Warren E. Burger: We'll hear arguments next in 1439, Hughes against Oklahoma. Mr. Helton you may proceed whenever you are ready.
Robert M. Helton: Mr. Chief Justice, may it please the Court. This case is before you on appeal from the Court of Criminal Appeals of the State of Oklahoma in which the appellant was convicted of violating the following section of the Oklahoma Wildlife Code, specifically Section 4-115 (B) which provides in pertinent part as follows. No person may transport or ship minnows for sale outside the state, which were seined or procured from the waters of this state except that; First; nothing contained herein shall prohibit any person from leaving the state possessing three dozen or less minnows. Number two; nothing contained herein shall prohibit sale and shipment of minnows raised in a regularly licensed commercial minnow hatchery. It is my position here in support of the proposition that the subject law is repugnant to the Commerce Clause of the United States. Primarily, if it pleased the Court, based upon the decision of this Court of this past term in City of Philadelphia versus New Jersey --
Harry A. Blackmun: Mr. Helton, I take it you are relying solely on the Commerce Clause?
Robert M. Helton: Yes, Your Honor, no other.
Harry A. Blackmun: You are not relying on the Privileges and Immunities Clause or anything else. Just --
Robert M. Helton: That is right.
Harry A. Blackmun: You put your case in the Commerce Clause?
Robert M. Helton: Yes sir. No other constitutional ground do I position at all. That is to say that in as much as this law is 100% on its face blocked or curtained against interstate commerce, that it constitutes therefore that discriminatory nature, that disruption of the right to engage in interstate commerce by the other states and their citizens, particularly within the rule of this Court in the City of Philadelphia versus New Jersey, wherein Mr. Justice Stewart writing for your Court, said that; whenever the discrimination reached certain -- when it was that degree of discrimination, that it just constitutes a barrier of curtained interstate commerce, it’s unnecessary, it's immaterial to determine whether or not the state in enacting its law properly exercised its police power.
Warren E. Burger: What if Oklahoma passed a statute that had as its preamble or recital that the supply of buffalo if they have any or elk if they have any being limited, there could only be one taken by any person within a certain limited season and none could be taken outside of the State?
Robert M. Helton: Alright sir. And sir, Oklahoma did that in its conservation law in Section 116-A, the very following section that follows this section and I think that's a perfectly valid and legitimate law.
Warren E. Burger: Fine.
Robert M. Helton: The difference sir in this case and the supposed case that you gave me is the party here complaining is not the party with the right of the access. So in this case, Fred Shellkey (ph) is the man who took the minnows from the water of the State. Mr. Hughes bought the minnows from Mr. Shellkey under this law.
Warren E. Burger: But under this particular statute that before us now there is no prohibition against his buying, but there is a prohibition against his taking them out of the state, is there not?
Robert M. Helton: That is right sir.
Warren E. Burger: How do you distinguish that from taking elk out of the states?
Robert M. Helton: The difference between the right to take in my judgment is the State very likely in fact I think without question, the State has and is properly exercising its police power when it controls the access to its wildlife as distinguished from controlling the right to, that is prohibiting the right to transport. When at the same time they never prohibited, they never in any manner prohibited and attempted to control a disposition of it, the commerce in it from their license taker to the next party.
Byron R. White: Well so that, under the law you may commercialize with -- was natural minnows as long as you transport and sell them inside the State. You can take natural minnows and sell them within the State of Oklahoma?
Robert M. Helton: In my -- I don't think there is any question about -- you are asking about the right of Oklahoma to limit that.
Byron R. White: No, I am asking if I'm a dealer in minnows, I can buy natural minnows or I can go seine them myself and sell them to anybody I want to inside the state?
Robert M. Helton: You are right.
Byron R. White: And transport them anywhere I want to inside the State for sale?
Robert M. Helton: Yes sir.
Byron R. White: But I can't transport them across the boundary for sale?
Robert M. Helton: Correct.
Harry A. Blackmun: Or he can destroy them if you chooses, burn them up?
Robert M. Helton: I am sorry sir.
Harry A. Blackmun: I say or he can destroy them if he chooses or burn them up as long as he does it within the state of Oklahoma?
Robert M. Helton: That would be right. What I really, what I think that would help us is to understand that this overall conversation code of Oklahoma divides the commerce into two steps. There is a division in the commerce and the first step with the commerce is from the water to the licensed, the party authorized to take them out of the water. That's step number one, our commerce and if the court pleas that's internal commerce. What Texas people or Texas as a (Inaudible) would have any interest in that, they would have none whatever. But now there is a second step in the commerce and that second step is when the authorized taker sells and disposes and Oklahoma, and at that point because sir, because Oklahoma never put any kind of restriction on his right to -- the second step of that commerce is 100% unregulated by Oklahoma. Oklahoma has not even enacted anything other than this one section, that deals with that second step of commerce.
William H. Rehnquist: But that regulates, doesn't it, that one section that you just referred to?
Robert M. Helton: It does sir, but and I don't disagree with it. The very object of it though is to prevent the exportation, but the very object of it at that point since Oklahoma never by any other law limited that second step in any manner, never controlled it in any manner. At that point, it had become inter-state commerce and at that point this law then has put the curtain that it cannot be.
William H. Rehnquist: You say then that Oklahoma could prohibit any sort of commercial dealing in natural minnows?
Robert M. Helton: I believe they can sir, provided, provided that they make the requisite necessary finding that's the basis of their exercising their police power.
William H. Rehnquist: Well, I thought the police power is always presumed to have been properly exercised unless your state --
Warren E. Burger: States very seldom --
Robert M. Helton: I don't understand it. It's always presumed.
William H. Rehnquist: Well, aren't all state laws presumed constitutional?
Robert M. Helton: I am aware of the utterances to that effect, but I also I am aware that wherever a law shows on its face for example and refutes that presumption, then the presumption is refused. Now then, if I be wrong, if I'm wrong in my position that is if I'm wrong in my position that the real of City of Philadelphia didn't apply for this case for example. If I'm wrong in that, which I strongly believe I am not, but if I'm wrong then the next question that our cases teaches and tell us is that in the event that a law enacted under the police power is going to interfere with inter-state commerce. There is a question of whether or not it's, the question is then is it doing it incidentally. In other words, though there be a valid exercise of the police power in connection with the operation of that valid exercise that is there an incidental effect upon inter-state commerce and what is law in that respect. Well, one of the -- at that point, it has recently been determined by this Court that the burden shifts upon the state to justify its own use, I mean, its police power use and in its justification, it must among things, show that it could not use its police power in a different manner, thereby reducing the burdens upon inter-state commerce. Now then in this case, if we agree that the object of this law, which I find nothing in this law that supports this object either expressly or inferentially, but the Oklahoma high court did. It said the purpose was to prevent depletion of minnows by commercial exportation or importation. Oklahoma did not, but could have put catch limits on its minnows. Oklahoma could have, but did not make any control over how many minnows the dealers would have in possession at one time.
Warren E. Burger: Could they put a limit on how many could be transported over the state line?
Robert M. Helton: They certainly could in my opinion, yes sir.
Warren E. Burger: Haven't they done so indirectly here?
Robert M. Helton: No sir. For the reason that - well the real object of the three dozen rules, we got a lake down there between Texas and Oklahoma. The Red River runs through and that, the three dozen rule in my opinion had reference to that lake.
Thurgood Marshall: Texoma I assume it is called.
Robert M. Helton: The part of the lake --
Thurgood Marshall: The lake is is called Texoma.
Robert M. Helton: Yes sir, that's the name of it Your honor, it sure is. Now then --
Warren E. Burger: But what was the purpose, what do you suggest was the purpose of the three dozen limit?
Robert M. Helton: To take care of lake Texoma.
Warren E. Burger: Well.
Robert M. Helton: In other words, I'm a Texan and I --
Warren E. Burger: Is there anything in the statute about that?
Robert M. Helton: I beg your pardon.
Warren E. Burger: Anything in the statute about that?
Robert M. Helton: No, sir, no.
Warren E. Burger: What do you suggest on its face the three dozen limits implies or suggests?
Robert M. Helton: Well, if the --
Warren E. Burger: You want to hold down.
Robert M. Helton: There really isn't anything from the law that we could tell anything Your Honor.
Warren E. Burger: Isn't it the same kind of limitation that you put, that you can only take six trout or five pheasants or whatever?
Robert M. Helton: Well, I feel this way that --
Warren E. Burger: Isn't it a conservation measure?
Robert M. Helton: I'm unable to read a conservation measure in the three dozen.
Warren E. Burger: Well, isn't three dozen about what you might mean for a day of fishing, to catch whatever limits Oklahoma has. Isn't there a reasonable possibility that there's a relationship?
Robert M. Helton: Well, my trouble sir is I fish too much down there and I can understand the relationship of three dozen to us local boys that fish now --
Warren E. Burger: You don't have –-
Robert M. Helton: Now that's not in this record and I understand that.
Warren E. Burger: You don't really need it --
Robert M. Helton: Well to me --
Warren E. Burger: More than three dozen in a day do you?
Robert M. Helton: It is impertinent sir. I know there is no -- three dozen couldn't have anything to do with conservation of the minnows in Oklahoma or at least that's my opinion it being there. It's not supported by the records, but that's – if I maybe indulged then I will say that.
John Paul Stevens: Mr. Helton I didn't understand, but I guess I'm just stupid, but what is the reference to lake Texoma? Why would this problem --
Robert M. Helton: Alright sir. On Red River sir, there's a lake that dammed up that river and thus the water that rivers in both states.
John Paul Stevens: Right.
Robert M. Helton: So consequently, I think the legislature had in mind, if a Texas fisherman came over into Oklahoma to buy him some minnows and does go back on the Texas side of the lake to fish without this exception, he can be a violator of this law.
John Paul Stevens: Well, why don't you make him fish on the Oklahoma side of the lake you know that.
Robert M. Helton: Oh that's terrific. I hadn't thought about that; that would be one effect of it. You make him fish for he didn't want a fish.
William H. Rehnquist: Of course, if they want to make him fish on the Oklahoma side of the lake they would have no exception at all?
Robert M. Helton: If I listen to you sir, you're meaning to infer that -- if they wanted to leave the three dozen exception acts --
William H. Rehnquist: They'd force him to fish.
Robert M. Helton: The effect would be the Texan people fish on the Oklahoma side. Yes sir, I think that would be right. Now then -- I naturally, there is, after we read the residue of this law that is other than this Section 4-115 (A) or 115 (B), other than that one law, there isn't a single law in this code that directs itself toward any kind of general welfare protection, that is protection of Oklahoma minnows. It's totally barren of any kind of the law, because it's totally barren of any kind of law, it automatically, the only thing you can decide is that they wanted to give the (Inaudible) an economic benefit that it's a discriminatory law that discriminated in favor of the (Inaudible) business. The other thing about the law that's to foster and carry out and further the general welfare of power of the people of Oklahoma.
William H. Rehnquist: Mr. Helton, could I ask you one question before you sit down. Do you think it would be necessary if we were to rule in your favor for us to expressly overrule the case of Geer against Connecticut?
Robert M. Helton: Well, sir, I -- no sir I'm really, yes and no, if I may. I'll answer yes part first and then no part second. First sir, the statue in the Geer case is basically and fundamentally different in this Oklahoma Statute. The difference is this. Geer directed the prohibition to the very act of taking, the word Geer statue says it is hereby prohibited for anyone to kill our wild life and remove them from the state. Now I haven't quoted it to you verbatim, but I haven't deviated that. Now this law, unlike Geer isn't directed to the taker. The actual statutes aren't connected with the power or the access to take. That distinguishes Geer --
William H. Rehnquist: But it makes the Oklahoma Statute narrower than the one in here, doesn't it?
Robert M. Helton: Sir I am sorry.
William H. Rehnquist: Doesn't it make the Oklahoma Statute narrower than the one in Geer?
Robert M. Helton: Narrower?
William H. Rehnquist: Because Oklahoma Statute regulates less conduct than the Connecticut Statute did in Geer?
Robert M. Helton: Well sir to me the Geer statute, the emphasis is on the initial right to take. The Oklahoma Statute doesn't focus its emphasis there. It focuses trying to enforce something that's not visible in the law. Now then thus, now then I said that yes and then no, now then the other part, the other side of the coin is to me this Court in the last term, in the last recent terms, in Baldwin versus Montana and all the cases you've stated there, limited to interstate commerce only. I think that you have the -- I think you have more or less terminated now the ownership doctrine. I am not talking about that you've terminated the power of the states under the police power. You said the majority opinion relative to the ownership of wild game in the states was error.
Warren E. Burger: Mr. Bruce?
Bill J. Bruce: Mr. Chief Justice may it please the Court. In order to focus upon Oklahoma's argument before this Court, I feel it incumbent upon me to bring to the Court's attention the posture of the appellant's argument in the court's decision below. The posture of the argument below are the appellant was in the form of distinguishing Geer versus Connecticut from the case of Foster-Fountain Packing Company versus Haydel. Now as this Court is aware the Geer decision involved wildlife. The statute there prohibited the transport of that wildlife across the state line. In Foster-Fountain Packing Company versus Haydel, this Court looked at the underlying fact situation involved in that case where the Louisiana Statute in the name of conservation prohibited the exportation of shrimp in which the hose and heads had not been removed, thereby requiring their removal in the home state of Louisiana. This Court held in that case that the purpose and effect of that statute was economic protectionism for Louisiana residents. That is, that statute favored Louisiana simply because by the very nature of the statute, the packing was required to be done in Louisiana to the exclusion of other states. Now in the lower court as I mentioned, the appellant distinguished Geer versus Connecticut from Foster-Fountain Packing Company versus Haydel and relied up on the Foster case stating that it was applicable to this case. The posture, however on appeal by the appellant here is that as I read his brief that Geer versus Connecticut is no longer viable when subjected to a Commerce Clause tag. It's the view of Oklahoma that the concept in Geer is still viable today. The concept of the state's interest, the state's interest in controlling its wildlife is as much as alive today as it was in the time when Geer versus Connecticut was rendered.
Harry A. Blackmun: What in your opinion Mr. Attorney General is the justification for the Oklahoma statute?
Bill J. Bruce: As a conservation measure, Your Honor.
Harry A. Blackmun: Well, do you agree with counsel on the other side that a Texas resident could go into Oklahoma and buy minnows and burn them up in front of the commercial establishment from which he bought them?
Bill J. Bruce: I would agree if there is no statutory prohibition.
Harry A. Blackmun: That there's no wildlife conservation.
Bill J. Bruce: No, sir, the statute does not address that, that possibility notion.
Harry A. Blackmun: Well, if that's a possibility, why they would be characterized as a conservation measure?
Bill J. Bruce: Well, as argued by the appellant below in which the state concedes the only viable commercial use for minnows is as bait for other fish. It serves no other purpose as far as man is concerned in his commercial interest. Of course the state maintains that minnows also serve other important functions of course as a natural food supply for game fish and that the balance of the – for the maintaining of the balance of the minnow population in the natural streams.
Warren E. Burger: For ducks and birds and a lot of others too, don't they--?
Bill J. Bruce: Yes, Your Honor.
Warren E. Burger: -- live off of minnows.
Harry A. Blackmun: Isn't that interest served just as much on the Texas side, of the lake that straddles the state boundary?
Bill J. Bruce: Are you speaking of Lake Texoma Mr. Justice Blackmun?
Harry A. Blackmun: Whatever the lake is?
Bill J. Bruce: Yes, I think that interest would serve Texas as well as Oklahoma.
Harry A. Blackmun: Wouldn't it serve just as much on a lake ten miles inside Texas as Oklahoma lake?
Bill J. Bruce: I am not sure I understand your question sir.
Harry A. Blackmun: Well, suppose that Mr. Hughes here took his minnows and sold them to Texas fishermen on a lake ten miles inside the Texas boundary, isn't that natural preservation purpose just as well served there, or are you restricting it entirely to Oklahoma nature?
Bill J. Bruce: Well, I would concede that certainly that would serve Texas interests, but such wholesale exploitation of minnows, natural minnows in Oklahoma streams, if Oklahoma permitted the export, it would require Oklahoma to not only keep track of what's happening, but to make sure that additional minnows were added to make up for those which were exported.
Harry A. Blackmun: But at the same time though, I could go into Oklahoma and buy them and bring them up.
Bill J. Bruce: Well --
Harry A. Blackmun: And there is no statute that would prevent me from doing so?
Warren E. Burger: Maybe the next legislature counsel may take that into account and make a standard prohibition?
Bill J. Bruce: Well sir, we've never had that type of problem in Oklahoma?[Laughter]
Byron R. White: I doubt if you will either.
Bill J. Bruce: Now one another case citied by the appellant the City of Philadelphia versus New Jersey of course a recent case by this Court regarding a dispute between New Jersey and other states regarding the land -- for use of landfill sites. In my brief, I distinguish that case as I did other cases in that, in that case it involved a discrimination provision, in other words the State of New Jersey discriminated against out of state citizens as opposed to citizens of its own state.
Potter Stewart: Also the subject of a commerce wasn't wildlife?
Bill J. Bruce: That's correct Your Honor.
Potter Stewart: The Geer case didn't have anything to do with that case?
Bill J. Bruce: Yes sir and as I pointed out in my brief or hopefully I pointed out in my brief that wildlife is a unique area of law, and that the state has special interest in preserving the wildlife.
Byron R. White: So you -- do you think in serving that in you can permit commercialization with the same natural minnows within the state, but prevent their export?
Bill J. Bruce: That's correct, Your Honor.
Byron R. White: Just as a way of limiting the take?
Bill J. Bruce: A way of conservation yes Mr. Justice White.
Byron R. White: Even though there are no limits on the amount or number of minnows that your own people can take?
Bill J. Bruce: I might say that I believe other states do use the possession limit as a means of protecting their interest as an advice to --
Byron R. White: Anybody, any out of staters who come to Oklahoma, they are free to buy minnows and use them in Oklahoma waters.
Bill J. Bruce: Yes Mr. Justice White they are.
Byron R. White: Your Oklahoma supply people are -- then have -- they have the exclusive on the sale of naturally seined minnows?
Bill J. Bruce: Well, they are licensed by the state, yes sir.
Byron R. White: Yeah.
William H. Rehnquist: Well, there is no prohibition against buying minnows in Texas and bringing them into Oklahoma and using them as a bait, is there?
Byron R. White: There is a prohibition on buying Oklahoma minnows?
Bill J. Bruce: Well, that's the focus of our statute in issue here. There isn't an Oklahoma provision regarding an import license.
Byron R. White: Now we got -- what's there about that?
Bill J. Bruce: But that's not the focus of the inquiry here.
Byron R. White: But what about it then? Can I bring minnows from out of the state and use them in the Oklahoma waters?
Bill J. Bruce: The statute provides a procedure for that.
Byron R. White: For the licensing?
Bill J. Bruce: Yes sir.
Thurgood Marshall: You don't object to commercial raising of minnows and taking them?
Potter Stewart: No.
Bill J. Bruce: Commercial hatchery of minnows, no Mr. Justice Marshall.
Thurgood Marshall: You don't object to people taking them and seining them either do you as such?
Bill J. Bruce: No sir.
Thurgood Marshall: Because this man here was a professional (Inaudible). That was his business of seining wild minnows.
Bill J. Bruce: That's correct.
Thurgood Marshall: So If you are allowed that unlimited, how are you preserving wildlife or protecting wildlife –
Bill J. Bruce: The very –
Thurgood Marshall: -- the unlimited.
Bill J. Bruce: Alright sir.
Thurgood Marshall: The taking is unlimited, right?
Bill J. Bruce: That's correct.
Thurgood Marshall: And sold it off.
Bill J. Bruce: As to the number taken, no sir.
Thurgood Marshall: Yes sir.
Bill J. Bruce: Mr. Justice Marshall in response to your inquiry, the -- it's true that Oklahoma has no numerical limits on the actual taking of minnows from its natural streams. There is really no need for that in light of the exportation law that is since as appellant and appellee both agree that the only commercial interest in minnows is as bait, that's the sole commercial interest of minnows. Then those that are seined from Oklahoma streams are returned to Oklahoma streams in the form of bait. So it does -- there is really no need for --
Thurgood Marshall: Supposed they were returned to the streams in a state above Oklahoma, wouldn't they in turn return to Oklahoma?
Bill J. Bruce: Well, if it adjoined, if the stream ran into Oklahoma, yes sir, conceivably they would.
Thurgood Marshall: So that's not the only point.
John Paul Stevens: Mr. Bruce when they returned to the streams as bait, their life expectancy isn't very long.[Laughter]
Bill J. Bruce: Well, Mr. Justice Stevens I won't debate. I am not a fisherman unlike Mr. Helton I'm not a --
Thurgood Marshall: The minnow's life expectancy isn't the longest anyhow?
John Paul Stevens: Would you take the position that Oklahoma could have a statute that said that any fish caught in Oklahoma shall be consumed in Oklahoma, isn't that what the statute, with respect to one time?
Bill J. Bruce: Yes, yes.
John Paul Stevens: So they could say any fish caught here have to be consumed, cannot be shipped out of state? That's the same issue, isn't it?
Bill J. Bruce: Yes.
Byron R. White: Just like Geer?
Bill J. Bruce: Yes sir.
Warren E. Burger: We are not – we were discussing in response to some questions the fact there is no limit on how much you can – what quantity of natural minnows can be seined within the state, but the only purpose, the rational purpose of seining within the state would be for a dealer to sell them under that three dozen limit to other fishermen is that not so? You wouldn't go about seining fish just for the--?
Bill J. Bruce: For recreational purposes, no Mr. Chief Justice.
Warren E. Burger: -- they're not edible in that sense, and will be pretty expensive fertilizer, you would only be seining them to probably to sell them three dozen at a time to fishermen?
Bill J. Bruce: That's correct Your Honor. The statutory scheme is self executing so to speak that the natural and practical commercial object of minnows serves as a natural limitation. If the Oklahoma bars the exportation, then they would be returned to Oklahoma streams in the form of bait. Thank you.
Warren E. Burger: Do you any further, Mr. Helton?
Robert M. Helton: Your Honor, I'm just -- in answer to Mr. Justice White's question to counsel in Section 4-1159(A) it provides, “No person may ship or transport minnows for sale into this state from an outside source without having first procured a license for such from the Director. So if you come to Oklahoma fishing from your native state Colorado, don't bring any minnows.
Byron R. White: Without a license.
Robert M. Helton: And you can't get one, now let's talk about minnow dealer license and you can't get a minnow dealer's license.
Byron R. White: They just --
Robert M. Helton: -- unless you are a resident of Oklahoma.
Byron R. White: Alright.
Robert M. Helton: So I am pointing out to you that nobody can come into Oklahoma to fish and bring their minnows into Oklahoma.
Byron R. White: And so no out of state minnow dealer, fellows who would like to sell you the fishing equipment can send you any minnows from outside the state for two reasons. One, you can't get any Oklahoma minnows--
Robert M. Helton: And then of course for an outsider that wanted to bring minnows into Oklahoma --
Byron R. White: Can't get the license.
Robert M. Helton: -- to feed the fish in Oklahoma, couldn't do it.
Byron R. White: Yes.
William H. Rehnquist: Well could you read that language again Mr. Helton. I wasn't sure from its literal language that it applied to someone who wasn't trying to sell them in Oklahoma?
Robert M. Helton: “No person may ship or transport minnows for sale” you were right sir, yes sir I am sorry sir you can do it
Byron R. White: I may tempt to bring my minnows into Oklahoma.
Robert M. Helton: Yes sir, okay you are right Mr. Justice --
William J. Brennan, Jr.: As long as he goes into --
Harry A. Blackmun: That's a great relief to Mr. Justice White.[Laughter]
Robert M. Helton: Yeah. Thank you gentlemen.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: We will hear arguments next in South Dakota against Opperman. Mr. Janklow, you may proceed whenever you are ready.
William J. Janklow: Mr. Chief Justice and members of the Court. This case of the State of South Dakota versus Opperman comes here on a writ of certiorari to the Supreme Court of the State of South Dakota, and basically what we have in this case is a question of an inventory procedure of an automobile that was taken pursuant to lawful ordinance of the City of Vermillion, South Dakota. I think the facts are particularly important with respect to this particular case, they are very brief. In the early morning hours of December 12, I should say December 10, 1973, there was a car parked on the street in Vermillion, South Dakota which is a small college town, the seat of the University of South Dakota. The ordinances in the City of Vermillion prohibit parking there from 2 AM to 6 AM in the morning. This vehicle was parked there during that period of time received the ticket from the Police Officer the next morning. It was still there at approximately 10 a.m. The meter maid in making her rounds, put a ticket on the car, shortly there after when she completed the rounds, she reported it to the Police Department at which time the one of the Police Officers, Officer Frank, went over looked at the car, and examined the two tickets, and had the car towed away to the impoundment lot in Vermillion. The impoundment lot in Vermillion is an unguarded lot and as the record clearly establishes, they have had trouble there previously with respect to having cars broken into and vandalized when they have been put in the impound lot. As you look through the window of the automobile, the windows were locked, I should say rolled up, and the doors were locked. As he proceeded in to look into automobile, he could see a wrist watch and other items on the back seat. He had the tow truck operator to open the truck, open the door latch I should say, and he proceeded pursuant to the standard procedure of the Vermillion Police Department with a standard procedural form to go through and inventory the contents of the automobile for valuables. The standard inventory consisted of things such as the outside, the exterior condition of the car, the dashboard, the seats, the floors, and things to that nature.
Thurgood Marshall: Mr. Janklow you drawn the distinction, what is the difference between the inventory and the search?
William J. Janklow: I think in our brief, we attempted to draw the distinction between an inventory and search, and frankly we no longer do that. I do not draw a distinction. I do draw as distinction in the word search between criminal searching type conduct and normal inventorying type thing. But I will get in to that Mr. Justice Marshall, but, we do not attempt at this point before the Court to say that an inventory is an intrusion which is the Fourth Amendment type of search situation.
John Paul Stevens: Mr. Janklow, does the record show, what the Police standard procedure is with respect to ascertaining the ownership of the vehicle and where the owner might be?
William J. Janklow: It does not Your Honor, and I am -- since our office did not handle it I do not know. I only know what the record shows and the record that does not show that.
John Paul Stevens: It is a sign, for example and whether there was a license on the car or anything like that?
William J. Janklow: As far I can -- that is correct.
John Paul Stevens: I have this; I just wanted you to confirm that.
Lewis F. Powell, Jr.: Practice varied depending on whether or not the car door is a locked?
William J. Janklow: It does not, Your Honor, because of the fact that after this -- they have had several instances where cars had been vandalized. The Vermillion Police Department is a small Police Department in a college town, the impoundment lot is not secure or guarded at anytime and they have had past instances of people breaking in the cars. So, as a result of that particular procedure, they have started inventorying cars for the valuable contents. As a matter of fact, in our particular case, the respondent Opperman has never contested at any point in this proceedings including in the briefing stages before the Supreme Court that the Police Officer did not have followed a proper procedure and was doing nothing wrong in violation of any Amendment including the Fourth Amendment when he entered the car, the locked car to search for the, I should not say the search, to secure, retrieve and put into safety the contents, the watch and things of that nature. There is never been any argument that the Police Officer have done anything that was not in fact correct. So, basically, what we come down to is during the point of the time that the Officer was retrieving the items from inside the body of the car, he checked the glove compartment. He opened the glove box, it was close but it was not locked and open it up in it he found a checkbook and installment loan contract or installment loan papers, blank checks, some keys and for the purposes of this case, less than an ounce of Marijuana. All of these --
John Paul Stevens: What is the practice, Mr. Janklow, do they take it out of the car then, these items or do they leave them in?
William J. Janklow: No Sir, they were taken out of the car and they were in this case, all of these items to the Vermillion Police Department pursuant -- after they filled out an inventory sheet and approximately 5 a.m., or I should say 5 p.m. of the same afternoon, Mr. Opperman, respondent Opperman came to the Vermillion Police Department, picked up his belongings and his valuables, received them back with the exception of the Marijuana where warrant was served at him. Citation was issued, and that brought about the reason for this case.
John Paul Stevens: Also does the records tell us what the standard procedure would have been if there had not been a valuable article such as a watch in plain view?
William J. Janklow: To my understanding Mr. Justice Stevens that all of the cars that are impounded by the Vermillion Police Department involved having the contents inventoried for the protection of --
John Paul Stevens: You do not rely particularly on the fact that they saw the watch in the back seat or whatever it was?
William J. Janklow: No.
John Paul Stevens: I see.
William J. Janklow: I do not. The reason for that again is -- I think we are involved basically with three particular issues when we are talking about safety of property. The first issue is the safety of the individual who owns the car’s property. Opperman obviously left his watch on the dash and argument then I think could be made that by leaving his wrist watch on the dash, he could careless whether or not somebody took his watch. But, he left it out on the main street of Vermillion, South Dakota where it is well left and it was moved to a different place pursuant to legitimate or lawful Police activity under the ordinance of the City of Vermillion Police Department. The trunk was not searched in this particular automobile.
Speaker: Practice in the Police Department does not include opening the trunk?
William J. Janklow: It does not. I have to ask the Counsel if it does not.
Speaker: Even if it were unlocked?
William J. Janklow: Even if it is locked, it does not --
John Paul Stevens: Even if it were unlocked?
William J. Janklow: If it were unlocked? I cannot answer that because I do not Sir.
Thurgood Marshall: How much is ounce, is that enough for one cigarette?
William J. Janklow: No. A package of cigarette’s weighs approximately an ounce and the standard I always get is you can you probably get about 20 joints from an ounce. It is standard that I usually here.
Warren E. Burger: Perhaps in this case the constitutional issues are no different sort of from what they would be if it were heroin or some other stuff.
William J. Janklow: They are not Your Honor.
Speaker: Explain to me once again, the difference between going into the glove compartment on a one hand or lifting the hood up on the other?
William J. Janklow: I frankly do not see any difference. I think if I had to put them in orders or priority one, glove boxes have locks them. When anybody ever breaks into a car, I can imagine anybody breaking into a car to take anything and not going into the glove box, because I think as a matter of common sense, we realize that people always go into there. And because Opperman concedes that we could be in the car under plain view to secure the watch, it was just a matter of checking the glove box and it opened up and out came the contents. I think, also frankly that with respect to a trunk and under the hood, there are certain areas to this country, frankly in our States, some areas more than other where things like car batteries disappear quite often. I am not familiar that engines come out of cars very often when they are vandalized, but certainly car batteries do the same as true with respect to items in the trunks: spare tires and jacks, and things to that nature invariably come out of trunks. The State of South Dakota is not contending that everything that is there has the right to be going through. For example, we are not arguing for a moment that we could go inside the wrist watch to look for things. Respondent’s pre phrases questions about the suitcases and things of that nature and cites the Lawson cases. The Lawson case I should say from the Eight Circuit, but we have got a different situation there, because in the Lawson case you are dealing with a trunk that was entered. We did not have any trunk that was entered, we feel that the scope of the search or the scope of the intrusion or whatever characterization the activity should be given, whatever terminology it should be given, is one enough activity to one, secure the item and two, to be able to reasonably identify it for the purposes of safe keeping and inventory. And if that is --
Lewis F. Powell, Jr.: You stated it is a purpose, a primary purpose in any event of the inventory search is to safeguard valuables. Would you say that a secondary purpose of the search would be to discover evidence of crime?
William J. Janklow: No sir. I would not because there is absolutely nothing in our record that would indicate that. I am not aware of any other case in Vermillion that is arisen with respect to the discovery of anything for a crime. We have got -- I am familiar with the amicus briefs that was file from Americans Reflective Law Enforcement, I believe it is the name of the organization and they cite statistics dealing with other areas of the country which show that in fact, a very small portion of the automobiles in those sample areas that are inventory involve the recovery of any properties that deals with criminal activity, and frankly, it would be the most unproductive, assuming that the statistics that had been submitted are true, it would be the most unprotected fight for Police activity that you can imagine and it would certainly be wasteful, and that there are better things that Police could do with respect to protection of the people and the property and the community. And, so for those reasons, we do not feel that that is the secondary motive at all Mr. Justice Powell. We think that one of the key things that we have here is that we certainly are not in the particular situations like some of the more large states are or the more popular states are. You take States such as New York, Illinois, Michigan and places like that that have the larger Police Departments, that have the facilities, impoundment lots with high wire fences around them, guards around them and things to that nature. And, you know, I do not know that we would be here if were representing one of those states and face with that problem. But we are dealing with Vermillion, South Dakota where frankly we just do not have the resources. I think it is more than just the protection of the individual’s property that we are talking about when we talked about this inventorying procedure, because we have also got the protection of the law enforcement officers. Now our Supreme Court attempted to minimize that particular problem by stating that because the individual had left his car and had lawfully come in to the custody of the Law Enforcement Community by reason of the fact that the ordinance provided that it would be impounded, that it be taken away for the improper parking, that the Law Enforcement Community then at that point became a gratuitous bailee and as a result there liability, if any, was very slight. But, I do not think frankly that Fourth Amendment is ever, an interpretation of the Fourth Amendment is ever turned on what the financial obligations are or responsibilities are of any of the particular varieties involved in the proceeding, and the one additional thing which was --
William H. Rehnquist: Mr. Janklow, I suppose regardless of the standard imposed by South Dakota as to what kind of bailee, you can still get into arguments about whether something was or was not, in fact, in the glove compartment. If someone comes along later and says it was stolen.
William J. Janklow: I think that is correct Mr. Justice Rehnquist except -- we work from the premise basically that all people are honest. We pre suppose that they are going to honest, and that one, if the first individual that has the interior contact or the contact with the automobile inventory, it is a question of that one person’s word against anybody else’s one; and two, you have got the situation where once the community knows that impounded automobiles are inventoried, it is certainly going to not make a lot of sense once the words out for them to go vandalizing and breaking in the cars any longer that have no valuables, and then because they have been taken out. So, I think that there is a third category here, a protection and that is protection of people from not being encouraged, especially young people, juveniles, to go and burglarizing and vandalizing cars when they realize there will not be any fruits there. And so, I think we are not only talking about protection of the Law Enforcement Community, we are also talking about protection of the individual who has got possession or originally had possessions of the vehicle or at least whose property is in the vehicle, as well as the general public. So, I think there are three areas of protection that we are dealing with, with respect to this particular case.
John Paul Stevens: Does the record show one of the standard procedures were adopted by the Police Department? It does show some vandalizing; I am just wondering the vandalizing was before or after the standard procedures?
William J. Janklow: It does not show that Your Honor. We feel that with respect to the Court’s decision, in Cady versus Dombrowski that basically although it did not come down on exactly the same issue. It was awful close that the language of that is could be controlling or could be governing. The parallels that could be drawn from a real community in Wisconsin with Vermillion, South Dakota are certainly there. With respect to the activity of the Law Enforcement Officers, the parallel was there other than a fact that in Dombrowski, they were dealing with looking for a firearm for generally the protection of the general public at large. We are dealing with an automobile in both instances that lawfully came into the control of the Law Enforcement Community and I think one of the most important things is there has never been an allegation at any time in our case, as the same is true in Dombrowski that the Law Enforcement Officers were looking for one any criminal evidence that they were conducting any criminal investigation, that they were involved in anyway, in pursuing the criminal law. No allegations ever been made that there was any attempt to subterfuge, or I should say that there was a subterfuge being used in this inventory process to pursue the criminal law or any criminal prosecution. As a matte of fact, the records clear at least as far as the trial transcript is concern. I believe the page number is 27, when a Law Enforcement Officer was asked, he said that until he was in 1the process of doing this inventory and came across the items in the glove compartment, he had no reason to suspect anything improper with respect to that particular motor vehicle. I think the key or in a lot of cases in this area, especially in the Supreme Court level, the Supreme Court’s cases of Cooper, Harris and Dombrowski are basically the three key cases. Dealing with the Cooper case, first I should say, then the Harris case and then of most recent nature, the case in Dombrowski in 1973. Preston case was discussed a lot in all of these various cases. But the Preston case, we submit, is not involved in our issue here, the 1964 Preston decision for the reason that Preston dealt with an attempt by the State to say that a car was taken pursuant to a valid arrest, even though -- or the search I should say was conducted pursuant to a valid arrest, when in fact that was no the case. Individuals were arrested for vagrancy there and the issues, the holding in Preston has been, on many occasions, referred back to is the fact that it is confined specifically to the facts that you have in Preston and that we do not have here with this particular case at all. Law Enforcement Officers were not in any legal custody of the Preston vehicle and as a matter of fact, they attempted in subsequent argument or I should in further argument to say that, the car might had been stolen and that is the reason they were looking at it from that standpoint. So, we feel that the Preston case is not controlling. There is an additional case other than those that have been cited in the briefs, the Fourth Circuit, I have been informed, has recently come down with a decision, dealing with this particular type of Fourth Amendment question. I frankly, do not know the name of the case. I was only made aware of it yesterday and I do not have a copy of it.
Warren E. Burger: Now as you get that, send as a Memorandum and send it to your friend.
William J. Janklow: I certainly will. I would like to reserve the additional time that I have Mr. Chief Justice.
Warren E. Burger: Very well Mr. Janklow. Mr. Ulrich.
Robert C. Ulrich: Very well Mr. Chief Justice and may it please the Court. Pertaining to the factual situation that Mr. Janklow is tried to be the elements, it is such factual situation involving this particular case. Well, I basically agree with the facts as presented. I feel it is imperative for analyzation, proper analyzation of this case that certain facts which are contained and a record again be brought to your attention. Those are that the record clearly shows that this particular vehicle wore current South Dakota license plate at the time of the initial seizure from the streets of Vermillion occurred. The record also clearly establishes the fact that the Officer towing the vehicle or the Officer who had the vehicle towed made no attempt to contact the owner, made no attempt to ascertain who the owner of the vehicle was prior the time which he discovered in the close glove compartment after he had broken into the automobile with the use of the tool. After -- excuse me.
Thurgood Marshall: What duties the Policeman have been looking up, he left the car.
Robert C. Ulrich: Well, I think the argument to that Mr. Justice Marshall would be that --
Thurgood Marshall: Do you have any place where did do anymore and check to see if it is a stolen car?
Robert C. Ulrich: It can all but there is --
Thurgood Marshall: You called up all the cars that were seized in New York, you will be busy all day?
Robert C. Ulrich: No, but I think perhaps the scope of this decision would be in the areas where perhaps the owner would be present at the time the initial seizure occurred and the argument that I wish to make, and I feel that this particular fact should be brought on, if Mr. Opperman were present when they have towed his car, he should have been given the opportunity or preference at least some choice to whatever you want his automobile is search.
Thurgood Marshall: Well, you should not have left it on the street?
Robert C. Ulrich: Well, the automobile was —
Thurgood Marshall: Illegally.
Robert C. Ulrich: The automobile was left there due to a malfunction in the automobile; it was not there by choice. It was there as a resulted bad battery.
Thurgood Marshall: It is not Police’s problem.
Robert C. Ulrich: No, I understand that, Mr. Justice Marshall. We are not --
Thurgood Marshall: That was very well be an abandoned car?
Robert C. Ulrich: We are not, Mr. Justice Marshall, we are not arguing the position that the initial seizure in this case was improper. We concede that the initial seizure, under the ordinance of the City, was proper.
Thurgood Marshall: I am trying to find where you get that they should have notified him or gone to look for him?
Robert C. Ulrich: Well, I think perhaps --
Thurgood Marshall: Do you insist that that is in this case?
Robert C. Ulrich: No, I do not want to insist that it be done. I only wanted to bring it to the attention for the Court’s purpose that if the situation does occur where the owner is present at the time the initial seizure takes place that he should be given some type of preference to whether he wants his automobile searched, and that is the only reason why I raised that fact.
Byron R. White: If you come on to an abandon car, may the police go in a glove compartment to see to whom it belongs?
Robert C. Ulrich: I do not believe so. I do not think it would be a necessity for that. Now I am somewhat lost for that answer because --
Byron R. White: They have to go into my glove compartment to find out to whom my car belongs.
Robert C. Ulrich: Our state law --
Byron R. White: That is where I keep my registration.
Robert C. Ulrich: Our state law does not require that you keep your registration in your vehicle. It only requires that you have it in your person or in your presence the time of vehicle’s being operated.
William H. Rehnquist: So, you can keep it in your wallet then.
Robert C. Ulrich: Yes, that is correct. That is correct. So, in—
Warren E. Burger: I suppose that the car with a Pennsylvania license tagged on it. You would not think to have an obligation to pick the phone and call Pennsylvania and see who owns that car?
Robert C. Ulrich: No, I only brought that fact to light again Mr. Chief Justice is for the Court’s attention that if the situation would arise as a result of this holding a rule or law which would be the establishment by holding of this case that if the owner is present, perhaps the best way to handle is protection of his privacy and the protection of his property Argument, would be the give him the preference.
Warren E. Burger: But going back to the situation as here, an apparently abandoned car or at least the car left alone overtime and do you say that they had no power to search the car for whatever records or papers might indicate the identity of the owner?
Robert C. Ulrich: Yes, that is my position Mr. Chief Justice. The record also establishes in this case that they could -- that the identity of the owner was detected after the time the seizure are occurred, the seizure of the criminal evidence, of the automobile. But, it was very easy for the Vermillion Police Department to detect who the owner of this automobile was.
Warren E. Burger: By doing what?
Robert C. Ulrich: Pardon?
Warren E. Burger: By calling --
Robert C. Ulrich: They radio the State Bureau of Motor Vehicles, and it takes about three minutes to determine who the registered owner of that vehicle would be.
Warren E. Burger: Well, what if they find the ticket of the card, the ownership card or the driver’s license in the car, you said they have no right to take that easier step?
Robert C. Ulrich: I am saying they have no right to take that step because they would have no expectation of finding this particular document in the automobile. It is not required to be present in the automobile.
Warren E. Burger: That does not mean that there would be no expectation; it is not required in many places but in many places that is where you would find it.
Robert C. Ulrich: Well.
Warren E. Burger: As Justice White suggested that is where you would find it in his car, that where you would find in my car.
Robert C. Ulrich: Well, I think the better argument be rather than do breaking into the automobile with the use of a tool, and perhaps going one more step further in this argument if the glove compartment was locked also breaking into that, particular closed area that it would be much easier to pick up the radio on a police unit and radio into the Department of Motor Vehicles and have your answer back in three minutes.
Thurgood Marshall: Why did you do that before they tow the car away? How far you are going to go on that? Why -- if they have got that much doing to notify you after they tow it, why do they have to notify it before the tow it?
Robert C. Ulrich: I did not argue the point Mr. Justice Marshall that there is a duty to notify.
Thurgood Marshall: If it is not a duty, what is it? It is just would be nice if they did it?
Robert C. Ulrich: Yes, that would be --
Thurgood Marshall: We discuss the constitutional statutory rights here. We are not talking how nice it is.
Robert C. Ulrich: Well, I think this is what the State’s argument goes to either. They are staying at the entry into the closed area of this compartment. An area which we argue is an area of expectation of privacy was done to be nice.
Thurgood Marshall: It was not locked, it was unlocked.
Robert C. Ulrich: The close compartment --
Thurgood Marshall: The compartment was unlocked.
Robert C. Ulrich: Well, this is an area that the record is unclear. I do not even know if this automobile was capable of locking the console and I know in my automobile I cannot lock my console. I do not have a lock guard.
Thurgood Marshall: So, that is just (Inaudible) I mean, why are we arguing on the theories here?
Robert C. Ulrich: Well, I do not see any distinction between --
Thurgood Marshall: I do not see any reason why you keep emphasizing that they had some kind of a duty to notify him that they had towed his car away. The Normal procedures, when your car is gone, you call the police and the police say, did you pay your last installment? And, you say yes. And, he says we are going to look and see if we towed it.
Robert C. Ulrich: Well --
Thurgood Marshall: Is that the usual procedure in Vermillion?
Robert C. Ulrich: Well, rather --
Thurgood Marshall: Is that the usual procedure there?
Robert C. Ulrich: I think it would be yes.
Thurgood Marshall: Well, that was they were doing?
Robert C. Ulrich: I agree. But of that purpose of that argument or purpose of addition of that fact was only for the point Mr. Marshall to notify the Court that perhaps in further situations, if the individuals present, he should have been given the opportunity or the choice which particular means he would wish to exercise to protect his property. And that is the only limited purpose again for bringing that to the Court’s attention.
John Paul Stevens: But Mr. Ulrich you keep referring to the desirability giving him a choice, if he had been present. But is it not the typical situation, one in which the owner is not present? That is why the problem arises.
Robert C. Ulrich: Yes, I agree that it is.
John Paul Stevens: Now, assuming he is not present, what exactly is the obligation of the police and under your theory of the case, before they may make a thorough search of the car, including the glove compartment?
Robert C. Ulrich: My position is the only way that they could make a thorough search of the car after the initial seizure would be to follow one of the prescribed exceptions, automobile exceptions for the warrant requirement on a consent search. Now, if the individual is present, that the Police Officer did ask him which would be your preference and the individual consent it to the entry and the seizure of any items within the automobile. That would be the only two areas were my argument would allow police to enter and search.
John Paul Stevens: Assume that they are unable by looking at the license plate or seeing any other indicia of ownership in plain view. Assume they are unable to identify the owner, would you say that then it would be reasonable or unreasonable to make a complete search of the car?
Robert C. Ulrich: I think in this particular case, it would be unreasonable.
John Paul Stevens: So that if they get an abandoned car and they cannot identify the owner, you would say that police may never go into the private areas of the car?
Robert C. Ulrich: No, I think it would depend on time element. If no one showed to claim the impounded automobile within a reasonable time that the police under somewhat of an argument presented in the Cooper decision, time element where the police were allowed to search car after they have custody for one week. This time element argument would then come in to play. That would give them -- it would give the Police Department some reasonable justification at that time perhaps to enter the automobile and search.
John Paul Stevens: Would you say the same thing if it was apparent that the vehicle had been stolen, and then abandoned on the street? Would you stay still it cannot be searched?
Robert C. Ulrich: I think in the stolen vehicle type argument, perhaps it still not be search, in those arguments, the police are going and notify the owner of the recovery of this automobile. He should then be given the preference whether the automobile be searched. Now again, there is all kind of extensions in this area that we will allow a search but I would not wish comment at all.
John Paul Stevens: But basically you are saying, I think that no search, if you know the owner, without first notifying the owner?
Robert C. Ulrich: Yes, I guess that is basically what my argument.
John Paul Stevens: It is an affirmative duty to contact the owner.
Robert C. Ulrich: Yes. But, pursuing the matter of early cases which you have been referred to by the State in the manner -- the State in their argument does place reliance upon a decision of this Court in Cady versus Dombrowski. My argument is to the interpretation of that case and the proper interpretation of that case would be to examine the factual situation contains in Cady. A factual situation where the individual was intoxicated, later unconscious and hospitalized, his automobile in an accident, constituting a nuisance the automobile being impounded, the Police Officer impounding the vehicle pursuant to somewhat of a police regulation, which would require them to conduct an inventory. The record in that case are not quite familiar with what their regulation states, but the regulation was present and the motive of the Inventorying Officer in that case, which is absent in this case, was he had a reasonable belief that the vehicle contained a weapon, which would be dangerous either to himself or to members of the general public. And in this case, we have no motive or no reasonable grounds or probable cause existing to believe that this vehicle contained anything. Other than the items of plain view that were contained in the interior that the Officer could observe from the window. When he entered to the glove compartment, this officer did not know what are the glove-compartment contained any items of value.
William H. Rehnquist: Mr. Ulrich does not the notion of probable cause almost not land itself when you depart from the idea of a search with the object of taking incriminating evidence? I mean, does it make any sense in Cady versus Dombrowski to talk about probable cause to believe that there was a gun in the trunk, when you are not talking at all in terms of pursuit of criminal evidence? Do you not have to analyze in some other terms of reasonableness?
Robert C. Ulrich: I do not believe you would have to. I believe that the Fourth Amendment is not only applicable area of the search with an attempt to see its criminal evidence.
William H. Rehnquist: Well, I am suggesting is that perhaps the line of analysis should be reasonableness which is the language of the Amendment rather than probable cause when you get out the side of the area you have searching for criminal evidence.
Robert C. Ulrich: Yes, I agree with your position. The element should be reasonableness and that I think that if I did state the issue of probable cause. It was error on my behalf and proceedings that analyzes as reasonable measure. But I think, reasonableness in this case, the automobile was seized and searched right around noon. It was a broad day. This is a very small rural community. The --
Potter Stewart: Population of Vermillion is about 10,000?
Robert C. Ulrich: The standing population is 5,000, and when the University is in session, the population will be in the neighborhood of 10,000. but it is a small community, the owner did arrive at the Police Station sometime around 3 p.m. Mr. Janklow’s fax stated he did return at 5. He did return at 3 p.m. to claim his automobile. The automobile was only in place custody for period of three Hours in broad daylight in the small rural community.
Warren E. Burger: It might have been there for three days of three weeks? Is that not so?
Robert C. Ulrich: Pardon?
Warren E. Burger: It might have been there for three days or three weeks?
Robert C. Ulrich: Yes, there is a possibility that it is happening, but I think in those particular cases, a search or entry into the automobile maybe justified under some time element reasoning which exist in Cooper.
Warren E. Burger: Let me ask you another one hypothetical question. Now, they did not enter the trunk in this case, is that correct?
Robert C. Ulrich: No, they did not.
Warren E. Burger: Suppose they did enter the trunk and found inside the trunk some incriminating evidence, you say that would similarly be subject to suppression and exclusion?
Robert C. Ulrich: That would be my --
Warren E. Burger: Suppose when they open the trunk, they found small child, bound in the gagged, victim of kidnapping. That fact would not be admissible an evidence if he is tried for kidnapping.
Robert C. Ulrich: That would be my position that that evidence would not be admissible, the entry into a closed part of the vehicle without any justification or without any basis of reasonableness would offend Fourth Amendment standards.
Warren E. Burger: Suppose this hypothetical kidnapped victim were 10-12 years old and vigorous enough to kick on the trunk of the car and make a little noise. Do you think that then might alter the situation?
Robert C. Ulrich: Yes, it would definitely alter situation; it would give the Officer --
Warren E. Burger: How would it alter, because it gave some probable cause to --
Robert C. Ulrich: It would give a reasonable foundation for the Officer to believe that the vehicle did contain something which should be removed immediately and he would be justified.
Warren E. Burger: Then they have the right to go in, in your view, then to see whether it was just a hunting dog or kidnapped?
Robert C. Ulrich: Yes, in my view, that would constitute reasonableness in light of Fourth Amendment standards.
Warren E. Burger: Well, if he they just stumbled down and by accidents, then they could not prove or use that evidence against him.
Robert C. Ulrich: Well, my answer to that question would be yes. Whoever under facts of this case, I do not feel that they did stumble under this evidence by accident; I think, it was by design.
Warren E. Burger: What record do you suggest supports all that?
Robert C. Ulrich: From the mere fact that the entry was gained into an area of privacy would -- no foundation of reasonableness.
Potter Stewart: There is no claim in this case that it is, like the Harris case and that this was a plain view case. There is no such claim at all is not it?
Robert C. Ulrich: Well, the State seems to make that argument. The State seems to make the argument that Harris is applicable-.
Potter Stewart: They cited harris is a relevant decision, that is one thing. To say that, it is one thing, but, to say that -- but I did not understand that there was any claim that this was in plain view, because in fact, it was in the glove compartment.
Robert C. Ulrich: No, this case is completely different than Harris. Harris may --language in Harris maybe helpful, but, the rule of law spotted by Harris, in my opinion, is not applicable in this case, and I do assure your opinion that Harris is a plain view case.
Lewis F. Powell, Jr.: Do you think the watch on the dash board, being in plain view, supplied the element of reasonableness that you mentioned?
Robert C. Ulrich: I would like to answer that question, and Mr. Janklow’s position was that Opperman did concede the initial entry onto this automobile. That has never been my position. That was the holding of the Supreme Court of South Dakota, the initial entry, to remove articles in plain view as reasonable. My argument was even the initial entry with this automobile and where windows are rolled and the doors were locked, the owner had taken all precautions that he could to protect his items of value within the car finds of his automobile. The initial entry or breaking the clause and entering into the automobile was unreasonable. That was my initial argument. However, this decision now, the decision that the Supreme Court of South Dakota has modified that wise decisions stating that there -- that will be opinion that any seizure of items in plain view would be unreasonable.
Lewis F. Powell, Jr.: Suppose instead of a wrist watch on the dashboard there had been a beautiful diamond broche. Would that make any difference? Would that justified entry to protect it?
Robert C. Ulrich: I think perhaps the better argument between the initial entry and the alternative argument of no entry what at all, that will make the better argument is that that would justify an entry into the automobile. We are only dealing with the area of plain view within the automobile, which is an area -- excurse me --which is an area in order to come within the automobile exception.
Byron R. White: A fortiori if it were a gun in plain view.
Robert C. Ulrich: Excuse me, Mr. Justice?
Byron R. White: A fortiori if it were gun in plain view.
Robert C. Ulrich: Yes, yes. We are all -- pursuant to the States additional argument, their argument also runs the lower Court’s decisions, citing State, Federal Court decision. About half of the State Court decisions that the Government relies on and in this case, did not analyze an inventory procedure to be a search. Now, the State has conceded this to be a search for purpose of this argument. Now the additional half of these cases proceed with the analysis of reason ones in the light of the Fourth Amendment. The argument as to civil liability or the argument of bailments, in my opinion, is applicable in the analysis of reasonableness, maybe not just for the fact that it is fair but any analysis of reasonableness has to deal with motive. What is the motive, in my opinion, of the Officer that is entering in the closed compliance of the automobile? The State attempts to justify this entry; it means of the Officer’s motive was to protect the Police Department. Well, in the analysis of this motive, it is obvious that under the state laws for each he was operating that he would not be a liable for the entry to the automobile, for it would not reliable to any articles within the automobile but where in the absents of his plain view. The only --
Warren E. Burger: (Inaudible) that in a decision on precisely that point or did they just announce it incidentally in this case?
Robert C. Ulrich: This was announced incidentally in this case. There has been an additional decision since that time which I do not have to cite to, I would be happy to send it to you, where the arrest occurred on the open highway and the automobile was left by the Police Officer on the open highway. The individual who was arrested was taken into the station house and during the time the station house procedure was occurring the automobiles was vandalized. Our Supreme Court’s stated that the Officer was under no liability for any vandalism that occurred to the automobile on the open highway.
Warren E. Burger: An Officer or Municipality might have to go all the way to the Supreme Court as this case now demonstrates to get that decided. Do you not think they have the right to talk some precautions and how the procedures that will protect them even against the likelihood of defending a suit?
Robert C. Ulrich: This is a matter of statute also. Certainly, there are maybe some questions as the statutory interpretation, but I think the statute in this case is quite clear. In South Dakota, they are known or termed as, gratuitous depositories, and they are only held to a slight standard or slight degree of care. So, I think that the -- there maybe a problem with statutory interpretation, but I can find no slighter degree of care that rolling the windows locking the doors on an automobile would protect any property, and in this case, automobile was already lie.
William H. Rehnquist: Mr. Ulrich, what if you win here and the South Dakota legislature decides it does not like the result very much, and so if passes a statute saying that policeman impounding car shall be subject to the highest degree of care. Ought that to change the result for Fourth Amendment purposes?
Robert C. Ulrich: No, I do not believe it should but it if may go to an analysis of motive, what the Officer’s motive was when he entered the automobile. But in this case, the State is attempting that justify the entry as a police protection argument. That was the motive that the Officer, one of the motives of the Officer entering to the vehicle to protect Police Department, and I do not see how that motive can be justified in light them the State statute, only defying them as gratuitous depositories and slight degree of care.
Thurgood Marshall: What else is there in the record to give you a motive?
Robert C. Ulrich: Excuse me Mr. Justice?
Thurgood Marshall: What else is there in the record to give you a contrary motive on behalf of the police?
Robert C. Ulrich: There is nothing in the record to give me a contrary motive.
Warren E. Burger: The only thing that will be deterred, the only conduct that will be deterred if the case were decided your way, would be inventorying contents of cars.
Robert C. Ulrich: That would be correct. Now, it is --
Warren E. Burger: Be deterring constitutional violations, but simply here --
Robert C. Ulrich: It would be deterring constitutional violations because in my argument, and entry under the closed confines of the automobile and the console would be a breach of --
Speaker: But, that is what is in this case?
Robert C. Ulrich: Yes. Returning to the question of Mr. Justice Marshall as to is there anything in the record to indicate any bad faith or any bad motive. I think an analysis of the Court of Special Appeals of Maryland on this issue in their latest case involving inventories procedure is helpful. The name of the case is Dixon versus State where the Justice writing that opinion begins with the statement that nothing is affected the yawning credibility gap in between the Officer’s testimony in the area of inventory searches since the Dombrowski cases. And I think, this is one of the dangers that are present by allowing this type of procedure and in allowing the Officer to testify that he had no bad motive, and that it was strictly a good effort. I do not think the constitutional --
John Paul Stevens: Mr. Ulrich, to the extent that you rely on the fact that the Police Officers are possibly sometimes guilty of not telling the truth. I suppose there are also on occasions guilty of breaking into cars and stealing the property of the citizen who abandoned it there. Is it a possible legitimate interest to the State to regularize the procedure by which this inventories are taken, in order to minimize the danger of theft by the Police Officers?
Robert C. Ulrich: I do not know if I can answer to that particular question as to regard to the State Policy. I think that the holding in this case by the State Supreme Court would certainly organize or stabilize these procedures. It would certainly give direction, this holding, and I think since holding has been expounded in South Dakota that standard has been reached on the inventory searches after this holding. So, as the conclusion of this argument, my position is, and I feel to be a better position, in the absence of any reasonableness the entry into an area protected by the Fourth Amendment has to be the found unreasonable and violation of the Fourth Amendment. In the State’s arguments as to police protection and the argument has to the protection of the owner of the property, in my opinion, are without merit. The owner is given no more protection by having his inventory, the items in his automobile inventory. If an individual is going to make false claim, he is going to be the type of visuals going to make it at anyway whether the items are inventoried or whether they are not inventoried.
Thurgood Marshall: If they are inventoried and carried to this police and put into police safe, they are a little bit safer than not there in car.
Robert C. Ulrich: I would say that just because an inventory sheet is presented by a Police Officer that it does not --
Thurgood Marshall: Not a sheet -- they took the materials and took them through the police and put them in safe keeping.
Robert C. Ulrich: Those materials, yes, those materials would be safe.
Thurgood Marshall: Would it not protect for the man?
Robert C. Ulrich: Yes, that would be protection. Well, concluding the argument, I can still find no reason why an entry into an area, protected under the Fourth Amendment Constitution, the standard of reasonableness, I can find no reasonableness as to the entry, and this closed compliance. In the absence of any reasonableness, the evidence should be excluded in violation of the Fourth Amendment. Thank you.
Warren E. Burger: Do you have anything further Mr. Attorney General?
William J. Janklow: Couple of things Mr. Chief Justice. Members of the Court, with respect to the defendant’s, excuse me, respondent’s contemption, that you can compare this case with Cady, that Opperman case with Cady, the State will submit that is the case also. Cady was unconscious; here Opperman was even not around. He might as well a bit unconscious because he was not around, from the time in the early morning hours when he first discover that his car was not available or that he did not -- his car would not start, according to the record until late the next day afternoon, he never bother to call the Police Department which everybody can see in a community with approximately 5,000 to 10,000 people. Yet, an argument is not made that there was some expectation the police should go around and around looking for him. When the obvious thing would have been, and had he cared, was to get a hold of the Police Department. Second of all, Cady, there was a nuisance the car park; here there was a nuisance with car park. There is a legitimate ordinance that there is no argument but there is a legitimate ordinance that provides that cars that break the law with respect to the parking have to be removed between 2 and 6 a.m. With respect to the impoundment in Cady the car was impounded and here the car was impounded. In Cady it happened to be seven miles from the Police Station, on the rural country of Wisconsin, here we happened of had it taken inside the community of Vermillion, but also not at the Police Station, and also on a public place where it was unprotected. In Cady, they talked about motive and here we talked about motive. In Cady, the motive was to search for the weapon to protect the general public. There was no argument but what the police and Cady where doing was to look for the weapon one, and two their contact with the car was a non-criminal contact because the car was a nuisance and they legitimately had it. Here in Opperman, we have non-criminal contact. There was no suspicion and nobody has ever made the allegation that there was any police suspicion of any criminal violation. We have got the protection of the public, the protection of the Police Officer, and the protection of Mr. Opperman with respect to the property --
Byron R. White: Should you be able to -- should you be able to look under the floor mat Mr. Attorney General?
William J. Janklow: I would say yes, because I think anybody frankly -- people put their keys under the floor mat a lot of times. People, that is where they place the ignition key. In our country, you look in the ashtray over the visor and under the floor mat when you are looking for keys.
Byron R. White: Under the floor mat on the back seat?
William J. Janklow: No, not under the floor mat in the back seat. But if you are going to do the proper inventory procedure, I will submit --
Byron R. White: How about in the trunk? How about the locked trunk?
William J. Janklow: No, you do not parked the keys there but --
Byron R. White: How about a lot of search on locked trunk?
William J. Janklow: We think that that would be proper just because trunks are broken into just like glove boxes are broken into. This particular case we have here Mr. Justice White, respondent concedes where in the car and he would have us just stop and look at the glove box and not even check to see what is open. But, we would submit that the legitimate areas of concern for the protection, on the balancing test under what is reasonable, and we would submit that the reasonable substandard, the objective standard of Terry versus Ohio, that was set forth by the Court in Terry versus Ohio would certainly be the one that will be applicable in could be applicable with respect to these inventory procedures are that the interior of the car, the body of the car I should say, under the hood and the trunk. That does not mean you tare off the door panels, it does not mean you tare the seats apart, does not mean you go up under the behind the dash, and those kind of things.
Byron R. White: Under the seats?
William J. Janklow: Looking under the seat, yes sir.
Speaker: Where they break and open the glove box that was locked?
William J. Janklow: I would say the answer to that would be yes. Just because of thief that would go in there would break up that glove box, but I would also submit that if that was our fax, I would be in a completely different situation. I think would be less tenuous, or I should say more tenuous than it is. Now, but we submit that reasonableness is in fact the standard under the Fourth Amendment, clearly the Fourth Amendment demands reasonableness and the standard of Terry versus Ohio on the objective test, that is the one that would be appropriate. The last point that the State would suggest is what had when he found the wrist watch on the dash, had he opened the glove box to put it in there? To get it out on plane view and seeing the marijuana with the respondent present then arguing that for some reason, the Law Enforcement Officer had also made a mistake. But the key thing I think the facts in our case are unique and they lay us basically other than for the gun situation that put a squarely within the reasoning and the logic and the proposition that where laid forth with respect to Dombrowski. Also the arguments for Fourth in Cooper and Harris clearly apply, that the automobile is of a different nature than somebody’s house. It is mobile but not only it not mobile but also because of the police contact in an non-criminal nature, that there is so much of—this is the only reasonable thing that these Officers could have done other than to just leave the car in an area where they knew that it is broken into on the past and where it could be broken into now, and then face the arguments. This whole argument about bailments and gratuitous bailee frankly, although there is a statute down in the South Dakota, it does not pertain the Police Officer, it is a statute on gratuitous bailments and it took our Supreme Court to decide that issue and even its respondents says in this argument, even after this case, there is another case before our Supreme Court to decide whether or not a Law Enforcement Officer was agreed to it as bailee and we submit that the protection of people’s property should not depend on whether or not people are gratuitous bailees or not. And for those reasons, we would request the decision of the South Dakota Supreme Court be reversed. Thank you.
Warren E. Burger: Thank you Gentlemen. The case is submitted.