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Subject: 89-1690 -- DISSENT, CALIFORNIA v. ACEVEDO




    SUPREME COURT OF THE UNITED STATES


No. 89-1690



CALIFORNIA, PETITIONER v. CHARLES STEVEN ACEVEDO

on writ of certiorari to the court of appeal of california, fourth
appellate district


[May 30, 1991]



    Justice Stevens, with whom Justice Marshall joins, dissenting.

    At the end of its opinion, the Court pays lip service to the
proposition that should provide the basis for a correct analysis of the
legal question presented by this case: It is " `a cardinal principle that
"searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment --
subject only to a few specifically established and well-delineated
exceptions." '  Mincey v. Arizona, 437 U. S. 385, 390 (1978), quoting Katz
v. United States, 389 U. S. 347, 357 (1967) (footnote omitted)."  Ante, at
13.

    Relying on arguments that conservative judges have repeatedly rejected
in past cases, the Court today -- despite its disclaimer to the contrary,
ibid. -- enlarges the scope of the automobile exception to this "cardinal
principle," which undergirded our Fourth Amendment jurisprudence prior to
the retirement of the author of the landmark opinion in United States v.
Chadwick, 433 U. S. 1 (1977).  As a preface to my response to the Court's
arguments, it is appropriate to restate the basis for the warrant
requirement, the significance of the Chadwick case, and the reasons why the
limitations on the automobile exception that were articulated in United
States v. Ross, 456 U. S. 798 (1982), represent a fair accommodation
between the basic rule requiring prior judicial approval of searches and
the automobile exception.

I
    The Fourth Amendment is a restraint on Executive power.  The Amendment
constitutes the Framers' direct constitutional response to the unreasonable
law enforcement practices employed by agents of the British Crown.  See
Weeks v. United States, 232 U. S. 383, 389-391 (1914); Boyd v. United
States, 116 U. S. 616, 624-625 (1886); 1 W. LaFave, Search and Seizure 3-5
(2d ed. 1987).  Over the years -- particularly in the period immediately
after World War II and particularly in opinions authored by Justice Jackson
after his service as a special prosecutor at the Nuremburg trials -- the
Court has recognized the importance of this restraint as a bulwark against
police practices that prevail in totalitarian regimes.  See, e. g., United
States v. Di Re, 332 U. S. 581, 595 (1948); Johnson v. United States, 333
U. S. 10, 17 (1948).

    This history is, however, only part of the explanation for the warrant
requirement.  The requirement also reflects the sound policy judgment that,
absent exceptional circumstances, the decision to invade the privacy of an
individual's personal effects should be made by a neutral magistrate rather
than an agent of the Executive.  In his opinion for the Court in Johnson v.
United States, id., at 13-14, Justice Jackson explained:


    "The point of the Fourth Amendment, which often is not grasped by
zealous officers, is not that it denies law enforcement the support of the
usual inferences which reasonable men draw from evidence.  Its protection
consists in requiring that those inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer engaged in the
often competitive enterprise of ferreting out crime."


    Our decisions have always acknowledged that the warrant requirement
imposes a burden on law enforcement.  And our cases have not questioned
that trained professionals normally make reliable assessments of the
existence of probable cause to conduct a search.  We have repeatedly held,
however, that these factors are outweighed by the individual interest in
privacy that is protected by advance judicial approval.  The Fourth
Amendment dictates that the privacy interest is paramount, no matter how
marginal the risk of error might be if the legality of warrantless searches
were judged only after the fact.

    In the concluding paragraph of his opinion in Chadwick, Chief Justice
Burger made the point this way:


"Even though on this record the issuance of a warrant by a judicial officer
was reasonably predictable, a line must be drawn.  In our view, when no
exigency is shown to support the need for an immediate search, the Warrant
Clause places the line at the point where the property to be searched comes
under the exclusive dominion of police authority.  Respondents were
therefore entitled to the protection of the Warrant Clause with the
evaluation of a neutral magistrate, before their privacy interests in the
contents of [their luggage] were invaded."  433 U. S., at 15-16.


    In Chadwick, the Department of Justice had mounted a frontal attack on
the warrant requirement.  The Government's principal contention was that
"the Fourth Amendment Warrant Clause protects only interests traditionally
identified with the home."  Id., at 6.  We categorically rejected that
contention, relying on the history and text of the amendment, {1} the
policy underlying the warrant requirement, {2} and a line of cases spanning
over a century of our jurisprudence. {3}  We also rejected the Government's
alternative argument that the rationale of our automobile search cases
demonstrated the reasonableness of permitting warrantless searches of
luggage.

    We concluded that neither of the justifications for the automobile
exception could support a similar exception for luggage.  We first held
that the privacy interest in luggage is "substantially greater than in an
automobile."  Id., at 13.  Unlike automobiles and their contents, we
reasoned, "[l]uggage contents are not open to public view, except as a
condition to a border entry or common carrier travel; nor is luggage
subject to regular inspections and official scrutiny on a continuing
basis."  Ibid.  Indeed, luggage is specifically intended to safeguard the
privacy of personal effects, unlike an automobile, "whose primary function
is transportation."  Ibid.

    We then held that the mobility of luggage did not justify creating an
additional exception to the Warrant Clause.  Unlike an automobile, luggage
can easily be seized and detained pending judicial approval of a search.
Once the police have luggage "under their exclusive control, there [i]s not
the slightest danger that the [luggage] or its contents could [be] removed
before a valid search warrant could be obtained. . . .  With the [luggage]
safely immobilized, it [i]s unreasonable to undertake the additional and
greater intrusion of a search without a warrant" (footnote omited).  Ibid.


    Two Terms after Chadwick, we decided a case in which the relevant facts
were identical to those before the Court today.  In Arkansas v. Sanders,
442 U. S. 753 (1979), the police had probable cause to search a green
suitcase that had been placed in the trunk of a taxicab at the Little Rock
Airport.  Several blocks from the airport, they stopped the cab, arrested
the passengers, seized the suitcase and, without obtaining a warrant,
opened and searched it.
    The Arkansas Supreme Court held that the search was unconstitutional.
Relying on Chadwick, the state court had no difficulty in concluding that
there was "nothing in this set of circumstances that would lend credence to
an assertion of impracticability in obtaining a search warrant."  Sanders
v. State, 262 Ark. 595, 600, 559 S. W. 2d 704, 706 (1977).  Over the
dissent of Justice Blackmun and then Justice Rehnquist, both of whom had
also dissented in Chadwick, this Court affirmed.  In his opinion for the
Court, Justice Powell noted that the seizure of the green suitcase was
entirely proper, {4} but that the State nevertheless had the burden of
justifying the warrantless search, {5} and that it had "failed to carry its
burden of demonstrating the need for warrantless searches of luggage
properly taken from automobiles."  442 U. S., at 763.

    Chief Justice Burger wrote separately to identify the distinction
between cases in which police have probable cause to believe contraband is
located somewhere in a vehicle -- the typical automobile exception case --
and cases like Chadwick and Sanders in which they had probable cause to
search a particular container before it was placed in the car.  He wrote:



    "Because the police officers had probable cause to believe that
respondent's green suitcase contained marihuana before it was placed in the
trunk of the taxicab, their duty to obtain a search warrant before opening
it is clear under United States v. Chadwick, 433 U. S. 1 (1977).  The
essence of our holding in Chadwick is that there is a legitimate
expectation of privacy in the contents of a trunk or suitcase accompanying
or being carried by a person; that expectation of privacy is not diminished
simply because the owner's arrest occurs in a public place.  Whether
arrested in a hotel lobby, an airport, a railroad terminal, or on a public
street, as here, the owner has the right to expect that the contents of his
luggage will not, without his consent, be exposed on demand of the police.
. . .

    "The breadth of the Court's opinion and its repeated references to the
`automobile' from which respondent's suitcase was seized at the time of his
arrest, however, might lead the reader to believe -- as the dissenters
apparently do -- that this case involves the `automobile' exception to the
warrant requirement.  See ante, at 762-765, and n. 14.  It does not.  Here,
as in Chadwick, it was the luggage being transported by respondent at the
time of the arrest, not the automobile in which it was being carried, that
was the suspected locus of the contraband."  442 U. S., at 766-767 (Burger,
C. J., concurring in judgment).


    Chief Justice Burger thus carefully explained that Sanders, which the
Court overrules today, "simply d[id] not present the question of whether a
warrant is required before opening luggage when the police have probable
cause to believe contraband is located somewhere in the vehicle, but when
they do not know whether, for example, it is inside a piece of luggage in
the trunk, in the glove compartment, or concealed in some part of the car's
structure."  Id., at 767.  We confronted that question in United States v.
Ross, 456 U. S. 798 (1982). {6}

    We held in Ross that "the scope of the warrantless search authorized by
[the automobile] exception is no broader and no narrower than a magistrate
could legitimately authorize by warrant."  See id., at 825.  The inherent
mobility of the vehicle justified the immediate search without a warrant,
but did not affect the scope of the search.  See id., at 822.  Thus, the
search could encompass containers, which might or might not conceal the
object of the search, as well as the remainder of the vehicle.  See id., at
821.

    Our conclusion was supported not only by prior cases defining the
proper scope of searches authorized by warrant, as well as cases involving
the automobile exception, but also by practical considerations that apply
to searches in which the police have only generalized probable cause to
believe that contraband is somewhere in a vehicle.  We explained that, in
such instances, "prohibiting police from opening immediately a container in
which the object of the search is most likely to be found and instead
forcing them first to comb the entire vehicle would actually exacerbate the
intrusion on privacy interests."  Id., at 821, n. 28.  Indeed, because "the
police could never be certain that the contraband was not secreted in a yet
undiscovered portion of the vehicle," the most likely result would be that
"the vehicle would need to be secured while a warrant was obtained."
Ibid.

    These concerns that justified our holding in Ross are not implicated in
cases like Chadwick and Sanders in which the police have probable cause to
search a particular container rather than the entire vehicle.  Because the
police can seize the container which is the object of their search, they
have no need either to search or to seize the entire vehicle.  Indeed, as
even the Court today recognizes, they have no authority to do so.  See 456
U. S., at 824; ante, at 13.

    In reaching our conclusion in Ross, we therefore did not retreat at all
from the holding in either Chadwick or Sanders.  Instead, we expressly
endorsed the reasoning in Chief Justice Burger's separate opinion in
Sanders.  456 U. S., at 813-814. {7}  We explained repeatedly that Ross
involved the scope of the warrantless search authorized by the automobile
exception, id., at 800, 809, 817, 825, and, unlike Chadwick and Sanders,
did not involve the applicability of the exception to closed containers.
456 U. S., at 809-817.

    Thus, we recognized in Ross that Chadwick and Sanders had not created a
special rule for container searches, but rather had merely applied the
cardinal principle that warrantless searches are per se unreasonable unless
justified by an exception to the general rule.  See 456 U. S., at 811812.
{8}  Ross dealt with the scope of the automobile exception; Chadwick and
Sanders were cases in which the exception simply did not apply.

II
    In its opinion today, the Court recognizes that the police did not have
probable cause to search respondent's vehicle and that a search of anything
but the paper bag that respondent had carried from Daza's apartment and
placed in the trunk of his car would have been unconstitutional.  Ante, at
13.  Moreover, as I read the opinion, the Court assumes that the police
could not have made a warrantless inspection of the bag before it was
placed in the car.  See ibid.  Finally, the Court also does not question
the fact that, under our prior cases, it would have been lawful for the
police to seize the container and detain it (and respondent) until they
obtained a search warrant.  Ante, at 9.  Thus, all of the relevant facts
that governed our decisions in Chadwick and Sanders are present here
whereas the relevant fact that justified the vehicle search in Ross is not
present.

    The Court does not attempt to identify any exigent circumstances that
would justify its refusal to apply the general rule against warrantless
searches.  Instead, it advances these three arguments: First, the rules
identified in the foregoing cases are confusing and anomalous.  Ante, at
10-12.  Second, the rules do not protect any significant interest in
privacy.  Ante, at 8-10.  And, third, the rules impede effective law
enforcement.  Ante, at 10-11.  None of these arguments withstands
scrutiny.

The "Confusion"

    In the nine years since Ross was decided, the Court has considered
three cases in which the police had probable cause to search a particular
container and one in which they had probable cause to search two vehicles.
The decisions in all four of those cases were perfectly straightforward and
provide no evidence of confusion in the state or lower federal courts.

    In United States v. Place, 462 U. S. 696 (1983), we held that, although
reasonable suspicion justifies the temporary detention of an airline
passenger's luggage, the seizure in that particular case was unreasonable
because of the prolonged delay in ascertaining the existence of probable
cause.  In the course of our opinion, we noted that the then-recent
decision in Ross had not modified the holding in Sanders.  462 U. S., at
701, n. 3.  We also relied on Chadwick for our conclusion that the
temporary seizure of luggage is substantially less intrusive than a search
of its contents.  462 U. S., at 706-707.

    In Oklahoma v. Castleberry, 471 U. S. 146 (1985), police officers had
probable cause to believe the defendant carried narcotics in blue suitcases
in the trunk of his car.  After arresting him, they opened the trunk,
seized the suitcases, and searched them without a warrant.  The state court
held that the search was invalid, explaining:

"If the officer has probable cause to believe there is contraband somewhere
in the car, but he does not know exactly where, he may search the entire
car as well as any containers found therein.  See United States v. Ross,
456 U. S. 798 . . . (1982); Chambers v. Maroney, 399 U. S. 42, . . .
(1970); Carroll v. United States, 267 U. S. 132 . . . (1925).  If, on the
other hand, the officer only has probable cause to believe there is
contraband in a specific container in the car, he must detain the container
and delay his search until a search warrant is obtained.  See United States
v. Ross, 456 U. S. 798 . . . (1982); Arkansas v. Sanders, 442 U. S. 743 . .
. (1979); United States v. Chadwick, 433 U. S. 1 . . . (1977)."
Castleberry v. State, 678 P. 2d 720, 724 (Okla. 1984).


This Court affirmed by an equally-divided court.  471 U. S. 146 (1985).

    In the case the Court decides today, the California Court of Appeal
also had no difficulty applying the critical distinction.  Relying on
Chadwick, it explained that "the officers had probable cause to believe
marijuana would be found only in a brown lunch bag and nowhere else in the
car.  We are compelled to hold they should have obtained a search warrant
before opening it."  216 Cal. App. 3d 586, 592, 265 Cal. Rptr. 23, 27
(1990).

    In the case in which the police had probable cause to search two
vehicles, United States v. Johns, 469 U. S. 478 (1985), {9} we rejected the
respondent's reliance on Chadwick with a straightforward explanation of why
that case, unlike Ross, did not involve an exception to the warrant
requirement.  We first expressed our agreement with the Court of Appeals
that the Customs officers who had conducted the search had probable cause
to search the vehicles.  Id., at 482.  We then explained:


"Under the circumstances of this case, respondents' reliance on Chadwick is
misplaced. . . .  Chadwick . . . did not involve the exception to the
warrant requirement recognized in Carroll v. United States, supra, because
the police had no probable cause to believe that the automobile, as
contrasted to the footlocker, contained contraband.  See 433 U. S., at
11-12.  This point is underscored by our decision in Ross, which held that
notwithstanding Chadwick police officers may conduct a warrantless search
of containers discovered in the course of a lawful vehicle search.  See 456
U. S., at 810-814.  Given our conclusion that the Customs officers had
probable cause to believe that the pickup trucks contained contraband,
Chadwick is simply inapposite.  See 456 U. S., at 817."  469 U. S., at
482-483.


    The decided cases thus provide no support for the Court's concern about
"confusion."  The Court instead relies primarily on predictions that were
made by Justice Blackmun in his dissenting opinions in Chadwick and
Sanders. {10}  The Court, however, cites no evidence that these predictions
have in fact materialized or that anyone else has been unable to understand
the "inherent opaqueness," ante, at 12, of this uncomplicated issue.  The
only support offered by the Court, other than the unsubstantiated
allegations of prior dissents, is three law review comments and a sentence
from Professor LaFave's treatise.  None of the law review pieces criticizes
the holdings in Chadwick and Sanders. {11}  The sentence from Professor
LaFave's treatise, at most, indicates that, as is often the case, there may
be some factual situations at the margin of the relevant rules that are
difficult to decide.  Moreover, to the extent Professor LaFave criticizes
our jurisprudence in this area, he is critical of Ross rather than Chadwick
or Sanders.  And he ultimately concludes that even Ross was correctly
decided.  See 3 W. LaFave, Search and Seizure 55-56 (2d ed. 1987).

    The Court summarizes the alleged "anomaly" created by the coexistence
of Ross, Chadwick, and Sanders with the statement that "the more likely the
police are to discover drugs in a container, the less authority they have
to search it."  Ante, at 11.  This juxtaposition is only anomalous,
however, if one accepts the flawed premise that the degree to which the
police are likely to discover contraband is correlated with their authority
to search without a warrant.  Yet, even proof beyond a reasonable doubt
will not justify a warrantless search that is not supported by one of the
exceptions to the warrant requirement.  And, even when the police have a
warrant or an exception applies, once the police possess probable cause,
the extent to which they are more or less certain of the contents of a
container has no bearing on their authority to search it.

    To the extent there was any "anomaly" in our prior jurisprudence, the
Court has "cured" it at the expense of creating a more serious paradox.
For, surely it is anomalous to prohibit a search of a briefcase while the
owner is carrying it exposed on a public street yet to permit a search once
the owner has placed the briefcase in the locked trunk of his car.  One's
privacy interest in one's luggage can certainly not be diminished by one's
removing it from a public thoroughfare and placing it -- out of sight -- in
a privately owned vehicle.  Nor is the danger that evidence will escape
increased if the luggage is in a car rather than on the street.  In either
location, if the police have probable cause, they are authorized to seize
the luggage and to detain it until they obtain judicial approval for a
search.  Any line demarking an exception to the warrant requirement will
appear blurred at the edges, but the Court has certainly erred if it
believes that, by erasing one line and drawing another, it has drawn a
clearer boundary.

The Privacy Argument

    The Court's statement that Chadwick and Sanders provide only "minimal
protection to privacy," ante, at 10, is also unpersuasive.  Every citizen
clearly has an interest in the privacy of the contents of his or her
luggage, briefcase, handbag or any other container that conceals private
papers and effects from public scrutiny.  That privacy interest has been
recognized repeatedly in cases spanning more than a century.  See, e. g.,
Chadwick, 433 U. S., at 6-11; United States v. Van Leeuwen, 397 U. S. 249,
251 (1970); Ex parte Jackson, 96 U. S. 727, 733 (1878).

    Under the Court's holding today, the privacy interest that protects the
contents of a suitcase or a briefcase from a warrantless search when it is
in public view simply vanishes when its owner climbs into a taxicab.
Unquestionably the rejection of the Sanders line of cases by today's
decision will result in a significant loss of individual privacy.

    To support its argument that today's holding works only a minimal
intrusion on privacy, the Court suggests that "[i]f the police know that
they may open a bag only if they are actually searching the entire car,
they may search more extensively than they otherwise would in order to
establish the general probable cause required by Ross."  Ante, at 9.  As I
have already noted, see n. 9, supra, this fear is unexplained and
inexplicable.  Neither evidence uncovered in the course of a search nor the
scope of the search conducted can be used to provide post hoc justification
for a search unsupported by probable cause at its inception.

    The Court also justifies its claim that its holding inflicts only minor
damage by suggesting that, under New York v. Belton, 453 U. S. 454 (1981),
the police could have arrested respondent and searched his bag if
respondent had placed the bag in the passenger compartment of the
automobile instead of the trunk.  In Belton, however, the justification for
stopping the car and arresting the driver had nothing to do with the
subsequent search, which was based on the potential danger to the arresting
officer.  The holding in Belton was supportable under a straightforward
application of the automobile exception.  See Robbins v. California, 453 U.
S. 420, 449-453 (1981) (Stevens, J., dissenting).  I would not extend
Belton's holding to this case, in which the container -- which was
protected from a warrantless search before it was placed in the car --
provided the only justification for the arrest.  Even accepting Belton's
application to a case like this one, however, the Court's logic extends its
holding to a container placed in the trunk of a vehicle, rather than in the
passenger compartment.  And the Court makes this extension without any
justification whatsoever other than convenience to law enforcement.


The Burden on Law Enforcement

    The Court's suggestion that Chadwick and Sanders have created a
significant burden on effective law enforcement is unsupported, inaccurate,
and, in any event, an insufficient reason for creating a new exception to
the warrant requirement.

    Despite repeated claims that Chadwick and Sanders have "impeded
effective law enforcement," ante, at 8, 10, the Court cites no authority
for its contentions.  Moreover, all evidence that does exist points to the
contrary conclusion.  In the years since Ross was decided, the Court has
heard argument in 30 Fourth Amendment cases involving narcotics. {12}  In
all but one, the government was the petitioner. {13}  All save two involved
a search or seizure without a warrant or with a defective warrant. {14}
And, in all except three, the Court upheld the constitutionality of the
search or seizure. {15}

    In the meantime, the flow of narcotics cases through the courts has
steadily and dramatically increased. {16}  See Annual Report of the
Attorney General of the United States 21 (1989).  No impartial observer
could criticize this Court for hindering the progress of the war on drugs.
On the contrary, decisions like the one the Court makes today will support
the conclusion that this Court has become a loyal foot soldier in the
Executive's fight against crime.

    Even if the warrant requirement does inconvenience the police to some
extent, that fact does not distinguish this constitutional requirement from
any other procedural protection secured by the Bill of Rights.  It is
merely a part of the price that our society must pay in order to preserve
its freedom.  Thus, in a unanimous opinion that relied on both Johnson and
Chadwick, Justice Stewart wrote:


    "Moreover, the mere fact that law enforcement may be made more
efficient can never by itself justify disregard of the Fourth Amendment.
Cf. Coolidge v. New Hampshire, supra, at 481.  The investigation of crime
would always be simplified if warrants were unnecessary.  But the Fourth
Amendment reflects the view of those who wrote the Bill of Rights that the
privacy of a person's home and property may not be totally sacrificed in
the name of maximum simplicity in enforcement of the criminal law.  See
United States v. Chadwick, 433 U. S. 1, 6-11."  Mincey v. Arizona, 437 U.
S. 385, 393 (1978).


    It is too early to know how much freedom America has lost today.  The
magnitude of the loss is, however, not nearly as significant as the Court's
willingness to inflict it without even a colorable basis for its rejection
of prior law.

    I respectfully dissent.





------------------------------------------------------------------------------
1
    "Although the searches and seizures which deeply concerned the
colonists, and which were foremost in the minds of the Framers, were those
involving invasions of the home, it would be a mistake to conclude, as the
Government contends, that the Warrant Clause was therefore intended to
guard only against intrusions into the home.  First, the Warrant Clause
does not in terms distinguish between searches conducted in private homes
and other searches.  There is also a strong historical connection between
the Warrant Clause and the initial clause of the Fourth Amendment, which
draws no distinctions among `persons, houses, papers, and effects' in
safeguarding against unreasonable searches and seizures."  United States v.
Chadwick, 433 U. S. 1, 8 (1977).

2
    "The judicial warrant has a significant role to play in that it
provides the detached scrutiny of a neutral magistrate, which is a more
reliable safeguard against improper searches than the hurried judgment of a
law enforcement officer `engaged in the often competitive enterprise of
ferreting out crime.'  Johnson v. United States, 333 U. S. 10, 14 (1948).
Once a lawful search has begun, it is also far more likely that it will not
exceed proper bounds when it is done pursuant to a judicial authorization
`particularly describing the place to be searched and the persons or things
to be seized.'  Further, a warrant assures the individual whose property is
searched or seized of the lawful authority of the executing officer, his
need to search, and the limits of his power to search."  Id., at 9.

3
    See id., at 10-11.  The earliest case cited by Chief Justice Burger was
Justice Field's opinion in Ex parte Jackson, 96 U. S. 727, 733 (1878).

4
    "Having probable cause to believe that contraband was being driven away
in the taxi, the police were justified in stopping the vehicle, searching
it on the spot, and seizing the suitcase they suspected contained
contraband.  See Chambers v. Maroney, supra, at 52.  At oral argument,
respondent conceded that the stopping of the taxi and the seizure of the
suitcase were constitutionally unobjectionable.  See Tr. of Oral Arg. 30,
44-46."  Arkansas v. Sanders, 442 U. S., at 761-762.

5
    "[B]ecause each exception to the warrant requirement invariably
impinges to some extent on the protective purpose of the Fourth Amendment,
the few situations in which a search may be conducted in the absence of a
warrant have been carefully delineated and `the burden is on those seeking
the exemption to show the need for it.'  United States v. Jeffers, 342 U.
S. 48, 51 (1951)."  Id., at 759-760.

6
    In framing the question for decision we stated: "Unlike Chadwick and
Sanders, in this case police officers had probable cause to search
respondent's entire vehicle."  456 U. S., at 817.

7
    Moreover, we quoted the following paragraph from Justice Powell's
opinion in the intervening case of Robbins v. California, 453 U. S. 420
(1981):

"[W]hen the police have probable cause to search an automobile, rather than
only to search a particular container that fortuitously is located in it,
the exigencies that allow the police to search the entire automobile
without a warrant support the warrantless search of every container found
therein.  See post, at 451, and n. 13 (Stevens, J., dissenting).  This
analysis is entirely consistent with the holdings in Chadwick and Sanders,
neither of which is an `automobile case,' because the police there had
probable cause to search the double-locked footlocker and the suitcase
respectively before either came near an automobile."  Id., at 435, quoted
in United States v. Ross, 456 U. S. 798, 816 (1982).

8
    Although the Court today purports to acknowledge that the warrant
requirement is the general rule, ante, at 13, it nonetheless inexplicably
persists in referring to Chadwick and Sanders as announcing a "separate
rule, unique to luggage and other closed packages, bags, and containers."
Ante, at 5.  Equally inexplicable is the Court's contention that, in
overruling Sanders, it has not "extend[ed] the Carroll doctrine" that
created the automobile exception.  Ante, at 13.

9
    In its discussion of the Johns case, the Court makes the puzzling
statement that it "cannot see the benefit of a rule that requires law
enforcement officers to conduct a more intrusive search in order to justify
a less intrusive one."  See ante, at 9.  I assume that the Court does not
mean to suggest that evidence found during the course of a search may
provide the probable cause that justifies the search.  Our cases have
unequivocally rejected this bootstrap justification for a search which was
not lawful when it commenced.  See, e. g., United States v. Di Re, 332 U.
S. 581, 595 (1948); Byars v. United States, 273 U. S. 28, 29-30 (1927).
Perhaps the Court fears that defendants will attempt similar post hoc
reasoning and argue that, when the police have searched only a container
rather than the whole car, they must have had probable cause only to search
the container.  If so, the Court's fear is unwarranted, for Johns itself
foreclosed this argument.  See 469 U. S., at 482-483.

10
    See ante, at 11 (referring to the undocumented prediction made by
Justice Blackmun, joined by Justice Rehnquist, in dissent in Chadwick);
ante, at 12 (referring to the fact that the dissenters had "bemoaned the
`inherent opaqueness' of the difference between the Carroll and Chadwick
principles and noted `the confusion to be created for all concerned' ").
11
    One of the three pieces, Kamisar, The "Automobile Search" Cases: The
Court Does Little to Clarify the "Labyrinth" of Judicial Uncertainty, in 3
J. Choper, Y. Kamisar, & L. Tribe, The Supreme Court: Trends and
Developments 1980-1981 (1982), was written prior to the decision in Ross.
Moreover, rather than criticizing Chadwick and Sanders, the article
expressly endorses Justice Brennan's refutation of the arguments advanced
by Justice Blackmun in his dissent in Chadwick.  See id., at 83-85.  The
other two articles were written shortly after Ross, and both criticize Ross
rather than Chadwick or Sanders.  See Gardner, Searches and Seizures of
Automobiles and Their Contents: Fourth Amendment Considerations in a
Post-Ross World, 62 Neb. L. Rev. 1 (1983); Latzer, Searching Cars and Their
Contents, 18 Crim. L. Bull. 381 (1982).

12
    Illinois v. Rodriguez, 497 U. S. --- (1990); Florida v. Wells, 495 U.
S. --- (1990); United States v. Verdugo-Urquidez, 494 U. S. --- (1990);
Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989); Treasury
Employees v. Von Raab, 489 U. S. 656 (1989); Florida v. Riley, 488 U. S.
445 (1989); Michigan v. Chesternut, 486 U. S. 567 (1988); California v.
Greenwood, 486 U. S. 35 (1988); United States v. Dunn, 480 U. S. 294
(1987); Maryland v. Garrison, 480 U. S. 79 (1987); Colorado v. Bertine, 479
U. S. 367 (1987); California v. Ciraolo, 476 U. S. 207 (1986); United
States v. Montoya de Hernandez, 473 U. S. 531 (1985); California v. Carney,
471 U. S. 386 (1985); United States v. Sharpe, 470 U. S. 675 (1985); United
States v. Johns, 469 U. S. 478 (1985); New Jersey v. T. L. O., 469 U. S.
325 (1985); United States v. Leon, 468 U. S. 897 (1984); United States v.
Karo, 468 U. S. 705 (1984); Oliver v. United States, together with Maine v.
Thornton, 466 U. S. 170 (1984); United States v. Jacobsen, 466 U. S. 109
(1984); Michigan v. Long, 463 U. S. 1032 (1983); Illinois v. Andreas, 463
U. S. 765 (1983); Illinois v. Lafayette, 462 U. S. 640 (1983); United
States v. Place, 462 U. S. 696 (1983); United States v. Villamonte-Marquez,
462 U. S. 579 (1983); Texas v. Brown, 460 U. S. 730 (1983); Illinois v.
Gates, 462 U. S. 213 (1983); Florida v. Royer, 460 U. S. 491 (1983); United
States v. Knotts, 460 U. S. 276 (1983).

13
    See Treasury Employees v. Von Raab, 489 U. S. 656 (1989).

14
    See Maryland v. Garrison, 480 U. S. 79 (1987); Illinois v. Gates, 462
U. S. 213 (1983).

15
    See Florida v. Wells, 495 U. S. --- (1990); United States v. Place, 462
U. S. 696 (1983); Florida v. Royer, 460 U. S. 491 (1983).

16
    The number of defendants charged with drug law violations who were
convicted in federal courts increased 134% between 1980 and 1986.  The
corresponding increase in convictions for nondrug offenses was 27%.  Bureau
of Justice Statistics Special Report, Drug Law Violators, 1980-86, p. 1
(June 1988).  The percentage of drug cases dismissed by district courts
declined from 22.2% in 1980 to 13.8% in 1989.  See Bureau of Justice
Statistics, Federal Criminal Case Processing, 1980-87, Addendum for 1988
and Preliminary 1989, p. 12 (Nov. 1990).