Earl Warren: Number 50, Local 170 -- 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, versus Lucas Flour Company. Mr. Hoague.
Francis Hoague: Mr. Chief Justice, may it please the Court. This action is here on writ of certiorari to review a money judgment of a state court against the petitioning union and in favor of the employer, respondent here for damages -- based on damages caused by a strike. The respondent, a flour broker, had a union shop agreement with the union which provided in part, the employer reserves the right to discharge any man in his employ if his work is not satisfactory. This action had its origin on the morning of May 12, 1958 when an elderly employee, Jack Welch, drove a forklift truck off of the loading dock of the company, dropped some five feet, injured the forklift truck and injured himself. He went home for 10 or 12 days under doctor's care, received a -- a week's accumulated vacation pay and when he received his vacation check (Inaudible) so he picked it up, there was a note with it, which Your Honors will find on -- in the record on page 219, memo from Nick Lucas. “Jack, the enclosed check covers your second week of vacation. We have decided that it would be better to take the next -- to take next week off for part of your vacation and then should we be busy the following week, I will call you, otherwise, take the second week of your vacation and rest, signed Pete.” This of course meant to Welch that he was not to be paid with this vacation without pay. He went to the union. The union said get a doctor's -- a note from his doctor saying that he was ready to return to work.
Potter Stewart: Who was -- who was Pete or Nick Lucas?
Francis Hoague: Pete -- Pete was an official of the company, Pete Onam who was the Secretary Treasurer of the company.
Potter Stewart: Of the company. He wasn't a --
Francis Hoague: Not of minor functionary, he was an official of the company. And I think it was written on -- on just a pad of paper from Nick -- it said from the desk, “memo from Nick Lucas.” Nick Lucas was the Vice President of the company.
Potter Stewart: So Pete and Nick Lucas were the same man.
Francis Hoague: No Your Honor. I think they were different men. They were both officials of the company, both officers of the company.
Potter Stewart: I see.
Francis Hoague: So, he came back -- let's see, he came back with a doctor's letter saying that he was ready to work to the company, and they said, “Take some more time off. We're not ready for you. We'll call you when we are ready.” Since he had seniority over other men in the plant, he went to the union. The union called the head -- had a couple of telephone calls that were unsuccessful in straightening out his difficulty. And on May 27, they sent down -- in the morning, sent down a business agent with Welch to see if they could square things away. When the business agent arrived, the meeting was opened up by the plant officials stating, “Jack Welch is discharged as of today.” And they asked him why, he said for unsatisfactory service. This is the first time that there was any mention of the discharge. The business agent phoned back to the union and they sent down a picket banner and set up a picket, called the men out on strike. There were only a handful of employees in this plant, warehouse actually it was.
Speaker: Was that on the same day?
Francis Hoague: Same day, yes Your Honor. He actually called him within the hour. They called the men out on strike and the plant shut down to all extents and purposes for eight days. The strike was a peaceful one, there's no violence, no mention of violence or threat of violence in the strike. The Court found that it was essentially a one man picket. The strike ended after eight days when a temporary injunction was issued by the state court in this action that's before Your Honors. After the injunction issued, it was agreed to submit the matter of Welch's discharge to arbitration. After hearings and five months after the strike had ended, the Arbitration Board came out with findings that Welch's services had been unsatisfactory for some years and this was the climax of unsatisfactory service. It also found in -- these findings are corroborated by the trial court that the employee's indecisive attitude towards the -- the employer's indecisive attitude towards the employee made it difficult for the union to understand the employer's position in respect to the sudden discharge of an employee who two days before had been told to take a little vacation and he will be called back on time. It said that if it hadn't been for this indecisive attitude, the strike would never have assumed it's -- I mean, the situation would never have assumed its proportions. After that in the findings -- there's no question between parties here that the findings of the Arbitration Board are final and conclusive in this action.
Felix Frankfurter: I don't know whether it's relevant, but the opinion of the -- your court that the strike was intended against the charged employee for admittedly unsatisfactory work.
Francis Hoague: Yes, we submit that that is a misleading statement. When they say admittedly, they mean that we can't controvert it at this time because we're bound by the finding of the arbitrators. It wasn't admittedly at the time. In fact, it was contested very seriously that we wouldn't have gone to arbitration if it's been admitted.
Felix Frankfurter: Is it relevant to our -- to the issue of satisfactoriness of (Inaudible) as well as to our problems?
Francis Hoague: I think it's relevant. I don't think there's any issue as to his unsatisfactory service. He was unsatisfactory --
Felix Frankfurter: (Inaudible)
Francis Hoague: But I do think it's -- if it -- if his services were satisfactory, I don't believe we'd be here. The trial court after the trial --
Hugo L. Black: I don't quite understand. I understood you to say it with mistakes when they said they were admittedly unsatisfactory. Then at the last time, you said you would say that you admittedly were unsatisfactory or you wouldn't be here.
Francis Hoague: Your Honor at this time we have to admit that they were unsatisfactory because we're bo -- bound by the findings of the arbitrators. At the time of the strike it was --
Hugo L. Black: Not determined.
Francis Hoague: I've -- I hope I've made this clearly because this is -- this is an important issue of a distinction. We admit it now because we can't deny it.
Felix Frankfurter: But the Court in an order -- I shouldn't take your time, you said at the time of the strike, it wasn't admitted. The strike in the instant case was in protest against the discharge of an employee for admittedly unsatisfactory work. Now, may we start from there?
Francis Hoague: Yes.
Felix Frankfurter: Then I don't know whether it's relevant to what will be unfolded by you, but the statement also is there that the strike was in protest against the discharge of an admittedly unsatisfactory worker and there was a provision of collective agreement saying that the employer reserved the right to discharge any man under his employ if his work is not satisfactory. Like this -- like I just --
Charles E. Whittaker: Yes.
Francis Hoague: I like to get it out of my mind.
Francis Hoague: I'm -- I'm glad that you state your concern about this because I -- I want to get it out of your mind, too. The -- at the time of the strike, there was a very serious dispute. The union disputed the question as to whether, well, they insisted that Welch's work was satisfactory.
William J. Brennan, Jr.: Well, this all went to whether or not there was a breach to justify the statute. If they had discharged him although he was a satisfactory worker, would there be a basis for the strike.
Francis Hoague: Yes, I think that --
William J. Brennan, Jr.: Yes.
Francis Hoague: There were (Voice Overlap) --
William J. Brennan, Jr.: That's the point.
Francis Hoague: I think there's no question there would -- for the basis for a strike of that and we -- we submit --
William J. Brennan, Jr.: Then -- then you might not successfully have been sued for having breached the contract under it would they -- or the suit would've been on the other point.
Francis Hoague: That's correct. But isn't --
William J. Brennan, Jr.: Is there any more relevance to this?
Francis Hoague: Not unless one of Your Honors is still under the impression that at the time that the strike was called, we admitted the -- the union admitted that -- that his work was unsatis --
Felix Frankfurter: Well the Union may not have admitted, but was there a determination by a -- by an agreed upon tribunal, the would-be arbitrator that he was unsatisfactory.
Francis Hoague: There was five months later, yes Your Honor.
Felix Frankfurter: At the --
Earl Warren: Well, in other words, the strike was before the arbitration.
Francis Hoague: Yes Your Honor.
Earl Warren: And up to the time of the arbitration award was made, there was there a dispute between to claim the parties as to whether this man was satisfactory -- satisfactory.
Francis Hoague: Yes.
Earl Warren: But after -- after the award, you recognized that you can't raise that question here so you say from that point on for the purposes of -- of this case, he was admittedly unsatisfactory. Is that -- do I understand it right?
Francis Hoague: It's exactly --
Felix Frankfurter: But the sentence of the Court is that the strike was in protest for something which if true there was no justification for the strike.
Hugo L. Black: Are you raising the question --
Francis Hoague: I submit that that's misleading and wrong.
Hugo L. Black: Are you raising the question that they didn't have the right to determine that, that the Act preempted that field for the National Labor Relations Board? (Voice Overlap) --
Francis Hoague: Yes, we raise that. That's one of --
Hugo L. Black: Is that your question?
Francis Hoague: That's one of -- that's one of the two questions involve in this appeal.
Speaker: (Inaudible)
Francis Hoague: No. In order to -- there's a specific finding that by the trial court that it was for the purpose and I -- this is on page 187 of the record that it -- his purpose was to compel the plaintiff to rehire Welch.
Speaker: (Inaudible)
Francis Hoague: To com --
Speaker: (Inaudible)
Francis Hoague: Well, to punish is one thing and to compel him to rehire is another, one might be punitive. The -- where was I? At the trial -- after the trial, the state court found that the -- gave judgment for some $6500 against the union. Now on the -- on the basis of tort on the ground that the strike was coerced -- illegal and coercive, this -- these words have become words of our -- in labor law in the State of Washington when judgment is granted, it's granted against the union, it's because their action has been coercive. If it -- if judgment is in favor of the union, it's -- their action or picketing is persuasive and that those are the two -- two distinctions. From this tort judgment, we appealed and the State Supreme Court affirmed the judgment on a dual basis, on two grounds. One in tort that the strike was an attempt to force the employer to forego his exercise of -- the exercise of his right to discharge Welch for unsatisfactory service, and as to that, we of course raise the point as to the tort action, the state courts were preempted by the jurisdiction of the Labor Board. As to that, they said preemption was no problem because this was neither a protected activity to strike; it was neither a protected activity nor a prohibited activity under the Taft-Hartley Act. The second ground was that this was a common law breach of contract as to Section 301 despite the fact that we cited the Linc -- this Court's decision in Lincoln Mills case. They said that Section 301 was obviously purely a jurisdictional provision and did not affect the substantive law involved. And therefore, they were free to apply local common law. Now unless this Court wishes otherwise, I'm not -- I do not intend to spend much time on the tort aspect of the supporting opinion of the court below because I deal with this -- it's so obvious that this falls within the San Diego Build -- Building Trades against Garmon as at least an arguably protected activity. And therefore, the initial jurisdiction play in the Labor Board to determine whether the terms of this contract waived the protection of the Act. The more novel question is the common law breach of contract. As I say, the opinion of the court below says that -- said that 30 -- Section 301 of the Act did not affect the substantive law and therefore they are free to apply local law. We do not contend that the Lincoln Mills decision specifically decided that Section 301 supplanted inconsistent local law. We do submit that it almost necessarily follows from this Court's decision in Lincoln Mills case because if you have in this case two inconsistent laws governing the same contract and potentially 51 inconsistent laws governing a national labor contract, it would result in chaos. Perhaps a stronger argument for this proposition lies in the fact that if a matter, say a strike or any form of labor activity is not forbidden under that contract by Section 301 applied to the labor contract, then it could be, in many cases would be, a protected activity. And if the state law said that this would be penalized by money judgment or by an injunction, this would be a clash of jurisdictions between state and federal and of course federal should prevail.
Felix Frankfurter: May I -- perhaps I'm intervening at the wrong time but would on your assumption that this was an arguable right under the National Labor Relations Act, would the finding of the arbitrator under the procedure -- is that part of collective bargaining agreement?
Francis Hoague: Yes Your Honor.
Felix Frankfurter: Would the finding of the arbitrator that Welch was properly discharged because of being incompetent, whatever that's based on, would that be binding on the National Labor Relations Board and therefore binding on the employer and the union as I understood you to say.
Francis Hoague: Yes.
Felix Frankfurter: If it's binding on both parties, why doesn't that the case out of the National Labor Relations Act?
Francis Hoague: Well, this -- I -- I'll answer that quickly and I --
Felix Frankfurter: Perhaps (Voice Overlap) earlier when you said you're not going to argue this, but on reflection --
Francis Hoague: Well --
Felix Frankfurter: -- if it's a -- if this is for purposes of law, an admitted incompetence, admitted unsatisfactory employer then is the -- is the right to compel his reinstatement a protected right --
Francis Hoague: There's no --
Felix Frankfurter: -- deemed arguable?
Francis Hoague: Yes, Your Honor. The -- at least there's no -- the fact that a person was properly fired doesn't mean that a strike to reinstate him is -- the strike to enforce his reinstatement is improper. There --
Felix Frankfurter: What's the unfair labor practice that you would want to argue before the Board? The only (Voice Overlap) --
Francis Hoague: You mean what wouldn't be --
Felix Frankfurter: -- the employer did was to acquire (Inaudible) and you say that to discharge an incompetent employee was within his rights, what unfair labor practice does the employer does there?
Francis Hoague: No, we're not claiming that he was guilty of any -- any unfair labor practice.
William J. Brennan, Jr.: No, what you're saying is that -- in the -- in these circumstances, as I understand you, that rather than an action in tort that this strike raised the question either of a colorably prohibited or protective right and that in consequence the state courts were ousting the jurisdiction that the employer should have gone to the Board.
Francis Hoague: That's right.
William J. Brennan, Jr.: They have that determined as an unfair labor practice, isn't it?
Francis Hoague: This is shown -- excuse me. There are numbers of cases on page 17 of my brief, Cusano against the Labor Relations Board, National Labor Relations Board against McKetron. I had these five cases there in which -- in which there was a discharge for completely justifiable reasons. The union jumped to erroneous conclusions, called a strike and all the strikers were fired. This is to in -- each of these cases, the Labor Board ordered reinstatement because they said this was collective activity.
William J. Brennan, Jr.: Yes, did any of those (Voice Overlap) -- Did any of those cases involve what this one does. They have a contractual provision for arbitration?
Francis Hoague: No.
William J. Brennan, Jr.: Now I gather your major point is that there's no -- no strike clause in this unless one is to be implied by reason of the arbitration clause, isn't that so?
Francis Hoague: Yes.
William J. Brennan, Jr.: And I gather -- whether -- are any of those cases which you've cited, cases in which while there was no no-strike clause in the contract, there was an arbitration clause in the contract.
Francis Hoague: No.
William J. Brennan, Jr.: None of those involves that?
Francis Hoague: No, no, no. But I -- with regard to the preemption matter Your Honor, I submit that the absence of a no strike provision makes it at least arguable that there was no waiver of the right to strike.
William J. Brennan, Jr.: And this despite the arbitration.
Francis Hoague: Yes. Yes, entirely. The -- this -- the determination as to whether a no-strike provision will be implied is just another factor to be taken into account in the -- by the Labor Board in -- in -- in assessing the factual legal complex which is going to result in their decision as to whether this is a protected activity or it's not a protected activity. And if the --
Felix Frankfurter: Is that -- let me ask you this -- whether it is or it isn't a protected activity, do that raise in light of the fact the strike was to secure reinstatement of the properly discharged employee for which there was a contract provision. Would that raise questions of facts which is here have witnesses, evidenced, were that as a question of law? What if -- what -- what would the National Labor Relations Board be deciding whether the people can stand the -- it's alright to strike if a fellow is discharged who concededly properly discharged?
Francis Hoague: No they -- that's already been determined as to -- by the Labor (Voice Overlap) --
Felix Frankfurter: Then what would be the issue before the Board?
Francis Hoague: The issue -- the issue before the Labor Board is -- did the union waive its right to strike under these circumstances, strike for the purposes --
Felix Frankfurter: That's a pure question of law wouldn't it?
Francis Hoague: -- which the strike would be wrong -- I should think so. There might be some facts involved Your Honor.
Felix Frankfurter: What kind of fact?
Francis Hoague: Oh, going into the intent of the contract.
Hugo L. Black: Suppose that -- suppose that --
Francis Hoague: This Your Honor, this Court has looked into the intent of -- into the background of contract. I think it was (Inaudible) -- background of contracts in the Lion Oil case.
Hugo L. Black: Suppose you had complained to the Board or the company complained to the Board and could have shown quite different to what the arbitrators have found to the satisfaction of the Board that this man had been wrongfully discharged, would that have been an unfair labor practice?
Francis Hoague: No, not necessarily discriminatory discharge.
Hugo L. Black: Well, not -- had been discharged because of discrimination and not because of what --
Francis Hoague: On account of union discrimination.
Hugo L. Black: Yes.
Francis Hoague: Then of course it would have been (Inaudible) --
Hugo L. Black: Then now suppose however that has been submitted to the Board some six months later as it was for the arbitrators here, the Board had found against you. Could the company then have sued you for having to strike?
Francis Hoague: And the Board had decided --
Hugo L. Black: The Board had decided the question of the unfair labor practice against you, as the arbitrators did six months later.
Francis Hoague: No I'd --
Hugo L. Black: Could they have sued you on the ground that you have had a wrongful strike as they do here --
Francis Hoague: No Your Honor.
Hugo L. Black: -- after they --
Francis Hoague: No Your Honor. I don't -- because --
Hugo L. Black: Well -- in effect are you not claiming that there was a preemption but you didn't have to wait to determine the liability until arbitrators could act, that this would suspend the operation of the law in effect simply because they had agreed on arbitration and is the question whether you can agree to that, is that part of it, so as to change the results that would occur?
Francis Hoague: Certainly, the rightfulness or wrongfulness of this strike --
Hugo L. Black: At that time?
Francis Hoague: At that time --
Hugo L. Black: (Inaudible)
Francis Hoague: -- shouldn't depend on what was -- is going to happen five months later.
Hugo L. Black: And you're saying that the right to sue for having the strike should not depend on -- determinations might be made either by the Board or by the arbitrators six months later.
Francis Hoague: That's correct. Mr. Justice Frankfurter, there is another factual issue that I -- I see in this case that would be presented to the Board and that is the question as to regardless of whether the work was unsatisfactory, did the union, in fact, did the employer, in fact, mislead the union into thinking because of its -- its clumsy method of discharge into thinking that this was an attempt to discriminate. And this I think is a factual issue that could have been -- could be raised before the National Labor Relations Board.
Felix Frankfurter: Was that the -- the record bears it -- is this a hy --
Francis Hoague: This was --
Felix Frankfurter: -- this was the hypothesis of you also?
Francis Hoague: This is -- this was a real hypothesis which was decided against me by the trial court.
Felix Frankfurter: (Inaudible)
Francis Hoague: But it was an issue that was contested at great length in the trial court.
Speaker: (Inaudible)
Francis Hoague: That's right. And we say that that should've been decided by the Labor Board and not by the trial court as far as -- as far as the tort liability is concerned. The -- I just want to point out that the Labor Board often does take into consideration interpretations of contracts in determining whether -- there -- whether an action on the part of -- of a union is a protected activity or is not a protected activity. The fact that this is a contract involvement here rather than a factual involvement doesn't make it a more -- a less Labor Board type of a matter to be determined. The -- in the Mastro Plastics case against the National Labor Relations Board and in National Labor Relations Board against Lion Oil Company in both situations, the Labor Board considered and interpreted the contract, the labor contract in determining that a strike was a protected activity within the meaning of the Act. Your Honor, since it's within one minute --
Earl Warren: We'll recess now.


William H. Rehnquist: We'll hear argument first this morning in No. 89-1690, California v. Charles Steven Acevedo. Mr. Foster.
Robert Foster: Mr. Chief Justice, and may it please the Court: This case is here on the State of California's Petition for Certiorari to the California Court of Appeals, Fourth Appellate District, Division 3. California contends that the lower appellate court erred when it ordered the illegal drugs found in the trunk of Mr. Acevedo's car suppressed, because the officers had too much probable cause. That is, they had particularized probable cause as to the paper bag containing the drugs, rather than unparticularized probable cause to the entire vehicle. The State contends that when Mr. Acevedo voluntarily and intentionally placed the bag into the trunk of the car, it attained the same degree of mobility as the car, and by being in the car, it was subject to the lesser expectation of privacy that surrounds a vehicle and its contents. What I'd like to do this morning is briefly go through the facts with you, and then explain why we believe this Court's decisions in Carroll, Ross, and Carney should be held to control in this case. We believe this Court should rule that the decisions in Chadwick and Sanders have been limited by the subsequent decisions of this Court. The facts are not in any dispute in this case. Back in 1987 Federal drug agents in Hawaii intercepted a shipment of drugs bound for the mainland, nine bags... nine kilo bags of marijuana. They contacted the Santa Ana police department, allowed the drugs to proceed to the Federal Express office, and the local police officers arranged a controlled delivery. They followed the drugs back to Mr. Daza's apartment. After a few minutes Mr. Daza came out and threw away the outer wrapping material and the inner wrapping material, so it was clear to the officers that he was manipulating the contents, the drugs. And at that point they did what we want officers to do under those circumstances, they went to get a search warrant. While the officer was gone... one of the officers was gone getting the search warrant, co-defendant St. Gregory exited, I'm sorry, St. George exited with a knapsack. The officer stopped him and discovered a pound and half of marijuana in his knapsack. Shortly thereafter Mr. Acevedo arrived, carrying nothing. He entered the apartment. About 10 minutes later he came out carrying a bag, a paper bag. The bag appeared to be... the bag appeared to be full. He got in... he walked to his vehicle, placed it in the trunk of his vehicle, and drove off. The officers had a... had a marked car stop him nearby. The trunk was opened, the bag was opened, and they found approximately a pound, I'm sorry, a half a pound of marijuana. Shortly thereafter the search warrant for the apartment arrived.
Sandra Day O'Connor: Mr. Foster--
Robert Foster: Your Honor.
Sandra Day O'Connor: --Would, would those facts as you have described them give rise to probable cause sufficient to have arrested the individual?
Robert Foster: I believe so, Your Honor. I believe--
Sandra Day O'Connor: And could the sack then have been searched as a search incident to the arrest or an inventory search?
Robert Foster: --Yes, Your Honor. I believe either as a... as a search incident to the arrest... and as we point out in the brief, Your Honor, I think there's another way that it could have been searched, which is once he placed it into the vehicle, voluntarily and intentionally taking advantage of the mobility of the car, when he takes advantage of that aspect of the vehicle he has to take at the same time the limitations that come with it. The limitations that come with it, this Court has clearly marked in Ross, Carroll, and Carney, which is a lesser expectation of privacy, because of the mobility of the vehicle. So at that point the officers would probably--
Sandra Day O'Connor: That's a little bit of a weak argument. When you put something in the trunk of a car you don't really expect the world to be looking in and seeing what's there, do you?
Robert Foster: --I don't think you expect the world to be looking in, but I think as this Court held in Ross, Your Honor, that whatever subjective expectation of privacy you have does not survive when the officers have probable cause to believe there are drugs in the vehicle. I am sure when Mr. Ross in that case placed the bag of drugs and the pouch of money into the trunk he had the same subjective expectation as Mr. Acevedo. In that sense the cases are very parallel, because both Mr. Ross and Mr. Acevedo placed bags of drugs into the trunk of their vehicles. And in Ross this Court held that that subjective expectation of privacy was not objectively reasonable. It did not survive in the face of probable cause. I think the point is that he... that it was a voluntary and intentional act in his part in putting the bag into the vehicle. And because of that he was seeking to exploit the mobility of the vehicle.
John Paul Stevens: But, Mr. Foster, was it any different than the voluntary intentional act in Arkansas against Sanders?
Robert Foster: No, Your Honor, but the difference--
John Paul Stevens: So you basically want us to overrule Arkansas against Sanders?
Robert Foster: --I want you to extremely limit Arkansas v. Sanders, yes, Your Honor. I understand that there's an institutional bias to saying the word overrule. And I think Arkansas v. Sanders would have validity as to luggage outside of the vehicle, but the main point--
John Paul Stevens: Isn't it correct that in his separate opinion in that case that Chief Justice Burger made the very distinction that you're challenging here?
Robert Foster: --Yes, Your Honor. That is correct.
John Paul Stevens: So you're basically challenging his analysis of the Fourth Amendment.
Robert Foster: No, I thought I was supporting the Chief Justice's analysis--
John Paul Stevens: I'm talking about Chief Justice Burger.
Robert Foster: --Oh, I'm sorry. Yes, I am challenging--
John Paul Stevens: He's the source of the particular distinction that is at issue here.
Robert Foster: --Yes, Your Honor. And if you notice in Justice Burger's opinion there, he keeps talking about the relationship between the bag and the vehicle as being merely coincidental. And I don't think that's an accurate analysis, with all due respect to the Chief Justice, because it perceives the relationship as a fortuity, and it was not a fortuity. It was an intentional, voluntary act. He sought to exploit the mobility of the vehicle, both in Chadwick and in Sanders. And I think when you take the vehicle, when you reach out to use that aspect of it, you take what comes with that mobility. And that, after Ross and after--
John Paul Stevens: Yeah, but you don't have any mobility anymore after the vehicle has been stopped and you have got the container. Why is it any different than if you stopped him before he got in the vehicle?
Robert Foster: --Because since Chadwick and Sanders this Court has decided Johns, Michigan v. Thomas, and Florida v. Meyers, and you have said you don't judge mobility later on. You judge mobility at the moment of seizure. Justice Burger's analysis was you judge... once you had seized the item, the mobility, the necessity, the mobility did not have any more effect. And this Court has said no, you judge it at the moment of seizure but you can do the search later on. And I think what has happened is this Court's evolving approach to automobile searches has taken away the underpinnings of that.
John Paul Stevens: Well, you rely heavily on Ross, and I wonder if there's a single word in the Ross opinion that casts doubt on Arkansas against Sanders.
Robert Foster: No, but I didn't think you needed to reach that issue to decide Ross, Your Honor. And indeed the footnote in place--
John Paul Stevens: The reason you didn't have to reach it is because of this distinction.
Robert Foster: --To resolve it in Ross, no, you did not, Your Honor. This case squarely presents the issue. And I think that if... you know, that Mr. Ross and Mr.--
John Paul Stevens: As did Arkansas against Sanders.
Robert Foster: --Yes, Your Honor, that is correct. And I am asking you to go back and reexamine those cases in light of Ross and Carney and your more recent pronouncements in the area. And I think that the... as we spoke in that discussion, the underpinnings of Chadwick and Sanders have been eaten away by this Court's subsequent decisions. As we talked about in answering your question, Chadwick and Sanders look at the search of the bag, or the search of the closed container at the point of the actual search, whereas this Court made it clear in Ross that you look at it, the mobility, at the moment of seizure. Because if you look at it the other way the Ross holding would not stand, Your Honor, because as you well recall, they searched the bag in the field, found it, took it to the police station and then opened it again without a warrant. So that if the approach in Chadwick was correct, Ross and Chadwick are in conflict, because Ross made it clear that you look to the mobility at the moment of seizure. Additionally, Chadwick assumed that whatever subjective expectation of privacy existed in that closed container, that it continued ad in... forever. However, I think this Court has made clear in Ross that that--
John Paul Stevens: No, not forever. Until you got a warrant.
Robert Foster: --Until you got a warrant. Yes, Your Honor. Which can be forever in some outlying jurisdictions. [Laughter] But Chadwick assumed that that expectation continued, and in Ross I thought this Court made it clear that whatever that subjective expectation of privacy was, it did not survive in the face of probable cause by the officers to believe there was contraband in the vehicle. In this case there was probable cause to believe there was contraband in the bag.
Anthony M. Kennedy: If we accept your rationale--
Robert Foster: Yes, Your Honor.
Anthony M. Kennedy: --isn't the next logical step really to say that the warrant requirement is limited only to houses and structures?
Robert Foster: No, Your Honor, I don't think that's necessarily true. I think it's fairly clear that we're dealing here with a very special area, that is, given the mobility of the automobile and its ability to rapidly move out of the jurisdiction. I don't see that that... that the logic of our position would be expandable any further than a movable vehicle: a boat, a plane, an automobile. But to take it any further than that--
Anthony M. Kennedy: Or any movable object that a person is carrying with him and that's--
Robert Foster: --No, no. We do not seek that at all, and I don't think the logic of a decision--
Anthony M. Kennedy: --Well, but if it's subject to his control and there's a probable cause for the arrest.
Robert Foster: --Well, certainly you to an extent have already done that with Schimmel, Your Honor. In the search incident to arrest you can open any closed container--
Anthony M. Kennedy: Well, that's what I want to know. What's left? What's left of the doctrine?
Robert Foster: --I think a number of things are left, Your Honor. For example, in the Chadwick-Sanders situation where the closed container comes off of the train, the Amtrak coming from San Diego to Boston. In that situation, had the defendants gone one way and a porter with a trunk gone the other way, and the arrest was made at that time so that the closed container was not in the immediate dominion and control, the area of arm's reach of the defendants, you had a closed container with probable cause, you still are going to need a warrant for that. So I think we're asking for a much narrower rule, you know, and... this Court has struggled for over 65 years with searches of vehicles. In Ross you gave us a bright line that went two-thirds of the way, and we're asking you to draw the line the rest of the way so that the officers in the field--
Byron R. White: So that we'll have no worries the next 65 years?
Robert Foster: --I would hope not, Your Honor. [Laughter]
David H. Souter: Mr. Foster--
Robert Foster: Your Honor.
David H. Souter: --You said in your example involving the porter carrying the closed container that you need a warrant for that. A warrant to do what? To stop the porter and detain the bag or to search the bag?
Robert Foster: To search the bag, Your Honor. I think that even accepting our position today, the warrant would still apply to those... to that closed container.
David H. Souter: All right, then why, by a parity of reasoning, shouldn't you say that in this case that you could seize the bag from the trunk of the car without a warrant, but you should have to get the warrant in order to go into the bag? Why aren't the... why aren't the two situations parallel?
Robert Foster: Oh, I think there's a critical difference, Your Honor. The difference is the bag in this case had been placed into a vehicle and the vehicle had begun to leave with it.
David H. Souter: No, but once you... once you have taken the bag the vehicle is not leaving with the bag, so that the mobility argument is just as beside the point there as it is in the porter case once you have taken the bag from the porter.
Robert Foster: But your... with all due respect, Your Honor, that's the analysis that was in Chadwick and Sanders, and I think that the more recent decisions of this Court say you look at the mobility at the moment you seize it. At the moment you seize the bag from the porter it has very limited mobility. At the moment you seize the bag in the trunk of the car it has the same mobility as the vehicle, as any other closed container.
David H. Souter: How does it have it after you have seized it?
Robert Foster: It does not, Your Honor, but you look, after Johns, Thomas, Texas v. White, at mobility at the point of seizure.
David H. Souter: If... but by--
Robert Foster: The Court, this Court has held that, given the fact that you have probable cause at the moment of seizure, since you can seize it it is of no Fourth Amendment consequence whether you search it immediately or search it later on. You know, in Johns, of course, which was a case at the border, they waited 3 days before they seized it... before they searched it. This Court upheld that search since there was probable cause and mobility at the moment of seizure. And I think that's the point, to answer Justice Souter's--
David H. Souter: --But by the same token there is just as much mobility in the case of the porter.
Robert Foster: --No, Your Honor.
David H. Souter: If you don't... if you don't seize the bag, the porter is going to take it away.
Robert Foster: At a slow pace, not the same as a vehicle--
David H. Souter: You mean he's going to walk slow enough so that you can get the warrant before he gets to the train? [Laughter]
Robert Foster: --No, no, no.
David H. Souter: No, I mean that, that bag is going to disappear. And if the porter's... if the car is mobile, the porter is mobile. If one isn't, the other isn't. But I'm having trouble seeing this moment of seizure distinction as between the porter and the car.
Robert Foster: I think, though, that the answer, Your Honor, goes back to the original holding in Carroll, which is that the mobility of the car is such that it can be rapidly moved outside of the jurisdiction. An individual simply carrying the bag or pushing it is not mobile to that degree.
David H. Souter: But doesn't that simply throw you back on kind of a black letter precedent argument, cars are different from porters? I mean, hasn't your argument really sort of, sort of dropped the principle and just said look, we're going to have a separate rule for cars because it's just more difficult to draw these lines with cars than it is with porters?
Robert Foster: Well, I think that in a sense this Court made the first step of that analysis in Carroll by saying cars are different--
Byron R. White: 0 [inaudible].
Robert Foster: --I beg your pardon, Your Honor?
Byron R. White: And ever since.
Robert Foster: Yes, Your Honor. And ever since you have made that distinction. And I think as... as you and the Chief Justice have pointed out in a number of your dissents, given the mobility of the vehicle, given the mobility of what has been placed into it--
Byron R. White: Is there really very much at stake in this case? Justice O'Connor asked you that if there was probable cause to believe that there was marijuana in this bag and it was in the car, you could arrest the driver of the car.
Robert Foster: --Well, I thought the question was--
Byron R. White: I'll ask you the question.
Robert Foster: --Yes, Your Honor.
Byron R. White: There was probable cause to arrest, wasn't there?
Robert Foster: I believe so, Your Honor.
Byron R. White: Well, if the officer had taken the course of arresting the person, they could have carried out a search incident to arrest, because it is a car, and searched everywhere in the car, including the bag.
Robert Foster: But the bag was in the--
Byron R. White: Isn't that right or not?
Robert Foster: --I don't believe that the search incident cases that this Court has handled... Belton talked about the driver, you could search--
Byron R. White: What if it's a bag in the... in the back seat?
Robert Foster: --Yes. Under Belton, then you could, Your Honor. But this--
Byron R. White: But not in the, not in the trunk?
Robert Foster: --No. This Court limited Belton specifically to exclude the trunk.
Sandra Day O'Connor: How about an inventory search of the vehicle?
Robert Foster: Well, Your Honor, as we pointed out in argument 2 in the brief, yes, because once the bag went into the car, once the car began moving, it was very clear that Mr. Acevedo was transporting drugs. And as far... my research indicates both the Federal statute and every State has a statute making that a crime.
Sandra Day O'Connor: Well, so your answer basically to Justice White and to me is, on the facts of this case, the individual could have been arrested and the bag could have been searched--
Robert Foster: Yes, Your Honor.
Sandra Day O'Connor: --under different doctrines.
Robert Foster: Under a number of different doctrines.
Byron R. White: And... so a police officer really needn't be... law enforcement needn't be very much impeded by the ruling in this case because the officer could have just have handled it differently.
Robert Foster: Well, he could have, Your Honor, but I think this case presents the issue that arose in Castlebury and arises again, and arises in the field every day. While the facts here may be fairly straightforward, if the principle, the underlying principle that caused the court of appeals of California to invalidate the search bedevils officers in the field. For example, in Ross, if the informant had told the officers Mr. Ross keeps the drugs in the trunk of his car, and in a pouch in the trunk and scattered through the trunk, well, then you have a situation where you have particularized probable cause as to the bag, and unparticularized probable cause as to the whole vehicle. And I think that's the kind of situation where you are asking the officers to begin making differentiations as to whether they are particularized or unparticularized probable causes, and not--
John Paul Stevens: I don't think that's right. If they have unparticularized probable cause as to the whole vehicle, Ross is perfectly clear you can search the whole vehicle.
Robert Foster: --But what if... but in a situation, Your Honor, where he has said it's in a bag in the trunk, and additionally, elsewhere. It seems--
John Paul Stevens: Well, additionally elsewhere, if that's enough probable cause, you can search elsewhere.
Robert Foster: --That's right. But when you get to the bag, Your Honor, then you'd have to make the analysis of whether you needed a warrant, because your information, as in this case, points to this... specifically to the bag. And I think that's the kind of problem that we... that we're asking--
John Paul Stevens: And the worst that, even under... apart from the rationales that Justice O'Connor and Justice White developed, the rationale of Place also protects the officer. He can always just hang onto the bag until he gets a warrant.
Robert Foster: --Well, certainly--
John Paul Stevens: Isn't that what Place indicates rather clearly?
Robert Foster: --He certainly, they certainly would have acted properly in holding the bag in this case and getting the warrant. But what we're saying is you didn't need to get the warrant in the first place. That by being in the vehicle with the mobility far in excess of a porter or simply carrying it, that that high degree of mobility causes this situation to be significantly different.
John Paul Stevens: What about a person with a suitcase that you figure has drugs in it about to get on a subway? Can you search the suitcase then?
Robert Foster: Hum.
John Paul Stevens: Under your view.
Robert Foster: Given--
John Paul Stevens: You can obviously detain it. There's no doubt about that.
Robert Foster: --Given the mobility of the subway, I would think yes, Your Honor. I think when you're dealing with a rapidly moving mode of transportation--
Byron R. White: Well, that's never going to get you out of the jurisdiction. I suppose it would in New York, it easily could.
Robert Foster: --I believe so, Your Honor. And it would. And I think that they're talking about is to rapidly move away from the officers who are there trying to effect the arrest, and move out of the jurisdiction. Indeed, if I am not mistaken, on the metro here in D.C. you can end up outside of the jurisdiction. So I think it's the same problem. I think it's the degree, and there are cases talking about airplanes, boats. I think in the discussion in Carney one of you came up with a hypothetical of the houseboat on the river, the same kind of mobility.
Byron R. White: Well, Mr. Foster--
Robert Foster: Your Honor.
Byron R. White: --It's easy, I suppose, to say that whenever there is probable cause, why do you have to wait for a warrant. But at least in this case the existence of probable cause is challenged, isn't it?
Robert Foster: Yes, Your Honor.
Byron R. White: And, of course you're the petitioner but the respondent says there is no probable cause and that the court of appeals was dead wrong.
Robert Foster: I think the court of appeals was dead right, Your Honor.
Byron R. White: Well, I know, but here it is, and that's the reason why you go to magistrates, to find out whether--
Robert Foster: Well, but even if you go to magistrates, Your Honor--
Byron R. White: --there is probable cause or not.
Robert Foster: --Your Honor, I think that begs a question, with all due respect, because even if you go to magistrate and get a search warrant you have defendants challenging the validity of the search warrant. I mean, the fact that a defendant may challenge it doesn't resolve the issue of whether or not there is or is not.
Byron R. White: I know, but challenging the... challenging the warrant is a different matter than the... just challenging the... at least you have the assurance... at least you have the assurance that the issue has been presented to a magistrate.
Robert Foster: Well, my experience with criminal defense attorneys, with all due respect, Your Honor, is that they'll challenge anything. It's like Justice Rehnquist talked about hounds attacking foxes. I don't think that... that that should be the basis of a decision from this Court. I think the--
Byron R. White: Well, on that basis, why, we should never even fool around with warrants.
Robert Foster: --Well, no, I think it works the other way, Your Honor. If you take that point of view you would require a warrant for everything.
Byron R. White: I know, but your... if you take your point of view you could just forget warrants.
Robert Foster: No, not at all, Your Honor.
Byron R. White: Well--
Robert Foster: But what we're saying is--
Byron R. White: --What good does it ever do then, in your point of view?
Robert Foster: --Well, I think the question is, in a situation such as this where there is probable cause, where it is particularized--
Byron R. White: How do you know there is?
Robert Foster: --How do I know there is? The California court of appeal ruled there is, and I think the facts abundantly show there is. I mean, they knew for a fact there was marijuana in the apartment. When Mr. St. George came out he was carrying part of the marijuana. It was clear that Mr. Daza was manipulating the marijuana because he had thrown away the inner and outer wrappings of it. And then Mr. Acevedo goes in carrying nothing and comes out carrying a paper bag that appears to be full. It seems to me that the reasonable conclusion to draw from that is they are breaking up the load of marijuana, and it's starting to be distributed. I think there's abundant probable cause. And I think given that, then the question becomes what conduct we want from the officers. And it's clear these officers were trying to comply with the law. They had left to get the search warrant at the time for the apartment. It was only the fortuity of Mr. Acevedo showing up at 10 minutes after 12 as opposed to 40 minutes after 12 that brought this situation about. You know, the Fourth Amendment talks about reasonable conduct on the part of the officers, and I think it was under these facts. They were trying to get the warrant at the time Mr. Acevedo appeared. The problem, of course, remains, and this Court had talked about it in Ross, about the convenience factor. That what do you do with the vehicle, and what do you do with the individual if we're going to require a warrant for the container? Well, if the container... if you have probable cause to believe that the container contains drugs, you have then suspicion that the individual has been possessing and/or transporting drugs. You are still going to end up then, if you require a warrant, holding the defendant and the passengers and holding the vehicle until you have obtained the warrant and learned what is inside of the bag. So you don't gain anything in terms of the convenience that this Court was concerned with in Ross. If you give... the analogy might be to the Payton case that this Court talked about, that when Mr.... you need a search warrant, you need an arrest warrant or a search warrant to arrest an individual in his home. Where that individual goes outside of the home and goes elsewhere, you don't need the warrant. I think that's the same situation here. Where the individual has a closed container, you would need a warrant to search that closed container. But when he coluntarily and intentionally places it into the vehicle, he places it in there to a different zone, a zone of mobility, a zone of a lesser expectation of privacy. And given that rapid mobility on the part of the vehicle, you should be able to search it without a warrant, since there is probable cause. The question remains under those circumstances what Fourth Amendment value is served by requiring a warrant. As this Court talked about in Carroll, the first United States Congress, the Congress that wrote the Fourth Amendment and sent the document out for ratification by the States, made a distinction. And in dealing with the search of effects in an individual's home, in the home you needed a search warrant. But they... that came out of the problem with the Writs of Assistance under the British. But the... one of the very first bills they passed was a customs and tonnage revenue raising document, and in that they allowed for searches in homes only with the warrant, but they allowed for warrantless searches based on probable cause of vessels and vehicles. The point being that the search of effects outside of the home in a movable vehicle has always been treated differently, even by those founding fathers who wrote the Fourth Amendment. Unless the Court has any further questions, I'd like to reserve the remaining time for rebuttal.
William H. Rehnquist: Very well, Mr. Foster. Mr. Anderson, we'll hear now from you.
Fred W. Anderson: Mr. Chief Justice, and may it please the Court: This case is not the search... this case is the search of a container, not the search of a vehicle. The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted outside the judicial process without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment, subject to only a few specifically established and well delineated exceptions. This case is not an exception. Carroll v. United States is a recognized exception. It is recognized and affirmed most recently in Ross, and it is well established. There is no need to overrule Ross. Ross explains Carroll. Carroll and Ross state the exceptions, or state the exception. If there is probable cause to search a vehicle, you can search and seize everything in it, including the containers. This is the search of a package not incident to an arrest. The package was... a package placed in a vehicle does not lose any privacy protection of the Fourth Amendment just because it's placed in a vehicle. What we have to look at when determining probable cause is what do we have probable cause in? We have in this case probable cause in a bag. Now I'm not conceding that there is probable cause. But for the purpose of the argument, if there is probable cause in the bag, that's the only thing there is probable cause in. If the bag is placed in the vehicle, the vehicle doesn't somehow gain an element of probable cause.
Byron R. White: If the bag hadn't been put in the trunk, but he just entered the car with the bag, if there is probable cause, such as we are assuming, the... there could have been an arrest.
Fred W. Anderson: Absolutely.
Byron R. White: And if the bag were found in the back seat, it could be searched?
Fred W. Anderson: Under Belton that's correct.
Byron R. White: Under Belton.
Fred W. Anderson: Under Schimmel, under--
Byron R. White: So you're suggesting we should continue to recognize a rational difference between having the bag in the trunk and having a bag in the back seat?
Fred W. Anderson: --I'm not sure that... I'm not sure there's a difference.
Byron R. White: And the difference, I suppose, is in the degree of the expectation of privacy, is that it?
Fred W. Anderson: No, that's not what I would base it on. You have... it's the item that you have the probable cause in. If the bag was in the trunk and you had probable cause to believe that the vehicle contained contraband, then you can search the bag, the contents of the vehicle under Ross.
Byron R. White: If you make an arrest?
Fred W. Anderson: No. Without an arrest.
Byron R. White: No? Okay.
Fred W. Anderson: Well, under Ross--
Byron R. White: But if you just have probable cause to believe what, you can't search?
Fred W. Anderson: --If you have... if your probable cause just exists in the package, in the container--
Byron R. White: Yes.
Fred W. Anderson: --then, by placing... just the mere fact of placing this container in the vehicle doesn't give you probable cause to search the whole vehicle, because what the AG would have you believe is that you placed this container with probable cause in the trunk, somehow this probable cause seeps throughout the whole car, and now you can search the whole car.
Sandra Day O'Connor: Well, on these facts there was undoubtedly probable cause to arrest the individual, to make a search incident to arrest, to impound the vehicle, and to make an inventory search.
Fred W. Anderson: I disagree with the first part. There wasn't probable cause to arrest. But in order--
Sandra Day O'Connor: Well, let's assume there was.
Fred W. Anderson: --All right.
Sandra Day O'Connor: Then what's more intrusive, to have the police arrest the individual and make the search that way, or to have the police open the bag without an arrest?
Fred W. Anderson: Certainly in answer to your question it is more intrusive to open the bag without the arrest. However--
Sandra Day O'Connor: That's more intrusive, to open the bag and not arrest the individual? That's more intrusive in your opinion?
Fred W. Anderson: --Yes, I believe it is.
Sandra Day O'Connor: More intrusive than placing someone under arrest and conducting a search?
Fred W. Anderson: I'm sorry. Yes, I see what you mean. No, no, Your Honor. Certainly it would be more intrusive just to... to take the person into custody. In this case, though, that's not what we have. Mr. Acevedo was not arrested and searched incident to arrest, as in Schimmel or as in Belton. All they did is they went to the vehicle--
Sandra Day O'Connor: Well, the point is that if you accept that there was probable cause to believe this individual emerged from the apartment carrying a bag of marijuana, then there was probable cause to have arrested him.
Fred W. Anderson: --That's true. That's correct.
Antonin Scalia: Mr. Anderson, if I understand the principle you're arguing for, if a policeman just knows, or suspects generally, has probable cause to believe that there is marijuana somewhere in the car, he can open the bag?
Fred W. Anderson: That's correct. That's--
Antonin Scalia: But if he's more certain than that, he not only knows it's somewhere in the car, he suspects it's precisely in this bag, then he can't open the bag? Doesn't that strike you as very strange?
Fred W. Anderson: --No, Your Honor, because you need to know... you need to know when the probable cause is determined and where the item that is sought to be searched is. If he receives information, for example in Ross, if the information was that bandit has contraband in a zippered pouch, or in that case a brown paper bag, in the trunk of his vehicle, then you have specific probable cause to believe that that bag in the trunk of his vehicle contains contraband. When you pop the trunk of that vehicle you're looking for the brown paper bag, and nothing more. Therefore you can seize it under the Court's--
Antonin Scalia: But you can't search it?
Fred W. Anderson: --But you cannot search it.
Antonin Scalia: But if all you knew is, or the only information you have is that there is this car and somewhere in the car there is contraband, then you can open it, even though your reason for opening it is much less certain than the reasoning in the former case? That just seems to me, just upside down. The more certain the policeman is that the contraband is in precisely this container, the less able he is to open the container? That doesn't make any sense to me.
Fred W. Anderson: What you want to determine is what you're looking for. Are you looking for a car with contraband in it, or are you looking for a package with contraband in it?
Antonin Scalia: I'm looking for contraband.
Fred W. Anderson: That's fine. But where is the contraband?
Antonin Scalia: And you're telling me that if I know it's in this package I can't open the package. But if I just think it's somewhere in the car, then I can open the package. It makes no sense.
Fred W. Anderson: I think it does, Your Honor. I'll respectfully disagree with you, because I believe that if you know exactly where the contraband is, then you may seize whatever it's in and get a warrant to search it. However, if that contraband... and it doesn't matter whether that contraband is in an auto or not. However, if you believe that the container of the contraband is a vehicle, the Court has allowed under Carroll and later under Ross... this exceptions the Fourth Amendment, the exception being if you have contraband in a vehicle, then you can search without a warrant. You can search the vehicle and all of its contents, including the containers. Now that... the petitioner wants a bright line. That's a bright line.
William H. Rehnquist: Mr. Anderson, I don't think it's useful to refer to the automobile as a container, as if it were like a trunk or a bag. I think our cases have treated the automobile not as a container, but as something almost sui generis.
Fred W. Anderson: Yes, I would agree. I would agree that the automobile is a unique situation. But as Mr. Justice Kennedy pointed out, if the Court allows the search of... under these circumstances, basically the Fourth Amendment is gone as far as it relates to automobiles.
William H. Rehnquist: The Fourth Amendment isn't gone. We would have interpreted the Fourth Amendment not to require a warrant, but to require only probable cause.
Fred W. Anderson: But you have to have probable cause to search anyway. You can't search without probable cause.
William H. Rehnquist: Because of the Fourth Amendment.
Fred W. Anderson: Right.
Byron R. White: Under your position I take it that it wouldn't make any difference whether the bag, the unopened bag was in the trunk or in the back seat on the facts of this case, because... as long as the probable cause relates specifically to the bag?
Fred W. Anderson: The problem with that is the Belton case, of course.
Byron R. White: I know, but... there's no arrest. And a lot of times, I suppose, a driver of the car, you may not have any real probable cause to arrest that person. You just know that there's... you just have probable cause to believe that there is contraband in that car and it's being transported in that car. And under Ross you can search anywhere, as long as you haven't got some specific notion about where it is in the car.
Fred W. Anderson: That's my understanding of Ross.
Byron R. White: But on your theory, I take it, it doesn't make any... if there's probable cause to believe it's in a paper bag, and you find the paper bag in the back seat, you can't open it.
Fred W. Anderson: That's how I interpret Ross.
Byron R. White: Yes. The distinction that the police officer is going to have to have in mind, under your theory, I suppose, is whether somebody told him marijuana is being taken away in this car. In that case, he can search the whole car, including all the containers. But if somebody said a bag of marijuana is being taken away in this car, then, then he can't search anything, neither the car nor the bag. All he can do is impound the car. That's--
Fred W. Anderson: That's correct, because he's got--
Antonin Scalia: --That's the distinction that you want police officers to be--
Fred W. Anderson: --Absolutely, because--
Antonin Scalia: --to have to worry about, whether they said--
Fred W. Anderson: --Because the informant in your example said, said Mr. Police Officer, this person has a brown paper bag with a Lucky Store symbol on the side of it that's wrapped up at the top, and he's placed this either in the trunk, in the back seat, or someplace in his vehicle, and I know it's there because I just saw it there 10 minutes ago. Now, the officer's attention is directed towards that vehicle. It is not directed... I mean, excuse me, that paper bag. It is not directed towards the vehicle. That paper bag is what's important to the officer, wherever it is. It could be in a house, it could be--
Antonin Scalia: --It would seem to me to make a lot of sense to say that if that's the information he has, he can't search the whole car. The only thing he can search is the bag. Whereas if the information he has is more general, it's somewhere in the car, he can search the whole car. But that's not the position you're saying. You're saying that if he has the specific information about the bag, he can search neither the bag nor the car.
Fred W. Anderson: --He can... he needs a warrant for the bag. He may search the car until he finds the bag, under the cases that end in Place.
Anthony M. Kennedy: In that example that Justice Scalia gave, suppose there were four Lucky Store bags? [Laughter]
Fred W. Anderson: All right. If there are four bags, all identical, and he can't tell which--
Anthony M. Kennedy: And they're all in the back seat.
Fred W. Anderson: --And they're all in the back seat, he can certainly take possession of all four of them and get a warrant. I know that there is dope in one of these bags, to the magistrate--
Anthony M. Kennedy: Oh, and... but now there is no specific bag that he is focused on. I thought that, I thought your rationale was that if there's a specific bag, he can't search it, but that if it's general, he can?
Fred W. Anderson: --If there is a specific bag, he cannot search it. If it's general, that's correct.
Anthony M. Kennedy: All right. So, in my hypothetical there are four bags. He's not sure which one it is. He doesn't know what to do.
Fred W. Anderson: Well, you have described them as all four being identical, all four being Lucky bags. Certainly he has a basis to--
Anthony M. Kennedy: He knows that only one of them has marijuana.
Fred W. Anderson: --He has a basis to seize all four and get a search warrant. A judge would issue a warrant for the search of all four bags--
Anthony M. Kennedy: Well, I think, I think under your rationale that he can search, and that's the problem. The problem is that the more generalized his privacy in the car, the greater the officer's right is to search, which is why Mr. Justice Scalia says the whole rationale seems upside down.
Fred W. Anderson: --I understand the argument, and I don't agree with it, because this Court has held that if you look at the car and you've got probable cause to believe the car contains contraband, you can search it. But this Court has also held, under Chadwick and Sanders and the cases that follow it, that if you have probable cause to believe a footlocker, a suitcase, or a paper bag, and Ross says there is no difference between a paper bag and a Louis Vuitton briefcase, that you've got to get a warrant. And the mere contact, as in Chadwick, the mere contact with the footlocker with the car is incidental. Now, in this case I would submit to you that why wouldn't the officers just sit there and wait? They see the person coming out with a paper bag, they have reasonable basis to believe that it contains contraband. Well, let's follow him and let's wait until it gets in the car. By golly, it's in the car, we can search it. He gets to his house. He walks into his house. Are we now going to let him search the house without a warrant? As you pointed out in your last question to the Attorney General, where do we draw the line in this? And if he walks in the house, are we now going to let them search the whole house, or are we just going to let them search the front room where the bag is? And the answer is you've got to draw the line somewhere. The line has been drawn. The cases are clear.
Antonin Scalia: We've crossed that line when we made the exception for automobiles. I mean, the manipulation that you just described can occur with anything. You see somebody leaving the house. You have reason to believe that the person may have contraband on him, you don't know in what particular container it is. You could say the same thing. The police, instead of running and getting a warrant, could wait until he got into the car, and then, and then search the car. That would be perfectly lawful without a warrant, right, so long as they don't know what container it's in?
Fred W. Anderson: Well--
Antonin Scalia: So... I mean, once we've made that decision that cars are different, that manipulation is inevitable.
Fred W. Anderson: --The problem is that... well, first of all, I don't agree with Carroll or Ross, but--
Antonin Scalia: Oh, well, there-- [Laughter]
Fred W. Anderson: --But--
Byron R. White: Or with Congress. [Laughter]
Fred W. Anderson: --In this particular case what you have is the center of attention focused on a package. As I mentioned, the first thing I said was this is not the search of a vehicle. This is the search of a package that happened to be placed in a vehicle. And that's the distinction that I see that the cases make, and I see this case... that distinction made in Ross. And Ross goes to a, to the... to the vehicle as a container, and you have probable cause to that, as to that vehicle being a container. Now we're going to give an exception, we're going to follow Carroll. We're going to allow you police officers to search the car because of its unique character, because it's so mobile, and because we have pervasive governmental interests in regulating vehicles. We're going to allow this exception to the Fourth Amendment to search this container which you know contains, or have probable cause to believe contains, contraband. But it does not say, Carroll does not say, Ross does not say you can search any package that's placed in a vehicle if you have probable cause to believe that package first contains some contraband. And what I'm submitting to you is to adopt the petitioner's view would be to adopt the view that if you place contraband in a container in a vehicle, that that contraband somehow seeps throughout the entire vehicle, and infects the whole vehicle such that you can search it. Well, if that's the case, then what if you take a suitcase or a paper bag with contraband onto the subway? Well then can you search the whole subway, the whole car? Can you search the whole train? Can you search the bus? Can you search the airplane? Just because you have probable cause to believe a container, a paper bag, whatever it is. Now, you could argue that okay, this is Mr. Acevedo's car. Unfortunately there is no evidence in the record that it is in fact Mr. Acevedo's car. But what if it was somebody else's car he gets in? Can you then search this other person's car because Acevedo got in with a paper bag containing dope in it? No. Of course not. But yet if... and then if Acevedo gets in a taxicab--
Antonin Scalia: That's not what we're talking about. We're just talking about... I mean, I agree with all of that. That seems to me perfectly reasonable. But can you search the bag? That's all we're talking about, not the whole car.
Fred W. Anderson: --Without a warrant, no, you cannot. Because the bag is... the bag... in Ross they have held... this Court has held that the paper bag is no different from the luggage, and the luggage, you have stated that you expect a degree of privacy in there. You must have a warrant to search that. The... there's a request for the... for a bright line to be drawn to guide police officers, and I would submit to this Court there is a bright line. It's called the Fourth Amendment. If you want to search something, get a warrant. Well, we've drawn an exception to that bright line. We've said well, if it's a vehicle, under certain circumstances you may search. If you have probable cause to believe the vehicle contains contraband, then you can search the vehicle and every container in it under Carroll and under Ross. However, the third situation, we get to a package. And I would submit to you if you've got a package, you've got probable cause, see rule number 1: get a warrant. Just because a package is placed in a vehicle doesn't mean that it loses its identity or its private... privacy. If this Court reverses the lower court it will create an entirely new line of exceptions to the Fourth Amendment, examples of which I pointed out earlier. The other point that I would like to address just briefly is the point on probable cause. First of all, the court of appeals makes one error in their analysis of the facts, and that is that the probable--
William H. Rehnquist: You didn't cross-petition for certiorari in this case, did you, Mr. Anderson?
Fred W. Anderson: --No, I didn't.
William H. Rehnquist: And you didn't raise this point in your brief in opposition to certiorari?
Fred W. Anderson: No, I don't believe I did in opposition to certiorari. However, I believe that the Court can review this under... as a plain error under Rule 24.1. The probable cause is deficient firstly because what the court of appeals says is that they have got a bag that is similar in size to the nine bags that were found to be in the cooler. But that just isn't borne out by the facts. In fact the nine bags each weighed 2 pounds. Acevedo's bag containing marijuana weighed between a quarter and a half pound. The Attorney General alludes to a footnote... in his first footnote to the reply brief, but there is nothing in the record to support that. Now, the other problem with probable cause is that the Attorney General points out that you have to look at the totality of the circumstances. I don't argue with that. However, in his totality you have the police officer that stops Acevedo and searches his vehicle. He assumes that he knows about St. George, and that's not in the record either. We have no information in the record that the officer that searched Acevedo's bag knew anything about the results of the search of St. George. In fact we have no information in the record which even indicates that the officer that searched Acevedo's bag knew anything about St. George even leaving the apartment, let alone what was in St. George's knapsack. So the record is really deficient, and my example in the brief I believe sets forth the facts as they are on this record. And that is that you have an individual who walks into a house. I will concede that there is... that there's no question that we know that there is marijuana in the, in the apartment. He walks in there empty-handed, he walks out 10 minutes later with a brown paper bag that appears to be full. The officer described it as similar to a lunch bag. And on the basis of that, I would think that it's deficient in probable cause. I think that there may be a suspicion, as in Place, and the officer could have stopped and run some kind of a cursory Terry-type situation investigation, but nothing more than that. There's been a lot of talk about mobility of the vehicle, but again, if you view this as the search of a package and not the search of a vehicle, then you don't even need to get into the mobility of the vehicle. Furthermore, Justice O'Connor mentioned couldn't he be searched as incident to arrest? Yes, he could, but he wasn't in this case. He wasn't placed under arrest. He wasn't searched incident to the arrest. However, a search incident to an arrest when he was in the vehicle would not cover what was in the trunk, because under Belton you can search what's in the car, but you can't get into the trunk. Now, the other thing as to an inventory search, yes, if they had arrested him, hauled his car in, and searched it on an inventory search, yes, they could have gotten there. But again, they didn't do it in this case, nor did they arrest him for transportation of marijuana. In summary, I urge this Court to affirm the lower court's decision on either of two bases: that there was no probable cause for any type of search, or secondly, that this is the search of a package and not the search of a vehicle. Thank you.
William H. Rehnquist: Thank you, Mr. Anderson. Mr. Foster, do you have rebuttal? You have 5 minutes remaining.
Robert Foster: Yes, Your Honor. I'll try and use not all of that time. Justice Scalia, you're absolutely correct. The situation is upside down. We've set up a situation where if the officer... if the officers have too much--
Antonin Scalia: I knew you would agree with me. [Laughter]
Robert Foster: --And I thought you were agreeing with me, Your Honor. [Laughter] I think you're correct. You say to officers, when you go out to get probable cause, go out and do your investigation, do what you can to get the criminal, but don't get too much probable cause, because if you get too much probable cause you're going to need to get a warrant. And I think the whole--
John Paul Stevens: No, I don't think that's quite right, is it? It isn't too much probable cause. It's what the probable cause focuses on.
Robert Foster: --That's right. But if in Ross, for example--
John Paul Stevens: If it was generally focussed on the vehicle you would normally have to get... you'd get a warrant to search the entire vehicle.
Robert Foster: --But the signal you send to the officer is... in Ross, when they got the information that Ross had contraband in the vehicle, the signal you send to the officers is don't ask where, because if you ask where and you get an answer--
John Paul Stevens: Well, you're not... who is the officer going to be asking?
Robert Foster: --The confidential or reliable informant in Ross, Your Honor, was the example I was using.
John Paul Stevens: You don't think the officer would want to know as precise as he could what he... where he... the contraband is?
Robert Foster: No, if you leave Chadwick and Sanders in effect, because then you're saying to the officers if you know too much you're going to have to go through the rigmarole of getting a warrant.
John Paul Stevens: You're going to have to get a warrant before you open private luggage.
Robert Foster: Yes, that's right. And I don't think that--
John Paul Stevens: And we should not encourage that?
Robert Foster: --I think you want to encourage officers to do their utmost to fully investigate--
John Paul Stevens: To be able to open luggage without getting warrants?
Robert Foster: --If they have probable cause. Yes, Your Honor, I think that's within the goal of the Fourth Amendment, because you still have the requirement of probable cause. Counsel seems to try and broaden my argument into if you've got probable cause to search the bag, you can search the whole vehicle, and as Justice Scalia pointed out, that's not what we're arguing. We're arguing here today that if you have probable cause as to the bag, because the bag is in a vehicle, you should be able to search the bag. We did not make any argument as to the... expanding any rule of law to therefore encompass the vehicle. There are other rules of law coming into play there. Justice White, one point I wanted to make in response to your question about couldn't they have gotten an inventory search here. That's also true in Ross, Your Honor. The... having found the gun in the trunk of Mr. Ross' car, the officers could have arrested him and searched the entire vehicle as an inventory search. So that that... the fact that that avenue of analysis existed in Ross did not preclude this Court in Ross from reaching the issue, and I would hope it would not preclude the Court in this case from reaching the issue. In summary, we believe your decisions in Carney, Ross--
Byron R. White: I dissented in Ross.
Robert Foster: --I beg your pardon.
Byron R. White: I dissented in Ross.
Robert Foster: Yes, Your Honor, you did, but the... the other members of the Court didn't.
Byron R. White: That's the rule. [Laughter]
Robert Foster: At any rate, Your Honor, this case--
Byron R. White: You would like it not to be, though?
Robert Foster: --I would hope that the Chief Justice's position in Chadwick and Sanders in the dissent, along with Justice Blackmun, would become the majority rule. We would urge you to reverse the decision of the California court of appeal. Thank you, Your Honors.
Thurgood Marshall: Mr. Foster.
Robert Foster: Yes, Your Honor.
Thurgood Marshall: Not that it has anything to do with this case, but do they ever use white or purple bags? Are they always brown? [Laughter] You've had a lot of experience. You ought to know.
Robert Foster: I have always seen it to be the ubiquitous brown paper bag, Your Honor. Occasionally, and for some reason the drug dealers in California seem to be this year favoring U-Haul boxes. But I... I cannot tell you the why or the reason. [Laughter] Thank you, Your Honors.
William H. Rehnquist: Thank you, Mr. Foster. The case is submitted.