Warren E. Burger: We will hear arguments next in New York v. Belton. Mr. Harvey, I think you may proceed whenever you're ready.
James R. Harvey: Mr. Chief Justice, and may it please the Court: This case involves the legality of a search conducted by a police officer of a jacket belonging to the respondent and the admissibility of the evidence... in this case, cocaine... which was obtained from that jacket. The basic issue boils down essentially to whether or not the search was permissible as a search incident to a lawful arrest which was one of the several well-recognized exceptions to the warrant requirement of the Fourth Amendment. By way, just very briefly, of background of the case and how it got here. The respondent moved to suppress the cocaine at the trial level; that motion was denied after a hearing. The evidence was held admissible; the respondent subsequently pled guilty and appealed the case to the New York State intermediate appellate court, which unanimously held that the search was proper of the jacket in this case, as a search incident to a lawful arrest. The respondent further appealed to the New York Court of Appeals which in a divided opinion reversed the appellate court, lower appellate court, and held that the officer had in effect reduced the jacket to his exclusive control when he, if you will, picked it up, and therefore a warrant was at that time necessary under the law. The facts in this case, if I could very briefly run through them... I think they're very important, and they're pretty much... well, they're not in dispute by either counsel for the respondent or myself, but I'd like to go through, and start out by saying that it was on April ninth 1978, that the Trooper Nicot in this case, a state policeman, was patrolling the New York State Thruway, an interstate highway, and he spotted the respondent's vehicle traveling at a high rate of speed on the highway.
William J. Brennan, Jr.: What time of day was this?
James R. Harvey: Mid-morning, Your Honor. And he pulled over the vehicle. There were four male occupants, two in the back and two in the front. When he went up to the window... it was rolled down by the driver; he went to the driver's side... he smelled fresh burning marijuana and observed on the floor a Supergold stamped container which he knew from his training to be a container that normally contains marijuana. At that point in time he directed all four occupants to leave the vehicle, which was a two-door vehicle. They got out of the vehicle. He at that point in time retrieved the Supergold container, which did contain marijuana, in fact, and some four or five "roaches" or burned marijuana cigarettes in the ashtray of the front portion of the vehicle. At that point in time he again patted down or searched further all of the four occupants of the vehicle, read them their Miranda rights, placed them under arrest for possession of marijuana. At this time we had four defendants outside of the motor vehicle there on the expressway. The officer then went back into the vehicle and on the back seat there were lying five jackets. He picked up the jacket involved in this particular case and he took ahold of it, went through it, and found cocaine in an unzipped pocket as well as a $20 bill and cocaine in a zippered pocket. Not that that makes any difference. And he then asked each of the four defendants, at this point, occupants of that vehicle, as to who owned this particular jacket.
William H. Rehnquist: You say there were five jackets?
James R. Harvey: I believe that's correct, Your Honor. There were only four people in the car, Your Honor, but there... pardon?
William J. Brennan, Jr.: Five jackets?
James R. Harvey: That's correct, Your Honor. I believe that's what the... as I recall the record. And none of these--
William J. Brennan, Jr.: Did he search the others, too?
James R. Harvey: --Yes, Your Honor. None of the occupants admitted to this jacket belonging to them. So he then placed each and everyone of the occupants under arrest for possession of cocaine, obviously a more serious offense. And the defendant--
Warren E. Burger: At trial did they disclaim any ownership? Or any move to suppress?
James R. Harvey: --Okay, Your Honor, in the jacket, in... the defendant in this case, the Respondent, now Belton... he had an ID card. I believe it was either a Blue Cross or Blue Shield card with his name on it. And I handled the case at the grand jury, and each of the other occupants pointed the finger at the respondent in this case, Your Honor. And there was never any disavowal of the ownership of that jacket.
William J. Brennan, Jr.: But the ID card also was in this jacket?
James R. Harvey: That's correct. In the respondent's name. That's correct, Your Honor. Now, it's the position of myself that in this particular case Chimel v. California governs in that this was a proper arrest and a search. There's no question about the lawfulness of the stop, and there's no question of the leadup to the arrest for the possession of marijuana, that this was a lawful stop and a lawful search incident to arrest. Now, Chimel, of course, pointed out you can certainly search the arrestee, in this-case, four arrestees, and that you can also search the area under the immediate control of the arrestees, and that has been construed to mean the area from which an arrestee may gain, or might gain, access to a weapon or destructible evidence.
Harry A. Blackmun: Was this trooper always alone with the four?
James R. Harvey: That's correct, Your Honor. He was alone at the scene. There were no other officers present. It was he and the four occupants of the motor vehicle.
William J. Brennan, Jr.: Did he secure them in any way when they were standing--
James R. Harvey: No, Your Honor, they were in no way secured.
William J. Brennan, Jr.: --Just stood outside the car?
James R. Harvey: They were outside of the vehicle, outside of their particular vehicle, Your Honor. He did indicate that he, if you will, he segregated them outside the car, spread them out a little bit, outside the vehicle. That was the extent as to what he did. He couldn't secure because he didn't have but one pair of handcuffs. Exactly, Your Honor. We believe that under the Chimel case that we have to ask ourselves, under these circumstances could any one of these arrestees or occupants of this vehicle approach that vehicle, rush or overpower the officer, and of course obtain the evidence which was on, in the back seat, in the jackets, in this particular case? Now, these jackets, we certainly can presume, were shed at some point in time by the occupants.
William J. Brennan, Jr.: Did you say it was a two-door vehicle?
James R. Harvey: That's correct, Your Honor.
William J. Brennan, Jr.: Then did he have to get in it and--
James R. Harvey: Yes. Your Honor, he had to bend, push the seat to get into the back seat, push the front seat forward, and bend in. At this point in time he was certainly indisposed to a certain extent in that particular area.
William J. Brennan, Jr.: --I take it any of the four, had he been able to reach it, would have had to get in the same way, would he?
James R. Harvey: Being a two-door vehicle, Your Honor, they could have certainly... my position is more that they could have overpowered the officer and put him in a situation where they could have obtained the evidence and taken out the jackets in this particular case. And I believe that that's why the search certainly is proper under Chimel, because I believe he could have been overpowered by any one of the arrestees. This is not a case of one arrestee--
William J. Brennan, Jr.: And why did the New York Court of Appeals say it was not?
James R. Harvey: --Okay. Your Honor, the Court of Appeals, the court below in this particular case, took the position that when Trooper Nicot placed these four occupants of the vehicle under arrest, that there was some magic in the officer with these four occupants of the vehicle, placed under arrest, that automatically they were subservient to each and every command of that officer at the vehicle. I think that this is quite frankly absurd. I think, at this point in time, the exclusive control, the Court of Appeals held, of that whole scene... in other words, now the scene is stabilized, as far as the majority of the court was concerned, once he placed the individuals under arrest and of course ordered them out of the vehicle. I think that's not realistic--
Thurgood Marshall: Were any of them armed?
James R. Harvey: --There was no evidence in this particular case of any weapons. There were no weapons, Your Honor.
Thurgood Marshall: Well, yes, the officer had a weapon.
James R. Harvey: That's correct, which he never used, or never even drew.
Thurgood Marshall: Well, I don't get this, he automatically can be overpowered. You used the word, "automatically". I don't--
James R. Harvey: Well, Your Honor, I maybe misspoke. He certainly could have been.
Thurgood Marshall: --Couldn't he have called for help? Isn't that usually what's done when there's a one-officer patrol--
James R. Harvey: He certainly--
Thurgood Marshall: --And they usually call for help.
James R. Harvey: --Excuse me, Your Honor. It could have been done; certainly. At some point in time he could have gone his vehicle and called for help, under these particular circumstances.
Thurgood Marshall: Gone? He could have just picked up the phone right there in his car.
James R. Harvey: He's outside of his vehicle at this point in time, Your Honor. He could have called initially when he pulled the vehicle over but--
Thurgood Marshall: That's what I'm--
James R. Harvey: --that's very unusual in a speeding case, Your Honor, for a police officer--
Thurgood Marshall: --With four people in the car?
James R. Harvey: --That's correct, Your Honor.
William H. Rehnquist: Mr. Harvey, Judge Gabrielli in his dissent makes some point of the fact that under your state procedural rules the New York Court of Appeals cannot make new findings of fact where the Supreme Court and the Appellate Division have made concurrent findings.
Speaker: Is that--
James R. Harvey: That's the law. That's a correct statement of the law, Your Honor. And in fact, they did that in this particular case by finding the exclusive control of the scene of the jacket in the officer at this point in time. To me, that was incorrect.
Warren E. Burger: --Do we have any review of that issue when highest court in the state has, even if they have distorted their own law? Can we correct the errors of the New York Court of Appeals on error in construing state law?
James R. Harvey: In redefining the factual situation, Your Honor, that existed which they are not supposed to... not authorized to do under state law? I would say, yes, Your Honor.
Warren E. Burger: We do? What's the federal issue?
James R. Harvey: We're dealing here with the constitutionality, Your Honor, of the particular search. That's correct.
Warren E. Burger: They merely found us a new set of facts which the dissenting judge said was wrong, but is that something we can reexamine?
James R. Harvey: I think, Your Honor, you can examine the record of the hearing, and I think that that substantiates the position--
William J. Brennan, Jr.: No, but don't we have to take the facts as the New York Court of Appeals said they decided the case?
James R. Harvey: --I submit, Your Honor, that the fact that this Court should consider are the facts set forth in the record of the hearing in this particular case at the initial trial court below.
William J. Brennan, Jr.: Do you have any authority for that? Anything in this Court that's ever suggested we do that?
James R. Harvey: We don't have any, Your Honor.
Speaker: There isn't any.
James R. Harvey: Now, in the respondent's brief, he makes much ado about the lack of concern of the officer for his safety. This case, this Court in Robinson--
William J. Brennan, Jr.: Incidentally, did the officer get them to the police station in his?
James R. Harvey: --Ultimately he did, Your Honor.
William J. Brennan, Jr.: He put the four of them in... what? his car?
James R. Harvey: In his vehicle, that's correct, Your Honor.
William J. Brennan, Jr.: And drove them all?
James R. Harvey: Took them to the police station, and ultimately to the magistrate, in that particular area, that's correct, Your Honor. This Court in Robinson stated that it's not certainly necessary for the officer to calculate at the scene, to consider whether or not a weapon may be present, but rather the arrest itself automatically triggers, if you will, the search incident to that arrest, which includes the area of the arrestee, as I stated before, as well as the person of the arrestee, In Robinson, of course, it was the person of the arrestee from which the cigarette container was obtained. To say that the... as I stated before... that the officer had the exclusive control of the jacket at the time that he picked the same up, I think the Solicitor General in his brief points out that such a construction of exclusive control of this standard would in effect render Chimel meaningless in terms of searching of portable items in the area of the particular arrestee, as existed in this particular case.
Warren E. Burger: When you refer to that case, you are calling on the plain view doctrine, are you, that evidence was in plain view?
James R. Harvey: In which case, Your Honor?
Warren E. Burger: You're referring to the Chimel case.
James R. Harvey: Right, Your Honor.
Warren E. Burger: That's a plain view case.
James R. Harvey: In the area of the arrestee; that's correct. That set forth the area to be searched. I'm taking it certainly a step further, Your Honor, in saying that the area from which a particular defendant or accused person, arrestee, may obtain a weapon or contraband, certainly should apply in this particular case to anything that's in that area reachable by this defendant to, should we say, assault the officer or destroy the evidence.
Thurgood Marshall: But after he got ahold of it, the occupant couldn't have gotten it, could he?
James R. Harvey: Could expect the same argument, Your Honor, in the Robinson case, once the cigarette container--
Thurgood Marshall: I'm not arguing the Robinson case. I'm asking you a question.
James R. Harvey: --Fine, Your Honor. You could certainly take that position that once he had ahold of it he certainly had ahold of it, but the four individuals outside the vehicle, the occupants, Your Honor, certainly could have at that point in time wrestled... or taken it from him.
Thurgood Marshall: So he had a right to search him?
James R. Harvey: That's correct.
Thurgood Marshall: He had a right to search him.
James R. Harvey: Incident to the arrest. We're still in a fluid situation as the dissent in the court below said at this point.
Thurgood Marshall: While you're interrupted, where was the clear view of this cocaine?
James R. Harvey: Pardon me, Your Honor?
Thurgood Marshall: The clear view of the cocaine?
James R. Harvey: There was no clear view of the cocaine in this particular case, Your Honor, until the officer went into the jacket and obtained the cocaine, the powdery substance therefrom.
John Paul Stevens: Mr. Harvey, can I ask you just one question about the authority for the search? There were two offenses that had been committed, one by the driver in speeding, and then secondly all four, presumably, were in possession of marijuana.
James R. Harvey: That's correct, Your Honor.
John Paul Stevens: If you had only the former, namely, a speeding offense, would you still say there would be authority to search the jacket?
James R. Harvey: That's an interesting question. I would say at that point in time, no. In other words--
Potter Stewart: Maybe in New York a speeding offense would not support a custodial arrest.
James R. Harvey: --Your Honor, that's correct.
Potter Stewart: That's your answer then.
James R. Harvey: Fine. At that point in time there would be no authority to search. Now, once the marijuana, of course, which was kind of contemporaneous to the--
John Paul Stevens: Assume that it was a sufficiently reckless driving and maybe he smelled alcohol on the breath of the driver, but no one else, so there was cause, probable cause to make a custodial arrest of the driver, would that entitle you to search the jackets in the back of the car?
James R. Harvey: --The driver alone?
John Paul Stevens: Yes.
James R. Harvey: At that point in time, probably not, Your Honor.
Warren E. Burger: What about a search for weapons at that stage? Could he search for that purpose when he was one against four?
James R. Harvey: At the point in time where he arrested the driver for driving while intoxicated?
Warren E. Burger: At any time after he stopped the car, could he make certain that there wasn't any weapon that might be used to shoot him down?
James R. Harvey: Absolutely, Your Honor.
Warren E. Burger: Well, now--
Thurgood Marshall: --He could have a right to search.
James R. Harvey: He could have a right, anything that looked like it may contain or could contain--
Thurgood Marshall: The difference between search and pat down, I'm talking about.
James R. Harvey: --Certainly, pat down.
Thurgood Marshall: I thought that's what you meant.
James R. Harvey: Okay. Thank you.
Warren E. Burger: And anything in the car that might contain a weapon.
James R. Harvey: That is correct, Your Honor.
John Paul Stevens: Well, I guess you've changed your answer to my question, then, is that right?
James R. Harvey: How is that, Your Honor?
John Paul Stevens: Well, I take it, when a man is stopped for speeding, maybe he's got alcohol on his breath, there are three other people in the car, some of them might have a weapon, there might be a weapon in the jacket. Would he have a right to search the back of the car, search a jacket in the back of the car?
James R. Harvey: For his protection, on any arrest.
John Paul Stevens: Your answer is yes or no?
James R. Harvey: Yes.
John Paul Stevens: So you've changed your answer to my question?
James R. Harvey: Yes. We're asking, Your Honors, if you will, the Court to set down a standard or guideline, if you will, in these type of cases, that is, the search incident to lawful arrest cases. There has been a lot of different holdings in the state courts, some commentators have looked at the area of search incident to lawful arrest and come forward with certain criteria that we think ought to apply. That is... and be considered, certainly, by the officer at the time of the arrest, as well as by the courts. We would like to see this come from this court and the other lower courts. That is, the number of arrestees as opposed to the number of police officers at the time of the arrest. What restraint if any has been imposed upon the arrestee at the time of the arrest?
William H. Rehnquist: This deals with the question of whether the person of the arrestee can be searched?
James R. Harvey: The person as well as anything within the "grabbable" area of the arrestee, Your Honor.
William H. Rehnquist: Well, I thought in Robinson we said that regardless of whether or not in a particular case all of the factors might not add up to considerable danger, if it was a custodial arrest, the rule was that there could be a full field search?
James R. Harvey: That is correct, Your Honor. Of the individual, at that time.
William H. Rehnquist: Of the individual. So that we don't want consideration of individualized factors in that situation.
James R. Harvey: Anytime you've got the custodial arrest, that's correct, Your Honor.
Byron R. White: So that if this jacket, if he had had this jacket on, it would have been searchable under Robinson?
James R. Harvey: No question about that, Your Honor, certainly. And taking it off, should another rule apply?
Byron R. White: Or even carrying it in his hand?
James R. Harvey: If he were carrying it in his hand, clearly, it would have been searchable under Robinson. If he were seated at a park bench and arrested for a crime that were two feet from the particular individual, I take the position that will also be, if you would, Your Honor, certainly searchable.
Warren E. Burger: Well, if it's his jacket, what difference would it make if it were two feet, three, or four?
James R. Harvey: Any point in time at the arrest; I agree with Your Honor. Certainly.
John Paul Stevens: Robinson was just a one-person case, wasn't it?
James R. Harvey: That's correct, Your Honor.
John Paul Stevens: You don't suggest that the right to make a custodial arrest of the driver entitles you to search the person of all passengers, do you?
James R. Harvey: No. The area.
John Paul Stevens: Okay.
James R. Harvey: Your Honor, is the position that I take. The area of the arrestee. And in this case, of course, the facts in this case, all the individuals, not just the driver, were of course under arrest.
John Paul Stevens: I understand. For marijuana?
James R. Harvey: That is correct, Your Honor. The location... another criteria... the location of the arrestees in relation to the automobile and the ease or difficulty to be encountered by the arrestees in gaining access again to the weapon or the destructible evidence, the area, if you will, of the arrest. And we believe that we're not looking for any particular rigid or inflexible guidelines by this Court, but rather to look at each case where there is a search without a warrant under a recognized rule such as the search incident to lawful arrest, which we believe is here, that we should have some guidelines for the courts below--
Thurgood Marshall: There's my trouble. The case just before said they want a bright line and you don't want a bright line. Now, who shall we go with?
James R. Harvey: --I think we should go, in the area, I think... Justice Stewart had a good point. In terms of... the officer is the person that's going to have to make the determination at the scene. We certainly should give him through the courts and through the education process as much of the criteria, as many guidelines as possible, so that he can do this job properly.
Warren E. Burger: How can you have a bright line when you are dealing with the word "reasonable", if bright line means a per se rule that's easy for anyone to apply?
James R. Harvey: It's got to, Your Honor, apply; the circumstances certainly govern what's reasonable.
William H. Rehnquist: But here you're dealing with basically two separate doctrines, aren't you, the Robinson doctrine of searching as a result of a custodial arrest and the Chimel doctrine of how broad an area surrounding the arrestee can you search in order to make sure that he doesn't either destroy evidence or pull a gun on you?
James R. Harvey: That' correct, Your Honor. We're interweaving, certainly, the two circumstances, the two cases. One, of course, Chimel, is aimed at primarily the obtaining of the weapon or the destructible evidence. The other is the, certainly the custodial arrest and the search incident to it.
Byron R. White: Well, suppose that you make a probable cause arrest in a car, and everybody concedes you're entitled to search the trunk of the car.
Byron R. White: You find in the trunk of the car a briefcase, a plastic sack, and a jacket with a zipper pocket. I guess you would concede that you couldn't search, under our cases, you couldn't search the briefcase?
James R. Harvey: That's for sure, Your Honor.
Byron R. White: And the plastic bag is involved in Belton, I mean, as in Robbins?
James R. Harvey: Robbins.
Byron R. White: How about the jacket?
James R. Harvey: In the trunk, Your Honor, or in the?
Byron R. White: You wouldn't argue incident to arrest there, would you?
James R. Harvey: Not at that point, no, sir.
Byron R. White: And so then it would be a--
James R. Harvey: Whole new criterion.
Byron R. White: --It would be a Robbins-type consideration?
James R. Harvey: Yes. Our position is, in a search incident to a lawful arrest, you never get to the point of the expectation of privacy because of the situation, Your Honor.
Warren E. Burger: But you say this jacket was near enough at hand that it's within Chimel?
James R. Harvey: That's correct, Your Honor. We are taking that Chimel, certainly, a step further.
Warren E. Burger: Well, as someone suggested to you, the... I think, Mr. Justice Marshall... the cocaine was not in plain view, but the jacket in which the pocket containing the cocaine was in plain view.
James R. Harvey: That's correct, Your Honor.
Warren E. Burger: That was unzipped if it makes any difference.
James R. Harvey: Right. In my particular... it's our position it doesn't, but it certainly was unzipped but it was not visible as a white powder substance without going into the jacket; certainly, Your Honor. Now, in the respondent's brief, he relies heavily on Chadwick--
Thurgood Marshall: Suppose that jacket belonged to somebody else, because it was a fifth jacket?
James R. Harvey: --That's correct.
Thurgood Marshall: He had a right to go in there?
James R. Harvey: Absolutely.
Thurgood Marshall: And unzip it? Even if it belonged to somebody else? Listen to me, even if it belonged to somebody else?
James R. Harvey: Our position is, Your Honor, that as a search incident to lawful arrest, under those circumstances, custodial arrest at that point in time, that the officer to protect himself and destructible evidence has the duty and the right, certainly, to search this particular area of the arrestee.
Thurgood Marshall: Including somebody else's property?
James R. Harvey: If it includes someone else other than is in there, certainly, Your Honor.
Thurgood Marshall: It's just too bad?
Warren E. Burger: Did you tell us that there was an ID card with his name on along with the coat?
James R. Harvey: That's correct, Your Honor; yes, in one of the pockets of that same jacket.
Warren E. Burger: So any question about ownership, you would say, is resolved by that ID card?
James R. Harvey: There's no question about that, who owned the jacket, Your Honor.
Warren E. Burger: Just as though he had his name on it, as some people do.
James R. Harvey: On the outside of the jacket; correct, Your Honor. The respondent relies heavily on Chadwick and Sanders in this particular brief. I believe these cases certainly were rightly decided, properly decided. I think that Chadwick clearly... the police officers had exclusive control of the 200 pound trunk some one hour and a half after they'd arrested the defendants or taken them to the police station. And I believe in Sanders the search incident argument was never made under those particular circumstances and clearly these two cases are distinguishable. It's our position, Your Honors, that the court below should be reversed and the conviction reinstated on the theory that this was in all respects a proper search incident to lawful arrest. Thank you.
Warren E. Burger: Mr. Frey.
Mr. Andrew L. Frey: Mr. Chief Justice, and may it please the Court: Respondent has asserted in his brief that we wholly disagree with the arguments of the state, and I just wanted to begin by making the point that we do not disagree with the state in its arguments that this was within the Chimel scope, focusing on the facts of the case and the reasonableness of the officer's actions under the particular facts of the case. We think that, however, that that kind of inquiry which is amply... the state's position is amply supported, if it be made in this case, is not an inquiry that needs to be made. Our argument addresses, then, the question of whether a valid search incident to an arrest can be justified solely by reference to the spatial limitations; that is, whether it comes within the Chimel scope, and the temporal limitations during the arrest process. We were concerned about the exclusive control notion which both the New York Court of Appeals in this case and the 8th Circuit Court of Appeals in the Benson case, in which we have a cert petition pending, have imported from Chadwick, where I think it had quite a different meaning and intention, into this situation. Our argument in this case, contrary to what respondent has suggested in his brief, is not intended to undermine either thoroughly, as he says, or in any way, Chimel, or Chadwick, or Sanders. It doesn't call the validity of those decisions into question at all. The permissible scope of the search of the person of an arrestee incident to arrest has been settled in Robinson and that scope is broad indeed. This case concerns the aspect of a search incident doctrine involving a search of containers or items of some kind that are nearby but not on the person or being worn by the arrested individual. And our position is that such nearby items like the items on the person should be subject to the same test for a valid search incident to arrest as long as the search is made during the period of the arrest. We would not contend, with respect to a separate container that may have been seized, that the Edwards principle that a search incident to arrest can occur later, would be applicable to such containers. Now, the first question in analyzing the case is whether, when the officer went and seized respondent's jacket, the jacket was at that time within the spatial area defined by this Court's opinion in Chimel.
William J. Brennan, Jr.: Mr. Frey, is this an argument that because the jacket was capable of being worn, we ought to treat its search as we would treat one if he were wearing the jacket?
Mr. Andrew L. Frey: No, no, it would not have to be a jacket. It could be a shopping bag or some other item. It's not because it was capable of being worn, but because it was an area from which a person could secure, possibly secure a weapon or destructible evidence.
Byron R. White: So what about a lady's purse? Say, the sole driver in a car is a lady and there's purse on the back seat, and they have probable cause to arrest?
Mr. Andrew L. Frey: Well, the questions that I would ask are at the time the purse is seized, is it within the area where the woman who has been arrested could possibly lunge for it and grab it?
Byron R. White: Supposing that it is, you would say, they may search it?
Mr. Andrew L. Frey: If it's still during the arrest process. If it's been put in the back of the patrol car and then they come back and start--
Byron R. White: What about a briefcase that's on the front seat beside the person you arrest?
Mr. Andrew L. Frey: --Yes.
Byron R. White: The same?
Mr. Andrew L. Frey: I would say the same. That is, if--
Byron R. White: Otherwise, you would--
Mr. Andrew L. Frey: --To follow what the Court has held in Robinson, it does not turn on the privacy expectation.
Byron R. White: --And so you would say, if you arrested on the street, if you arrest a person on the street carrying a briefcase, you can obviously search the briefcase?
Mr. Andrew L. Frey: If it's unlocked.
Byron R. White: If it's unlocked?
Mr. Andrew L. Frey: I would have difficulty with the suggestion. And one of the reasons we did not argue--
Byron R. White: But what if it were just zippered? Draper?
Mr. Andrew L. Frey: --I think the question the Court has to answer in this situation is whether it is something to which somebody might possibly have gained access during the course of the arrest.
Byron R. White: We've certainly sustained as an incident search, a search of a zippered bag, in Draper, Draper.
Mr. Andrew L. Frey: Yes, I would say a zippered container would be searchable incident to arrest; yes. But I would have difficulty with the locked footlocker in Chadwick. And we do not argue for--
Warren E. Burger: You don't have much choice about that, do you?
Mr. Andrew L. Frey: --Excuse me?
Warren E. Burger: You don't have much choice about that any longer.
Mr. Andrew L. Frey: Well, I would have... I don't think that the Court held in Chadwick that a search then and there would necessarily not have been incident to arrest. So, if we had such a case it would be arguable, but I doubt that I would argue it. Now, whatever the outer boundaries of the spatial area that Chimel defines as incident to arrest, which is the area from which you arrest, a person might gain possession of a weapon, or destructible evidence, is a matter that necessarily has to be delineated from case to case, and this Court has not had very much occasion to do so. But I would note that if the arrested individual is standing unsecured outside his automobile, I think the interior of the automobile, not the trunk, but the interior passenger compartment, is under Adams v. Williams, would have been in the scope of search and seizure.
Warren E. Burger: We'll resume there at one o'clock. 0 [Recess.] Mr. Frey, you may continue.
Mr. Andrew L. Frey: Thank you, Mr. Chief Justice. I think when the Court recessed I was discussing the spatial limitations, the limitations of the Chimel test. And it is our view, and I think Adams v. Williams is precedent for this, that the interior of a car is within the spatial grabbing area for a person who is standing right outside the car at the time of arrest. But the decision of the court of appeals here and of the 8th Circuit in our Benson case seems to go beyond that and suggests that even though an item is seized from within the Chimel area, there is a separate inquiry whether at the time it is searched it is within the exclusive control of the officer searching it. And that test, which as far as I know, is novel to our jurisprudence prior to Chadwick, comes from certain language that was used in Chadwick, and I think in a quite different context. There are several difficulties that we perceive with the exclusive control notion that has been used by the lower court in several of these cases. First, I would make the point that it runs afoul of the holding in Adams v. Williams, which was a case where, according to the record that was the appendix in this Court, Williams had been arrested. The officer then waited until additional officers arrived on the scene, at which point the car was searched. Now, it was not a subject of analysis in the Court's opinion, but the Court did uphold the search of the car and the seizures of the heroin found in the car as incident to William's arrest. The same is true in Draper where, I assume, at the time the zipper bag was searched it was within the exclusive control of the officer in this sense. And the problem with the exclusive control test, the way it's being used, is that it essentially eliminates searches of any item that is capable of being picked up and carried away by the officer as incident to arrest.
William H. Rehnquist: Well, Mr. Frey, you wouldn't contend that the cases from this Court that you have referred to are kind of a unified whole easily applicable by any lower court or any policeman, would you?
Mr. Andrew L. Frey: I would say that in the area of search incident to arrest the cases to date have been reasonably consistent, and it seems to me that--
Byron R. White: Up until they were unsettled by Chadwick and Sanders, maybe?
Mr. Andrew L. Frey: --Well, I don't think that Chadwick... Chadwick apparently has been the source; Sanders, I don't think, has anything to do with search incident to arrest, but Chadwick has been the source of some confusion for the lower courts, but I don't think it's any inconsistency in this Court's treatment of the subject that has prompted that.
Potter Stewart: Well, there was no claim in Chadwick, was there, that that was a search incidental to arrest?
Mr. Andrew L. Frey: We did not make that claim; no.
Potter Stewart: I didn't think so. That wasn't an issue before the Court.
Mr. Andrew L. Frey: No, but it was a point that was discussed in the Court's opinion, and in just a second I will get to what the Court said about it because I think it is important. But I wanted to make the point first that the nature of a search of an item, a parcel, a jacket, a purse, or something like that, in order to be searched it really has to be within the control of the officer. Presumably the officer and the arrested individual are not having a tug of war over the item. So in the sense that in Benson and in this case the court seemed to have used exclusive control, it totally eliminates search incident to arrest of items that are not on the person of the individual.
Warren E. Burger: I take it you will take some note of the fact that in Chadwick the search was not at the time or place of the arrest but long after?
Mr. Andrew L. Frey: Yes, Mr. Chief Justice. I was just coming to that point. What was omitted in the discussion of Chadwick is the language that immediately preceded the exclusive control language in which the Court said that the potential danger lurking in all custodial arrests make warrantless searches of items within the immediate control area reasonable without requiring the arresting officer to calculate the probability of weapons--
Byron R. White: I take it you wouldn't have suggested that in Chadwick that footlocker could have been searched if the arrested had taken place in the station, while they were sitting on... right after the dog had decided what was in the?
Mr. Andrew L. Frey: --If the arrest had taken place in the station and they had been sitting on it, I would say that it could have been searched incident to arrest but for the fact that it was locked and therefore it was not--
Byron R. White: Well, "but for" is... that's a rather big "but for", is it not?
Mr. Andrew L. Frey: --That is the big "but for". But in any event we did not make the argument. But the point in Chadwick was that the Court was merely referring to settled doctrine which had been settled in Preston, that a search subsequent to, some hours later, after the arrest has been completed, is no longer incident to the arrest. It was not at all talking about a situation of a search contemporaneous with the arrest. Indeed, the exclusive control argument seems to me totally inconsistent with Robinson, because in Robinson, as Justice Marshall pointed out in his dissent, at the time the cigarette pack was searched it was in the control of the officer. The officer could have taken it and put it away somewhere out of the reach of the arrested individual. Therefore it seems to me that once the Court has rejected that with respect to items removed from the person of the individual, there is precious little logical basis for treating it differently if the item is found nearby. Earlier, during my brother's argument, the question came up about whether he had been wearing a jacket, carrying a jacket, had it down on the park bench, or so on. Of course, once, if the jacket is removed from his person and the officer is holding it and he starts looking through its pockets, he has exclusive control in the sense that the lower courts were talking about. So I don't see any justification in this Court's cases which I think are fairly consistent in this area for saying that if the item is sitting next to the person or sitting five feet away, that the scope of a permissible search incident to arrest is any different from--
Byron R. White: Well, you don't think that there's any inference to be drawn from Chadwick that the search in that case could not have been justified as a search incident to arrest?
Mr. Andrew L. Frey: --What Chadwick held was that the search at the station house, an hour and a half later, after the people were presumably locked in cells someplace else, could not be justified as incident to the arrest. We don't question that holding here. But--
Byron R. White: You think that you would be making the argument you would be making now if when they arrested the people, just as they were, while the footlocker was in the station wagon, that they could have searched the footlocker incident to arrest except for the fact it was locked?
Mr. Andrew L. Frey: --Except for the lock. Except for the locking. And I wanted to make the point that there is talk about the privacy interest, and the high privacy interest in the pockets of the jacket and so on. And I think when we are dealing with... that argument would be very pertinent to the Robbins case which was argued earlier today, where the question is whether or not a warrant is required. That argument is either wholly irrelevant or at least not very significant when we are talking about a search incident to arrest, because the search incident to arrest is not justified by probable cause. There is no question of a warrant. I think the Court made the point in a footnote in Chadwick that when you are dealing with a type of search like an inventory search, which is not justified by probable cause, cases dealing with the warrant requirement are not really opposite. The argument is particularly inappropriate, it seems to me, when you're dealing with a jacket, because a jacket is, of course, the very kind of thing that is most likely to be subject to a search incident to arrest, since a person will usually be wearing it or carrying it at the time of arrest. The fortuitous fact that he had put it down in the car does not matter as long as at the time it was seized it's still within the Chimel geographical scope of the area within which a search incident is permissible.
Warren E. Burger: If... I suppose what you're driving at is that, conceivably, the officer might have said to the four of them, you get in your car, and don't get more than two car lengths ahead of me and go to the station?
Mr. Andrew L. Frey: That is one of the important reasons for the search incident, when you have a number of items like this. The officer may have to know what disposition can be appropriately made, which ones of them are dangerous, might... you know, he has to locate weapons or--
Warren E. Burger: But now you're going to destruction of the evidence if that had happened without any preliminary search. He could have dropped the cocaine out the window of the car. Is that your point?
Mr. Andrew L. Frey: --That would be a risk, yes. I mean, that's one of the reasons why you permit the search incident to arrest is that you have these items of property that are in the area of the arrested individual and as part of the process of stabilizing the situation you have to determine which items are dangerous or contain evidence, so that you know how to handle them. Now, I wanted to mention--
Thurgood Marshall: In this case, instead of doing that, they put all four of them and their jackets in the car with the policeman, in the same car.
Mr. Andrew L. Frey: --I'm not sure. I don't remember from my reading of the record--
Thurgood Marshall: Well, that's what... that's what the lawyer who tried the case said.
Mr. Andrew L. Frey: --Well, but it's... I don't think he put the cocaine in any place where Mr. Belton could reach it.
Thurgood Marshall: Well, they were all in the same car.
Mr. Andrew L. Frey: Well, I... but if he knew that--
Thurgood Marshall: Weren't they? Weren't they in the same car?
Mr. Andrew L. Frey: --The part of the record that's in the appendix, I don't recall that it shows. But I think the point is that it obviously was very valuable for him to know that there was this quantity of cocaine, so that he could take whatever precautions were feasible under the circumstances to prevent it being destroyed.
Warren E. Burger: Well, whatever car they were in, the policeman had possession, I take it, of the cocaine while he was driving them to the station?
Mr. Andrew L. Frey: I assume so. Thank you.
Warren E. Burger: Very well. Mr. Cambria.
Paul J. Cambria, Jr.: Thank you, Mr. Chief Justice, and may it please the Court: I would like to begin with what I think is a critical point. Chief Judge Cooke, below, for the court of appeals, very clearly pointed but that at no time, at any time in this record was there proof that there materials were within the grabbable reach of these individuals. There was never a finding to that effect by the trial court, there was never a finding to that effect by the appellate division--
William J. Brennan, Jr.: You mean, after they got out of the car?
Paul J. Cambria, Jr.: --Yes, Your Honor. After they get out of the car.
William J. Brennan, Jr.: Obviously, they were, while they were in the car, initially.
Paul J. Cambria, Jr.: That's correct. They started off and the sequence of events were as indicated by Mr. Harvey except for one thing left out. They were taken out and first patted down. The officer then went back into the car and discovered a small quantity of marijuana. Then he went out and thoroughly searched them and spread them out, and he said, at the back of the car. He then went into the car and patted the jacket down first, and indicated that he felt nothing that would indicate a weapon at all. And the point made by the court of appeals, which I think has to be emphasized, is that the record simply does not support a Chimel exception which it is certainly the burden of the petitioners to support from the record.
William J. Brennan, Jr.: Well, do you read it as saying that there's nothing that could possibly support that exception because in fact they were outside the car?
Paul J. Cambria, Jr.: In fact, they were outside the car--
William J. Brennan, Jr.: I mean, is that the way you read your court of appeals?
Paul J. Cambria, Jr.: --Yes, and that's the proof. That was conceded here, that they were outside the car.
William J. Brennan, Jr.: And you argue in agreement that therefore the exception cannot apply under this set of facts?
Paul J. Cambria, Jr.: It does not apply under Chimel. If I might, Chimel indicated that it's not everything in a room, to use Justice Stewart's language, not everything in a room which would be subject to search, only those things in the examples used were, perhaps, a gun in front of the individual; perhaps a drawer in front of the individual; but certainly not the entire room. That was the Rabinowitz standard, which was rejected by this Court 12 years ago in Chimel. And that's the point that happens here. We have to bear deference to the officer's description of the event and to the ringside seat that he had of the event, where he indicates that there was no reason for him whatsoever to draw his gun; he felt absolutely no danger to himself, which is one of the twin prongs of Chimel.
Warren E. Burger: Maybe he's a fast-draw policeman and therefore didn't have to draw it.
Paul J. Cambria, Jr.: I might indicate that when the question was asked of him he was quick to respond, as the record shows, there was just no need for that at any time. He had certainly separated them, as he indicated, he had patted them down, he had searched them totally, and then he went back into the car.
William H. Rehnquist: How about the possibility of them not with weapons but simply with their own bodies overpowering him while he was looking in the back seat?
Paul J. Cambria, Jr.: I think that we have to deal with the record the way it exists. And under the record the way it exists the car acted as a barrier between these individuals and the jacket which was on the back seat at the time, and not as an open area. For example, it's not even as good as being in the open room described in Chimel, where the Court said you couldn't search all of the various drawers. It's better, in this situation, because the cubicle in which the officer was is different than where the individuals were standing. There was, in fact, a barrier created here, and to demonstrate--
William H. Rehnquist: Well, but how long would it have taken four of them, acting unison, to have frustrated the officer's search?
Paul J. Cambria, Jr.: --I think that the only thing we could do is hypothesize that that perhaps could be possible. If we were to do that, I respectfully submit, Justice Rehnquist, there would never be a Chimel exception, because in every set of circumstances we could say, under some conceivable set of facts someone would be able to go into, let's say, the entire room. Or if it were in one room of the house, maybe all the other rooms, they could bolt out the door and go into the other rooms. So therefore we ought to be able to search all of the rooms in the house. I don't think we've ever had that.
William H. Rehnquist: But Chimel was at least a one-on-one situation, not a four-on-one situation.
Paul J. Cambria, Jr.: I think that that's true. That would be a factor for consideration. But if I might, if we were to decide--
Thurgood Marshall: Why don't you remind Justice Rehnquist that the man himself said he had a gun and he wasn't worried.
Paul J. Cambria, Jr.: --He indicated that he had no reason for it.
Thurgood Marshall: He was the only one that was there.
Paul J. Cambria, Jr.: But I think that the point is, if we were to decide the strength or the weakness of the protection of the Fourth Amendment based upon the number of officers, or the number of weapons, or the number of handcuffs, then an officer without any weapons, without any handcuffs, all alone, would be able to do much more searching without a warrant than an officer who was armed with a shotgun, or two officers--
William J. Brennan, Jr.: Mr. Cambria, does this record show anything about these four? Were they students or something like that on their way to school or what were they?
Paul J. Cambria, Jr.: --The only thing indicated, Your Honor, was that they were on their way home to Buffalo, and they were at all times cooperative with the officer. There's nothing else biographical about them.
William J. Brennan, Jr.: Were they young men?
Paul J. Cambria, Jr.: They were all young men and that was revealed in the record, that they were young men.
William J. Brennan, Jr.: Late teenagers or something?
Paul J. Cambria, Jr.: Your Honor, it's not revealed in the record. In fact, they were, but it's not in the record.
William J. Brennan, Jr.: I see.
Paul J. Cambria, Jr.: The point that I think again, the appellate division here, and, I submit, the Government is attempting to say by citing Adams v. Williams and the other cases, that we should scrap Chimel, that we should adopt the Robinson standard for the area, as opposed to what it stands for which is the person. Robinson says that we find that the arrest itself is enough of an intrusion so that those matters immediately associated with the body are subsumed in the invasion of privacy. But that's not--
John Paul Stevens: Under your view, could the officer open the glove compartment?
Paul J. Cambria, Jr.: --I believe that the officer could open the glove compartment. I do not believe--
John Paul Stevens: Why?
Paul J. Cambria, Jr.: --Well, because I believe that under South Dakota v. Opperman and the other cases around the car exception, that those areas traditionally do not enjoy the expectation of privacy that private receptacles do. That's what the court said in Opperman. So that if we're talking about, specifically, Opperman, the glove compartment or the trunk or the common areas of the car, the car, since it's highly regulated, since it is an area with windows and so on, does not enjoy the same expectation of privacy as their private garments.
Warren E. Burger: But Opperman was an inventory search of an abandoned car. Isn't that somewhat different from this?
Paul J. Cambria, Jr.: I think that if we then go to inventory, we're talking of something other than the Fourth Amendment. We're talking of something that certainly wasn't done here, and something that under Opperman could be done. The question would then be, how far could you go with the inventory? Would it be enough to simply list the jacket without going into the pocket? Each pocket was zippered. The testimony is, one was in fact closed. They were all closed. The testimony was one was zippered and had to be opened.
Warren E. Burger: The purpose of an inventory search is in part, at least, to protect the officers from claims of possible theft or disappearance of the materials, so they would go into the pockets if they were going to make an inventory, would they not?
Paul J. Cambria, Jr.: I'm not sure if they would, and it would depend upon--
Warren E. Burger: Well, what good would it do them to make an inventory search if they didn't look in the pockets?
Paul J. Cambria, Jr.: --My recollection of Opperman is that it depends upon their local rules and regulations as to what they can do and what they can't do in the inventory situation. Now, in this case, I think that it bears emphasis that the officer did exactly what this Court indicated in Sanders and in Chadwick should be done, and that is, he took the jacket with him. He stated clearly, I had it in my possession. This was after the arrest.
Byron R. White: Mr. Cambria, there never was any finding in this case, was there, that there was probable cause to search the jacket?
Paul J. Cambria, Jr.: No.
Byron R. White: And the claim is that it should be searched just incident to arrest, whether there is probable cause or not?
Paul J. Cambria, Jr.: That was the claim that was first made--
Byron R. White: Yes. And it is still is, isn't it?
Paul J. Cambria, Jr.: --Yes.
Byron R. White: It still is. On that basis, if it isn't searchable incident to arrest, it wouldn't be searchable at all, because unless somebody found there was probable cause?
Paul J. Cambria, Jr.: I would say that probable cause wouldn't make the difference as it did not in Sanders.
Byron R. White: Well, I know, I know, but in this case you would still have the problem of proving probable cause, if you went for a warrant.
Paul J. Cambria, Jr.: No question about that, that there wouldn't be any probable cause for this specific jacket. That would be the argument made. But even if there were, assuming arguendo were the same as Sanders, it was considered by this Court in the footnote, as indicated to be dicta by the Government, but the fact remains that the individuals in Sanders were there in close proximity to this unlocked attache case, and the same argument could have been made with regard to that case. But it wasn't made. And I submit it wasn't made because it wasn't supported by the record in that case. Like in this case, there is absolutely no pronouncement at all that these materials were within the grabbable reach of these individuals. If we try to uphold this on Adams v. Williams, which I think is totally irrelevant to this consideration for this reason: in Adams v. Williams there is probable cause to believe, as a result of a reliable tip, that there is an armed and dangerous individual seated in an automobile, and the officer approaches the individual, asks him to get out; he doesn't get out, he rolls the window down. The officer reaches in, pats in the area, and finds a weapon... immediately finds a weapon. Then he takes him out and searches... no containers... searches the common areas of the car.
Byron R. White: Well, Mr. Cambria, you wouldn't... if he had patted down this jacket, which he did, and he had discovered something that it felt like a gun, you still wouldn't suggest that he could search it, would you?
Paul J. Cambria, Jr.: Not under the... no, for two reasons; no.
Byron R. White: Well, yes. Well, you'd make the same argument you're making now: if you want to get into the jacket, you go get a warrant.
Paul J. Cambria, Jr.: I think that's exactly correct.
Byron R. White: Then you would have probable cause, maybe, to believe there's something in the jacket.
Paul J. Cambria, Jr.: The difference is that in Adams v. Williams the gun is immediately--
Byron R. White: I understand.
Paul J. Cambria, Jr.: --associated with the person.
Byron R. White: I understand.
Paul J. Cambria, Jr.: And in our case, at no time... and that's why there's been an allusion to the Draper standard; Draper is different. There the piece searched was immediately associated with the individual's taking from it. And another day, I'm sure--
Byron R. White: Well, it was taken from him, and once it was taken from him, it was in complete control of the officer.
Paul J. Cambria, Jr.: --Yes.
Byron R. White: So how could he get in the zipper bag?
Paul J. Cambria, Jr.: That question, which certainly is not here at this point--
Byron R. White: Well, I don't know. Draper said that that was a good search incident to arrest.
Paul J. Cambria, Jr.: --Yes. I understand that. I would say this. First of all--
Byron R. White: On your argument, could the outcome in Draper be the same? Once the officer arrests a man and takes the bag from him and he's got it in his hands?
Paul J. Cambria, Jr.: --Yes... in my argument it was never taken from any of the defendants. He had it in his hand without the defendants' presence. They were outside the car. It was never taken from any of the defendants after the time of the arrest.
Byron R. White: You mean, if one of these persons, as he was getting out of the car, he was carrying a jacket in his hand, the officer took it from him--
Paul J. Cambria, Jr.: And separated--
Byron R. White: --Patted it down, didn't feel anything like a weapon or anything, and then he searched it, just like he did here. Wouldn't you say he could not do that?
Paul J. Cambria, Jr.: --I would say this, that he could not do that if he's--
William J. Brennan, Jr.: No, now, wait a minute, Mr. Cambria, why isn't that Draper?
Byron R. White: It is Draper.
William J. Brennan, Jr.: He walks out of the car with it on his arm and the officer takes it from him. How does that differ from the case that was taken from Draper?
Paul J. Cambria, Jr.: --I would submit this, that Draper may be qualified by Chadwick and Sanders; it may be, because of the--
William J. Brennan, Jr.: Oh, well, frankly, I thought what you were arguing was the difference between, distinction between Draper and this case and between the hypothetical my brother White has just given you, and this case; is that they were not within grabbable distance--
Paul J. Cambria, Jr.: --Yes.
William J. Brennan, Jr.: --Of the coat.
Paul J. Cambria, Jr.: As to my case, yes. They were not in the Draper situation in my case.
William J. Brennan, Jr.: Well, I guess it's wise not to continue to argue that rather than to debate whether this was--
Paul J. Cambria, Jr.: I was trying to answer the hypothetical--
William J. Brennan, Jr.: --And suggest that Draper has been qualified by Chadwick.
Byron R. White: I just was trying to find out what your argument is, and it sounds to me like you would qualify Draper, that your argument would qualify Draper.
Paul J. Cambria, Jr.: --No. I think that my argument does not have a key Draper ingredient which I believe--
Byron R. White: Well, wouldn't the court below, on its argument, the exclusive control test, wouldn't it qualify Draper.
Paul J. Cambria, Jr.: --No, because I think in this case the court below, the decision below was, that at no time were these materials within the Chimel standard. They talk of Chimel, talk about Chimel, and specifically distinguish their decision from a case called People v. DeSantis. People v. DeSantis was a Draper case where a briefcase was in the hand of an individual and taken from him at that time. And the court of appeals made it quite clear, below, we are not talking about that, we are talking about the facts before us, which are that there's never any immediate association between the jackets and the individuals after the arrests, so--
Byron R. White: So you suggest that there's no need to depart from Draper in this case?
Paul J. Cambria, Jr.: --I suggest in my case there's no need to depart from Draper because the facts are not there.
Byron R. White: Nor in any Draper case?
Paul J. Cambria, Jr.: Well, I'm not sure whether or not Chadwick, now, and Sanders--
William J. Brennan, Jr.: Well, suppose, in this very case, instead of the jacket lying on the seat he'd been wearing it, one of the four, this defendant, when he walked out. The police officer asked him to take it off, he did, and handed it to him. That would be Draper, wouldn't it?
Paul J. Cambria, Jr.: --I think that that--
William J. Brennan, Jr.: Wouldn't that be Draper?
Paul J. Cambria, Jr.: --No. The difference in Draper is that they had probable cause there for the particular item involved. They were told ahead of time that this briefcase that Draper was carrying was where the narcotics were, and there was a specific situation and probable cause which we don't even have here. Assuming we did, that would be Draper, except there's one other fact in our case that's not present in Draper--
William J. Brennan, Jr.: You mean it wasn't enough that they had probable cause to arrest him?
Paul J. Cambria, Jr.: --With regard to Draper?
William J. Brennan, Jr.: Yes.
Paul J. Cambria, Jr.: I think that the difference is this. In this case there is no Draper fact. We don't have it in the hands of the individuals. And that's this case.
William H. Rehnquist: Well, he was arrested for speeding, wasn't he? I mean that's part of--
Paul J. Cambria, Jr.: Yes.
William H. Rehnquist: --You don't challenge the probable cause for that arrest?
Paul J. Cambria, Jr.: For the arrest for speeding? No.
William H. Rehnquist: How about the arrest for marijuana?
Paul J. Cambria, Jr.: Not for the arrest for the marijuana. As to the interior of the car, not for the packages in the car.
Potter Stewart: Well, the issue in this case is bottomed upon the premise that the arrest was a lawful custodial arrest.
Paul J. Cambria, Jr.: That's... yes.
Potter Stewart: Is it not?
Paul J. Cambria, Jr.: Yes.
Potter Stewart: And the only issue is whether or not the search and seizure were within the permissible scope of a search and seizure incident to that lawful custodial arrest?
Paul J. Cambria, Jr.: Yes. And I think that it is. It falls into two categories. As to the petitioners, it falls into whether or not it comes within Chimel, which is grabbable reach. As to the Government, it falls within whether or not you are going to expand Robinson and in effect subsume Chimel by saying, as long as you're arrested, the police have the right to search the area, whether or not the materials in the area are within the grabbable reach of the individual.
Warren E. Burger: Now, did Chimel speak in terms of "grabbable reach" or "reach"?
Paul J. Cambria, Jr.: Yes. It said--
Warren E. Burger: Or was the emphasis on plain view, first?
Paul J. Cambria, Jr.: --No. The emphasis, I believe, Your Honor, with all due respect, was the area immediately associated with the arrestee into which he could reach.
Warren E. Burger: And in plain view? But--
Paul J. Cambria, Jr.: No, there wasn't... I do not believe there was a mention of plain view.
Warren E. Burger: --Plain view comes first. You don't know whether it's within reach, grabbable or otherwise, until you see it.
Paul J. Cambria, Jr.: No, I might indicate that in Chimel the opinion covered closed drawers, open drawers; plain view, not in plain view; many areas. What I'm suggesting is that if we were to adopt the government's side of this, we would be extinguishing Chimel, because we wouldn't have to concern ourselves anymore with whether or not there was a grabbable reach problem; we would simply say, in the vein of Robinson, are you arrested? Does that in fact cause a breach of your privacy? If so, is it just incidental to search the matters around you? That was what was rejected by the court of appeals below because that was the finding of the appellate division here. There has never been a finding that these materials came within the Chimel grabbable reach. As a matter of fact, the--
Potter Stewart: Well, that's the issue before us.
Paul J. Cambria, Jr.: --Yes, it was never argued at the time of the trial.
Potter Stewart: Is this within the permissible geographic scope of a search incident to a lawful custodial arrest?
Paul J. Cambria, Jr.: Yes.
Potter Stewart: There's no question, is there, about the permissible temporal scope?
Paul J. Cambria, Jr.: I don't think so at all here; no, not in this particular--
Potter Stewart: There is no question, at least by hypothesis, that this was a lawful custodial arrest?
Paul J. Cambria, Jr.: --That's true.
Potter Stewart: So the only issue is whether or not this is within the permissible geographic scope of such a search--
Paul J. Cambria, Jr.: Yes, and I--
Potter Stewart: --and seizure.
Paul J. Cambria, Jr.: --What I am suggesting is that we should not... and the Court has not, in the past... adopted a place or area requirement, but has in fact employed this grabbable reach element. And if we take the precedent of this Court simply from the Chimel standpoint, it's not only not established by the petitioners in this case, it's not even remotely established by the facts in this case, since, as indicated, the officer did something that would show that by following the procedure here, he's certainly not deprived of any law enforcement activity, because he in fact took the jacket with him; had the people to such a degree of control that they first stopped at the police barracks, then they went on to the court; the same individuals are with him. He had it, as he said, in his possession and secured. So we're not in any way attempting to frustrate law enforcement. We're simply saying when you're not within the Chimel confines, then you have it in your possession; take it to a magistrate.
Potter Stewart: Well, the issue is whether or not this was within the Chimel confines. That's the only issue before us.
Paul J. Cambria, Jr.: Yes. And I think that that is true unless we were to attempt to argue the Government's version, which is, forget about Chimel.
Lewis F. Powell, Jr.: Mr. Cambria, may I ask you a question?
Paul J. Cambria, Jr.: Yes, sir, Justice Powell.
Lewis F. Powell, Jr.: If this jacket had been on the seat beside the driver, it would have been reachable before the driver got out of the car. Under the right to search incident to arrest, if the driver was still sitting at the steering wheel the officer I take it could then have searched the jacket, if it lay on the seat beside him.
Paul J. Cambria, Jr.: At the time of arrest the occupant was outside of the car.
Lewis F. Powell, Jr.: I know. But my question assumed he was--
Paul J. Cambria, Jr.: If it was within his grabbable reach, under Chimel, I think that I would be foolish to argue otherwise.
Lewis F. Powell, Jr.: --So that the difference really is whether or not the officer asked for the jacket before or after the driver stepped out of the car?
Paul J. Cambria, Jr.: No, I don't think that that's the difference. I think the difference is that at the time the people were placed under arrest and again, recognizing the two bases for Chimel, was there a basis for believing destruction of evidence or a danger to the officer? And was that manifested by the jacket being within the grabbable reach of the arrestee? That was the actual issue. Because the Court has never said that for any type of arrest, when it's not within the Chimel reach, that you can simply search the entire area, search all of the possessions, or even the car, for that matter. So what I'm indicating is, the critical time, as this Court has repeatedly said and most recently in Sanders is at the time of the arrest and at the time of the search; that's when we measure the facts. And as I'm indicating, here when we measure the facts, as the court below obviously interpreted the record... and the record itself is clear, the state has not carried their burden.
Lewis F. Powell, Jr.: Do you not draw any distinction between a residence, a home, and an automobile?
Paul J. Cambria, Jr.: I don't think that there is a distinction between articles within an automobile and articles in a residence, or articles anywhere else, if they are private receptacles, and I don't think there's much argument here that these are not, then the question is, as it was in Sanders and the other cases, that we don't give up the privacy simply because they happened to be in an automobile or because they're somewhere else.
William H. Rehnquist: What do you do with our Edwards case then, which said that although the search took place an hour and a half after the arrest or two hours after the arrest, since it could have been done at the time of the arrest, it was good at two hours afterwards?
Paul J. Cambria, Jr.: I think that there is a vast difference between Edwards and this case, because in Mr. Edwards' situation we're talking about his clothes, which were totally immediately associated with him because he was wearing them. There was, therefore, a great jeopardy that the paint flakes which were on the clothes could have been destroyed by him, which was the very evidence that they were attempting to preserve in the case. So there was a vast difference between this case and that case. In that case, if we take one of the two forks of Chimel, which is preservation of evidence immediately associated with the person, Edwards falls directly within that. If we take my case, where the material is immediately associated with the police officer and at no time after the arrest and search associated with my client, then we have none of the two-pronged basis for Chimel.
William H. Rehnquist: You certainly have the temporal disparity in Edwards that you do not have here and that you don't have in Chimel.
Paul J. Cambria, Jr.: Well, I don't think we have a temporal difference in Edwards since, one is he was wearing the garment, it was always in danger of having whatever evidence was contained on it being destroyed. So it was a contemporaneous search, no matter what had happened, until you separated the individual from the clothing.
William H. Rehnquist: Well, so then it makes no difference when the person is arrested?
Paul J. Cambria, Jr.: No, it would make a difference under Preston, certainly. That would be an additional factor, one that's not involved here but one that was involved in Preston, which was also involved in Edwards. I mean, I would say that that is another ground upon which to invalidate a search and seizure, if there's a temporal variation, difference; which we don't have.
William H. Rehnquist: Except in Edwards, it was held that it would not invalidate it.
Paul J. Cambria, Jr.: No, it did not invalidate it, and I submit, because of several unique factors. One was, apparently they didn't have any clothes for the man until sometime... it was late at night, and they had taken him down to the cell; that was their normal procedure to do that. And again, the evidence was apparently clinging to his very outer garments at all times, and they... at least the way I read that case... acted as quickly as possible under the circumstances. So the time was really not a factor because it was a constant jeopardy, whereas, certainly, here there is nothing like that at all. As we have indicated, maybe with regard to these facts the officer had the jacket, readily admitted it, at all times.
John Paul Stevens: Mr. Cambria, maybe this is too trivial a question, but you have used the term "grabbable reach" repeatedly.
Paul J. Cambria, Jr.: Yes.
John Paul Stevens: Is a grabbable reach a greater or a lesser area than a just plain reach?
Paul J. Cambria, Jr.: Well, I think that grabbable reach, in the sense of being able to reach the materials, that's the way I interpret Chimel; readily reach the materials immediately. The words are used, immediately, ready at reach, ready to hand, are some of the other words that have been used, which I think is much different than this situation, but there's never been a claim, by proof, that any of this was ready to hand, at any time. And of course, that's the way the court of appeals saw it below, and it is my contention that based upon the record that we have here, not very... pardon me?
Thurgood Marshall: Well, have we got to go through the record to find out if it was reachable or not?
Paul J. Cambria, Jr.: I think that the record certainly shows in all ways and fashions that it was not, and there is no affirmative proof that it was.
Thurgood Marshall: Was there any findings?
Paul J. Cambria, Jr.: Never. There was never any findings in this case that it was within the grabbable reach. It was never mentioned at one time by any court that it was within the grabbable reach.
William H. Rehnquist: Well, but that's not... in a sense, a constitutional fact, if we're talking about a Fourth Amendment claim. If there was no finding, we are entitled to make our judgment on that.
Paul J. Cambria, Jr.: Well, I think that... it seems to me that in this particular case you couldn't make a judgment of fact, that the Court would not be in a position to make a judgment of fact as opposed to a judgment of law based upon the record as found by the highest court of the State of New York.
William H. Rehnquist: Well, if the Court of Appeals of New York said, this was not within grabbable reach--
Paul J. Cambria, Jr.: It did.
William H. Rehnquist: --Whereabouts in the record?
Paul J. Cambria, Jr.: The opinion was to the effect that in the last footnote of the chief judge's opinion he said, we search the record in vain in an attempt to find the facts which support, the dissenting justice is Gabrielli, his statement that this was ready to hand or within their reach. It isn't there; nowhere.
William H. Rehnquist: Well, do you regard that as a finding of fact?
Paul J. Cambria, Jr.: Yes. I think that when it appears in a majority opinion and they... as perhaps this Court in its majority opinion in talking of certain things mentioned in dissents, when you say, we have in essence construed the record and we find no proof whatsoever that this is within the grabbable reach, I think that's a finding of fact. Because on the other hand, if they would have found to the contrary, then I feel they would have been bound by Chimel, and they have discussed Chimel, clearly, and said that it simply did not come within the confine of Chimel. I think it is most certainly a finding of fact in this case.
Byron R. White: Mr. Cambria, I take it that when you arrest someone in connection with a car, if you want to go beyond your grabbable reach range, you'll have to rely on the automobile search, the automobile theory, which requires probable cause to believe that where you are searching you may find what you're searching for?
Paul J. Cambria, Jr.: And then only as to those items listed by this Court in Opperman, which would be items immediately associated with a car: trunk, glove compartment, wheel wells, fender wells, and so on.
Byron R. White: Well, I think you also have to have probable cause to believe you're going to find something in those areas.
Paul J. Cambria, Jr.: No question about it. I think there's no doubt about it. There has to be a pleading situation, plus there has to be the limited expectation of privacy as to the areas being searched, and certainly not packages which are within the car itself.
John Paul Stevens: Mr. Cambria, when you... as I understand the facts here, after the officer stopped the car, the driver rolled down the left window of the car, and the officer when he went into the back seat was on one side of the car and the four individuals were on the other side. Were they on the left side or the right side of the car?
Paul J. Cambria, Jr.: No, the only testimony here is that he took the individuals out to the rear of the car, that he first split them up and patted them all down. He went back into the car, found some minor--
John Paul Stevens: Which door did he go in, do you know?
Paul J. Cambria, Jr.: --He, I believe, indicated the driver's door.
John Paul Stevens: He went in the driver's door. I see.
Paul J. Cambria, Jr.: Then he came back out--
John Paul Stevens: But if the window was open, I suppose it's conceivable, even though they're outside the car, they could have reached in and grabbed the jacket.
Paul J. Cambria, Jr.: --However, the record doesn't support that. The record has them at the back of the vehicle and in no way supports going into the car.
John Paul Stevens: I see.
Paul J. Cambria, Jr.: No way... in fact, the officer puts himself back into the car.
John Paul Stevens: I thought the four individuals were separated from one another.
Paul J. Cambria, Jr.: That's so.
John Paul Stevens: Are they all behind the car?
Paul J. Cambria, Jr.: That's what the record states, Your Honor, yes.
William H. Rehnquist: Mr. Cambria, let me go back to the footnote that you have referred to in Chief Judge Cooke's opinion, at A-81 of the Appendix. He says, "One searches the record in vain for support of the dissenter's claim that at the time of arrest... the point from which the predicate for the warrantless search is measured #. " Then he goes on, "Indeed, the facts, as found at the suppression hearing and affirmed by the Appellate Division, were to the effect that the jacket was searched after the defendant was removed from the vehicle and then placed under arrest. "
Paul J. Cambria, Jr.: Yes.
William H. Rehnquist: Now, that suggests more the exclusive control type of thing that the Government is arguing against, rather than the grabbable reach thing.
Paul J. Cambria, Jr.: I think, in this case, that the court of appeals decision can be read to say, since it was in the exclusive control of the officer and it was not within the grabbable reach of the defendants, then it doesn't fit within the Chimel doctrine. And I think that's exactly what that footnote stands for, by saying, we have it in the police officer's possession which, under Chadwick and Sanders, he should therefore take it down to and have the magistrate examine it.
Byron R. White: So you agree with the United States, I gather, if the court of appeals, if the opinion below is read as establishing a control test, you don't defend that?
Paul J. Cambria, Jr.: That established a control... if there would have been testimony in this case that the material was within the grabbable reach of the individuals, it would be a different case.
Byron R. White: Well, I know. But if a man is carrying his jacket when he gets out of the car and they arrest him and the officer takes his jacket from him, then it's under the complete control of the officer.
Paul J. Cambria, Jr.: Of the officer.
Byron R. White: Now, if the court below meant that you couldn't search that jacket, you do not defend that view?
Paul J. Cambria, Jr.: I see this... I see no reason to defend it on this record. I believe that it could be defended under Chadwick and Sanders, but I do not see the reason to do it here.
Potter Stewart: Neither Chadwick nor Sanders involved, and I think you'll agree with this, a claim that the search was incident to a lawful custodial arrest, did it?
Paul J. Cambria, Jr.: It was discussed.
Potter Stewart: It was discussed in Chadwick.
Paul J. Cambria, Jr.: Yes.
Potter Stewart: And the findings were made... and discussed in a footnote, I guess, in Sanders?
Paul J. Cambria, Jr.: Yes.
Speaker: And the finding was made that the statement was made in Sanders that the argument could not have been validly made because this was a locked thing in a locked trunk.
Paul J. Cambria, Jr.: I believe it was unlocked, but it was in a trunk and the trunk was opened and the individuals were outside.
Potter Stewart: Therefore it was not within the geographic vicinity.
Paul J. Cambria, Jr.: It was not within the Chimel reach; yes.
Potter Stewart: Right. And that in Chadwick the statement was made that it was not within the temporal--
Paul J. Cambria, Jr.: Yes.
Potter Stewart: --Confines of Chimel, so the argument could not have been... or the search and seizure could not have been supported as a search incident to a lawful arrest. But neither case involved the claim that it was, did it?
Paul J. Cambria, Jr.: Well, I think that it does not... they did not, they do and they don't... they do from the standpoint of the fact that it was a consideration which was available, it certainly gave pause to this Court--
Potter Stewart: The argument was not made in either case.
Paul J. Cambria, Jr.: --I submit that it wasn't made because it wasn't a valid argument to be made.
Potter Stewart: Well, the opinions of the court indicate that the various arguments--
Paul J. Cambria, Jr.: That it was not a valid argument.
Potter Stewart: --would not have been valid.
Paul J. Cambria, Jr.: We are in a better position than that case. There we have the arrestees standing by the trunk at the time, two of them, and this unlocked briefcase is pulled out of an open trunk, at that time. My case is entirely different than that. We have people outside and he's inside, and so on. And so that's why. But I say this, Sanders and Chadwick are involved to the degree that we have to deal with the Government's argument which is, just the arrest alone gives you the area or the zone of search. I say it does not because under Chadwick and Sanders we have a privacy expectation in these articles. The petitioner's case, of course, deals with Chimel squarely. And as I've indicated, the record does not support their claim at all.
Warren E. Burger: If we were to deal with the consent issue, that was not decided by, or treated by the court of appeals in New York, was it?
Paul J. Cambria, Jr.: No, it was not raised, and it finds no support in the record. One of the clarifications I might make is that it was after the time of the discovery of the cocaine that the officer then said, whose jacket is this? And that's when there was a disclaimer. But he had already conducted his search prior to the time he elicited--
Warren E. Burger: Search of what?
Paul J. Cambria, Jr.: --Search of the jacket itself.
Warren E. Burger: Yes, yes.
Paul J. Cambria, Jr.: Then, later on, of course, there's a direct claim of ownership.
Warren E. Burger: What was the statement made about the back?
Paul J. Cambria, Jr.: The back, Your Honor?
Warren E. Burger: The trunk.
Paul J. Cambria, Jr.: No, there was no statement. In the Robbins case there was a statement made about--
Warren E. Burger: Any comparable statement like that here?
Paul J. Cambria, Jr.: --Nothing at all in this case. At all. Nothing at all. Thank you very much, Your Honors.
Warren E. Burger: Mr. Harvey.
James R. Harvey: Since I still have a couple minutes, Your Honor, if it please the Court: The only point I would make is that the Chimel criteria as set forth by the Court defines the area as the area that the arrestee might reach in order to grab a weapon or evidentiary material. And I think that's here, certainly, in this case on the record on certainly one of two theories. Either the overpowering theory, and I think quite frankly that's the theory that's here clearly on the record below--
Byron R. White: If we take your view, I take it that any container in a car, any piece of evidence in a car, or in the interior of the car, or anything in any container in the car, is searchable and seizable incident to the arrest?
James R. Harvey: --My position, Your Honor, under the facts of this case, where you've got four individuals exiting the vehicle, all being placed under arrest for possession of marijuana, that anything--
Byron R. White: It wouldn't have made any difference... to you it wouldn't have made any difference whether the jacket was on the floor, or the back seat, or anywhere in the interior of the car, or whether what the officer seized was a briefcase?
James R. Harvey: --If it were within the area of gaining access by any of these arrestees, Your Honor, then it should be subject to--
Byron R. White: If it was a briefcase in exactly the same position as the jacket, you would say it could be searched?
James R. Harvey: --A briefcase that could be gotten into, yes, Your Honor. Thank you.
William J. Brennan, Jr.: Well, wait a minute, you've said, under the overpowering theory, or your said, under--
James R. Harvey: Well, Your Honor, also they could have reached in through the... that it's tied in.
Potter Stewart: --The overpowering theory would depend, I suppose, if I understand your shorthand for the theory, upon how many arrestees there were and how many policemen there were arresting them, and which ones were--
James R. Harvey: I think that's certainly the criteria, and the area that's being searched, in this case the inside of an automobile, Your Honor, that is, on the back seat of the--
Potter Stewart: --The overpowering theory depends at least in part, I suppose, upon the fact that there was one arresting officer and four arrestees. Doesn't it?
James R. Harvey: --The facts of this case; that's correct.
Potter Stewart: And therefore if there were only one arrestee, then he might--
James R. Harvey: You're getting into a different factual situation.
Thurgood Marshall: --And there's a possibility of overpowering when you leave four of them in the back of the car? Behind the car? You're going to get in the car.
James R. Harvey: You're certainly in the car looking through the vehicle in this case, Your Honor.
Thurgood Marshall: Yes, but I mean, that's a danger of being overpowered? You left four of them back there all by themselves.
James R. Harvey: In fact--
Thurgood Marshall: And you got in the car and got back out, and nothing happens.
James R. Harvey: --In fact, the--
Thurgood Marshall: Then you've got to worry about overpowering?
James R. Harvey: --In fact, the officer was not overpowered in this particular case, but he certainly, under the Chimel-Robinson rules had the opportunity and the right to search the interior of those jackets, Your Honor. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.