed and dangerous, and courts should not
speculate, after the fact, about the alternative measures the officer
might have taken to prevent the suspect from gaining access to the
car.

   In Belton, a state trooper stopped a car on a highway for speeding.
 After the stop, he acquired probable cause to arrest the occupants
for possession of marijuana.  He ordered the occupants out of the car,
placed them under arrest, and searched the car's interior while the
suspects stood on the road, some distance away from both the car and
each other.  See 453 U.S. at 455-456.  In concluding that the
trooper's actions constituted a lawful search incident to arrest, the
Court deliberately did not rest its decision on the specific
circumstances at the arrest scene -- the number of officers and
suspects, the means available to the officer to control the suspects,
or whether any of the suspects would actually have been able to
reenter the car.  Instead, the Court emphasized that a "'single
familiar standard is essential to guide police officers, who have only
limited time and expertise to reflect on and balance the social and
individual interests involved in the specific circumstances they
confront.'" Id. at 458, quoting Dunaway v. New York, 442 U.S. 200,
213-214 (1979).

   The Court then adopted "the generalization that articles inside * *
* the passenger compartment of an automobile are in fact generally,
even if not inevitably, within 'the area into which an arrestee might
reach in order to grab a weapon or evidentiary ite(m).'" 453 U.S. at
460, quoting Chimel v. California, supra, 395 U.S. at 763 (brackets in
original).  The Court "defin(ed) * * * the limits of the area that may
be searched in light of that generalization" and accordingly held that
an officer may, "as a contemporaneous incident of (the) arrest (of the
occupant of an automobile), search the passenger compartment of that
automobile." 453 U.S. at 460.

   This reasoning applies at least as strongly to a limited search of
a car for weapons, conducted after the car has been stopped and the
occupant has left the car but is not under arrest.  First, for several
reasons, the generalization on which Belton was based -- that a
suspect, even if outside a car, can gain access to a weapon inside the
passenger compartment -- is more likely to be true in th context of a
stop.  To begin with, the extent to which the police may "control" a
suspect whom they have no probable cause to arrest is limited, and the
limitations are unclear.  For example, respondent's counsel suggested
at the preliminary examination that Deputy Lewis might have held
respondent at gunpoint to protect his safety (H. Tr. 27-28);  but some
courts have suggested that drawing a gun converts a stop into an
arrest and may not lawfully be done in the absence of probable cause.
See United States v. Ceballos, 654 F.2d 177, 182-184 & n.7 (2d Cir.
1981) (citing cases).  In general, courts approach the question
whether a particular display of force or restraint on the suspect has
converted a stop into an arrest on the premise that "(e)ach situation
is unique, involving the weighing and measuring of contrary
indicators." United States v. White, 648 F.2d 29, 34 (D.C. Cir.),
cert. denied, 454 U.S. 924 (1981).  Compare United States v.
Strickler, 490 F.2d 378 (9th Cir. 1974) (encircling suspect's car with
police vehicles and drawing guns constitutes an arrest), and United
States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972) (drawing gun
converts stop into arrest), with United States v. Coades, 549 F.2d
1303 (9th Cir. 1977) (drawing gun does not convert stop into arrest),
and United States v. White, supra, 648 F.2d at 35 (same) (citing
cases).  See also 3 W. LaFave, Search and Seizure 31 (1978) (locking
suspect in police vehicle "would (not) ordinarily be a permissible
part of a stopping for investigation(;  n) or can it be said that such
action would never be permissible * * * .  Similarly, handcuffing of
the suspect is not ordinarily proper (citing People v. Gabbard, 78
Ill.2d 88 (1979);  People v. Tebedo, 81 Mich. App. 535, 265 N.W.2d 406
(1978)), but yet may be resorted to when necessary (citing United
States v. Purry, 545 F.2d 217 (D.C. Cir. 1976))").

   Consequently, officers making an investigatory stop -- unlike
officers making an arrest -- may be unable lawfully to take the
measures customarily used to prevent a suspect from breaking away and
reentering a car.  Moreover, because the distinction between a stop
and an arrest is unclear, officers may fail to take steps lawfully
available to them to control a suspect because they do not want
inadvertently to place him under arrest.  In these respects, it is
more important that an officer making a stop be able to inspect a
nearby automobile that he reasonably suspects might contain a
concealed weapon than it is that an officer making an arrest be able
to do so.

   There are other ways in which officers who have stopped a suspect
for questioning are in a more vulnerable position than officers who
have effected an arrest.  The purpose of a stop, unlike an arrest, is
generally to allow the officer to "investigat(e) at close range" and
determine whether criminal activity is afoot.  See Terry, 392 U.S. at
24.  For the duration of the stop, therefore, the officer will be in
face-to-face contact with the suspect.  In these circumstances an
officer is highly vulnerable to any weapon the suspect is able to
obtain.  The officer may, in addition, require an appreciable amount
of time to complete his inquiry and determine whether to arrest the
suspect or to allow him to proceed;  the suspect remains a threat to
break away, and the officer remains vulnerable, throughout that
period.  "(P)ractical necessity requires that (the Court) allow an
officer in these circumstances to secure thoroughly the automobile
without requiring him in haste and under pressure to make close
calculations about danger to himself" (Robbins v. California, 453 U.S.
420, 431 (1981) (Powell, J., concurring)).

   In this connection, it is noteworthy that the courts of appeals
have consistently recognized the hazards confronting officers who have
made an investigative stop and have generally permitted a limited
weapons search of a nearby place or container -- even if the suspect
could, in theory, be separated from the place or container, and even
where a relatively substantial privacy interest was at stake.  See,
e.g., United States v. Romero, No. 80-2181 (10th Cir. Nov. 4, 1982),
slip op. 7;  United States v. McClinnhan, supra, 660 F.2d at 504
(McGowan, J.) (search of briefcase during investigatory stop) ("(G)
eneral discussions of personal privacy and public safety are not as
useful * * * (as) focusing upon the options available to the
investigating officer confronted with a reasonable apprehension of
danger.");  United States v. Johnson, supra (duffel bag on opposite
side of store door from suspect);  United States v. Wilkerson, supra;
United States v. Rainone, supra, 586 F.2d at 1135 ("(T)here (is)
always the likelihood that the suspect will escape and return to the
car.");  United States v. Powless, 546 F.2d 792 (8th Cir.), cert.
denied, 430 U.S. 910 (1977);  United States v. Stevens, 509 F.2d 683,
688 (8th Cir.), cert. denied, 421 U.S. 989 (1975) ("Hindsight * * *
might convince one that the officers were being overly cautious or
that they could have dealt with their concern by moving the suspects
farther away from the vehicle, but we must view their conduct in terms
of what could be considered reasonable under the circumstances then
existing.");  United States v. Riggs, 474 F.2d 699 (2d Cir.), cert.
denied, 414 U.S. 820 (1973);  United States v. Green, 465 F.2d 620
(D.C. Cir. 1972).  See also United States v. Kent, No. 81-5776 (11th
Cir. Nov. 22, 1982), slip op. 595-596.

   A second reason for applying the rule of Belton in this context is
that a limited search of a car for weapons is less of an intrusion
into the suspect's privacy than a search incident to arrest.  As we
have said, a Terry search cannot exceed the limits of its
justification;  it cannot include a search of places where a weapon
could not reasonably be secreted.  See, e.g., Adams v. Williams,
supra, 407 U.S. at 146;  Sibron v. New York, 392 U.S. 40, 65 (1968).
It is not clear, for example, whether the jacket pocket searched in
Belton could have been searched in this case.  Moreover, an officer
may not conduct a Terry search of an area unless he has a reasonable
apprehension that there might be a weapon in the area.  A
thoroughgoing search incident to arrest requires no such
justification.  To this extent, the Court can properly be less
hesitant in permitting a limited weapons search on the basis of the
generalization identified in Belton than it was in permitting a search
incident to arrest.

   Third, a brief inspection for weapons like that undertaken by
Deputy Howell is -- unlike a search incident to arrest -- often the
only practical alternative to substantially more intrusive action.
Any means of controlling a suspect by placing restraints on his
freedom of movement -- even if it does not amount to an arrest -- can
be offensive and humilating.  It is difficult to believe, for example,
that many people would rather be handcuffed or locked into the back of
a police vehicle while they were questioned, than allow the officers
to take measures like those adopted by Deputy Howell.  /4/

   Moreover, restricting an officers' ability to ensure his safety
during a stop will create pressure on the officer to make an arrest
where he otherwise would not.  Here, for example, we understand that
under Michigan law the deputies could have effected a full custodial
arrest of respondent for speeding, although that was not the normal
procedure.  Had the deputies known that they could not lawfully ensure
their safety by looking in the car for weapons, they might well have
decided to arrest respondent instead, so that they would be able both
to place him under control and, in all likelihood, to conduct a full
search of both the car and respondent's person incident to arrest.
See United States v. Robinson, supra;  Adams v. Williams, supra.
Similarly, an officer may have probable cause when he first stops a
suspect, but may wish to make inquiries in order to determine whether
the suspect can explain the suspicious circumstances so that an
unnecessary arrest will be avoided.  If the officer cannot ensure his
own safety while he is questioning the suspect, however, he will not
hesitate to make the arrest.

   Finally, if a suspect is allowed to leave after a stop, he will of
course return to his car.  If a weapon is concealed in the car there
is some danger that he will use it on the officers.  See United States
v. Romero, supra, slip op. 7;  United States v. McClinnhan, supra, 660
F.2d at 504;  United States v. Green, supra, 465 F.2d at 625.  While a
suspect who has been stopped and released may ordinarily have less
reason to attack the officers than an arrestee, he will not always
have less incentive to do so, /5/ and he will always have more
opportunity to obtain a weapon.  Consequently, if the officers
reasonably suspect that there might be a weapon in a car and that the
suspect may be dangerous, it is reasonable for them to insist on
inspecting the car before they allow the suspect to reenter it -- no
matter how able they may have been able to control him while the stop
lasted.

   An investigatory stop, of course, must culminate either in the
suspect's arrest or in his release.  If the suspect is arrested,
Belton permits a full search of the car;  if he is to be released, and
the police reasonably believe there might be a weapon in the car, they
have, for the reasons stated, ample grounds to conduct a limited
weapons search of the car.  It is, therefore, pointless to deny the
officers the authority to inspect the car for weapons as soon as they
have reasonable suspicion that the suspect may be armed and dangerous.

       II.  THE FOURTH AMENDMENT PERMITS AN INVENTORY SEARCH OF

               THE UNLOCKED TRUNK OF A CAR ABOUT TO BE TOWED

   1. After respondent was arrested, Deputy Howell opened the trunk of
his car.  The trunk had no lock and apparently could be opened by
reaching into an opening from which the lock had been "punched out."
See Pet. App. 15-16.  Deputy Howell found 75 pounds of marijuana in
the trunk.

   Although the search of the trunk seems to us clearly lawful as
incident to respondent's arrest (see page 25 note 7, infra), the State
now defends the opening of the trunk solely on the ground that it was
undertaken in order to inventory the contents before impounding the
car.  See Pet. iii;  South Dakota v. Opperman, 428 U.S. 364 (1976).
When he opened the trunk, Deputy Howell had already determined that
respondent's car would have to be towed, because it was partially
blocking the road and respondent was under arrest.  Deputy Howell
testified that he opened the trunk at least in part because he wanted
to take an inventory of any valuables before the car was impounded.

   The Michigan Supreme Court did not consider the inventory search
rationale, however, because it concluded that the trunk could not have
been searched in any event if marijuana had not been discovered in the
front seat by a search it considered unlawful.  /6/ Should the Court
agree with us that the limited weapons search of the front seat was
authorized by Terry, the Court could reasonably choose to permit the
Michigan Supreme Court to consider, in the first instance, the
possible justifications for the search of the trunk.  /7/

   2. In the event the Court addresses the question whether the search
of the trunk was a valid inventory search, however, we offer the
following observations.  That search differed from the search upheld
in Opperman in three arguably material respects.  First, while Deputy
Howell stated that he had a personal practice of taking an inventory
of vehicles that were to be towed, we do not understand the State to
claim that he was following a generally applicable policy of the
police department.  Second, respondent's car was inventoried on the
scene, not in the police lot.  Third, the officers conducting the
inventory in Opperman examined the inside of a locked passenger
compartment, including an unlocked glove compartment;  Deputy Howell
examined an unlocked trunk.  Compare 428 U.S. at 365-366 with Pet.
App. 16.

   We recognize that the first of these distinctions is significant,
and renders the inventory justification for Deputy Howell's search of
the trunk weaker than the justification offered in Opperman.  See
South Dakota v. Opperman, supra, 428 U.S. at 383-384 (Powell, J.,
concurring).  But see United States v. Prescott, 599 F.2d 103 (5th
Cir. 1979).  We submit, however, that the other two differences do not
undermine the inventory rationale.

   The inventory search is a "response to three distinct needs:  the
protection of the owner's property while it remains in police custody
* * * ;  the protection of the police against claims or disputes over
lost or stolen property * * * ;  and the protection of the police from
potential danger." South Dakota v. Opperman, supra, 428 U.S. at 369.
By conducting an inventory on the scene, and an inventory of an
unlocked trunk, a police officer substantially furthers these
interests.  An inventory taken on the scene, as soon as the officers
have determined that a car will be towed, reduces the time during
which valuables are not secured and dangerous objects not removed.
Moreover, the fewer hands a vehicle passes through before it is
inventoried, the less the possibility of claims of theft against the
police -- and of actual theft.  See South Dakota v. Opperman, supra,
428 U.S. at 378-379 (Powell, J., concurring).  This may be a
particularly important concern when the police use a private towing
contractor.

   At the same time, we can discern no reason to consider an inventory
on the scene to be any more intrusive then a later inventory of an
impounded vehicle.  Indeed, the owner is more likely to be on the
scene, and he may -- by taking possession of objects found in the
vehicle, for example -- be able to limit the intrusiveness of the
search.

   An unlocked trunk is plainly more vulnerable to theft than a locked
passenger compartment;  it is arguably more vulnerable even than an
unlocked passenger compartment, because a thieft can obtain its
contents more quickly.  An inventory of an unlocked trunk is therefore
at least as necessary as the search upheld in Opperman if the police
are to protect the interests that justify an inventory search.
Indeed, several courts of appeals have upheld inventory searches of
locked trunks.  See, e.g., United States v. Edwards, 577 F.2d 883,
893-894 & n.23 (5th Cir.) (en banc), cert. denied, 439 U.S. 968
(1978);  United States v. Smith, 621 F.2d 483, 488 (2d Cir. 1980),
cert. denied, 449 U.S. 1086 (1981);  United States v. Martin, 566 F.2d
1143 (10th Cir. 1977).  See also State v. Prober, 297 N.W.2d 1, 6-7
(Wis. 1980).  Compare United States v. Wilson, 636 F.2d 1161 (8th Cir.
1980), with United States v. Maier, No. 82-1218 (8th Cir. Oct. 27,
1982).  In addition, it seems clear that because an unlocked trunk is
so accessible to strangers, an owner's expectation of privacy in its
contents is significantly less than his expectation of privacy in a
glove compartment inside a locked car.  For these reasons, we submit
that both the fact that it occurred on the scene and especially the
fact that it involved an unlocked trunk strengthen the inventory
rationale and support the lawfulness of the second search.

                              CONCLUSION

   The judgment of the Michigan Supreme Court should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

   Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   DECEMBER 1982

   /1/ "H. Tr." refers to the transcript of the preliminary
examination held on September 22, 1977.  "Op. Tr." refers to the
pretrial proceedings, held on April 28, 1978, which include the trial
judge's oral opinion denying respondent's suppression motion.

   /2/ The deputy had previously noted that respondent drove
erratically.  H. Tr. 18.

   /3/ Deputy Howell testified that respondent "is probably a foot
taller than" Deputy Lewis.  H. Tr. 28.

   /4/ It is, of course, wholly unrealistic to expect officers,
reacting quickly to a hazardous situation, to give a suspect a choice
among security measures;  in view of the difficulty the deputies had
in even obtaining respondent's driver's license and registration, for
example, it cannot be suggested that they should have pursued that
course here.

   /5/ "(T)he suspect * * * may have a motive to kill the officer even
after returning to his car * * * (if he) has engaged in criminal
activity which he believes will be later discovered.  Since the police
officer * * * has learned the suspect's identity, he will often be
able to connect the suspect to the later-discovered crime * * * ."
United States v. Rainone, supra, 586 F.2d at 1134-1135 & n.3.

   /6/ This conclusion is not obviously correct.  Respondent's
behavior suggested that he may have been unfit to drive the car, and
it is unclear from the record whether the car became disabled when it
was driven off the road.  It is therefore possible that the car would
have been towed even if respondent had not been arrested for
possession of marijuana.

   /7/ We note in this connection that even if the opening of the
trunk was not justified under Opperman as an inventory search, it was
surely lawful as a search incident to arrest under Belton.  Belton
explicity dealt only with the passenger compartment of a car, and its
application to a locked trunk is unclear.  But an unlocked trunk that
could, apparently, be opened with only slightly more difficulty than a
car door is as accessible to an arrestee as the passenger compartment
of a car.  Since at the time of respondent's arrest he was not far
from the trunk, the rationale of Belton extends to Deputy Howell's
search of the trunk.

   We also note that the discovery of marijuana in the front seat may
well have given the deputies probable cause to search the car as a
whole (see Robbins v. California, 453 U.S. 420, 451 & n.13 (1981)
(Stevens, J., dissenting)), in which event a warrantless search of the
trunk (see United States v. Ross, supra;  Chambers v. Maroney, supra),
would be permissible.  See also United States v. Haley, 669 F.2d 201,
203-204 (4th Cir.), cert. denied, No. 81-1815 (June 14, 1982).