Correspondence between Judge Thompson and Cochran

    In The
UNITED STATES COURT OF APPEALS 

For The 
FIFTH CIRCUIT 
No. 72-2586

EARLIE WRIGHT, JR.,
Petitioner-Appellant,

versus,
M.C. EDWARDS, in his capacity as 

Sheriff of Lowndes County, Mississippi,
Respondent-Appellee.

BRIEF FOR PETITIONER-APPELLANT

JACK GREENBERG 
JONATHAN SHAPIRO 

10 Columbus Circle 
New York, New York 10019

BILLY J. JORDAN THOMAS R. MAYFIELD
519 Second Avenue North 
Columbus, Mississippi

Attorneys for Petitioner-Appellant



I N D E X
Page

Issues Presented For Review ..........................  1
Statement of the C a s e ................................  2
Statement of the F a c t s ..............................  3
Argument

I. Petitioner's Felony Conviction and Sentence 
For the Possession of Marijuana Without Any Proof of Criminal Intent Violated His Right 
to Due Process of Law Guaranteed by the Fourteenth Amendment ........................  5

II. The Warrantless Search of Petitioner's
Personal Effects When They Were Taken From
Him For Safekeeping At the Stationhouse
Violated His Rights Under The Fourth andFourteenth Amendments ......................  13

A. Search Incident to Arrest ..........  15
B. The Alleged "Inventory" for Safe­

keeping ............................  22
Conclusion..........................................  26

Table of Cases
Abel v. United States, 362 U.S. 217 (1960) 21
Amador-Gonzales v. United States, 391 F.2d 308 (5th Cir.

1968) .......................... ............ 18, 19, 20

Barnett v. United States, 384 F.2d 848 (5th Cir. 1967) 14
Brett v. United States, 412 F.2d 401 (5th Cir. 1969) 14, 24

Carpio v. Superior Court, 10 CrL 2012 (Calif. Ct.App. 8/30/71)....................................  2 5
Chime 1 v. California, 395 U.S. 752 (1969)..........  13, 15
Collins v. United States, 389 F.2d 129 (5th Cir. 1961) 21
Commonwealth v. Freeman, 11 CrL 2329 (6/16/72). . . .  19



11
Page

Table of Cases
Coolidge v. New Hampshire, 403 U.S. 443 (1971)........  14

Faubion v. United States, 424 F.2d 437 (10th Cir• 1970) 24

Harris v. United States, 390 U.S. 234 (1968) ........  21

Katz v. United States, 389 U.S. 347 (1967)............  14

Lambert v. California, 355 U.S. 225 (1957)..........  7, 8, 9

McDonald v. United States, 335 U.S. 451 (1948)............  13
Morissette v. United States, 342 U.S. 246 (1952) . 7, 9, 10, 11

People v. Miller, 11 CrL 2272 (Calif. Sup. Ct. 5/19/72) . . 25
Peters v. New York, 392 U.S. 40 (1968) .................  16
Preston v. United States, 376 U.S. 364 (1964) ............  15

Robinson v. California, 370 U.S. 660 (1962)..............  8, 9

Sibron v. New York,392 U.S. 40 (1968) ..................  16

Terry v. Ohio, 392 U.S. 1 (1968)......................  15, 16

United States v. Balint, 258 U.S. 250 (1922) . . 9, 10, 11, 12
United States v. Behrman, 258 U.S. 280 (1922)............  10
United States v. Colbert, 454 F.2d 801 (5th Cir.1972) ..................................... 17,18,19,20



Table of Cases
United States v. Dotterweich, 320 U.S. 277 (1943) . . . 10, 11
United States v. Freed, 401 U.S. 601 (1971) . . . . .  9, 10, 11
United States v. Gonzales-Perez, 426 F.2d 1283 (5th

Cir. 1970) ............................................. 19
United States v. International Min. & Chem. Corp., 402

U.S. 558 (1971) ................................ 10, 11, 12
United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970) 22, 24
United States v. Mills, ___ F.2d ___, 11 CrL 2142(D.C. Cir. 5/19/72)............................  24, 25, 26
United States v. Robinson, 447 F.2d 1215 (D.C. Cir.

1971) (en banc) ....................  ............ 10, 19
United States y. Wiesenfeld Warehouse Co., 376 U.S. 86

(1964) ..............................................  1°

Warden v. Hayden, 387 U.S. 294 (1967)....................  21
Wright v. Mississippi, 401 U.S. 929 (1971) . . . -........  2
Wright v. State, 236 So.2d 408 (Miss. 1970)..........  2, 5, 6
Wright v. State, Misc. No. 110 (1971) ....................  2

Statutes
Miss. Code 1942 Ann., § 6846............................  5, 9
Miss. Code 1942 Ann., § 6866............................  12

Other Authorities
Note, Searches of the Person Incident to Lawful Arrest,

69 Colum. L. Rev. 867 (1969)........................  15
Note, Scope Limitations for Searches Incident to Arrest,

78 Yale L.J. 433 (1969).............................  15
Packer, The Limits of the Criminal Sanction (1968).... 12



In The
UNITED STATES COURT OF APPEALS 

For The 
FIFTH CIRCUIT 
No. 72-2 586

EARLIE WRIGHT, JR.,
Petitioner-Appellant,

versus,
M.C. EDWARDS, in his capacity as 

Sheriff of Lowndes County, Mississippi,
Respondent-Appellee.

BRIEF FOR PETITIONER-APPELLANT

Issues Presented For Review
1. Whether petitioner can be convicted, consistently with 

the due process clause of the Fourteenth Amendment, of the felony 
of possession of marijuana and sentenced to two years in the pen­
itentiary in the absence of any showing of criminal intent?

2. Whether the warrantless search of petitioner's personal 
effects when they were taken from him for safekeeping in the 
stationhouse after his arrest for public drunkenness and disorderly 
conduct violated his rights under the Fourth and Fourteenth
Amendment?



Statement of the Case

Petitioner-appellant Earlie Wright, Jr., (hereinafter 
"petitioner"), a black man, was convicted by a jury in the Circuit 
Court of Lowndes County, Mississippi on July 4, 1969, of the felony 
of unlawful possession of marijuana, and sentenced to two years at 
hard labor in the Mississippi State Penitentiary and fined $1000.
He appealed his conviction to the Mississippi Supreme Court which 
affirmed on June 1, 1970 and denied his petition for rehearing on. 
July 2, 1970. Wright v. State, 236 So.2d 408 (Miss. 1970). Peti­
tioner's appeal to the United States Supreme Court was dismissed 
for want of jurisdiction and, treating the papers as a petition
for writ of certiorari, certiorari was denied. Wright v.

1/Mississippi, 401 U.S. 929 (1971).
After the available state remedy was exhausted by the dis­

missal by the Mississippi Supreme Court of his application for 
leave to file a petition for writ of error coram nobis, Wright v. 
State, Misc. No. 110 (1971), petitioner filed a petition for a 
writ of habeas corpus in the United States District Court for the 
Northern District of Mississippi on April 1, 1971. On May 24,
1972, the court conducted a limited evidentiary hearing and on June 
5, 1972 issued its order and memorandum opinion denying the writ. 
Notice of appeal to this Court was filed on June 13, 1972 and on 
the same date the district judge issued a certificate of probable 
cause. Leave to appeal in forma pauperis was granted on June 26,
1972 .

1/ Mr. Justice Douglas was of the opinion that probable jurisdiction should have been noted and the case set for oral argument.

- 2 -



Statement of Facts
Petitioner was arrested on the night of August 31, 1968 on a

charge of "public drunk and disorderly" by two police officers of2/
the City of Columbus, Mississippi (R. 17). At the time of his
arrest, petitioner was handcuffed and searched, in the course of
which a pistol was found on his person and removed (R. 18, 22).
Nothing else was discovered or taken from petitioner at this time.

Some time later, two other police officers were sent to to
scene of the arrest to transport petitioner to the police station.
One of these officers testified at petitioner's trial:

A [I received a radio call to assist the arresting officer, 
who] told me to bring this subject to the station and book him.

Q After you took him to the police station and booked him. Officer Jaynes, what, if anything, did you do?
A Well, the usual procedure is shaking down all personal 

belongings and during the process of shaking him down I 
discovered a small brown package in his right rear picket and I looked inside the package . . .

Q After you removed his personal effects in the course of 
your routine police examination for what purpose did you remove those effects?

A What purpose? Where it won't be carried up to the cell 
with them, knives, keys, watches and all that and they 
are put in regular envelopes and marked with his cash, 
personal belongings for him when he gets out of jail.

Q They are narked personal belongings?
A Yes, sir
Q In other words, you all do this for safe keeping, keep his belongings safe?
A Yes, sir. (R. 27-29)

2/ References (R. ) are to the record of petitioner's state courttrial which is part of the record on appeal herein.

-3-



Upon opening the small brown package taken from petitioner's pants 
pocket in the course of "shaking down" his personal belongings, 
the officer found "twelve small rolled cigarettes." After lighting 
and burning one, he became suspicious and sent it to the state crime 
laboratory for examination (R. 28). On the basis of the report from 
the laboratory petitioner was indicted for the felony of unlawful 
possession of a "narcotic drug, to wit: Marijuana" (R. 3).

At trial, petitioner sought to suppress as evidence the cigar­
ettes containing marijuana on the ground that they were the fruit 
of an illegal search and seizure that violated his rights under the 
Fourth and Fourteenth Amendments to the United States Constitution. 
This federal question was raised by a pre-trial motion to dismiss 
the indictment (R. 4-6) and by a motion to suppress at trial (R. 30- 
34). The trial court held that the search was reasonable and ad­
mitted the cigarettes into evidence (R. 34).

Petitioner took the stand in his own defense and testified that 
he had been out with his brother-in-law and several other people. 
After they had had several drinks, some of the people he was with 
decided to go to a dance at the Elks Club. Before entering the club, 
one of the men gave petitioner, who was going to wait outside, a 
brown package and asked him to hold it for him until he returned. 
Petitioner testified that he did not know what the package contained. 
A short time later when he decided to go into the hall to dance, he 
was arrested. Petitioner, who had returned to Pickensville, Alabama 
from New York City that morning to visit his parents, explained that 
he had only met the person who had given him the package earlier 
that same night and could only identify him as "Jimmy" (R. 68). Pe­
titioner's testimony was wholly uncontradicted.



Despite petitioner's testimony that he had no knowledge that 
the package contained marijuana, the trial judge instructed the 
jury that:

. . it is unlawful to possess marijuana, and if you
believe from the evidence in this case beyond every rea­
sonable doubt that the defendant, Earlie Wright, Jr., did, 
on the time and occasion complained of have in his possess­
ion marijuana then it is your sworn duty to find the de­
fendant guilty as charged" (R. 73).

Upon this basis the jury returned a verdict of guilty (R. 81). In
his motion for a new trial, petitioner attacked this instruction and
the constitutionality of the Mississippi statute which authorized
conviction upon proof of mere possession without criminal intent
(R. 83) .

On appeal to the Mississippi Supreme Court, petitioner challenged 
the constitutionality of § 6846 Miss. Code 1942 Ann. on the ground 
that the elimination of criminal intent as an element of the crime 
violated his right to due process under the Fourteenth Amendment.
He also contended that the admission as evidence of the marijuana 
cigarettes violated his rights under the Fourth and Fourteenth 
Amendments to be secure against unreasonable searches and seizures.

In affirming his conviction, the Mississippi Supreme Court 
held that § 6846 authorizes conviction for mere possession of mari­
juana in the absence of any element of criminal intent or conscious 
wrongdoing, and upheld its validity under the federal constitution 
as construed. Wright v. State, supra, 236 So. at 414. It stated:

"Although it may be said that intent is a necessary 
element of all crimes, this does not necessarily con­
note conscious wrongdoing. There are statutory crimes 
in which the law categorically forbids certain acts without regard to the state of mind of the actor. In 
that instance' * * * the intent to do that act is the only element necessary to complete the offense' 21 Am.
Jur.2d Criminal Law § 81 (1965). The Legislature may 
define a crime which depends on no mental element and 
consists only of forbidden acts, or omissions. 14 Am.

- 5-



jur. Criminal Law § 16 (1938). Where acts con­
stituting such an offense have been defined by 
the Legislature, criminal intent need not be 
proven by the prosecution." (236 So.2d at 413- 
4 1 4 ) .

The court also held that the search of the brown package and the 
seizure of the cigarettes at the time that petitioner s personal 
effects were being taken for safekeeping was reasonable under the 
Fourth Amendment and the admission of the marijuana into evidence 
was not error (236 So.2d at 413).

In his opinion denying the writ of habeas corpus, the district 
judge held that the stationhouse search of petitioner's personal 
belongings was justified as "a legitimate and constituent part of 
the search of petitioner incidental to his lawful arrest"
(Memorandum Opinion, p. 17). Because of this conclusion the court 
found it unnecessary to determine whether the search could be up­
held as a bona fide inventory of petitioner's effects for safekeep­
ing, the issue upon which it had conducted an evidentiary hearing. 
Finally, the district court concluded that proof of criminal intent 
was not constitutionally required in connection with a conviction 
for possession of marijuana.

I
Petitioner's Felony Conviction and Sentence 
For the Possession of Marijuana Without Any 
Proof of Criminal Intent Violated His Right to Due Process of Law Guaranteed by the Four­
teenth Amendment.

The principle that conduct is only criminal when accompanied by 
a criminal intent or a consciousness of wrongdoing on the part of 
the actor is deeply engrained in Anglo-American jurisprudence. It 
expresses the conception of the criminal law as a system for govern­
ing conduct, the aims of which would not be served by the infliction

- 6 -



of punishment upon persons who are unable to conform to legal 
standards and thus cannot be considered blamev/orthy. This prin­
ciple also embodies a notion of fairness whereby a person is not 
punished unless he has some notice of the law's command and an 
opportunity to comply. As the United States Supreme Court said 
in Morissette v. United States, 342 U. S. 246, 250-51 (1952):

"The contention that an injury can amount to a 
crime only when inflicted by intention is no 
provincial or transient notion. It is as uni­
versal and persistent in mature systems of law 
as belief in freedom of the human will and a consequent ability and duty of the normal indi­
vidual to choose between good and evil. A rela­
tion between some mental element and punishment for a harmful act is almost as instinctive as 
the child' s familiar exculpatory 'But I didn't 
mean to,' and has afforded the rational basis for 
a tardy and unfinished substitution of deterrence 
and reformation in place of retaliation and ven­
geance as the motivation for public prosecution."

In the face of this historic tradition, the court below condoned 
petitioner's felony conviction and penitentiary sentence in the ab­
sence of proof that he had a criminal intent or any knowledge that 
his conduct was wrong. It agreed with the Mississippi Supreme 
Court that criminal intent may properly be eliminated as an element 
of the crime of possession of marijuana, presumably because of the 
governmental interest in protecting the public from the dangers 
inherent in the use of drugs (Memorandum Opinion, p. 22). Petitioner 
submits that this was error and that under the circumstances of this 
case due process of law requires proof of consciousness of wrong­
doing or moral culpability as a condition for the infliction of 
serious criminal penalties.

We begin with the principles announced by the Supreme Court in 
Lambert v. California, 355 U. S. 225 (1957) and Robinson v. California,

-7-



370 U. S. 660 (1962). In Lambert, the Court held that a felon
registration ordinance which made criminal the failure of a con­
victed felon to register with the police could not constitutionally 
be applied to a person who had no knowledge of his duty to reg­
ister. Criminal conviction for mere failure to register where 
there were no circumstances to alert a person as to the duty vio­
lated the due process clause of the Fourteenth Amendment:

"Engrained in our concept of due process is the 
requirement of notice. Notice is sometimes es­sential so that the citizen has the chance to 
defend charges. Notice is required before prop­
erty interests are disturbed, before assessments 
are made, before penalties are assessed. Notice 
is required in a myriad of situations where a 
penalty or forfeiture might be suffered for mere 
failure to act. . . [T]he same principle is equally appropriate where a person, wholly passive 
and unaware of any wrongdoing, is brought to the 
bar of justice for condemnation in a criminal case."
(355 U. S. at 228)

In Robinson, the Court invalidated a statute which punished a 
person for the "status"of being addicted to narcotics. The in­
fliction of criminal penalties for a condition which may have de­
veloped innocently or involuntarily and which the individual is 
powerless to change was held to be cruel and unusual punishment in 
violation of the Eighth and Fourteenth Amendments. Robinson v. 
California, supra, 370 U. S. at 667.

A law which penalizes innocent conduct or a condition over which 
the individual has no control, therefore, cannot be squared with the 
due process requirement of the Fourteenth Amendment. It deprives 
an accused "of an opportunity either to avoid the consequences of 
the law or to defend any prosecution brought under it," Lambert v. 
California, supra, 355 U. S. at 229, and it inflicts punishment in 
the absence of any legitimate goals of the criminal law. See 
Robinson v. California, 370 U. S. at 666-67. As this Court has said.

-8-



the elimination of the common law requirement of a guilty intent 
constitutes "a manifest impairment of the immunities of the indi­
vidual . . . "  Morissette v. United States, supra, 342 U. S. at
263 .

These principles condemn equally the punishment of petitioner 
under the circumstances of this case. For on the basis of the in­
terpretation given § 6846 Miss. Code Ann., by the Mississippi Supreme 
Court and the instruction given to the jury, petitioner could have 
been convicted even though he had no knowledge that the package 
which he admitted that he had in his possession contained marijuana. 
Thus, petitioner stands convicted of a crime for what may have been 
a completely innocent and unwitting act, after trial in which he was 
deprived of any meaningful opportunity to defend himself. His ig­
norance of the facts upon which his criminal conviction was based 
is no more culpable than was the ignorance of the defendant in 
Lambert of the legal duty to register. And in a very real sense 
petitioner was as powerless to avoid violating the law as were the 
defendants in Lambert or Robinson.

The court below upheld the constitutionality of petitioner's 
conviction largely on the basis of United States v. Balint, 258 U. S. 
250 (1922). In Balint the Supreme Court held that a defendant could 
be convicted of sale of narcotics against his claim that he did not 
know that the drugs were covered by a federal act Jtd. at 2 54; 
see United States v. Freed, 401 U. S. 601, 609 (1971). The Court 
recognized that a legislature might properly penalize conduct by 
statute without: proof of criminal intent to violate the law "where 
the emphasis of the statute is evidently upon achievement of some 
social betterment rather than the punishment of the crimes, as in

-9-



cases of mala in se" (258 U. S. at 252). Thus, statutes that seek 
to regulate conduct that may be a great danger to the public health, 
safety or welfare may provide to a certain extent for strict crim­
inal responsibility. See United States v . Behrman, 258 U. S. 280 
(1922) ; United States v. Dotterweich. 320 U. S. 277 (1943) ? United 
States v. Wiesenfeld Warehouse Co., 376 U. S. 86 (1964). More re­
cently, the Supreme Court followed Balint in upholding the consti­
tutionality of federal statutes which penalized the possession of 
an unregistered firearm without requiring proof that the defendant 
knew the firearm was unregistered. United States v. Freed, 401 U. S. 
601 (1971), and which penalized the interstate shipment of certain 
liquids in violation of an ICC regulation without proof that the 
defendant knew of the existence of the regulation, United States 
v. International Min. & Chem. Corp., 402 U. S. 558 (1971).

The justification for such deviations from the historic notion 
of criminal responsibility has been the overriding interest in min­
imizing the probability of injury to society at large by imposing 
a high standard of care upon persons who are in a position to pre­
vent the injury. Morissette v. United States, supra, 342 U. S. at 
256. This interest, combined with the probable difficulty of en­
forcing such social welfare regulations if proof of criminal intent 
were required, has led to the creation of a narrow category of 
crimes where criminal intent is not required with respect to each 
element of the crime. It is felt that the hardship to the innocent 
actors of conviction under such regulations is outweighed by the 
hardship to the innocent public which might result from the ineffect­
ive enforcement of the law. Therefore, "in the interest of the

- 10 -



larger good it puts the hazard of acting upon a person otherwise 
innocent but standing in responsible relation to a public danger." 
United States v. Dotterweich, supra, 320 U. S. at 281. But, as 
the Supreme Court has recognized, a significant part of the justi­
fication for dispensing with guilty intent as an element in strict 
liability public welfare offenses lies in the fact "penalties com­
monly are relatively small and conviction does no grave damage to 
an offender's reputation," Morissette v. United States, supra, 342 
U. S. at 256.

It is apparent that the rationale of these cases cannot justify 
making the unknowing possession of a narcotic drug a crime. In such 
a case, the elimination of criminal intent as an element of the 
crime is far more extreme than in cases such as Balint, Freed and 
International. For in those cases, the requirement of criminal 
intent was abandoned only to the extent that it was not necessary 
to prove that the defendant knew of the existence of the regulations 
that his conduct violated. It was still necessary to prove that he 
knowingly possessed the particular item that was the subject of the 
regulation. The rationale for imposing criminal liability upon 
persons who did not know that their conduct violated the law was 
explained by the Supreme Court in the International case:

"(WJhere, as here and as in Balint and Freed 
dangerous or deleterious devices or products 
or obnoxious waste materials are involved, the probability of regulation is so great 
that anyone who is aware that he is in posses­
ion of them or dealing with them must be pre­
sumed to be aware of the regulation" (402 u. S. at 565) (emphasis added).

But where, as in the present case, the defendant is even unaware

- 11-



of the nature of the substance in his possession there is no 
basis for any presumption that he knew his conduct might be il­
legal.

The punishment of persons who unknowingly possess a drug, 
furthermore, serves no compelling interest of protecting the 
public at large. Possession alone poses no threat to anyone 
other than the possessor. Indeed, such crimes have been referred 
to as ‘Victimless." See Packer, The Limits of the Criminal 
Sanction, pp. 151-52 (1968). Although the public interest may 
justify the imposing a strict duty upon persons involved in man­
ufacturing or trafficking in dangerous drugs or substances, see 
United States v. Balint, supra; United States v. International 
Min. & Chem. Corp., supra, in the case of mere possession there 
is simply no such interest which can outweigh the principles of 
fairness embodied in the requirement of criminal intent.

Finally, the severity of the penalty imposed by § 6866 upon 
conviction of possession of marijuana as a first offense —  a 
minimum of two and a maximum of five years at hard labor in the 
state penitentiary —  plainly exceed those which a state may con­
stitutionally exact where "mens rea" has been eliminated with 
respect to the main ingredient of the offense. See United States 
v. International Min. & Chem. Corp., supra, 402 U. S. at 564-65. 
Indeed, its harshness demonstrates that the sole purpose of the 
statute is retribution and moral condemnation rather than regula­
tion in the public interest.

Petitioner submits, therefore, that the rationale of Balint and 
its progeny cannot justify his punishment as a felon under cir­
cumstances where he was unaware of the nature of the substance in

- 12-



his possession and where it did not pose any danger to the 
health, safety or welfare of the general public. The notions 
of fundamental fairness embodied in the due process clause of 
the Fourteenth Amendment require,at the very least, that the 
imposition of harsh criminal penalties be predicated upon the 
fact that the defendant knew, or should have known, that his 
conduct was illegal.

II

The Warrantless Search of Petitioner's 
Personal Effects When They Were Taken 
From Him For Safekeeping At the Station- 
house Violated His Rights Under The 
Fourth and Fourteenth Amendments^

The Fourth Amendment's protection is premised on the re­
quirement that a warrant be obtained before any infringement 
of an individual's privacy can be justified. As the Supreme 
Court stated in McDonald v. United States. 335 U. S. 451 (1948) 
and recently reaffirmed in Chime1 v.California, 395 U. S. 752, 
761 (1969) :

"The presence of a search warrant serves a high 
function. Absent some grave emergency, the 
Fourth Amendment has interposed a magistrate 
between the citizen and the police. This was 
done . . .  so that an objective mind might 
weigh the need to invade that privacy in order 
to enforce the law. The right or privacy was 
deemed too precious to entrust to the discre­
tion of those whose job is the detection of 
crime and the arrest of criminals . . . .  We cannot be true to that constitutional require­
ment and excuse the absence of a search warrant 
without a showing by those who seek exemption 
from the constitutional mandate that the exigen­
cies of the situation made that course impera­tive. "

-13-



Thus, searches conducted without prior judicial authorization and 
a warrant "are per se unreasonable under the Fourth Amendment —  
subject to a few specifically established and well-delineated ex­
ceptions." Katz v. United States, 389 U. S. 347, 357 (1967);
Coolidge v. New Hampshire, 403 U. S. 443 (1971); Barnett v. United 
States, 384 F.2d 848, 859 (5th Cir. 1967). The exceptions are 
"jealously and carefully drawn," Coolidge v. New Hampshire, supra 
at 576, and the burden is on the party seeking to justify the 
warrantless search to show that the search falls within one of the 
exceptions. Barnett v. United States, supra; Brett v. United 
States. 412 F.2d 401 (5th Cir, 1969)

The court below held that the search and seizure of the con­
tents of the brown package found in petitioner's pocket while he 
was being "shaken down" at the stationhouse fell within the exception 
to the Fourth Amendment's warrant requirement because it was "a
legitimate and constituent part of the search of petitioner inciden-

3/
tal to his lawful arrest." Although the district court recognized 
that the search and seizure might be justified if it was part of a 
bona fide stationhouse inventory of petitioner's personal effects, 
it did not decide this issue in view of its conclusion that the

4/search was otherwise lawful. Since, as we point out below, the 
search can be justified neither as a search incident to an arrest 
nor as a stationhouse inventory, the marijuana was illegally seized

3/ Memorandum Opinion, p. 17.
4/ bl. at p. 18, fn. 13.

-14-



and should have been suppressed.

A. Search Incident to Arrest
The Supreme Court has made clear that the "scope of [a] search 

must be 'strictly tied to and justified by' the circumstances which 
rendered its initiation permissible." Terry v. Ohio, 392 u. S. 1,
19 (1968). In the case of a search incident to a lawful arrest, 
that scope is limited. As the Court stated in Chime1 v. California, 
395 U. S. 752, 762-763 (1969):

"When an arrest is made, it is reasonable for the 
arresting officer to search the person arrested 
in order to remove any weapons that the latter 
might seek to use in order to resist arrest or 
effect his escape. Otherwise, the officer's safety 
might well be endangered, and the arrest itself 
frustrated. In addition, it is entirely reasonable 
for the arresting officer to search for and seize 
any evidence on the arrestee1s person in order to 
prevent its concealment or destruction. And the 
area into which an arrestee might reach in order to 
grab a weapon or evidentiary items must, of course, 
be governed by a like rule."

Thus, the only permissible objectives of a warrantless search in­
cident to an arrest are (1) the seizure of fruits, instrumental­
ities and other evidence of the crime for which the arrest is made; 
and (2) removal of any weapons that the arrestee might use to re­
sist arrest or escape. See Preston v. United States, 376 U. S. 364, 

1/367 (1964) .
Under the circumstances of the instant case neither of these 

objectives can justify the search of the brown package in petition­
er's pocket at the stationhouse as a result of which the marijuana

5/ See also Note, Scope Limitations for Searches Incident to Arrest, 
78 Yale L. J. 433 (1969); Note, Searches of the Person Incident 
to Lawful Arrest, 69 Colum. L. Rev. 867 (1969).

-15-



was seized. The important goal of assuring the safety of the 
arresting officers was accomplished by the protective frisk of 
petitioner and the removal of his pistol at the time of his 
arrest. And in the case of arrests for minor offenses such as 
disorderly conduct no greater intrusion is constitutionally per­
missible for this purpose.

In Terry v. Ohio, supra, the Supreme Court recognized that 
such a frisk provided adequate protection to police officers who 
had stopped persons they reasonably suspected were about to com­
mit a far more serious crime than that for which petitioner was
arrested. And in Sibron v. New York, 392 U. S. 40 (1968) the Court 
concluded that a search of a suspect's pocket cannot be justified 
on the basis of the protection of the police officer, even if there 
are adequate grounds to believe that the suspect is armed. Instead, 
the more limited intrusion of a frisk is sufficient to assure the 
officer's safety. Finally, in the companion case of Peters v. New 
York, 392 U. S. 40, 67 (1968) the Court upheld the seizure of burg­
lar's tools which were discovered as the result of a frisk of an
arrestee. There the search was reasonably limited by the purposes 
of discovering weapons or evidence and the officer "did not engage
in an unrestrained and thorough-going examination of Peters and his

6/personal effects." Id., at 67.
Once petitioner had been frisked at the time of his arrest,

6/ See the scholarly dissenting opinion of Judge Skelly Wright in 
United States v. Robinson, 447 F.2d 1215, 1228 (D.C. Cir. 1971) 
(en banc), discussing the permissible limits of a protective 
search incident to an arrest.

-16-



therefore, no further search could be justified by the need to safe­
guard the police officers. Indeed, the very fact that the arresting 
officers themselves only conducted a frisk of petitioner when he was 
arrested is convincing evidence that no further intrusion was nec­
essary for their protection. There is no conceivable way, further­
more, that the search of the small brown envelope that was found 
in petitioner's jacket at the stationhouse could be justified by 
the need to assure the safety of the officer there. At the time of 
this search petitioner's arms were handcuffed behind his back and
he had no access to his personal effects which had been removed from7/
his pockets by the officer for safekeeping. Once these items were 
outside his "immediate control" there was no longer any justifica­
tion for looking for weapons. United States v. Colbert, 454 F.2d 
801 (5th Cir. 1972).

The search of the brown package cannot be justified either for
the purpose of preventing the concealment or destruction of evidence.
Petitioner had been arrested on a charge of "drunk and disorderly"
because of his boisterous conduct in front of the Elks Club and
because the arresting officer detected the odor of alcohol on his

8/breath. It is apparent, therefore, that there was no evidence 
of this offense which petitioner could have concealed or destroyed. 
The offense consisted solely of petitioner's conduct in the presence

7/ Transcript ("Tr."), p. 88 of evidentiary hearing held below.
8/ Memorandum Opinion, pp. 5-6.

-17-



of the officers and there was simply no evidence of the offense 
that might have been discovered on petitioner's person. Indeed, 
neither the arresting officer nor the officer who booked petitioner 
thought it appropriate to look for evidence. The former was sat­
isfied by a protective frisk and the removal of the pistol from 
petitioner's pocket while the latter testified that his search was
a routine procedure for the safekeeping of a prisoner's personal 

9/
property.

Under similar circumstances, this Court has recently held that 
a search of the brief cases of persons who had been arrested for 
failure to possess Selective Service cards was unconstitutional 
United States v. Colbert, supra. In that case, the two defendants 
had been arrested and taken into custody after they were unable to 
produce their draft cards. The arresting officers then searched 
the briefcases they were carrying and discovered a sawed-off shot­
gun in each, for which they were prosecuted. In reversing the con­
viction the Court held:

"that the search of the briefcases cannot be justified for the purpose of preventing the 
concealment of destruction of evidence. We 
are not aware of any evidence which the de­
fendants, in connection with their failure 
to possess Selective Service cards, could have 
concealed or destroyed" (454 F.2d at 803).

Similarly, in Amador-Gonzales v. United States, 391 F.2d 308, 314-315
(5th Cir. 1968), Judge Wisdom concluded that a search of the car of
a traffic offender was illegal because there was no tangible evidence
or fruit of such a crime and the only instrumentality was the car
itself. And on almost identical facts a Pennsylvania Superior Court

9 / Tr. pp. 10-14.
-18-



invalidated a search incident to a disorderly conduct arrest
which had uncovered marijuana on the ground that it was "in no
way related to the safety of the officer not to the recovery of
fruits of the offense." Commonwealth v. Freeman, 11 CrL. 2329 

10 /(6/16/72).
In concluding that the search in the instant case was in­

cident to petitioner's arrest the court below relied on cases 
which upheld stationhouse searches conducted shortly after an 
arrest at the police station. See, e.g.. United States v. 
Gonzales-Perez, 426 F.2d 1283 (5th Cir, 1970). This reliance, 
however, is misplaced since these cases stand only for the prop­
osition that where there is an evidentiary purpose to be served by 
a search such a search is still valid when it is conducted soon 
after the arrest at the jail or place or detention. Id. at 1287. 
This Court's decision in Colbert, supra, makes it clear that an 
evidentiary search is proper only where there is reason to believe 
that there is evidence to be found which otherwise might be con­
cealed or destroyed. See also Amador-Gonzalez v. United States, 
supra, 391 F.2d at 314-315.

The court below also relied heavily upon the supposed right
of a police officer to search a person for contraband in the course

11/of a search incident to an arrest. But there is no independent 
justification for searching for contraband in the absence of any

10/ Judge Wright has persuasively advocated this position in his
dissent in United States v. Robinson, supra, 447 F.2d at 1227.

11/ Memorandum Opinion, pp. 14, 19.

-19-



reason to believe that the arrested person has contraband in 
his possession. Thus, a search for contraband incident to an 
arrest is only proper if there is a legitimate evidentiary pur­
pose to the search. Where, as in the present case, there was no 
such purpose, the officer could not rummage through petitioner's 
belongings on the chance he might discover contraband.

This Court dealt with just such a situation in the Colbert 
case and held that contraband items —  sawed-off shotguns —  were 
illegally seized in the course of a search of the defendants' brief 
cases after they were arrested because there was no legitimate 
evidentiary (or protective) purpose to the search. United States 
v. Colbert, supra, 454 F.2d at 803; Amador-Gonzalez v. United

117States, supra, 391 F.2d at 314-315.
If the court below was correct in its belief that an officer 

may properly search for contraband after any arrest then it would 
follow that the shotguns in Colbert would have been admissible.
But such a rule would completely undermine the strict limitation 
of searches incident to an arrest to evidentiary and protective 
searches, and authorize an unrestrained and thoroughgoing search 
of every person wno happens to come into police custody.

12/ In the Amador case Judge Wisdom referred to the discovery of 
contraband as one of the purposes of a search incident to an 
arrest. He made clear, however, that a search for contra­
band requires "probable cause as a predicate for the search." 
391 F .2d at 315.

-2  0 -



The court below, furthermore, finds no support for its posi­
tion in the cases it cites. Indeed, all of the cases cited deal 
with the seizure of items which the police came across in the 
course of an otherwise lawful search. Thus, contraband objects 
"falling in plain view of an officer who has a right to be in the 
position to have that view are subject to seizure and may be in­
troduced in evidence." Harris v. United States, 390 U. S. 234,
236 (1968). And in both Warden v. Hayden, 387 U. S. 294 (1967) 
and Abel v. United States, 362 U. S. 217 (1960), the challenged
evidence had come into the officers' "plain view" while they were

13/engaged in a lawful search or arrest. But this is not such a
case. It is apparent that there was nothing about a small brown
package found in petitioner's pocket to arouse even a suspicion
that it might contain contraband. Not until the officer had opened
the package, examined its contents and lit one of the cigarettes14/
did he suspect that it was marijuana.

The search in the present case, therefore, cannot be justified 
by either a protective or evidentiary purpose. Instead, it con­
stituted an "unrestrained and thorough-going examination of [peti­
tioner] and his personal effects" which went far beyond the con­
stitutionally permissible scope of a search incident to an arrest.

13/ The court below incorrectly cited this Court's decision in
Collins v. United States, 389 F.2d 129 (5th Cir. 1961) as sus­
taining a warrantless search and seizure of an illegal fire­
arm. This decision, however, held that a shotgun that had 
been seized pursuant to an illegal arrest was inadmissible and 
should have been suppressed.

14/ R. 40-41.

- 21 -



B . The Alleged "Inventory" for Safekeeping
In United States v. Lipscomb. 435 F.2d 795 (5th Cir. 1970) 

this Court held that a search of a defendant's personal belongings 
after his arrest for the purpose of inventorying them was reason­
able within the meaning of the Fourth Amendment, and any evidence 
discovered in the course of a bona fide inventory was admissible.
The Court reasoned as follows:

"It cannot be denied that to prevent escape, self- 
injury, or harm to others, the police have a 
legitimate interest in separating the accused 
from the property found in his possession. An inventory is then necessary both to preserve the 
property of the accused while he is in jail and 
to forstall the possibility that the accused may 
later claim that some item has not been returned 
to him" (435 F.2d at 800).

Although the court below conducted an evidentiary hearing to decide 
whether the stationhouse search of petitioner was a bona fide in­
ventory, it did not decide the issue in view of its holding that 
the search was otherwise lawful. Petitioner submits, however, that 
the search cannot be justified by the need to inventory his personal 
effects.

In the first place, at the time of petitioner's arrest the
Columbus Police Department had no policy of inventorying a prisoner's
personal belongings prior to his incarceration. It was undisputed
that the practice was simply to remove all of a prisoner's belongings
and place them in a manilla envelope, which was then locked up for 

15/safekeeping. A notation of the prisoner's name and the amount of

15/ Tr. 14, 81-82.
- 22 -



money taken from him would be made on the bag. There was
also testimony that if a watch or valuable ring was taken from17/
the prisoner, it would be noted as well. No record of any

18/
kind, however, was made of any other personal effects removed.
No receipt was given to the prisoner nor was he required to sign

19/
for or acknowledge receipt of his belongings upon their return.

In petitioner's case only the amount of cash he had in his 
possession was listed.and there was no record made of the several 
other items he had when arrested. Indeed, the officer who took
his belongings from him could not even remember and had no way

2 0/
of determining what they were. Thus, although the legitimate 
goal of separating a prisoner from the items in his possession jus­
tified the taking of petitioner's personal effects, including the 
brown package, from him,the search of the package itself cannot be 
justified by any need to inventory its contents. Since a record 
was kept only as to cash and watches, there was no reason why the 
brown package should not have merely been placed in the manilla 
envelope with petitioner's other effects. And since there was no 
inventory made there is no basis for the claim that examination of

16/

16/ Tr. P- 81 •
17/ Id. at PP • 34, 82-83.
18/ Id. at PP . 36-39.
19/ Id. at P- 24.
20/ Id. at PP . 25, 29, 33

-2 3-



the package was necessary to protect the police officers from 
later claims.

The case, therefore, is unlike Lipscomb where the standard 
operating procedure of the Montgomery Police Department was to 
inventory every item in a prisoner's possession. Rather, it is 
controlled by Brett v. United States, 412 F.2d 401 (5th Cir. 1969) 
where this Court held that a search of prisoner's clothing after 
his arrest was unconstitutional because it:

"was unrelated to the duties of the police as 
guardians of the prisoner's property, to in­
ventory or to protect property in their hands 
for safekeeping. . . . The fact that the police
have custody of a prisoner's property for the 
purpose of protecting it while he is incarcerated 
does not alone constitute a basis for an excep­tion to the requirement of a search warrant" (412 
F .2d at 405-406) .

Here, as in Brett the search of the brown package removed from
petitioner's pocket was unrelated to any legitimate interest the

21/police had in the safekeeping of his property. See also
Faubion v. United States, 424 F.2d 437, 440 (10th Cir. 1970).

There is another even more fundamental reason why the alleged 
need to "inventory" petitioner's personal effects cannot justify 
the search in this case. In United States v. Mills, ___ F.2d ___,
11 CrL. 2142 (D.C. Cir. 5/19/72), the en banc Court of Appeals 
for the District of Columbia invalidated a similar stationhouse

21/ Even though he did not specifically decide the issue, the district judge was willing to assume that the search of 
the brown package was not justified as a legitimate station- 
house inventory. (Memorandum Opinion, p. 18, fn. 13).

- 24 -



search. It concluded that:
"The officer's order to appellant to empty his 
pocket was a stationhouse search which required 
a premise of stationhouse detention for its jus­
tification. When, as here, the arrest is for a 
minor offense for which the police must give de­
fendant opportunity to post collateral, the de­
fendant was detained notwithstanding he had funds 
sufficient to post collateral and there is no 
showing that defendant was given opportunity to 
post collateral, any detention-based inventory justification is negatived, and the search must 
be held invalid . . . .  Informing a person ar­
rested for such a minor offense of his option to 
post collateral, and giving him an opportunity to 
exercise that option, is a necessary pre-condition 
to a thorough and complete search that is con­
ducted only as an incident to the needs of station- house detention." (11 CrL at 2143.)

Accord, People v. Miller, 11 CrL 2272 (Calif. Sup. Ct. 5/19/72);
Carpio v. Superior Court, 10 CrL 2012 (Calif. Ct. App. 8/30/71).

The record establishes that when petitioner was arrested on
charges of "drunk and disorderly" he had at least $116 in his 22/
possession. At the hearing below, moreover, he sought to show 
that he was entitled to post bail and secure his immediate re­
lease and that he would have been able to do so had he been advised 23/
of this right. Indeed, it is apparent that $116 was more than 
sufficient to post bail on the minor charges for which the fine 
upon conviction is rarely more than $ 25. And it can be presumed 
that he did not secure his release because he was not permitted to. 
See United States v. Mills. supra. 11 CrL at 2143. Thus, in pe­
titioner's case, since his detention was itself unnecessary and 
improper, the inventory search of his personal property cannot be



justified.
The search and seizure of the contents of the brown package 

in petitioner's pocket, therefore, cannot be justified as an in­
ventory search both because there was in fact no bona fide sta- 
tionhouse inventory made and, in any case, because the detention 
upon which the inventory was premised was unjustified. Conse­
quently, this Court should reverse the judgment below and grant 
the writ of habeas corpus. In the alternative, the case should 
be remanded to the district court for a further hearing and 
findings with respect to whether petitioner's stationhouse detention 
was justified under the rationale of the Mills case.

Conclusion
For the foregoing reasons, the judgment below should be 

reversed and the writ of habeas corpus granted. In the alter­
native, the case should be remanded for a further hearing.

Respectfully submitted,

23/

JACK GREENBERG 
JONATHAN SHAPIRO10 Columbus Circle

New York, New York 10019
BILLY J. JORDAN THOMAS R. MAYFIELD519 Second Avenue North 
Columbus, Mississippi

Attorneys for Petitioner-Appellant

23/ The court below ruled that the propriety of petitioner's de­
tention was not germane to the inventory issue (Tr. p. 63).
The court's view was, however, far too restrictive for, as we 
have pointed out, the inventory can only be justified if the 
detention itself was justified. In addition, petitioner had 
sufficiently exhausted state remedies by raising the constitu­tionality of the inventory search in his application for leave 
to file a petition for coram nobis which was dismissed by the Mississippi Supreme Court (Memorandum Opinion, p. 2).

-2  6 -



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