United States of America, and v. Lindsay Martell, and United States of America, and v. Joseph Minneci, And

censorship necessary. why complete or agreement to allow cor- earlier

The state’s sug- inspection its respondence censorship is not the complete

gests that necessary

least limitation. complete prohibition on

We find that Stor-

correspondence impermissibly restricts rights. Storseth Amendment

seth’s First may correspond under con-

and Riddell section' 275-96- imposed WAC

ditions not, 015(4). correspondence is how- Their

ever, privileged pro- status entitled his attorney and client.

vided to an

IV. CONCLUSION enjoining Rid- court order district filing papers with the court

dell’s appointment of conditioning coun-

case and agreement to abide

sel Storseth’s relationship attorney-client

normal AFFIRMED. party

third interference is denying

That order Storseth’s complete prohibition

appeal on his correspondence with Rid-

inter-institutional

dell is REVERSED. America, STATES

UNITED Appellee, Plaintiff and MARTELL,

Lindsay Defendant Appellant. America, STATES

UNITED Appellee,

Plaintiff MINNECI,

Joseph Defendant Appellant. 80-1163, 80-1154.

Nos. Appeals, States Court

Ninth Circuit. 9, 1980. Oct.

Argued and Submitted Aug.

Decided 6, 1981. Nov. Amended

As McCabe, McCabe, & San Savitz

Michael J. defendants-appellants. Cal., for Diego, Edwards, Jr., Atty., Asst. U. S. Raymond Lorenz, Atty., U. S. M. James argued, Castetter, Atty., on Asst. U. S. R. Bruce Cal., plaintiff-appel- brief, Diego, San lee. NELSON,

Before FARRIS Circuit CURTIS,* Judges, Judge. District CURTIS, Judge: District Appellants Martell and Minneci were con- “conspiracy possess victed of to cocaine “possession with intent distribute” and cocaine with intent to distribute” in viola- 841(a)(1) of Title 21 tion U.S.C. and 846. §§ They appeal from order of the trial court refusing suppress as evidence narcotics Finding seized at the time of their arrest. denied, properly the motion was we affirm.

I. FACTUAL BACKGROUND 30, 1979, agent September On DEA Kenerson, Diego, based in re- Charles San telephone agent a DEA ceived a call from Anchorage, Kenerson under- Alaska. agent say two sub- stood other jects, drug (Martell) one a known trafficker eight months earlier who had been arrested approximately pound of cocaine and $109,000 arrangements in cash1 had made fly Anchorage Diego. Mar- San ' traveling name tell was under the of A. Brewer. agents began

Kenerson and other surveil- airport Septem- Diego lance San * Curtis, Although given good this information was Honorable Jesse W. United States Dis- California, faith, Judge, it was not Martell trict ting by designation. Central District of sit- it was in error but an associate of his who had been arrested. night escorted downstairs to the Harbor Police arrived that Minneci ber walk) (about a where a He was observed Office one-minute carrying suitcases. two (Duster) calls, dog taking a narcotics detector was allowed then making phone two response luggage. to “sniff” the Harbor Island Hotel. cab Sheraton precautions about taken morning, the next at 7:10 Martell arrived escape attempts agents against by the sub- the phone call to Sheraton and made downstairs, way jects while on there there, the directly checking proceeded in under testimony only precaution was Martell. the name of subjects the were surrounded a. m. Martell was observed At about 9:45 positive agents. gave After Duster alert leaving with an unidentified male' the hotel suitcases, for narcotics Martell and Toyota pickup which was in a white truck transported Minneci were Narcotics manner, in a somewhat erratic then driven in the east end of the Task Force office being a agents as method known airport. It was at the time of alert that avoiding any possible discovering sur- and court the trial held first hotel then returned to the veillance. It subjects were detained there arose. minutes, whereupon Martell within five for four hours until search warrant was proceeded to the reentered the hotel and obtained, at which time the suitcases were Minneci was third floor. Ten minutes later large quantity and a of cocaine searched calls, making telephone after observed found, whereupon appellants were arrested. room on the which he went Martell’s third floor. II. APPELLANTS’ CONTENTION 11:30 m. Minneci and Martell left At a. Appellants argue twenty-min- that their hotel, airport went back to the and agents DEA constitut- ute detention

purchased tickets under names of Min- illegal unsupported by probable ed an arrest Taylor p. on a 12:20 m. Western neci cause, citing the Court’s recent flight Anchorage. pur- After Airlines York, Dunaway v. decision in New chasing they their tickets left their suitcas- (1979), 60 L.Ed.2d 824 security es in the and went back out- area being and that the seizure the narcotics At security to have a drink. side area poisonous illegal fruit of an arrest can- m., agents for a narcotics 11:40a. DEA sent fourth amendment chal- not withstand a m., p. dog. detector At 12:10 Martell about do, lenge. concep- we that a Believing, as agents DEA and Minneci were detained between the detention tual difference exists they boarding approached area. The hand, and the appellants one agents identified themselves stated other, we detention of their suitcases on they conducting a narcotics inves- were what to be the focus on we believe real tigation. testimony by the There was government agents can issue—whether the agents they had intended to detain the appellants’ detain the suitcases them, subjects they approached when a well founded subjects were not free to board suspicion, twenty without run- minutes flight. agent In Martell’s case an ning afoul of the fourth amendment. We made clear to Martell testified that this was conclude that can and that the trial by, alia, flight inter that his left in fact refusing suppress court not err in did five minutes. In Minneci’s case there such evidence. testimony that his ticket was seized. The permission agents asked for to search the

suitcases, which Martell and Minneci refus- AND III. A STOP DETENTION ed. OF APPELLANTS later) (twenty agents had a well Admittedly,

At about 12:30 minutes [I] Martell, suspicion appellants luggage were founded Minneci and their “stop” trafficking, justify- and “frisk” drug thus detention would cause a engaged in citizen, least, against necessity protecting momentary detention of ing, at purposes. Terry v. in their law enforcement endeav- investigative them for ors, momentary stop held that a Ohio, 20 L.Ed.2d 88 S.Ct. U.S. purpose making inquiry brief and for (1968). frisking weapons was a reasonable sei- reasons, the upon the same Based zure within the fourth amendment. suspi likewise had a well founded officers years Terry, Some twelve after the Su- contained the narcot cion that the suitcases preme Dunaway Court decided v. New ics; therefore, justified in detain York, 99 S.Ct. investigation. ing the suitcases for further recognized Terry in which it Leeuwen, States v. Van prohibi- to the well established cause, tion of arrests without and instances was a a detention in both Such any by police held detention that because a judged by fourth amend “seizure” upon officer is such “a serious intrusion standards, apparent from for it was sanctity person, may of the which inflict agents announced that a the moment the great indignity strong and arouse resent- underway, they investigation narcotic ment,” Terry exception must be nar- permitted appel either the would not have rowly allowing only momentary construed luggage to be re lants to leave or their stops on-the-spot questioning. In Duna- during investigation. moved the brief way, specifically disapproved the Court a out, minutes, approximately twenty detention of Terry points for fourth As Court in-custody interrogation. which became an purposes, police “whenever a amendment officer accosts an individual and restrains view, however, Terry In our away, he his freedom to walk has ‘seized’ progeny Dunaway and their relate to deten person.” 392 88 S.Ct. at that U.S. persons objects. tion of not inanimate referring After to the difficulties 1877. upon by The rationale relied the Court in experienced attempt- have in other courts inappropriate applied those cases is distinguish stop a ing to between not re- “things,” a seizure of which constitutes a cause, quiring probable and an arrest which substantially serious intrusion less does, Supreme Court said: rights of the individual.2 “In course is to our view the sounder

recognize the Fourth Amendment

governs by agents all intrusions IV. SEIZURE DETENTION AfsTD public security, upon personal and to OF LUGGAGE particular scope make the of the intru- We look then to the standard of reasona- sion, light exigencies in of all the of the required by bleness as the fourth amend- case, analysis a central element in the of ment in the seizure- and detention of inani- reasonableness.” objects. mate n.15 at 88 S.Ct. at 1878. Leeuwen, In United States v. Van proceeded The then to balance the 25 L.Ed.2d 282 Court momentary recognized minimal intrusions which a Court police suspect distinguish- as the basis in this case is had no “seizure” issue way illegal Illi- customers involved in able from the “search” issue nois, Ybarra v. were activity. case, executing In that while a only In this we are concerned public tavern detained and search warrant for a agents “detention” where the have a well present. No searched all of the customers suspicion that the defendants and their founded luggage legality question was raised as to the activity. illegal were involved invalid, detention, but the held the search signal luggage narcotics objects contained detaining propriety of inanimate upon which provided probable which “reasonable cause when without pursuant a warrant was then issued were included suspicion existed” were which the suitcases searched and activity. in a criminal scheme view appellants our such arrested. packages coins pound case two twelve not detention under these facts does offend stopped first-class mail sent constitutional standards. day delayed than a because for more agents suspected government holding startling The dissent finds importation system. illegal coin departure from the fourth amendment’s Court, Justice Speaking for a unanimous prohibition against warrantless seizures sanctity of a cit- acknowledged Douglas precept which privacy interest in izen’s fourth apparently considers inviolate and dissent mail, objects through sending first-class However, inflexible. the fourth amend- added, be- mail “Yet even first-class ment addresses itself to “unreasonable inspection; yond reach all and the are searches and seizures” and the books conditions sole is whether the here wherein, replete variety with cases inspection had been of its detention reasons, prob- warrantless searches without Id. satisfied.” held able cause have been not unreasonable. the officers had pointing After out gener- example, For border searches suspicion packages justifiable about these ally recognized permissible been as even coins, approved removal of the Court cause, though probable warrant without or a flow the mail without war- from the of justifia- and even where there has been investigation being was rant a brief while Although specif- suspicion illegality. ble of completed. statute, ically allowed such searches pass constitutional muster. must still Such Although length during of time upheld “excep- not searches been a appellants’ luggage detained is which was rule,” being tions to the but as reasonable light in the relevant factor when considered sovereign light government’s in the surrounding circumstances in de of all the right protect its borders. United States per termining whether such an intrusion is Ramsey, 431 U.S. under fourth amendment stan missible L.Ed.2d 617 dards, placed case has we know of no which Furthermore, administrative searches an time on the detention of outer limit warrant, upheld without without have been objects Dunaway placed impersonal such as probable and without reasonable upon persons. of the detention’ As illegality of where serve suspicion Court said Van Leeuwen : part governmental regulatory of as a some only “Theoretically theory it is —and Biswell, 406 U.S. scheme. United States his side—detention of respondent has on (1972) point become an un- mail could at some (upheld a licensed firearm deal- a search of or ‘papers’ ‘effects’ reasonable seizure part inspection proce- er’s storeroom as meaning the Fourth within by the Act of dures authorized Gun Control Detention for lVfehours— Amendment. James, 1968); Wyman v. investigation to p. 1:30 3 m.—for an (1971) (upheld excessive; ...” Id. certainly part premises into entry leased event, us, city housing inspection by in the case before routine annual only twenty compliance with detained for inspectors the suitcases were determine Schafer, codes); awaiting city the arrival of a minutes 1972) (upheld dog, period time well within that al F.2d 856 part luggage as of a dog’s air traveler’s Van It was lowed in Leeuwen. luggage per- 1980), recently screening inspection of all a case decided (9th Cir. leaving court, sei- passengers holding that the warrantless effects of aircraft sonal zure of a briefcase without cause plants, exportation of prevent Hawaii However, fourth amendment. violated the diseases). pests and clearly distinguishable from the that case is Warrantless searches there was wheth- one at bar. The sole issue upheld required cause have been when as a finding er the district court’s entering public or condition for aircraft supported by the evidence. We buildings regulatory as a of a scheme evidence there was insuffi- held that public safety. Downing to assure v. Kun- uphold finding. In that cient such 1972) zig, (upheld 454 F.2d 1230 to address the specifically we refused weapons the search of a briefcase for agent whether or not the had a question of explosives pursuant conditioning to a rule us, suspicion.” In the before “founded case entry building upon into a federal submis- however, court found that the district search). sion to such a agent suspicion” when had such “founded decisions, recog- we considering these and, stopped consequently, defendants itself the Fourth Amendment nize seized, bags were and the at the time the searches and defines the standard more than sufficient to facts before us are from the We do not retreat seizures. support finding. such a probable cause warrant or of a requirement except exceptional circumstances. The V. EFFECT OF UNLAWFUL ARREST

basic test of reasonableness under require- warrant Fourth Amendment If the appellants detention of the upon rely ment. The decisions which we became an unlawful arrest reason of the concept bottomed are length detained,4 of time it has light of all the circumstances the searches importance in this case if the detention by constitutional stan- are not unreasonable during period the unlawful contributed in dards.3 some fashion to the search and seizure of Leeuwen, which the dissent Van In the agents narcotics. Since the conducted having application out- no aside brushes interrogation appellants during context, made no the Court the mail side portion detention, the unlawful of the excep- carving a brand new out pretense agents gained nothing they had not it Instead fourth amendment. tion already during permissible learned por the suspicious cir- under those merely held that Consequently, tion of their detention. even seizure without a warrantless cumstances assuming by the arrest to be unlawful rea cause was not unreasonable. son of the appellants detention of the for an Furthermore, the dissent time, calls our period atten- excessive it would not taint Allen, tion to United v. the F.2d 749 search and seizure of the suitcases. Michigan Summers,-U.S.-, applying In v. Court was the ultimate standard of (1981), Fourth citing after embodied reasonableness Ohio, omitted.) They Terry (Footnote are v. 392 U.S. 88 S.Ct. Amendment. (1968); Williams, every general L.Ed.2d 889 Adams v. rule the consistent (1972); having arrest, every 92 S.Ct. 32 L.Ed.2d 612 the essential seizure Brigoni-Ponce, arrest, United States v. is unreasonable of a formal attributes 2574,45 (1975), 95 S.Ct. L.Ed.2d 607 and United by probable supported cause. it is unless Cortez, States v. 101 S.Ct. they demonstrate But the Court commented: by justified may be intrusions limited is not con- interests special law enforcement recognize that some seizures These cases momentary, deten- on-the-street fined to the by admittedly Fourth Amend- covered weapons in- accompanied a frisk tion intrusions on such limited constitute ment (Footnote Terry omit- and Adams. in volved security personal of those detained and - -, at 2592. ted). U.S. at justified by law such substantial enforce- are deciding whether specifically refrain may they be made on less We interests that personally ex- the defendants long detention so than Terry Dun- established suspecting limits criminal basis for ceeded an articulable activity. cases, Dunaway, away. as in In these (1968) evaluating L.Ed.2d concept evidence 889] [other The We cites conclude that cases, depending upon whether omitted]. detention marijuana with- cache of was discovered before or after was obtained evidence illegal upon any allegedly out reliance unlawful, has been clear- detention became discovery produced police conduct. This this and other circuits. ly recognized in Mayes.” probable cause for an arrest Chamberlin, 644 F.2d 1262 United States (9th 1979), made an investi- Cir. the officers 524 F.2d at 806. suspect several stop asked

gatory Klein, In United States F.2d ultimately be- detention questions. The 1980), confronted a fac- Cir. the court Upon motion the unlawful arrest. came an identical with tual situation almost court, excluding the statements made while having a well facts before us. Officers after the arrest became by the defendant suspicion founded detained defendants unlawful, statements made admitted Although bags. airport and seized their stages of the arrest early they go, defendant suspects were told were free to questioned. illegality subsequent police could not conduct resulted in what when its parties agreed was an unlawful arrest. all Mayes, 524 F.2d 803 In United States bags until a canine nar- were detained 1975), considering the court was a cotic detector was obtained which furnished legal incep- which was in its search border court, warrant. The the basis for search tion, later became an unlawful but which Leeuwen, Van held “that reliance Acting upon information which detention. bags they at the decided to detain the time suspect when first from the obtained waiting drug for a canine trained in while agents interrogated, detained the sus- detection, agents the DEA had reasonable original pect information be- while suspicion bags to believe that the contained result, agents obtain- ing verified. As contraband; they would have been remiss to justify the is- ed evidence sufficient detaining bags in not for further inves- the search warrant. The court suance of tigation [T]hey the de- .... did search though lengthy held that even detention luggage fendants’ until after illegal, suspect such detention cause had been established and after the contraband not taint the seizure of did warrant, ...” had obtained following the lead found as result of F.2d at 26. suspect during given by the the first recently, More the first circuit reached a detention was the confrontation when his Vie conclusion in States v. similar suppress, denying the motion lawful. 1981). gas, (1st 639 F.2d 42 The facts the court said: strikingly in this case are similar those in “. . . if the detention was uncon- [E]ven case In both cases reasona- the before us. stitutional, it was unrelated to dis- outset, suspicion ble existed at the both gained covery cache. No evidence of the suspects their suitcases. In both and Mayes’ led to the cache during detention suspects interrogated were not cases only marijuana. during bags, The evidence from in the detention of their opened Mayes bags were not until a relied was the both cases dog after the search warrant was obtained shape print improbable his of his boot indicating pres- gave positive signs alert Tijuana. in story that he was robbed bags. drugs Under these ence in during short Both were obtained facts, the lower court’s the court affirmed approximately five minutes—that time— suppress. of a denial motion Valley questioned at Jewel Road. he was undoubtedly time Detention for brief appellants’ ruling Our here does not erode Mayes’ improbable justified by was protected by the fourth right privacy Tijuana, Terry being pointed robbed in out in account of amendment. As Court Ohio, Van Leeuwen: 20-23 [88 share, of the ma- and indeed the reluctance the basis of thing done here on only “The jority release these defendants when the packages. detention of suspicion was so “reasona- police conduct involved seems inva- point possible There was at ble,” ignore the doctrinal frame- we cannot ‘to be secure’ right sion of amendment law in work of decided fourth houses, pro- papers, and effects’ ‘persons, particular result. search of against Amendment by the Fourth tected ’ .. . and seizures. searches ‘unreasonable I. Seizure of Suitcases by the Fourth protected No interest forwarding invaded was Amendment begins majority’s analysis by indicat- The day following rather packages here ing “real issue” is whether deposited. they were day when than the the suit- government agents could “detain” inter- twenty Amendment significant Fourth cause for cases without III, majority tells first-class privacy of this minutes. Section was in the est appel- of the stop that a and detention mail; us not disturbed privacy was and that justified by Terry. The “deten- lants was mag- approval of the until the or invaded suitcases, which the tion” of the istrate was obtained.” acknowledges be a fourth amendment at 1032. seizure, justified independent- supposedly Therefore, amendment we hold no fourth ly Van Leeuwen. While the Su- under the suitcases here for right was invaded it clear that preme Dunaway made suspi- well founded upon a were detained one, a narrow Terry narcotics, their contained cion majority avoids the force of this stricture twenty min- approximately Dunaway detention stating “Terry and dog not unrea- awaiting persons progeny utes relate to detention their objects.” The seizure search of the contents and not inanimate The actual sonable. suitcases is not and detention of the after a valid bags not occur until of the did restrictions, told, we are and is the same had been obtained. search warrant general analyzed under a therefore Accordingly, we affirm.. under Van reasonableness standard why ap- such an To understand Leeuwen. dissenting: NELSON, Judge, Circuit departure from both proach profound is a prece- Ninth Circuit Supreme Court and new constitu- Today this breaks Circuit dent, to some basic we must first look interpreta- ground in a troublesome tional principles. fourth Going law. be- tion of fourth amendment in United States yond even the First Circuit Principles a. Fourth Amendment Viegas Circuit United and the Seventh Klein, majority finds in a proposition that We start with the the de- concerned with Court case applies equally to Fourth Amendment justify seizure authority to

lay of mail the provides It searches and to seizures. not' of a suitcase—seizure “right people to be secure even cause. warrant but without effects, houses, papers, and persons, Furthermore, apply this new in order to searches and sei- against unreasonable disregard the doctrine, majority violated, must zures, no War- be shall not issue, upon probable of the defend- unlawful arrest shall simultaneous rants affirmation, and or supported suit- Oath examining the seizure of the ants. describing place action, particularly independent separable, as a cases searched, things be persons or to and the legitimize part of what majority to seeks seized. . . . integrated instance of clearly single, I must re- therefore police conduct. A search and seizure unconstitutional that “the understand, proposition begins with I can spectfully dissent. While 1364 goes my This notion rule this area to heart disa constitutional

most basic greement majority. conducted with the Two ‘searches consider seizures] [and process, prior judicial persuade it not ations me that does correct outside magistrate, per are by judge First, or approval ly state fourth amendment law. it is the Fourth under impossible square repeated se unreasonable to ly Amendment — tions.’ ... 403 U.S. established and ” Coolidge subject ^[443] well delineated v. to a few New 454-55, Hampshire, specifical- [91 excep- S.Ct. g., 219, subject statements Schneckloth 93 of the warrant S.Ct. 2041, 2043, v. Bustamonte, requirement. 36 Court on the 412 L.Ed.2d U.S. See, 218, 854 e. 2031-2032, 564], quot- 2022, 29 L.Ed.2d (1973); Coolidge Hampshire, v. New 403 States, 1967, ing v. 389 U.S. Katz United 2022, 2031-32, 443, 29 U.S. 91 S.Ct. 507, 514, [, 19 347, L.Ed.2d 357 States, (1971); v. L.Ed.2d Katz United 564 576]____ 507, 514, 347, 357, 88 S.Ct. 19 389 U.S. (1967); v. L.Ed.2d 576 United States McCormick, 281, 502 F.2d v. States 281, McCormick, (9th 502 F.2d 285 Cir. (9th 1974) (bracketed language 285 Cir. Second, 1974). perhaps signifi more McCormick).1 a warrantless search “Unless cantly, very majority cases cited exceptions, one of these or seizure meets on, actually sup did turn nor do thereby the evidence obtained inadmissi- light port, any such of all “reasonabless Jamerson, v. ble at trial.” United States the circumstances” rationale. See United 1263, 1977). See 549 F.2d 1270 606, 621, Ramsey, v. U.S. 97 Allard, 1182, States 431 S.Ct. 634 F.2d United States v. 1972, (Rehn 1981, (1977) 52 L.Ed.2d 617 1980). 1184-1187 J.) (“[T]he exception quist, ‘border search’ approach, The takes different historically longstanding, recog ... is a concluding prohibition against war- exception to Fourth Amendment’s nized per se seizures is not a rantless searches and general principle that a warrant obtain exceptions. It subject rule to limited ed, respect and in this is like the similar replete that “the are with cases states books exception ‘search incident to lawful arrest’ reasons, wherein, variety warrant- Robinson, treated in United 414 less searches without 467, 471, 38 L.Ed.2d U.S. S.Ct. unreasonable,” and as been held not offers Barlow’s, Inc., (1973).”); Marshall examples a number of recent decisions. 307, 313, 1816, 1820, U.S. S.Ct. justi- these were not searches in cases (1978) (“The Secretary urges that an fied, according excep- majority, “as exception require from the search warrant general prohibi- tions constitutional recognized ‘pervasively has been against tion warrantless searches without businesses],’ regulated United States v. These bot- cause. decisions are Biswell, concept light of upon the that in the tomed (1972), ‘closely 32 L.Ed.2d 87 and for were not

all the circumstances searches regulated’ ‘long subject to close by constitutional standards.” industries unreasonable Coolidge Hampshire, S.Ct. at 2037. Thus there can be no New doubt exception justify clear it was failure find an made it long standing applied gave per rise to Katz se rule warrantless seizure point, II C of fourth violation at that with- to seizures well as searches. that regard subsequent opinion, Unit- the state’s out search. See the Court discussed 800, 802, Edwards, argument subsequent search ed States v. a seizure 1234, 1236, (1974) (“The L.Ed.2d 771 automobile with cause but with prevailing justified rule under the Fourth Amendment out a warrant was still “plain under require may not be made view” warrant that searches seizures excep- warrant is to various ment. The Court concluded that the seizure did without a tions.” Here a warrantless seizure clothing exception, consid not fit the and noted that arrest.) upheld pursuant subsequent legality a lawful eration of the unnecessary. was U.S. at 91 thus 403

1365 proper only searches are if con- Ca ment inspection.’ Colonnade supervision and warrant. States, 72, pursuant to a lawful ducted 397 U.S. tering Corp. v. United Davis, (9th v. United States 482 F.2d 893 774, 775, 777, 25 L.Ed.2d 60 77, 74, 90 S.Ct. Kunzig, 454 F.2d Downing v. 1973); Cir. exceptions, are indeed (1970). These cases 1972).”)2 (6th Fourth amend- 1230 Cir. relatively responses to they represent analyzed ac- questions continue James, circumstances.”); Wyman v. unique principles forth in such cording to the set 381, 385, 309, 317, 27 91 S.Ct. 400 U.S. Coolidge and Katz. cases as required for AFDC (home visit 408 L.Ed.2d v. United States search); not a eligibility that, although the There is no (9th Cir.), cert. 856, Schafer, 858 461 F.2d “de- chooses to use word majority often 211, 881, denied, 34 93 S.Ct. 409 U.S. tention,” was a seizure of the suitcas- there (even in administrative (1972) 136 L.Ed.2d warrant, there was no es here. Because firmly context, proposition is exception “[t]he point to an to the majority must carefully ‘except certain justify established requirement that would warrant cases, private a search of here, where, classes of defined seizure under circumstances unless it has judicial “unreasonable” property is lack the determi- police not by valid search warrant.’ neces- probable authorized of cause that been nation v. Municipal oto, quoting Camara sary to the of a war- prerequisite issuance 529, 1727, 1731, Court, 523, rant, underlying probable 87 S.Ct. cause it- 387 but the Allen, (1967)); McMorris v. 644 F.2d self. See United States L.Ed.2d 930 18 Ali 1978) (“Those 1980) 897, (finding unlawful war- 567 F.2d per in absence of limited searches of rantless seizure of briefcase that sustained cases cause).3 majority points facilities rec to no seeking probable enter sensitive sons to find one. general require- exception, such and I am unable to the ognize exception support incident to a arrest after a narcotics was lawful to Michi- also looks 2. The 2587, dog presence Summers,-U.S.-, in the of contraband gan indicated the S.Ct. Summers, car, 3, Terry (1981). like see 433 U.S. at trunk of the defendants’ L.Ed.2d 340 however, cases, dealing Dunaway, with the deten- at 2479. In both is a case S.Ct. police provides exigency people, further had seized the ended once the and thus tion of object securely majority’s objects support doc- seizure and had them to be searched See 442 U.S. at trine. within their control. 2593; 13; 97 S.Ct. at 2484. 433 U.S. S.Ct. the seized ob- Thus warrantless searches of probable at the time cause 3. The absence imper- jects, even with agents cru- marks a DEA seized the suitcases and, e. missible. the instant case distinction between cial g., contrast, Here, Sanders, by not be the seizures could 442 U.S. Arkansas v. (1979) justified to the lack of United States basis due on a similar arrest). (or Chadwick, Further- 97 S.Ct. cause a lawful more, interesting involved whether one The latter cases to consider L.Ed.2d 538 it of, respectively, exigent argue cir- searches the existence of seizures followed could even footlocker, arrest, in the absence a suitcase and a the unlawful cumstances. Due to cases, probable cause was In both across the room warrant. were immobilized defendants exist; inquiry whether crucial found to to see what their suitcases. It is difficult from exigency requirement ap- exception warrant an plied See 442 time. remained after police obligation 2593; relieve the U.S. at U.S. at searching Indeed, challenge, the contents obtain a warrant before I would at 2484. analysis items. exigent of the seized when use of an circumstances exigency unlawful been removed has to address the did not need While the Court helps point police to illustrate the action. This propriety in either the seizures analytical majority’s difficulties inherent presumably have been seizure in Sanders could attempts approach to consider the seizure plus presence justified independent the unlawful circumstances, the suitcases as exigent see 442 U.S. at II, See Part infra. (“Having probable arrest. be- cause to at 2591 Notably, in both Sanders away the Court being driven lieve that contraband arguments prosecution rejected stopping taxi, justified Chadwick exigent associated vehicle, spot, circumstances searching and seiz- it on the ing should be ex- suitcase.”), under Carroll with automobiles in Chadwick and the seizure 1366 the whole new branch of fourth amendment dispense to analysis thus seems

Its doctrine; guarded indeed, carefully opinion doctri- in Supreme nowhere Court’s reaching newly-an- in give any nal framework does the Court indication that “reasonable- general standard of nounced designed any application to have case is Amendment required by the Fourth as ness the mail context.5 Given the outside doctri- of inanimate and detention in the seizure decision, background nal for Court’s objects.” including long acceptance of the “famil- . principle proba-

iar .. that no amount of Terry Leeuwen and b. Van justify ble cause can a warrantless search ” circumstances,’ 'exigent or seizure absent conclusion, the approach For both its Goolidge, 403 at 91 at it U.S. courts, Viegas Klein majority, like the the Van Leeuwen Court unlikely is that in principles perceives it heavily on relies prob- dispense would think to with both the Van Leeu- v. Van Leeuwen. United States requirements cause and in a able warrant involving the detention of wen was a case range of opinion certainly broad cases an extended first class mail.4 creating a balancing it discussion of the careful of inter- gives no indication is Nuys trafficking illegal in to there at issue. coins. Due tended to validate searches differential, stated: the time Seattle was un- As the Sanders Court customs following exception to re- able to reach Nashville until each the warrant [B]ecause morning, quirement invariably impinges ex- ad- to some March when Seattle was protective purpose of the Fourth vised that the second addressee was also tent Amendment, being investigated A few in which a for the same crime. situations thereupon may in of a customs official in Seattle filed an search be conducted the absence carefully pack- affidavit for a warrant both warrant have been delineated commissioner, seeking exception ages with a United States who the “burden is on those Moreover, in show it.” .. we issued search warrant Mt. Vernon the need for . m., 2V2 p. Thereupon later. the reach of each 6:30 hours limited resealed, inspected, necessary packages opened, that which is accommodate way. society. promptly sent on their identified needs of (citations 397 U.S. at 90 S.Ct. at 1029-1030. 442 U.S. at 2591 omitted). Indeed, years Leeu- in the eleven since Van decided, has cited The facts Leeuwen were described wen was in Van following only twice has it the Court in the manner: it and this court cited times, which was the remand of three one of Respondent, p. Thurs- about 1:30 m. on Van Leeuwen In none of these cases itself. 28, 1968, day, 12-pound March mailed two any suggestion principle there that the enunci- Vernon, packages post Mt. at the office in anything applies in Van other ated Leeuwen Washington, a town some 60 miles from the Chadwick, mail. See States v. than United package was ad- Canadian border. One 1, 10, 2476, 2482, L.Ed.2d Nuys, post office box in Van dressed to a (1977) (citing holding as that a Van Leeuwen California, post other to office box and the necessary open two search warrant was Nashville, Respondent de- Tennessee. Bolton, packages); Doe package clared contained coins. Each 739, 757, (1973) (Douglas, registered and each was to be sent airmail concurring) (citing opinion his Van J. Leeuwen $10,000, mailing type was insured for proposition first amendment class, making parties agree was first mail); protects privacy of first class inspection. discretionary them Choate, F.2d policeman postal When clerk told a 1978) (citing support for hold- Van Leeuwen present happened he was who cover, ing use of mail which informa- suspicious packages, policeman at of the used, envelope of an tion on the outside once the return address on noticed person’s ex- reasonable not an intrusion of housing packages vacant area of a was a privacy); pectation of United States v. Sadrza- nearby junior college, and that the license deh, 1971) (cryptic F.2d plates respondent’s car British Co- providing aid to Van citation to Leeuwen policeman the Canadian lumbia. The called customs is involved there Sadrzadeh. “Where police, At 3 customs in Seattle. who called delay necessity more than must of called Van o’clock that afternoon customs ordinary mails.”). transmission Nuys of one and learned that addressee package investigation Van was under

1367 expression of freedom interests in those a result. Even would lead to such ests that contents under the first amendment. signifi- taken the less has when the Court 251-52, 1031-1032. It is at 90 S.Ct. at U.S. exception to the setting out an step of cant perspective, that views inter- from this one alone, a discus- such requirement warrant interference ference with the mail as See, g., e. Unit- virtually inevitable. sion communication, Court turns to the 218, Robinson, 414 94 S.Ct. U.S. ed States v. question” “sole of whether conditions 467, (1973) (scope of search 38 L.Ed.2d inspection the detention and outward of arrest); Hay- Warden v. lawful incident to 252, packages had been satisfied. Id. at 1642, den, 18 L.Ed.2d 87 S.Ct. 387 U.S. 90 S.Ct. at 1032. (1967) (hot pursuit); Carroll v. United States, 69 L.Ed. S.Ct. U.S. suspicious The Court next notes that (1925) (“automobile” exception). Simi- “certainly justified packages nature of the announced its land- larly, when Court warrant, detention, without a while an in- Terry, “for the first mark decision vestigation made.” Id. require- recognized an

time thing here was done detention of Fourth Amendment seizures ment that point was at that packages. There cause,” Duna- persons based on right possible invasion of the “to be 208, 99 at way, 442 at S.Ct. U.S. houses, “persons, papers, secure” in the spe- explain why this was careful to Court protected effects” the Fourth subject to cially intrusion was not limited against Amendment “unreasonable probable cause. requirement of the standard Theoretically— searches and seizures.” 20-27, 88 at 1879- at U.S. See theory only respondent has and it is 208-210, 1883; Dunaway, 442 at of mail could at on his side—detention (discussion Terry). at 2254-2255 an unreasonable sei- point some become “papers” “effects” within the zure of or reading likely of Van Leeuwen A more meaning Amendment. of the Fourth creating as a case a new treat it not would added). constitutionally permissible (emphasis seizures Id. type of objects, defining the level but as a case passage appears only to establish This which expectation privacy in mail for the sui parameters fourth amendment applicability of the determines the extent of Surely it does not generis category of mail. amendment itself. See Rakas fourth Illn sweeping proposition any contain the 140-43, ois, 99 S.Ct. object detain time the seize and 428-430, (1978) (citing Katz possible invasion” of fourth there is “no States, 389 U.S. v. United Rather, rights. it is clear that amendment proposition saying only that the mere the Court protection of the capacity to claim the mail, possession the immediate detention of depends upon whether fourth amendment already voluntarily sur- which has been protection claims the has a person who officials, does not government rendered in- expectation privacy legitimate fourth amendment necessarily constitute a closely analyzes place). one vaded When “theory only,” although in such seizure — Leeuwen, reasoning in Van the Court’s point at some become detention could this view becomes clear. correctness of unreasonable seizure. Leeu- Douglas’ discussion Van

Justice sharp con- stands in Van Leeuwen thus focusing the constitution- begins by wen acknowl- Terry, where the Court trast mail, historically applicable to protections amend- al defendant’s fourth edged that emphasizes security which had been intruded a discussion interests searched, 392 the interior con- government intrusion of when he was seized 1877-1879, con- fourth packages as a tents of letters and type limited specially cluded that important notes the value and Leeuwen, but for minutes involved in instant justified. In Van intrusion Leeuwen permitted least time in Van hand, stated: other on the from the —in area of nineteen hours by the protected Fourth interest No arose to the time detention by forwarding was invaded Amendment package in the case of the second —without day following rather packages the by having protected invaded interest deposited. The day they were than the a result can- the fourth amendment.6 Such interest significant Fourth Amendment argued, seriously only illus- not be which mail; first class privacy in the of this was applicability the of Van trates how limited not or privacy was disturbed truly be. Leeuwen must magis- of the approval until invaded the short, very support I find little trate obtained. holding. Van majority contrast with 1032 (emphasis at Leeuwen, protected by where interest “[n]o only can added). Van Leeuwen therefore infringed, it the Fourth Amendment” was understood, heavy empha- its both from be inter- is that fourth amendment undeniable characteristics of on the interests in and sis police re- ests are when the intruded of broader cursory and its examination mail posses- an a suitcase from individual’s move as a con- principles, amendment case fourth such sion. The fundamental character of extent of with the nature and fourth cerned labeling be it an action cannot altered rights mail. amendment in unquestionably a fourth detention—it is points this conclusion. Two other buttress logic the seizure. While the of above, First, as mentioned mail necessari- majority the sur- opinion makes sense on voluntarily placed possession the the ly in of face, repeatedly and the Court has government. The involved there detention rejected balancing-type emphatically the type of significantly different intrusion is a majority inquiry “reasonableness” type of involved in the from the seizure here, in- except chooses instances rare surprisingly instant is not volving extremely intrusions. As limited type analysis. a different The Court recently con- noted in the arrest very thus careful not in Van Leeuwen was text: describing use the word in “seizure” Fram- protections intended [T]he Rather than a re- treatment of mail. easily disappear in the ers could all individual, possession of an moval from balancing of the multi- consideration merely in the this was an increase amount presented by farious circumstances government package already in time a cases, that bal- especially when different government remained hands. hands ancing may in. in first instance be done Second, significant amount detention by police the “often engaged officers in involved in Van Leeuwen makes

time competitive enterprise ferreting out If, unlikely. applicability as the States, broader Johnson v. United crime.” Leeuwen today, 367, 369, holds Van consti- L.Ed. [68 range object authority broad single, tutes for a A standard familiar 436] seizures, it follow that in at who guide then would officers essential circumstances, object expertise such limited time and least some twenty balance social and indi- merely for the reflect on and could be held not delay very least, permit See 397 U.S. termed this “unavoidable.” At the Leeuwen would Van argu- where, comparable lengthy 90 S.Ct. at A because of ad- such detentions case, pre- problems, delay in instant “un- ment could be made such ministrative Leeuwen, housing example, sumably, narcotics kennel if the reasonable.” In Van Washington dog night, so that the package closed for the state had been one was detained following because, difference, dog overnight available until the time it would not be due to the day. day received in the to contact had been too late officials Tennessee. The Court federal just temptation sort of courts specific interests involved vidual carefully may must resist. “It it is Indeed, our they confront. circumstances thing in its and least obnoxious mildest dangers and our con- recognition these form; repulsive illegitimate but and uncon- depart sequent reluctance practices get footing first stitutional gener- protections afforded proved way, namely, by approaches in that silent rule, narrow are limita- reflected al slight legal deviations from modes of emphasized employing in the cases tions 635, 6 Id. procedure.” at 534. all balancing For these test. intrusions, narrowly requisite defined Relationship II. Arrest Unlawful “balancing” performed in centu- has been I also majority’s analytical precedent and is embodied in the ries evaluating the approach in seizure of the are principle seizures “reasonable” separable suitcases as from the unlawful supported by probable if cause. majority looks to United States arrest. The Dunaway, 442 99 at Chamberlin, v. 1980) (9th F.2d Cir. support major- I 2256-2257. find Mayes, and United v. 524 F.2d 803 police can ity’s that seize a assertion 1975) support argument of its an on mere reason- suitcase from individual that the unlawful arrest did not “taint” the Indeed,-1 majori- suspicion.7 find able seizure search of the These suitcase. “no fourth ty’s statement that not, however, ap- cases do support this right by such an action to be invaded” proach. unwarranted. Mayes, by In statements made a defend- majority’s departure from estab- The initially ant police when detained led the principles may lished fourth amendment backward, footprints thereby follow his dis- eminently quite justi- reasonable seem covering marijuana supplied cache that pragmatic en- fied considerations law probable Mayes’ cause for arrest. Yet, Bradley sagely Chamberlin, Justice during a Ter- forcement. statements made States, Boyd ry stop v. United suppressed observed to be did not need when stop it is that 29 L.Ed. later became unlawful arrest. Viegas large quantity I note the Klein nor warrant revealed a also that neither authority any Supreme LSD. courts cite to We other than Van Leeuwen for assertion held in that case the fruits of the suppressed that a suitcase can be detained reasonable search had to be because “the sei- 45; Klein, unjustified by suspicion. Viegas, See 639 F.2d zure remain[ed] briefcase requirement of a valid 626 F.2d 25-26. case, present As in warrant.” Id. at 752. This court’s decision in United States recent prevented probable the lack of cause the use of Allen, 1980), also F.2d 749 “probable exigent plus cause circumstances” suggests approach is that such an incorrect. type formulation. Allen, approached by the defendant was DEA that, particular Of interest was our statement agents airport allegedly in an he fit the because probable because cause must determined at profile.” They “airport drug DEA’s courier seizure, the time of “Allen’s admissions follow- identification, request- him for and then asked ing the of the briefcase cannot be used seizure accompany airport po- ed that he them to justify Id. at n.5. Were a the seizure.” arrival, Upon they they lice station. asked if act, legitimate brief detention of briefcase a Nothing he consented. could him and today, majority as the by made holds statements agents found. then asked if The during apparently brief the defendant When could search Allen’sbriefcase. ed, he refus- clearly seem admissible detention would to to be officers While seized the briefcase. See, g., cause. e. Adams establish writing receipt Allen Williams, talking at the with the remained station (1972) (revolver L.Ed.2d on defend- found conversation, “During he made officers. damaging person pursuant Terry-stop gave ant’s to a rise concerning the contents admissions un- cause to arrest defendant for These of the case.” Id. at 751. admissions majori- weapon). possession The lawful help Snyder support Agent were used ty’s holding today appears in- thus also application for a warrant. in his Alien. consistent with pursuant conducted A search briefcase difference be- is a fundamental There and the one at bar. those cases

tween OWENS, Plaintiff-Appellant, James Here, of the individuals and the seizures single, po- unified suitcases slice a lice chooses to action. RUSH, Robinson, Albert E. M. Leonard (seizure of the suit- lesser included intrusion Gnadt, Inthrum and Clarence Elmer Ol- greater intru- cases) the simultaneous County lie Wabaunsee Swenson and arrest) (unlawful began at the sion County, Kansas its Board of Commis- with the inception of contact defendants. McClure, sioners: Ollie Joe Swenson approach to unique fourth amend- This is a Imthum, Defendants-Appel- and Elmer issue adjudication. The here is the lees. scope the fourth amendment violation itself, not whether evidence involved No. 78-1753. the sense that it was fruit in was discovered Appeals, States Court pursuant to a violation. The is Chamberlin, not, Tenth Circuit. evi- thus whether early, legitimate dence obtained in the 30, 1979. Argued Nov. stages became an of what unlawful arrest admissible, lug- whether a seizure of June Decided ancillary gage clearly an unlawful separate analy- to a arrest should be precedent

sis.8 cites no unified,

fragmenting a simultaneous action parts analysis.

into isolated Such an

approach contrary would seem policy exclusionary behind the

deterrent Ohio, Mapp

rule. See light In approve judicial policy, I cannot winnowing

technique of a fortuitous “law-

ful” facet out of otherwise unlawful no reason for artifi-

incident. I see courts

cially post to bifurcate actions on attempt to the exclu-

hoc basis in an evade

sionary rule. happened

What here a seizure of analyze I

people and suitcases. would single,

integrated action as a sei- unlawful thus would never

zure and have reached

Van Leeuwen issue. reverse the district court.

I would sniff, dog accompany analysis, agreed By employing a DEA such an this court is Klein, dog beyond Viegas. agent going Klein and When a avail- both his office. able, initially was allowed leave al- the defendants were told defendant being though bag go his was retained. See F.2d at free to while their suitcases were Viegas, type 44. Thus court was faced with See 626 F.2d at after neither detained. Terry stop, the defendant to a of unified action we have here. brief consented

Case Details

Case Name: United States of America, and v. Lindsay Martell, and United States of America, and v. Joseph Minneci, And

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 6, 1981

Citation: 654 F.2d 1356

Docket Number: 80-1163, 80-1154

Court Abbreviation: 9th Cir.