United States v. Brunilda Garcia

America, STATES of UNITED

Plaintiff-Appellee, GARCIA, Defendant-Appellant.

Brunilda

No. 78-1671. Appeals,

United States Court of

Seventh Circuit.

Argued Nov. Aug.

Decided Brook, Defender A. Federal Pro-

Cаrol 111., defendant-appellant. Chicago, gram, for Sullivan, Atty., Ann C. P. U. S. Thomas Chicago, 111., Williams, Atty., Asst. U. S. plaintiff-appellee. SWYGERT, SPRECHER and

Before BAUER, Judges. Circuit BAUER, Judge. Circuit Brunilda Gar Defendant-appellant of the district appeals cia from the order suppress cer denying court her motion to her tain evidence seized incident upon her judgment from the entered possessing, with subsequent conviction for distribute, substance intent a controlled narcotics laws. in violation the federal issue is whether the solitary appeal incident warrantless search conducted infringed the unconstitutionally her arrest by the rights guaranteed to the defendant unpersuaded Fourth Amendment. We are support arguments advanced contention, that warrantless hold lug search of the contents of hand-carried inspected con gage, seized incident to custodial arrest temporaneous with a lawful impermissible inva does not constitute an sion in contravention Accordingly, re Fourth Amendment. we gard to be rea challenged the search here meaning of the Fourth sonable within the Amendment, judg affirm therefore set appealed for the reasons ment below. forth I grand September a federal On indictment jury returned a one count Garcia and against defendants Brunilda Valentin, of them with charging each Saul 2,405 to distribute possession and intent heroin, of Title grams of in violation 841(a)(1). Code, Section trial, couple. suppress investigation Prior to moved to An Garcia conducted grounds the heroin on the that it had been afternoon confirmed that defendant Garcia unlawful, during seized provided by resided at the address the in- luggage. contents of her Fol- formant. lowing hearing, a plenary the district court Early that and evening, Agents Foster the suppress, denied motion to and the de- Nyman again informant, met with the who subsequent fendant’s to motion reconsider Chicago identified Valentin from a Police 11, 1978, April was also On denied. at the Department photograph as the man he had trial, of a conclusion bench the court found and at the earlier described had seen Chica- guilty charged Garcia in the indictment.1 go address. The informer also stated May On the court sentenced Gar- cia custody Attorney of the General Brunilda could be the woman he Garcia years, by two to be followed a Furthermore, three in- knew as Bruna. the year term mandatory special parole. formant indicated that Bruna and Valentin The also court denied defendant’s motion Angeles to always traveled Los from for a new trial. appealed Garcia then to Airport O’Hare International via American court, contending that the district court Chicago Airlines and a returned to within denying suppress. erred in her to motion days. few The informant also his stated The facts suppression adduced at belief that Bruna and Valentin were in Los hearing, light assessed in the most favor- Angeles Chi- possibly and were en route to Government,2 able to on showed that cago flight an American on Airlines arriv- 28, 1977, June Agent Task Force James ing Airport. at O’Hare Foster, a Chicago Police assigned Officer to 29, 1977, June received Agent On Foster Drug Enforcement Administration Airport information Police from O’Hare Chicago, telephone received a call from authorities that a Mr. and Mrs. S. Valentin informant, requested who meeting con- purchased round-trip had two airline tickets cerning narcotics transactions. The infor- open Angeles with an mant Los on June had been Chicago associated with Department date, departed Police already since 1972 or return and had had previously provided reliable informa- on Ameri- Airport Angeles O’Hare for Los tion least six occasions which led Flight can Airlines arrests. later, days Agent on July Two morning, Later Agent Foster, ac- was O’Hare Police by Foster informed companied by Chicago Task Agent Force Detail that á Mr. and Mrs. Valentin S. Nyman, informant, met ap- who executed the on American return tickets prised couple them that residing in Chica- Flight Airlines scheduled arrive go traveling on a weekly basis to Los Chicago. The p.m. afternoon at 3:40 Angeles returning Chicago with four assigned placed was under gate arrival then to six kilos of possession. heroin in their surveillance, agents observed The informant identified the two individu- Flight passengers from American Airlines agents als to the aas woman named Bruna from, As deplane еxit door. aircraft and a man named Saul Balentin or Valen- disembarked, suspected Agent couple Agent tin. knew Foster of Saul Valentin Foster Valentin as identified Garcia and through the Narcotics Section of the Chica- descriptions matching given individuals go Department Police because Valentin’s informant, confirmed prior and further arrest for a narcotics violation. The Chicago provided agents informant also identity of Valentin from with a description and the residence address Department photograph. Police granted 1. The district court defendant Valen- Glasser v. United acquittal tin’s (1942); motion for the close of the L.Ed. government’s Alewelt, 1976). case. 532 F.2d 1165 lock, suspects through the secured by proceeded were followed baggage concourse to the lower their area on contents. One of the suitcases level, handing plastic bags where Valentin seen contained nine with a filled paper pieces powdery Garcia small multi-colored brown substance which a field test appeared baggage to be claim tickets. heroin. testi- determined After pointing period the time between the mo- Garcia direction fied area, baggage approached, placed Valentin exited the ment the defendant retrieval terminal he and her seized and building where was detained under searched, did agents. several not exceed fifteen seconds. Upon questioning by thе agents, just Valentin claimed he had ar- appeal, On the defendant contends that rived at in a taxi O’Hare cab to meet the warrantless search the contents friend. Valentin was then arrested and rights her secured her violated placed police parked in a vehicle outside the Amendment, Fourth and that the dis the airport entrance. accordingly denying court erred in her trict heroin seized as a suppress motion The conveyed fact of arrest was disagree. of that Nor do result search. We maintaining surveillance agree we with defendant’s contention baggage Garcia claim area inside v. the result in United obtained States airport up picked terminal. Garcia then 2476, 1, 97 53 433 U.S. suitcases, hand, two pro in each and (1977), underlying L.Ed.2d 538 or its ration through ceeded to exit the terminal ale, dispositive appeal. of this glass Agent Foster, automatic who doors. positioned glass in front of doors II terminal, outside the ap observed Garcia the Fourth him, is fundamental proach plaid carrying one suitcase and Amendment to individuals a com secures suitcase, one brown vinyl as well as her coat prehensive unwar right privacy against of bag. and a shoulder defendant v. by the state. Jones ranted invasions accompanied by group people including of 257, 725, 4 States, 80 S.Ct. three agents. through other stepped As she (1960). every But not intrusion L.Ed.2d 697 doorway, her, Agent Foster approached proscriptions; protected by constitutional displayed identification, his re and Amendment penumbra the Fourth quested her stop in order to ask her some and seizures extends to such searches questions. immediately dropped Garcia are Carroll v. United unreasonable. both hysterical, suitcases and became ex 280, 132, L.Ed. 45 69 267 claiming U.S. “I knew I done shouldn’t have (1925). Thus, prevailing rule this,” 543 proceeded to urinate on her cloth se per are and seizures warrantless searches ing. few, to a well-delin subject unreasonable is Agent placed Foster under Garcia the balance exceptions, cognitive of eated and escorted her out of the pedestri- flow of compet which must struck between an traffic to a location four feet from the right ing individual’s interests of the doorway. agent then removed the objective of effec the societal jacket leather draped the defendant had See, e. justice tive criminal administration. over her bag shoulder wrapped 357, States, 389 U.S. g., Katz v. United jacket around the apron- defendant an (1967). L.Ed.2d like fashion clothing. to conceal her soiled The defendant was not handcuffed or oth- it is well-settled Accordingly, erwise during Agent restrained incident this time. conducted a warrantless search Nyman exception seized the two closed suitcases from a lawful is a traditional spot dropped where the the Fourth defendant had requirement the warrant them, and brought them within one foot Amendment.

of her new position. Agent opened Foster 38 L.Ed.2d 94 S.Ct. suitcases, which were held to zippered (1973). shut but have been searches Such meaning arrestee, be reasonable person within the ciated with the Fourth Amendment when effected for the the area within the arrestee’s immediate purpose disarming the arrestee or to control. preserve probative evidence of criminal con- Application principles of these to the in- example, duct. For it has been held that a compels stant case the conclusion that pur- be undertaken question was reasonable under the suant ato valid arrest if it is substantially strictures of the Fourth Amendment. We contemporaneous arrest and is con- do not teachings consider the Chadwick person fined to the vicinity and immediate Despite to mandate a different result. See, e. g., arrestee. Vale v. Louisi- superficial similarity between the factual ana, 26 L.Ed.2d settings (i.e., a search of contents of (1970); Shipley California, 395 luggage), substantial differences become L.Ed.2d 732 upon apparent objective examination of The search excep incident to arrest controlling the facts Chadwick and those tion embraces warrantless searches both governing the present case. These differ- arrestee’s and the area within distinguish ences so Chadwick as to render the arrestee’s immediate control.4 This application inapposite its to the factual cir- teaching was articulated in Chimel v. Cali presented appeal, cumstances by this and a fornia, fortiori dictates that legal Chadwick’s ra- in which the Court out tionale does not control the resolution of legitimate scope searches, lined the of such contrary, this case. On the the context stating at 89 S.Ct. at 2040: the governing of facts appeal, the de- entirely is reasonable for the arrest- “[I]t fendant’s reliance on is Chadwick inconsist- ing officer to search for and any seize principled application ent with a of the doc- evidence on the person arrestee’s in order trine of searches conducted incident to cus- prevent its concealment or destruction. todial arrests. And the area into which an arrestee

might Chadwick, object reach in grab weapon order to a In the seized was or must, evidentiary course, cumbersome, items of be gov- pound, two hundred double- by erned . like rule. . . footlocker, There is obviously locked could be ample justification, therefore, for a rapidly quickly opened neither nor removed person the arrestee’s and the accomplice the defendants or an at the area ‘within his immediate control’ —con- significant of arrest. is also struing phrase to mean the area the search not itself was undertaken might gain possession from which he of a place proximity close the time and weapon or destructible evidence.” Rather, arrest and seizure. the footlocker opened following was more than hour

Thus, emergent the standard from a arrest, after it had been only review and then of the seminal defining cases scope along removed of the defendants searches incident with that, Moreover, police is station. since defend- be found reasonable and exempt therefore incarcerated, require persons from warrant ants were ment, the search present must be were conducted sub at the time of the search stantially contemporaneous circumstances, with police the arrest officers. these Under and be spatially person limited to justification of ample delay existed to arrestee, possessions immediately asso- search until a could obtained.5 warrant be See, g., 3. beyond e. United States v. ‘the of “[T]he footlocker was area (1973). 94 S.Ct. 38 L.Ed.2d 427 control’ that searchable without a warrant incident to an arrest.” See, g., California, e. Chimel v. Chadwick, 532 F.2d (1969). (1st 1976). affirming n.6 decision Appeals, the Court Court held Appeals simply The Court in Chadwick that, attending under the circumstances held that: thereby had the officers was seized because governing factual circumstances con- their exclusive luggage to reduced the are in appeal instant in the the search association defendant’s and the objects con trol seized contrast. marked But as eliminated. had been hand-carried, property portable suitcas two sisted of in Chadwick: noted Supreme Court capable quite es which in order to or the defendant opened quickly searches “[Wjarrantless evidence, weapon or time of gain to a at the access property seized other waiting accomplice of the as incident justified removed arrest cannot is remote the search in ‘search defendant.6 Unlike either if the that arrest arrest,’ Preston was undertaken im the' the search in this case from place in time or U.S., States, arrest. The mediately upon the defendant’s v. United law exists. Once approached the defendant as soon officers or no lug- reduced have baggage she terminal build officers exited the enforcement im- arrest, property personal ing, placed lug gage her under seized the or other with the carried, gage mediately undertook a search of associated she control, exclusive to their the arrestee presence its contents in the defendant’s danger longer no and there is within fifteen seconds of the announcement gain access might the arrestee Accordingly, the search was of the arrest. destroy weapon or seize a property to neither remote in time or evidence, propérty search of that police since the arrest.” incident of the longer an cause cir to effeсt the arrest present, cumstances were the warrantless (footnote search of the contents of the added). omitted) (emphasis See, justified as a search incident to arrest. appeal, Gar- present In the context g., e. Preston v. had, sei- upon cia claims 11 L.Ed.2d control zure, exclusive come within the under- However, citing controlling Chadwick as before exigent cir- taken, were authority, the that there defendant contends that the and For search. predicate at the time justify to the warrantless search cumstances that reasons, contends expired the defendant the moment the defendant was tak- these to as incident justified custody luggage en into and the she carried the search was not case, ‍‌​​‌‌​​​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌​‌​​‌‌​‌‌‌‌‍delay searching automobile in the that warrantless search in that there was no danger might gained justify that as incident the defendant have the search could not weapon access to the footlocker to seize a arrest. Chadwick, destroy evidence. United States v. and in cus arrest accused is under “Once an 1, 15, 2476, 433 U.S. 97 S.Ct. 53 L.Ed.2d 538 place, tody, at another a search made then (1977). justifi- The Court also noted that other warrant, simply to not incident without a cations for a warrantless search of an arres- the arrest.” may tee’s at time of arrest exist: 883, 367, quoted Preston, in supra S.Ct. at at 84 example, if “[F]or officers have reason to 47, Chambers, supra 1975. 90 S.Ct. 399 U.S. at believe that contains some immedi- delаy, notwithstanding in the Court But ately dangerous instrumentality, such as ex- probable to cause that since held Chambers plosives, foolhardy transport it would be it existed, cause there was arrest opening lug- to the station house without a warrant be without the automobile See, gage disarming weapon. g., e. Chambers, supra mobility, its inherent cause of Johnson, 630, United States v. 467 F.2d 639 50, S.Ct. 1975. at 90 also, (CA 1972).” Edwards, 415 U.S. See Chadwick, 15, n.9, supra at 97 S.Ct. at 2485 n.9. (1974) 39 L.Ed.2d also, Maroney, See Chambers v. 399 U.S. clothing his (search after hours arrestee’s (1970). 90 S.Ct. 26 L.Ed.2d 419 In Cham thereto). proper as incidenta arrest bers, petitioner challenged the warrantless search of the automobile in which he was a inwas Valentin that co-defendant The fact passenger because the search was conducted custody does not prior to the defendant’s station after he was arrested and possibility preclude another confeder- custody. Relying taken into its decision in on may in the area. have been States, ate Preston v. United 881, 376 U.S. 84 S.Ct. (1964), the found 11 L.Ed.2d 777 Court Further, the arrest. mediately upon object the defendant asserts the seizure of an the warrantless search is on or within immedi- not defensible located vicinity arrestee, grounds ate is a expectation of a construction reduced incapable application consistent arising privacy out of the arrest itself. We principles fundamental of constitutional disagree with these contentions. construction, law. Under for exam- such First, under the circumstances ple, the warrantless search of an arrestee expectation of privacy wallet, purse, or resulting in the seizure of a society defendant is not “one prepar bag prohibit shoulder would an immediate ” ed to recognize as ‘reasonable.’ Katz v. type of con- of the contents 347, 361, tainer, contrary plainly and this is (1967) (Harlan, J., 19 L.Ed.2d 576 governing law searches incident to arrest.8 concurring).7 Certainly, the arrest of the Rather, concept of “exclusive control” defendant, alone, standing did not destroy must be construed in the context of its whatever interests she had in the application in where the Su- did, however, contents of the suitcases. preme Court stated: least for a reasonable time “Here search was conducted more extent, reasonable subsume those interests than an hour after federal legitimate governmental into the interest gained exclusive control of the footlocker discovering weapons, obstructing access to long securely respondents after of escape, means preventing the de custody; the search therefore cannot See, struction or secretion of evidence. e. be viewed as incidental as arrest or g., Edwards, States v. justified by any exigency.” other 808-809, 39 L.Ed.2d 771 at 2485-2486. The circumstances the seizure of surrounding Second, to construe the term “ex case cannot be present clusive control” meaning as regarded having attaches im- come under the “exclu- Illinois, gate See building, lug- also Rakas v. section of the and that the 58 L.Ed.2d gage every in which the well. traveler was searched as “legitimate expec- also, further delineated the DeAngelo, See F.2d United States v. privacy” tation of standard: 1978), denied, -U.S.-, cert. ‘legitimate’ expectation privacy by (defendant “[A] (1979) subjective definition means pectation carry-on more than a permitted having lug ex his to avoid burglar of not discovered. A gage electing not board his searched plying during his trade in a summer cabin flight x-ray suspicious after screen revealed thoroughly justified off season have a package.) subjective expectation privacy, of but it is recognizes ‘legiti not one which the law 800, as Edwards, 94 v. 415 U.S. United States presence, mate’. His in the words of [Jones 1234, (search (1974) S.Ct. of 39 L.Ed.2d 771 States, v. United 362 U.S. 80 S.Ct. clothing); arrestee’s v. 725, (1960)], 4 ‘wrongful’; L.Ed.2d 697 is his 467, 218, 414 U.S. 94 427 S.Ct. 38 L.Ed.2d expectation society prepar is not ‘one that (1973) (search package); Draper cigarette of v. ’ recognize ed to as “reasonable.” Katz v. 307, 329, States, 358 U.S. 3 361, 347, 507, 389 U.S. (1959) (search zipper bag); of Gus (Harlan, (1967) J., 19 L.Ed.2d 576 concur Florida, 488, tafson v. ring).” box); (1973) (search cigarette of L.Ed.2d Illinois, supra, n.12, v. Rakas at Simpson, United States v. 453 F.2d 1028 99 S.Ct. at n.12. denied, 1972), cert. case, In the instant the district court ob- (search (1972) wallet); 33 L.Ed.2d 337 of by entering facilities, public served that certain Cupp Murphy, buildings airport such as federal court termi- (search (1973) fingernails). nals, persons possessions and their immediate Indeed, case, appellant in the instant does subject expectation are privacy. to a reduced challenge not the warrantless search of the connection, In this the court that the concluded carried, although bag shoulder she it was expectation defendant entertained a reduced privacy, reasoning Facility Airport searched at the O’Hare Police every person at O’Hare long into after she had been arrested and taken Airport required to submit to a search of custody. luggage his or her before into admission police authority,” sive dominion

phrase in Chadwick.9 L.Ed.2d is defined opera- case, upon the In the based instant Third, argues the defendant described, setting tive factual heretofore that, although probable cause ex to arrest difficult that the search was to conclude exigent circumstances isted in this by exigent circumstances. not attended exempt the present search from the is it the officers’ immediate Nor clear that requirement.10 contrary, On the warrant having luggage, previously search of the did circumstances attend the arrest confederate, suspected arrested least one police proba officers had this case. justified large was not in view of the num- ble that an cause to believe offense was persons in and out of the proceeding ber of being and that the defendant committed of the arrest. Certаin- terminal the time possession was in of evidence of crime ly, the fact that the arrest was effected in at the of arrest.11 The Fourth Amend highly congested by public, a location ment standard reasonableness does travel, pedestrian supports and vehicular rise detached or fall on the observations of im- judgment the officers’ to undertake an prosecutors or the courts as to whether luggage. mediate of the at the exigency existed time of the ar upon subjective rest. be based It must argues Alternatively, the defendant analysis confronting of the situation exist, any exigency if it resulted from did arresting officer. As police moving the conduct officers ‍‌​​‌‌​​​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌​‌​​‌‌​‌‌‌‌‍in of the stated in United States Robinson: within the imme- to a location reach This conten- “A officer’s as to diate of the defendant. determination ignores circumstances reality how to search the tion of the person and where of a surrounding the arrest. The search was suspect whom he has arrested is necessar- seconds of the ily within fifteen quick judgment ad hoc consummated arrest, sep- although the defendant Fourth require Amendment does not momentarily arated from her when be broken down in each into an instance pedes- she was escorted out of the flow analysis step of each in the search. The traffic, luggage continued to re- trian authority person to search the incident to during main reach within her immediate lawful custodial while based period. upon necessary removal the need to disarm and to discover evidence, defendant and her door- depend does not on what a clearly way consti- airport court terminal probabili- later decide was the judgment by ty tuted the sound particular in a exercise of arrest situation that agents. weapons or evidence would in fact be upon found suspect. A Ill suspect custodial arrest of a based decision, cause is a Subsequent reasonable intrusion the Chadwick Amendment; under the Fourth in- other courts have had occasion consider lawful, adjudica- trusion appeal, search incident to the issue raised in this requires justifica- no additional tion has less than uniform. Several been tion.” have searches of courts found warrantless bar, justified 9. In the case at the Government contends the search is either remote in unless luggage arrest, place exigency that the reduced the exclusive no time or they Thus, 15, control of the after left the scene of 2476. exists. 433 97 S.Ct. the arrest and the defendant. assuming with even attended the arrest proper since it was in this search was questioning during 10. Under the Court oral contemporaneous arrest. with the argument, the Government conceded that no exigent circumstances existed at the time of Watson, See, g., States v. e. United that, probable search. Chadwick held where 820, (1976) 46 present, cause to arrest is search (Marshall, J., dissenting). seized at the time of the arrest

357 personal be any reasonable within evidence in the briefcase might meaning the Fourth Amendment.12 Moreover, destroyed. be there was no defendant, however, The relies on the deci- reason believe briefcase con- Schleis, sion v. States 582 F.2d explosives danger tained or other instru- (8th 1978) 1166 support Cir. as for con- her mentalities.” tention that Chadwick is determinative Schleis, supra Thus, at 1172. the Schleis appeal. us, this But unlike the case before court concluded that the could not settings the factual in Schleis and Chadwick justified as incident to the arrest because indistinguishable. Schleis, are for exam- was remote in time and from the ple, the defendant’s locked briefcase was exigent and no circumstances exist- seized at the scene of the arrest then ed at time the search. For the along taken police station, him to the earlier, reasons discussed Schleis case where it forcibly opened and contra- clearly distinguishable from the instant band was discovered. On remand from the case. Supreme light Chadwick, Court in Moreover, contrary to the defendant’s Eighth Circuit, banc, sitting en reversed its conclusion, previously this Circuit has not earlier decision and held that the search changed held that Chadwick law con- violated the Fourth Amendment. cerning applicability of the doctrine of Appeals Court of in Schleis found searches personal incident arrest ef- search had bеen conducted after the brief- fects, such as attache cases. The defendant case had come under the exclusive dominion cites Berry support v. as police: conclusion, merely but this Court decid- “The briefcase came under the ‘exclu- Berry ed in apply that Chadwick did not sive control’ at the time of retroactively.13 the arrest when Schleis was handcuffed custody. taken into Nor search, is there indication in Chadwick how- ever, was previ- its jail conducted Court overruled Burnsville

well after concerning arrest and after ous decisions the search incident Schleis had been locked jail Indeed, in a referring cell. arrest Since doctrine. to the evidence locker legitimacy was available in which of warrantless searches conduct- the briefcase could arrests, have been ed securely incident to custodial placed, there was no reason to believe observed: See, g., e. Gaultney, United States v. 581 briefcase on backseat of automobile (5th 1978) (warrantless F.2d 1137 Cir. justified exigent search of circumstances). arrest taped box discovered inside automobile held Johnson, But cf. United States v. 588 F.2d lawful due to cause and cir (5th 1979) (warrantless 147 Cir. search of duf cumstances); Finnegan, United States v. 568 bag airplane fle found in violative of Fourth (9th 1977) (warrantless F.2d 637 Cir. search of Amendment); People Hamilton, v. 74 Ill. suitcase in automobile violative of Fourth (1979) (warrant- 24 Ill.Dec. 386 N.E.2d 53 Amendment); Washington, Hauser v. 19 Wash. justified less search of briefcase not invento App. 576 P.2d cert. denied 440 U.S. ry search). (1979) (warrantless search of suitcase seized at air Berry, (7th 13. United States v. F.2d Cir. port proper arrest); People as incident to 1978), in which the its Court vacated earlier DeSantis, 46 N.Y. 412 N.Y.S.2d decision that the search violated the Fourth (1978) (warrantless N.E.2d lug search of Indeed, Amendment. other decisions of this gage seized incident to lawful custodial Court, both before after would circumstances); reasonable under Dawson v. contrary State, seem to indicate a conclusion with Md.App. (1978) 395 A.2d 160 respect applicability (warrantless of Chadwick in this purse justified as inci See, Issod, g., arrest); Commonwealth, context. Cooper dent to e. United States v. Ky. App., denied, 1974), (1979) (warrantless 577 S.W.2d F.2d 990 cert. of razor (1975); case found in automobile reasonable L.Ed.2d Unit probable with es); Griffith, (7th cause and circumstanc ed States v. 537 F.2d 900 Cir. Connecticut, Conn., Runkles v. 1976); Simmons, 314, 389 A.2d United States v. F.2d 567 730, 177, cert. denied 439 U.S. 1977). 58 317-320 (U.S. Sept. 1978) (search L.Ed.2d 168 of 358 to made, to the Denver Union Station is there officer went a custodial arrest

“When an person arriving on incom- danger that an always look for individual some descrip- weapon, a or may Chicago seek to use who matched ing arrested train or de may be concealed that evidence On informant. tion tendered oth stroyed. safeguard To himself and surveillance, agent imme- day second evidence, ers, prevent the loss and as he dis- recognized the defendant diately аrrest has held reasonable been Chicago train. inbound from an embarked ing prompt, a warrant- officer to conduct police officer followed agent and the person less of the arrestee’s ‘search exit, he where to a station the defendant “within immediate control”— area his warrant, and, placed without a stopped was phrase the area construing that to mean then undertook arrest. The officers under gain might posses from within which he person and a of the defendant’s a search weapon evidence.’ sion or destructible hand, he carried in zipper bag tan California, U.S., at v. 395 Chi mel narcotics and in a seizure of which resulted . Terry v. also 89 S.Ct. 2034 See was syringe. The defendant hypodermic Ohio, 20 L.Ed.2d subsequently custody, taken then into violating federal narcotics convicted of with- may be conducted Such searches law. warrant, they may out a also facts, the Court Confronted these probable made there whether not conviction, holding: affirmed the cause to believe that the arrested that, facts and “We believe under may weapon destroy have a or is about to here, had [Agent] Marsh potential dangers lurking circumstances evidence. The grounds to in all custodial arrests make warrantless and reasonable cause committing searches of items within ‘immediate petitioner was believe that requir- area control’ reasonable without the laws the United Statеs violation of ing arresting officer to calculate at the time he relating drugs to narcotic probability weapons that or destructible was therefore The arrest arrested him. evidence be involved. United States lawful, subsequent search and the v. seizure, having incident been made (1973); Ohio, Terry supra.” L.Ed.2d likewise valid. that lawful 14-15, supra petitioner’s motion to It follows that at 2485. and that suppress properly was denied competent evidence heroin was seized quite instant

Under facts similar lawfully at the trial.” received Draper held Court L.Ed.2d 327 an immediate omitted). (footnote carried an arrested in Chad- Finally, the First Circuit person is under Fourth reasonable provides evidence the Su- wick further Draper, agent Amendment. In a federal expand the exclusion- preme Court did Denver, with the Bureau of Narcotics in ary encompass rule the search in Colorado, informant, learned from an whose Appeals when case it affirmed the agent information the always had found holding In the warrantless decision. accurate, be reliable and that the defendant the Fourth footlocker violated narcotics, trafficking departed Amendment, stated: the First Circuit Chicago supply train for to obtain a Chimel, find error heroin, “Applying we and would return to on a Denver the foot- decision the lower court’s day specific certain train on a or the follow- arres- within the defendant, locker was not area ing agent day. The whom thе holding, so know, tee’s control. did not immediate described detail rejected court Govern- agent Acting this in- the district by the informer. analogize the footlock- formation, agent attempt ment’s and a Denver tents, er search to that of hand-carried briefcas- were under defendants’ immediate es and luggage, other searches of which control. It was portable, far from approved. various Drap- courts have See heavy too even to be carried the aver- er v. United also, age person. It the agents as 329, 3 (1959) . knew, . . . The just well been unloaded from district court said: baggage cross-country train’s car after a cases, trip

‘. . suggesting, proved . In all as to be the lug- of these gage tightly that was searched was that was secured and could opened; carried defendant at time of be nor did the observe it may his arrest. open opened the hand- it. they before themselves carried encompassed in the disturbing We thus see no- basis for phrase “area within that, his ‍‌​​‌‌​​​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌​‌​​‌‌​‌‌‌‌‍immediate con- finding purposes court’s for trol.” But the in footlocker this case standard, Chimel ‘this footlocker was sim- was not . hand-carried . .’ ply not within the control of the defend- ” ants at the time of arrest.’ below, Since decision this circuit has (1st 1976) (foot- 532 F.2d 780-781 upheld also a warrantless search of a omitted). 360 failing by the arrestee herein ex- control the reasons

Accordingly, for privacy invasion of the appeal- recognize of conviction increased pressed, judgment the sei- over mere a that a search constitutes ed from is affirmed. has zure, opinion sacrificed majority the AFFIRMED. result. reason to SPRECHER, concurring. Judge, Circuit I the district I concur in the affirmance of be preliminary matter must Initially, court’s the defendant’s motion denial of apparently court confronted. district evidence, solely on the suppress but do so suppress motion denied defendant’s 752, California, 395 basis of Chimel v. U.S. legitimate privacy no ground on the (1969), permit 2034, 89 S.Ct. 23 L.Ed.2d 685 search. by implicated interests ting searches incident certain warrantless relegated issue majority Although arrest, interpretation to an in Unit and its footnote, 355, 8,n. supra, p. to a this error Patterson, 424, 447 425-6 ed States v. F.2d escape uncorrect- not be should allowed 1064, 1971), denied, (10th Cir. cert. 404 U.S. ed. (folder 748, (1972) 752 or 92 S.Ct. 30 L.Ed.2d away arrestee); no envelope 4 feet from to 6 conclusion The district court’s Wysocki, v. 457 F.2d rights United States are involved Amendment Fourth denied, (5th 93 Cir.), cert. 1160 on notion because here is based (1972) (box 6 feet 34 105 subject L.Ed.2d may to search have been arrestee). away from In this when embarkation, remains interest necessarily moved out arrestee was legitimate privacy thereafter. is as if all traffic, separated the flow she became person decides are once a interests waived 6 momentarily luggage by from her 4 to involving travel. air trip to embark feet, neces when the was also that an air traveller While it be true flоw, sarily out of the it was moved traffic consenting either option faced with brought 2 feet the arres back to to from weapons explo- for or to a limited search tee. The search occurred within seconds of an upon entering certain sections sives distinguishing these facts sections, not into airport going or those Chadwick, from United v. to a search forced such limited consent surrounding travel air the circumstances searched amount to consent not does SWYGERT, Judge, dissenting. Circuit contra- airport possession outside an given to certain majority I dissent. The Consent to holds that band. lug- justify a con- not search Brunilda Garcia’s authorities does gage to whom was not conducted in violation of her ducted other authorities right given. Fourth from Amendment to be free consent not denied, Cir.), Glasby, cert. unreasonable searches and seizures. This F.2d 734 58 L.Ed.2d holding is supported which 439 U.S. Supreme misinterprets holding (1978).1 In Court Supreme Court’s Chadwick though luggage may be in United States v. noted that even entry (1977), as a border 53 L.Ed.2d searched condition travel, significant pri asserts the existence of circum- carrier common con- remains vacy personal stances when the Government itself interest Chadwick, supra, cedes that there were none and the otherwise undiminished. facts just last act 2476. And agents reveal that the did not involved - Sanders, present. By ignor- as if exigency were term Arkansas -, ing the distinction between a search supreme upheld a state search’ of the within area Glasby

1. In their search to defendant we held this to be true even when limited receiving originally to be searched. the other consent consented authorities court overturning decision conviction footlocker contained marihuana. After a pursuant based on contraband seized to a dog presence trained detected the of mari- luggage (albeit in a taxi sev cab huana, defendants watched the eral blocks airport) from the which mo car load the footlocker into a and then ments before had been retrieved agents took the de- arrested them. The airport -, baggage claim. Id. at to the federal fendants and the footlocker at -, also S.Ct. See id. S.Ct. where, obtaining building, consent without C.J., (Burger, concurring). It there warrant, they or a the foot- search searched fore should be clear that the Fourth locker an hour and a half after the arrest applies Amendment personal luggage be and found the moment marihuana. From ing airport. carried out of an un- the footlocker had remained der the law enforce- exclusive control of II agents ment officers. “The had no reason applicability Given the of the Fourth to believe that the ex- footlocker contained Amendment, majority a fact the at least plosives inherently dangerous or other concedes, tacitly the warrantless search in items, or that it contained еvidence which case is it may reasonable if would lose its value unless the footlocker categorized as a search incident to a lawful opened were at once. readi- Facilities were arrest for required. which warrant To ly available in which the could footlocker fall within exception the “search incident” have securely; been stored it is not con- to the requirement, warrant the search any exigency calling tended that there was must be classifiable either as a search of the for an immediate search.” Id. person objects immediately or of associated at 2480. arrestee, with the following Robinson, United States v. reciting facts, Supreme After these (1973), 38 L.Ed.2d 427 or as a Court held that the warrantless search of search objects in an area within the the footlocker violated Fourth Amend- control of the arrestee under Chimel v. Cali- rejected ment. The Court the Govern- fornia, 23 L.Ed.2d argument ment’s that Amend- Fourth implicated ment Warrant Clause is not examining Before importance personal when a search is made of effects distinction between Robinson and Chimel to lawfully public probable areas on seized case, the instant necessary it is to review cause; instead, the principle it reiterated the Chadwick decision. Chadwick the purpose that “a fundamental the Fourth Supreme Court was question very asked a safeguard Amendment is to individuals similar today: “[wjhether to that bеfore us government from invasions of unreasonable a search is required warrant before federal legitimate privacy Id. at interests.” agents may open a locked footlocker which S.Ct. at 2483. they have seized at the time of the lawfully argument, As to the Robinson owners, arrest of its when there is personal possessions noted that searches of cause to believe the footlocker contains con- do not fall within the Robinson rationale: traband.” 433 U.S. at at 2479. person, Unlike searches of the The facts of days decided ten 218, 94 S.Ct. States v. prior airport to the events at the in the (1973); 38 L.Ed.2d 427 instant are indeed similar to those Edwards, before us. agents Federal ob- Boston posses- searches served the defendants disembark from con- within an arrestee’s immediate sions train, they Diego, had boarded in San justified by reduced trol cannot be and claim a baggage. footlocker from by arrest. expectations privacy caused been alerted Amtrak officials Diego in San con- possibility interest Respondents’ privacy that though way, in the instant even another was not eliminated tents of the footlocker not remote in time search was case the they arrest. simply were under because existed warrantless place, if no 2486 n. at 16 97 S.Ct. at Id. n. justified under Chimel could not be used could rationale be Nor the Chimel to an arrest. as incident lug- legitimize the warrantless distinguish the majority attempts gage. Unlike a Robinson this case seizure in search and expec- person, on reduced which is based irrel- by focusing on Chadwick following arrest, a Chimel- tation of by distort- dissimilarities evant factual premise type search is based legal which animated principles ing the arresting officer may endanger arrestee the factual Any suggestion decision. seizing may gain possession weapon or case and this between Chadwick differences destroy of and evidence. As the compel dif- significant sufficiently Chadwick, warrantless Court stated in to rest been laid results should have ferent justified by searches cannot be the Chimel decision in Supreme Court’s recent by the has rationale once the item to be searched Sanders, majority in the in- supra.3 The come under exclusive of the the control it case factual distinctions stant noted the no exigency: authorities and there is relevant: found luggage or oth- searches [Warrantless object was In the seized er the arrest property seized at time of an cumbersome, pound, double- hundred two cannot that justified as incident footlocker, obviously could locked arrest either if the “search is remote rapidly re- quickly opened be neither nor place arrest,” or time from the Preston moved or an accom- the defendants U.S., is also plice at the of arrest. time exigency or law exists. Once was not significant the search itself that lug- enforcement officers have reduced proximity to the undertaken in close gage personal or im- property other not place arrest seizure. and the and mediately person of associated with the Rather, more opened the was footlocker control, the arrestee to their exclusive arrest, following and than one hour the longer danger that there is no only then it had been removed after might gain arrestee access to along with to the the defendants property destroy a weapon to seize or Moreover, defendants station. since the evidence, is no property a search that incarcerated, persons were longer an of the incident arrest. present at the time of Thus, it is these policy 2485.2 Under circumstanc- officers. es, ample justification delay clear that if the search is in time or existed remote could be place arrest, the search until a warrant exigency or if no exists, obtained. luggage a warrantless seized at an governing the time of arrest cannot be The circumstances factual justified as Put are in appeal incident that arrest. the search in the instant relevancy majority opinion 2. The Court observed in a footnote: 3. The discounts the Supreme decision in Sanders Court’s course, justifications Of there be other expressly in Sanders noted because luggage for a warrantless taken luggage considering it was searches of arrest; suspect from а at the time of his possessor. In both of its incident example, if officers have reason to believe case, officials, however, and this Sanders luggage immediately contains some dan- suspect based on cause to believe the gerous instrumentality, explosives, such as contraband, carrying first restricted foolhardy transport would be it to the subject’s then of movement freedom opening station house without luggage. suspect’s this Whether searched technically disarming weapon. or as “arrest” characterized 433 U.S. at n. S.Ct. at 2485 n. 9. validity bearing not should have no case, the instant Government concedes the search under the Fourth Amendment. no such existed at time of the search. Id., U.S. at -, objects marked contrast. The seized con- n. - S.Ct. at 2592 hand-carried, sisted of two portable suit- added). Sanders, (emphasis n. 9 inAnd cases, quite capable which were case, in this the search occurred at the same opened quickly by the defendant in order at -, time and as the arrest. Id. evidence, gain access a weapon or Sanders, S.Ct. 2586. The defendant by waiting removed accomplice of unlike the defendant but like Chadwick defendant. Unlike the search in Chad- defendant had not been wick, the search in this case was under- incarcerated, and at least one other immediately upon taken the defendant’s (the driver) present taxi for the search. The approached officers the de- arrest.. Any Suprеme at all to attention Court’s fendant bag- as soon as she exited the decision in dispelled Sanders should have gage building, placed terminal her under any significance dif attached to the factual carried, seized she ferences between Chadwick and this case.4 undertook search of its contents in the majority’s analysis legal prin- presence defendant’s and within fifteen ciples established Chadwick is no more seconds of the announcement of the ar- persuasive. The majority complete- rest. ly misinterprets simple rule articulated (footnotes Supra, p. omitted). in Chadwick which describes when a war- Court’s decision in Sanders justified. rantless search of can be demonstrates none these factual explicit language Chadwick states: circumstances has determinative oth- searches of or [Warrantless Fourth Amendment relevance. In Sanders er property at time of an arrest seized found, case, the contraband was as in this justified cannot be as incident to that searching portable officials a suitcase. arrest either if is remote in the “search said, Court arrest,” or place time from the Preston v. The facts of the two cases are similar U.S., at respects. Chadwick, in several critical In exigency or no exists. locked, a 200-pound footlocker was searched po- without warrant after the (emphasis U.S. at 97 S.Ct. at 2485 lice, cause, acting probable with had tak- added). says, mаjority Yet the en it parked from the trunk aof automo- that, Chadwick held where ease, bile. present respondent’s present, cause to arrest is small, comparatively unlocked suitcase search of at seized the time of placed also had been in the trunk of an justified the arrest is is unless search automobile and was searched without a either remote in or by police acting warrant upon probable exigency at no exists. 433 U.S. cause. doWe not view the difference in Thus, assuming 15. even the sizes of the footlocker and suitcase as attended the arrest in this here; material respondent’s nor did fail- contempo- search it proper was since was ure lock his suitcase alter its funda- raneous with the arrest. mental repository per- character as a sonal, Supra, p. Admittedly, n. the ma- private Note, effects. Cf. Re-A opinion jority go consideration of the does Expectation Katz discuss Privacy Test, circumstances, exigent 76 Mich.L.Rev. 170 existence of but its reasoning regard well. in is flawed as ap- The failure to follow clear and recent Su- ers demonstrates the Chadwick rule preme precedent starkly plies contemporaneous evidenced in whether the search is concurring opinion. opinion (as Sanders) That distin- with the arrest or occurs after guishes solely grounds delay (as Chadwick). Chadwick on the Thus the dis- “the search [in this case] occurred within 15 tinction between of- Chadwick and this case arrest, distinguishing seconds of concurring these facts fered has been dem- Chadwick, from United States v. onstrated to irrelevant Sanders. (1977).” Yet Sand- explained At footnote the Court be- proper reading of Under a question presence in the lock- reaching interest fore nature circumstances, must first er: searched was property decide whether the principal privacy inter- “Respondents’ per- immediately with the “not associated was of course not est in the footlocker 15, 97 arrestee.” 433 U.S. at son of the itself, which ex- in the container Bauer, Judge au- Ironically S.Ct. at 2485. view, in its public but con- posed to already majority opinion, has thor of the interior A tents. question others in a case addressed this far intrusion into greater therefore a That closely related to instant one.5 values than the Amendment Fourth of an the warrantless search case involved impoundment footlocker. taken from an case which been attaché infringe- surely Though a substantial interpre- Judge Because Bauer’s arrestee. posses- respondents’ ment with use in that application tation and of Chadwick sion, not diminish re- the seizure did extremely are both well reasoned and case legitimate spondents’ expectation liberty this action. relevant to I take the footlocker’s contents would remain quoting length: him at [13-14], 97 private.” Id. here presented The more difficult issue 2485 n. 8. “immedi- is whether the attaché case was distinguish- appears The Court to be ately person of the associated with the ing purposes a warrant of whether —for was, arrestee.” If the later required to property justified could be as of the arres- a search suspect custody that was seized from person, tee’s not be under- need the time of the arrest —between searches contemporaneous the arrest. taken Edwards, clothing, of an arrestee’s Edwards, pockets, as in or items that were in his (1974); L.Ed.2d Robinson, posses- of other from searches sions, luggage, such as were within 38 427 Foot- L.Ed.2d his immediate control. Warrantless 10 opinion speaks note of the Chadwick after they searches of the items former his matter: police custody can be characteriz- come person, “Unlike searches Unit- person ed as searches of the arrestee’s ed States v. 414 U.S. 94 greater they any because do not involve (1973); 38 Unit- S.Ct. expectations in the reduction arrestee’s of Edwards, ed 94 States v. privacy than that caused arrest (1974), L.Ed.2d itself. Warrantless searches latter possessions searches of an arres- within items, however, interests privacy affect justi- tee’s immediate cannot be control those other than reduced arrest by any expectations fied reduced only and thus so itself can be conducted privacy Respon- caused the arrest. long danger the arres- as the exists that privacy dents’ interest in the contents property might gain tee access to of the footlocker was not eliminated weapon destroy evidence. seize simply they because under ar- rest.” ^[433] U.S. at [16], at This distinction seems to be a new one language 2486 n. 10. in Edwards that conflicts with Berry decision, Berry, original 5. The case was United F.2d instant case. In States v. (7th 1977). controlling Although Cir. dis this court’s the court felt that Chadwick vacated, position pains interpret apply of the case F.2d and and therefore took later however, (7th Cir.), denied, rehearing, cert. it the facts at hand. On reasoning decided that was not to be it was Chadwick Judge opinion public retroactively, applied Bauer’s in the remains that reason alone and for Moreover, paradoxi original domain. cally, and somewhat vacated. See text decision was subsequent opinion. majority accompanying vacation serves to affirm note 14 to the Judge opinion tc relevance Bauer’s first may in the suggesting that officers search at interest attaché case any item after here centered on its contents than rather could time of have been searched at the on container itself. A search of the ‍‌​​‌‌​​​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌​‌​​‌‌​‌‌‌‌‍arrest: greater constituted “a intru- far interior lawfully “Once the accused is arrested Fourth Amendment values” sion into custody, and is the effects in his than either arrest or the im- Wilson’s possession place of detention Finally, poundment of the case. unlike a subject thаt were to search at the time might as “im- purse that be characterized may lawfully of his arrest be mediately associated with searched seized a warrant without it is carried the arrestee” because though period even a substantial times, person at all the attaché case time has elapsed between the arrest was more like Wil- here subsequent process- administrative carrying it when he left the son was not hand, ing, taking the one building, but rather removed from an the property for use as evidence on the immediately auto trunk before his arrest. other.” of the attaché The warrantless custody jus- case in thus cannot be language It was on the basis of this person. tified as a search of Wilson’s appeal several courts of held 560 F.2d at 863-64. prior to Chadwick that briefcases and possessed by similar items arrestees reasoning Judge Bauer’s own clear g., searched at a later time. E. United applies a the nature of an attaché case Battle, U.S.App.D.C. the suitcases fortiori such as (1975); 510 F.2d 777-79 It is here that the distinc- here involved.6 Schleis, States v. 543 F.2d 61-62 -type tion between Robinson and Chimel 1976). decision, By its Chadwick justifications becomes relevant. In- appears now to have limited Ed- as the do not fall within asmuch suitcases wards to its own facts. rubric, warrantless search Robinson Returning to the instant we be- and thus constitu- of them was reasonable lieve that the search of the attaché case is tional existed. if an posses- better characterized as a search of opinion’s treatment of this majority sions within the arrestee’s immediate con- issue, which crucial and determinative is the person. First, trol than as a search of his reading given proper as a usage, matter of common a briefcase ca- inexplicable. majority first is not an item carried on an individual’s valierly Government’s conces- person in dismisses the clothing the sense that his or Second, exigent no circum- pocket open items found in his are. sion in court that Chadwick, by stating was true of the in present.7 footlocker stances were does so Perhaps argument gave 6. it was a failure to observe dis- 7. At oral these this Government explicit questions: Judge Sprecher tinction which answers to the court’s led to base his application (by court): they concurrence on an of Chimel. The “Were [the Question Chadwick, however, agents] danger?” in was careful in (by Government): They discussing note the difference. Answer were not After first Chimel, danger.” quoting fact from 433 U.S. at $ $ * * * * S.Ct. at the Court held that a search of “luggage personal property destroy or other not imme- “How could she evidence Question: diately person they already associated with the if it the arres- had their six [in control] automatically away by tee” is not from validated mere feet her?” very “I reference to Answer: think that that would be Chimel and the “search incident” Rather, exigency present, doctrine. if difficult.” $ $ $ * * agеnts reduction to the exclusive control of the property means danger that “a search of that is no be here “How can the Question: longer arrest,” an away incident of the 433 U.S. at when the suitcases are six feet by by 97 S.Ct. at and hence not validated this woman and she’s surrounded offi- Chimel. cers?” permits Fourth Amendment standard of the warrantless any prop “[t]he erty

reasonableness does not rise or fall on the the possession of a arrested prosecutors public, long detached observations or so probable as there is cause the courts as to whether an exist- property to believe that the contains contra ed at the time of the arrest. It must be or band evidence of crime.” 433 U.S. at upon subjective analysis 2485), rejected based the situ- it. Id. at confronting arresting 14-16, ation officer.” 2476.

Supra, at p. devolving upon 356. After majority opinion’s, reference to the the arresting judiciary’s officer the respon- arresting subjective analysis of the officer sibility to evaluate violations of the Fourth conclusion, equally unsupportive of its Amendment, majority opinion states in clearly reveals testimony that officer’s own a conclusory manner “operative that he did not treat the situation as exi- setting” exigent factual shows circumstanc- placed gent. Even before defendant was es to present. only have been Not does the fact, as as she was under arrest —in soon opinion attempt support this conclusion arresting officer —she stop by told to by argument an specifically rejected by the dropped that she frightened was so Court in but it does nót suitcases, hands, up threw her and urinated even follow from the majority opinion’s uncontrollably clothing. on her The officer “subjective own analysis” as made took her the arm and led her off arresting officer. placing After her under side.9

The majority opinion “[Ejxigent states: officer did not immediate handcuff her or circumstances did attend appropriate posi- the arrest in require her to assume the case. The officers “pat weapons for a down” search for tion cause to believe being that an offense con- destructible evidence. Far from committed and that the defendant was in any exigency, cerned with he instead was possession of evidence of the possible crime at the concerned with the embarrassment time of arrest. Certainly, clothing. . . . of the women over her soiled He fact that the arrest was public jacket, draped effected in over her took her which was

. supports judgment handbag, officers’ her in the and tied around undertake an lug- immediate search of the apron clothing. manner of to hide her gage.” Supra, fact, p. (footnote In did he leave her hands free omit- ted). this, Chadwick the while he did he even allowed her to Court had the argument same before it (“Finally, the actions of a help him.10 These urges Government man, compassionate they certainly Constitution but are “Well, Judge, Although majority opinion Answer: we conceded that states that the there were no circumstances.” distance dropped from where the suitcases were where Garcia was taken position 8. This was reiterated the concur- feet, concurring correctly was four - ring Sanders, supra, Justices in U.S. at testimony reflects the that it was -, (emphasis added): 99 S.Ct. at 2594 See, g., transcript from four six feet. e. suppression hearing holding The essence of our at 27. in Chadwick is legitimate expectation pri- that there is a vacy in the counsel): contents of a trunk or suitcase (by “And Government Question accompanying being person; carried you way a happened got what after out of the expectation privacy that is not diminished people?” the simply because the owner’s occurs in (by Agent Foster): “She had soiled Answer public place. Whether arrested in a hotel clothing crying her and was and it was a she lobby, airport, terminal, an a railroad onor her, embarrassing little bit so I removed the public here, right street as the owner has the jacket top purse leather that was on of the and expect luggage, to that the contents of his hanged apron it the fashioned an body out of not, consent, exposed will without his be jacket and she of the in front of her waist police. demand of the . . . ar- [Persons apron tying assisted mе in string the sleeves like public places] may rested in stand on their clothing.” behind her back to conceal her right require to a search war- hearing Transcript suppression at rant. served arresting gained by the of an officer on that exclusive not actions control was perceives any danger that the scene who agents the more than an hour before the grabbed or de- weapons might be evidence question. fact, search in the Court stat- stroyed. concedes, ed that the Government “[a]s respondents’ from the moment of arrest at agents present Meanwhile the other at m., arrest11 taken control about 9 p. the scene of the had the footlocker un- remained majority quibbles of the suitcases. The der exclusive the control of law enforce- control, the question with of “exclusive” ment officers at all times.” 433 U.S. at the fact the were held but that suitcases12 added).13 (emphasis S.Ct. at Like- agent company in the of two others wise, Sanders, in in which the search oc- fourth, (while the with defend- actually the contemporaneously curred with the arrest ant, was exigencies) not concerned presence defendant, and in the the anything except regarded cannot be as ex- Court stated: clusive control. Here, in as the officers had majority agents claims that the exclusively seized the had it this case had not reduced the at time within their control exclusive as used phrase contrоl that was was Consequently, search. “there not the Chadwick, citing following passage slightest danger luggage] or its that [the opinion from that as support: could been before contents have removed Here the was conducted more than be valid search warrant could obtain- agents gained an hour after federal U.S., ed.” at exclusive control of the footlocker and Sanders, - U.S. at -, supra, long respondents after securely were at 2592. custody; the search therefore cannot be

viewed as incidental to the arrest or as questioned It cannot reasonably thus be justified by any exigency. other the suitcases were within the exclusive 15, 97 at S.Ct. 2476. agents exigent control of the and that no Supra, present at circumstances were at time the p. 355. Prom face this quote alone it clear that ob- place.14 search took This agents immediately away pru- 11. A total of four were a location from the defendant as present airport dictate, while others at the had Saul dence seem to would moved police Valentin in a defendant, secured vehicle. placing them nearer to the in fact feet, virtually despite them her fact that zippered 12. One of which shut enough agents guard there both the latched, zippered, other was and buckled. separately. Judge and the suitcases Sprecher’s defendant Transcript suppression hearing at 45. this concurrence relies on move- support applica- ment of for the majority opinion as logic 13. The uses this same majority Judge distinguish Schleis, tion of Chimel. Bauer’s States 582 F.2d praises (8th 1978) banc). seemingly illogical (en quotes de- conduct Cir. claring “clearly Eighth stating it as constituted exercise Circuit briefcase “[t]he Supra, p. judgment by agents.” came under the ‘exclusive control’ of sound course, at the time of arrest when Schleis should, be self-evident it 356. But custody,” “bootstrapping” by handcuffed and taken into id. at that such the Government 1172, supra, p.357 (emphasis added), yet cannot used to be make the warrantless search valid; fails to note that certainly exclusive control at- cannot the Government manu- Moreover, tached at the time of arrest. facture an to avoid the warrant re- fact the Schleis search was remote quirement. When the has Government itself enough and distinguish from arrest is not itself “exigency” by created the which seeks pointed been has out in justify a warrantless search under Chimel connection with Chadwick. doctrine, that doctrine invoked to Griffith, justify the search. United out, pointed 14. As has been the Government pre-Chadwick 1976) (a 537 case, F.2d concedes that no circumstances were regarding the dicta warrant- present justify assuming the search. Even personal property less perseded by Chadwick). has been su- arguendo any existed, danger it could making. have been of the After own suitcases, seizing moving them instead to true, post magistrate. hоe a neutral United no amount of rationalization States v. requirement can change the constitutional States District Court [407 297, 318, Supreme that a issue. The warrant first 92 S.Ct. L.Ed.2d 752 very (1972)]. exception Court in Chadwick was clear on this: But because each to requirement invariably the warrant im though on this record the Even issuance pinges protective on the some extent judicial of a warrant officer was Amendment, purpose of the Fourth reasonably predictable, a must be line few a search may situations in which be view, dtawn. In our when no conducted in the absence of a warrant support the need for an immedi- shown carefully have delineated been and “the search, places ate the Warrant Clause seeking burden on those the exemption point property at the where the to be line to show the need for it.” United comes under the do- searched exclusive Jeffers, 48, 51, police authority. 342 U.S. S.Ct. Respondents minion of (1951). California, L.Ed. 59 Chimel v. protection were therefore entitled See of the Warrant Clause with the evalua- S.Ct. magistrate, (1969); tion of a neutral their before L.Ed.2d 685 Katz United States 507, 19 interests in the contents [389 (footnotes were invaded. (1967)] omitted). footlocker 15-16, (footnote Sanders, U.S. at - U.S. at -, supra, omitted). If has the Government carried its demonstrating burden of the need for an majority opinion has vitiated the exception requirement to the warrant requirement warrant for official searches of imaginе it is difficult to ar of persons and briefcases who rest require situation in which the warrant have The majority appar- been arrested. operative. ment The four agents would be ently requirement believes that the warrant surrounding the defendant had removed the in such situations is the exception rather (four suitcases from her reach to six feet rule, exception than the and an appli- whose away), only to return them to feet cability her “subjec- is to be determined prior immediately to the search. The tive” assessment of the official on the Nothing Government conceded that no scene. could be cir further from the Supreme present. cumstances were And the truth. As Court stated last “exi gent” term: circumstance that seemed most concern any agent the scene of the By requiring concerning that conclusions was the commendable and humane decision scope cause and the of a search cry minimize the embarrassment of the “be drawn a neutral and detached ing just defendant who had soiled her cloth magistrate instead judged by ing. engaged officer competitive in the often crime,”

enterprise ferreting out John- Court’s conclusion Sand- States, son v. United 68 ers is cast simple terms: 92 L.Ed. 436 we mini- present po- Where —as in the case—the mize the risk of unreasonable assertions lice, endangering without themselves or authority. ‍‌​​‌‌​​​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​​‌‌‌​​​‌​‌​​‌‌​‌‌‌‌‍of executive See McDonald v. evidence, risking lawfully loss of the have 451, 455-456, suspеcted detained of criminal activi- 93 L.Ed. 153 suitcase, ty they and secured his should ^{[*] [*] [*] [*]} # ^[*] delay the search thereof until after judi- approval cial been obtained. In this has Thus, “jealously a few carefully suspects way, right of constitutional exceptions provide drawn” for those cases judicial prior review of searches will be where the obtaining societal costs of fully protected. warrant, danger such as to law officers or evidence, U.S. at -, the risk of loss or 2594. I destruction of would - outweigh prior hardpressed the reasons to concoct a set facts recourse to neatly which more would fall within the

ambit of this than rule the circumstances of instant should case. have

delayed their search of defendant’s judicial

until approval after had been

obtained.

Accordingly, I would reverse district

court’s denying order defendant’s motion to

suppress. EVANS,

James Edward

Petitioner-Appellant, WILKERSON, Warden,

G. C.

Respondent-Appellee.

No. 79-1052. Appeals,

United States Court of

Seventh Circuit.

Argued June Sept.

Decided notes hand-carried briefcase the scene of the Thus, merely the First Circuit held that arrest, after the arrestee was handcuffed footlocker was not within immedi- custody. and in v. States Eather- ate control of the defendant at time ton, F.2d 610-11 How- arrest, subsequent and since the war- ever, we agree must district rantless search of its contents was remote court that there is considerable difference arrest, in time from the it there- between items such as Eatherton’s hand- justified fore could not be as incident to the carried briefcase and the footlocker here. Accordingly, regard arrest. we the Su- objects Portable in hand zipper such as preme simply Court Chadwick as bags, suitcases, briefcases and small fit confirming validity analysis of this without too much difficulty into Chimel’s light presented by of the facts that сase. size, ‘immediate control’ standard. Their regard Supreme Nor do we Court’s accessibility, and portability all liken Sanders, - recent decision in Arkansas v. them ‘personal effects’ found on an -, person, arrestee’s clothing such as or a dispositive appeal. as cigarette package in pocket, one’s which expressly Sanders the Court declined lawfully be searched without a war- constitutionality consider the of warrantless rant as incident to an arrest. See United Robinson, searches of conducted incident to supra; States v. Edwards, Sanders, possessor. supra, the arrest of its supra. To exclude searches -, n.11, of such items can ‘gossamer create thin’ distinctions arresting officers could IV impracticable, find impossible, if not follow; and, justification where the Unquestionably, the Fourth Amendment search depends great to a extent on the embodies one of rights the most cherished judgments reasonable arresting which the and, enjoyed by people, free officers could have made at the noted the warrant arrest, see su- “protects clause people from unreasonable pra, those appear distinctions would un- government legitimate intrusions into their warranted. expectations privacy.” Nevertheless, we “However, a pound challenged two conclude that hundred foot- here quite locker is justified lawful, different. It is difficult to was as incident to a custo- liken this footlocker bag dial hand-carried therefore reasonable say meaningful sense that the meaning within the the Fourth Amend- or, footlocker importantly, more its con- ment.

Case Details

Case Name: United States v. Brunilda Garcia

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 31, 1979

Citation: 605 F.2d 349

Docket Number: 78-1671

Court Abbreviation: 7th Cir.