*2 COLEMAN, HILL, Before GEE and Cir- cuit Judges.
COLEMAN, Judge. Circuit government this criminal case the ap- peals suppression of evidence by the
District Court. We reverse and remand.
I The Nature of the Case counts, defendants, various Gil- mere Gaultney, charged dis- cocaine, tribution possession of cocaine distribute, with intent to conspiracy distribute cocaine. Both defendants moved before trial for the suppression of evidence by government seized the day the arrests. An evidentiary hearing was held before a magistrate, who subsequently recommended that granted. the motions be Judge adopted District magistrate’s
report final and recommendation as the or-
der the Court suppressed the evi- dence. government appeals pursuant to 18
U.S.C., 3731, and questions raises two resolution: (1) Whether the evidence obtained as a result of a warrantless search of Gilmere’s truck, when that search was substantially contemporaneous both in place time and in with the arrest of the defendant and when probable cause
vehicle, to search the should have been sup-
pressed for lack of a warrant
issued
arbiter,
neutral
(2) Whether the evidence obtained from
Gaultney’s apartment and statements made
H39
pursuit
lack of a
vehicle she was
fol-
his arrest
after
by him
lowed.
arrest was
excluded because
should
a war-
without
apartment
inside his
made
Williams, who was aware of all these
rant.
monitoring, met
events
radio
Gilmere in
appointed
front of the restaurant at
*3
envelope
handed him a small
time. Gilmere
sample
which he said contained the
of co-
Case
Gilmere’s
restaurant,
caine.
Inside the
the two men
about the
dispute
is no substantial
There
had a drink at the bar and discussed the
May
On
magistrate.
found
facts
Williams
pound
buy.
of cocaine
wished to
m., Special
11:00 a.
approximately
$22,000
he
said that
wanted
Gilmere
Drug En-
James H. Williams
Agent
pound and that it was outside in his truck.
(DEA)
with
met
Administration
forcement
Williams then went to the men’s room to
Hotel in
at the Marriott
Gilmere
Francis
sample;
gave
field test
the test
a posi-
Williams, acting in an undercover
Atlanta.
indication for cocaine. Special
tive
Agent
arrangements
to make
to
intended
capacity,
Durel, who had
Caron
followed Gilmere
Gilmere,
cocaine from
pound
purchase
the Moonraker Apartments
from
and who
pos-
be
Williams
who advised
been on
had
surveillance inside the restau-
an additional ten
purchase
him to
sible for
rant, subsequently followed Williams into
go
had to
day.
later in the
Gilmere
pounds
room,
the men’s
received the
results,
test
get
to
north side of town”
to “the
talked to Williams about the two men who
agreed
men
to meet
the two
drugs, so
had driven
the apartment
in the Cor-
Magruder’s
p. m. at Charlie
12:45
around
vette, and then instructed Williams to have
transaction.
complete the
Restaurant
go
Gilmere
out
to his truck
get
larger
bring sample
was to
Gilmere
cocaine. There the arrest would
made,
pound
along with the one
cocaine
amount of
rather than in the crowded restaurant.
agreed upon.
previously
The precise sequence of events which
to the DEA dis-
returned
Williams then
thereafter
transpired is not explicitly clear
office,
he monitored radio com-
where
trict
record,
from the
but at least this much is
agents
other
from
munications
clear. Gilmere was arrested in the vicinity
went
surveilling Gilmere. Gilmere
were
truck,
of his
perhaps no more than two or
highway
left the
on Interstate
north
away,
three feet
but before he had actually
call,
proceeded
telephone
make
gotten into the vehicle. Agents Durel,
where he met
shop,
waffle
nearby
to a
Chapman, and Von Yarn made the arrest.
as
an individual later identified
inside
patting
After
Gilmere down for weapons,
a few min-
Gaultney. After
Hoyt Albert
agents
obtained
keys
to his truck.
their re-
utes,
Gaultney
drove
Gilmere
Chapman opened the vehicle and
Apart-
Williams
vehicles to the Moonraker
spective
it,
entered
immediately locating a
ments,
Apartment
entered
red
they
where
both
Scrabble box under
the passenger
Immediately
they
after
seat.
Building
in
F-l.
The box
taped shut,
but
agents
the blinds on the
apartment,
entered
opened it on the spot,
window,
open,
discovering
which had been
a clear
front
plastic bag
later,
minutes
surveillance
contained a white pow-
closed. Several
dery
apart-
leave the
substance later
determined to be
agents observed
co-
arm,
caine. The agents
box under his
ment, carrying
attempted
a reddish
had not
warrant,
secure a
He was observed
search
they
into his truck.
nor did
obtain
get
Shortly af-
Gilmere’s consent
(al-
south on Interstate
to search the truck
driving
up
though
two men drove
departed,
there was some
testimony
ter Gilmere
Gil-
inside. A few minutes
and went
mere had
keys),
a Corvette
“volunteered” his
nor did
remaining on the scene
later,
they
announce that
the vehicle was
(later
authorization,
identi-
woman
seized pursuant
statutory
an unknown
observed
wife)
apart-
leave the
nor
Gaultney’s
anything resembling
did
conduct
fied
did,
away in the car
an inventory
ment and drive
search. The
how-
ever,
rights.
arrived. Due to
Miranda
Gaultney
previously
advise Gilmere of his
time,1
of the Automobile
for the first
The Search
authority
relies on the
statutes,
U.S.C.,
the federal
forfeiture
offers
appeal,
the United States
U.S.C.,
Second,
8812 and
782.3
§§
§
justify
alternative
theories
two
that,
argues
even if
these
theory,
truck. The first
of Gilmere’s
search
search,
statutes
not authorize the
did
apparently
presented
this
squarely
States,
subsequent
taldi
search of an
v. United
seizure
1. The
authority
(1966);
contraband under the
automobile for
United States v.
U.S.C.,
presented
Stout,
1264;
782 was
to the court
of 49
434 F.2d
Sirimarco
States, Cir., 1967,
Maltos-Roque v.
v. United
F.2d
clearly
opinion
but the court’s
finding
on a
that both
rested
(1963). The
Ninth Circuit until
obtaining
for not
ami
recently
produced
holdings,
similar
but in
Pruett,
In United States v.
warrant existed.
Cir., 1977,
McCormick, Cir., 1974,
United States v.
1365, rehearing
denied
*4
281,
F.2d
the court concluded that recent Su
427,
squarely presented
the
was not
F.2d
issue
preme
required
decisions
to reverse its
panel
it in
until the United States raised
previous position. Accordingly, the court held
rehearing.
petition
Two
of the
for
members
that warrantless
seizures of automobiles are
opinion,
panel
earlier
but
voted to adhere to the
permissible
probable
when
officer
the
has
panel was
member of the
moved
the
one
government’s
Pruett, Cir., 1978,
cause to believe that the automobile contains
argument.
See United States v.
exigent
contraband
there are
circumstanc
J.,
(Hill,
It concluded with
the search
princi-
must be reasonable
ple:
under the
“but
insofar as Fourth Amendment
circumstanc
es, as
protection
vehicle,
objectively.
viewed
extends
a motor
it is
right
that
is the touchstone
This
has consistently upheld
Circuit
war-
inquiry”.
our
rantless automobile searches where both
Finally, the Court
said that “the fact that
cause
exigent
and
circumstances
the car in
Chambers was seized after
present.4
See,
Edwards,
Cir.,
g.,
e.
Gulledge, Cir., 1972,
United States v.
5
United States v.
5
469 F.2d
1978,
883,
(1978);
713;
577 F.2d
at 895
United
Edwards,
Cir., 1971,
United States v.
5
Clark,
Cir.,
420;
1977,
States v.
5
559 F.2d
On
automobile
that
restaurant.
emphasized
apparently
crowded
Gilmere
law enforcement
give
does not
was
exception
suspect
did not
that Williams
an under-
license,
roving
war-
hunting
and
agent,
willingly
officers
cover
he
walked out-
indiscriminately.
vehicles
to search
truck,
rant
proximity
to his
in close
side
See,
Opperman,
Dakota
g.,
e.
South
Beyond
the arrest
made.
any shadow
doubt, these agents
had all but “certain
Maroney,
(1976); Chambers
knowledge” that
the truck contained co-
1975,
stances There present? is no doubt if truck? permitted had agents Gilmere to retrieve doubt, there can be no place, the first cocaine from and the truck then arrest- contro- do not here parties indeed the and him while of completing ed act had fact, the DEA vert Williams, with transaction the cocaine in con- the truck reason to believe every the reddish box would have readily been special had made cocaine. Gilmere tained However, admissible evidence. had lat- Williams to sell arrangements with truck, him to enter the permitted he could cocaine, sell possibly and to pound ter and spotted suspected have other pounds. After as ten as much him project his sour. gone had He could stopped meeting, away, he drove first scene, forcing have fled the then the offi- at a call, stopped phone make give permit cers to chase or to him to had a conversation where he restaurant along escape, with the in the contraband left of them then Both another man. with Had vehicle. the officers until a waited an The two entered were followed. actually subject place chase took immediately the blinds apartment, escaped, hap- nevertheless have often surveillance of the were closed. Under Certainly, pens. if a chase ended suc- left, a red- agents, carrying cessfully the would officers have had the his arm. Gilmere box under dish him, with an right immediate trailed, no indication vehicle, search of Carroll v. United opportunity had an that he ever record case, supra. the facts Under of this box. dispose, the reddish dispose, did no constitutionally were under Williams, kept his appointment He imposed compulsion wait any longer. further engaged him in conversation Probable (although the substance the cocaine about met; only remained the officers *7 contro- is somewhat that conversation of to act. en- verted). Williams an Gilmere offered locked, the truck was That door that sev- of sample contained a velope, which he said present, were and that the sub- eral cocaine, of which he said remainder ject could have pending been immobilized went the men’s to was outside. Williams application for receipt and of indi- sample test of the and his field room warrant dictate any search does not differ- Durel Agent positive for cocaine. cated words, many result. In ent so room, two and the entered the men’s then facts, already published presence the co- knowledge of shared their was caine in vehicle. It held in Card- previous knowledge although Williams Lewis, little, there transpired supra, to his well v. is if much of what had due of They legal monitoring agreed any, stopping radio. difference between outside, seizing perhaps highway made car on the and it from a arrest would be evidence, or the there sufficient abandonment in tack convinces us vehicles may, present public exigent in each case areas circumstances facts circumstanc- case, moving particular present justify au- Such factors as es of a exi- result. sufficient tomobiles, gency dispense opportunities with a warrant. destruction lot, the parking necessary prerequi- Magistrate public somewhere trying to get a present. Gilmere did not warrant authorizing sites have him to find and re- move it. the truck physically attempting to be in there, away. His truck was
to drive it he As to the Fourth Amendment we are there, and the contraband most as- driven to the conclusion that this was an suredly in it. search, grounded automobile justified by cause and exigent circumstanc- Moreover, as we stated es. Mitchell, (en banc), Chadwick, Does United (1977): 51 L.Ed.2d 53 L.Ed.2d by Nor we the matter think affected Mandate a Different Result? presence parking around the lot For several reasons we feel this surveilling agents ten or more rather question must be answered the negative. than one or We have two. never before mobility tested of automobiles or exi- In the place, first Chadwick was not an search, gence po- automobile evaluating Secondly, capability respond
lice or the balance were no cir- hand, cumstances. On the other deployed. commenced, of forces Once we see nothing in Chadwick which could end of such a calculus would be reason- evalua- ably be construed as a limitation war- opposing tion armaments rantless searches of automobiles and effects top speeds the relative of the vehicles. found therein if the prompted search is We decline to embark on it. probable cause accomplished in the face See, also, v. Opperman, Dakota su- South of exigent If, circumstances. as held in pra, (Powell, Maroney, Chambers v. supra, there is no J., concurring). material difference between seizing and Dombrowski, Cady holding car car, and searching that if the de- the officers good have cause to immobilize a injured in fendant had been an automobile car have the same reason to search it. accident; he identified himself as off an Conversely, if the right officer has no ato duty policeman; the law enforcement warrantless search of the vehicle he has no officers had reason believe that ser- his right to immobilize it. vice might revolver be in his disabled car. United States v. Chadwick reiterated the page At following principles to be applied to Fourth appears approved to have the action Amendment cases: of the law enforcement officer in going into 1. The inquiry fundamental is whether a the vehicle in order locate and immobilize search seizure is reasonable under the a service to protect public revolver circumstances, remembering the chance that an intruder Amendment protects people, places; dangerous weapon come across that 2. A purpose fundamental case, injury public. to the our Amendment safeguard individuals these overwhelming officers had reason to from unreasonable government invasion of (almost point knowledge) believe *8 legitimate interests, privacy although the this vehicle pound contained a co- of pointed out [Fn. A pound poses caine. of cocaine more dan- 11, say is not to 2483] “[t]his ger community, to the if retrieved by a that the Fourth Amendment pre- translates vandal, a than service revolver. It seems to cisely into a constitutional privacy right”; us that the law enforcement officer would 3. A expectation diminished privacy of duty have been heavy under see to to surrounds an automobile. leaving he was not a vehicle in that parking containing lot pound a of danger- point A focal Chadwick found in the drugs ous while he was in following attendance language: ly the ringing door bell and the trying inside a personal effects door
By placing latch, footlocker, proved be to unlocked. respondents The double-locked apartment entered the the con- expectation guns an manifested (later drawn and saw a man public ex- as remain free from identified tents would Hosch) getting up who Leslie than locks from the couch in No less one amination. intruders, front of a window. ap- Because Hosch
the of his home doors peared reaching be personal posses- gun to under safeguards his the one who him, agents coffee table front of the protection is due the told this manner sions in (later him to Another Warrant not move. individual Fourth Amendment Williams) identified as Robert was seen Clause. walking away from a dinette table on case, however, points in our The evidence a large which could seen quantity the fact that Gilmere overwhelmingly to powder plastic white inside clear bags, a privacy con- expectation had no blade, razor and a mirror. A set of triple contrary, box. To the the reddish tents of beam scales was balance on the kitchen display purpose to
his undoubted away. counter a few feet Gaultney was Indeed, agents. to the its contents box and in the stairwell of a found circular staircase and contents to deliver box he intended going up to second apart- floor of the price. if demanded agents paid to Agent placed ment. Williams all three men already agents told He had under arrest.5 After advised of his “outside”, pointed inex- cocaine was rights, Gaultney Miranda indicated that he was in orably the fact that cocaine to rights those understood and did wish to in the truck. The of container some kind waive them. He was then handcuffed and prior had no contact defendants Chadwick living seated on the room Agent couch. officers; arresting or commerce with apartment Williams left the with the exposed whereas, verbally Gilmere cocaine, mirror, razor blade and re- of both box and con- existence location and office process turned tents. evidence and obtain search warrant we that the up, opinion To are of sum apartment. remainder of the the seizure of truck and search of Gilmere’s Hosch and Williams were removed from by probable supported box the reddish arrest, the apartment shortly after their circum- the existence cause and Gaultney which left alone with two or three Moreover, opinion are we stances. agents. After thirty forty-five some expectation had no that Gilmere elapsed, Gaultney minutes had apparently box and contents. reddish agitated became somewhat and told the agents agents that since the were going to Ill get a search anyway, they might warrant Appeal Gaultney’s go as well apartment. ahead search the arrested, Agents agent Durel pre- After had been then instructed another pare proceeded to Moon- a written consent to search. The Williams Durel writ- consent, join as an inventory signed the four ten well as Apartments raker Gaultney, on surveillance and to were both excluded from evi- remained Gaultney. produce could not see dence as a sanction for failure to response discovery request obtained nei- apartment and had into the pretrial nor warrant a search war- order. evidence as the oral ther an arrest testimony, discovery According their Durel consent excluded sanc- rant. announced, Gaultney tion. also made several incrimi- loudly knocked on door statements, nating although he was read- Agents. Open the door. You’re “Federal rights. his constitutional was simultaneous- vised of arrest”. Williams *9 they complaints against were and Williams not indicted with Gilmere and Hosch 5. The Gaultney. preliminary hearing, dismissed after were 1146 context, with the adage we are called honored that “a man’s home
In this daytime entry with whether is his castle”. to decide apartment Gaultney’s into warrant
out a however, Supreme Court, not Amendment. the Fourth violated altogether subject. silent been with, we convinced begin are To Hayden, Warden v. adequate with more than agents acted S.Ct. (1967), L.Ed.2d 782 the offi- (1) that an indi- to believe probable cause cers on the a heels of fleeing robber felony apart- a in the had committed vidual who had been seen to take refuge in a hours, past (2) few that the within the ment house. The officers went in without a war- (3) apartment, in the offender was still rant and arrested him. The stated, the act of committing still be in rather emphatically think, we to-wit, felony, possession of ten another That neither the entry without warrant Gaultney does not claim pounds of cocaine. robber, to search for the nor the search no cause for the for him without warrant was invalid. arrest. Under the circumstances of this case “the was, fact, If Fourth Amendment exigencies of the situation made that violated, plain all the evidence in view and imperative”. course 387 U.S. at agents during seized the arrest must S.Ct. 1645. excluded, encompassing plastic several bags triple set cocaine and a beam continued, The Court balance scales. They reasonably they acted when en- occasions, On least five tered the began house and to search for a reserved, Court has or has declined to de- man of the description they had been
cide, whether and under what circumstanc-
given
weapons
and for
which he had used
police
may
es a
officer
enter the home of a
robbery
or might
use
them.
purpose
for
suspect
a
accomplishing
Id.
warrantless arrest.
United States v.
See
Hayden,
noted,
first,
it will be
that the
Santana,
U.S.
officers were acting on what others had
(Marshall, J.,
(1976)
dissenting);
told them —not what
they themselves had
Watson,
Next,
observed.
they
pursuit
were in
6,n.
(1976),
H47 dangerous activity an immersed in so as the Cir., 1973, F.2d Cushnie, v. cocaine traffic. 95 S.Ct. cert. Morris, 184; United States L.Ed.2d Hayden spoke While Warden v. Dorman v. 657.7 477 F.2d Since necessity securing gun for the used in the States, U.S.App.D.C. United robbery danger and of the such a bank validity of a the sustained officers, for weapon pose the it can- would home at in a defendant’s arrest warrantless presumably that the not be overlooked offi- circum accomplished night, danger been in cers would have no from the au stances, regard it we not do no gun they had made effort to enter the contrary. thority the house and make arrest. We think that controlling Hayden factor in was accom- the that the house entry into The were with an without the the officers confronted inher- daylight and during plished ently dangerous is reduced to situation. The issue of force. exercise the situation exigencies of
whether This, too, “hot pursuit” was a case in that officers enter imperative it made Gilmere was arrested at the once restaurant without first Gaultney and arrest house parking they the officers knew that had lot definition, By warrant. securing an arrest lair, running tiger just completed his “absolutely necessary”, means “imperative” standing bay, had him and that “compelling”. “urgent”, or he suspected presence once very likely to believe huntsman the least he would good reason officers had The attempt escape, along would be to an pounds of cocaine was with much as ten that as saw, too, That the were They that consider- cocaine. officers outside house. in the guarantee the escape attributable to the house was no privacy ordinarily of ations man could not only minimal form. and contraband take present were home quickly place, see United States Hof man visited house had [Foot- 6], escaped he had note in which the men unseen package which with a left left. Two from a motel room which the A woman soon officers carried there. It hardly under surveillance. can be said in another vehicle en-
men drove up officers could be confident activity, The was beehive place tered. large large number of with such a amount of cocaine inside
involving comparatively not, occupants would for lack appear to be members of the house did not people alternatives, shoot try way could of other their The officers rea- family group. Realistically, within the house out. found infer that those sonably top keg”. of a “powder the return themselves on Un- momentarily expecting circumstances, $20,000 we do not Gilmere, der these feel that from intended with restaurant; required Amendment them his failure to the Fourth at the transaction flags people paralyzed raise stand while someone went likely would return ¡imitations arrest, purpose making though 7. Whatever an the constitutional even it ability agents warrants, only to enter an refers to the execution of search dwelling place States, individual’s in order Miller v. warrant, that, crystal him without a clear (1958). The burden of circumstances, extenuating absence prima establishing facie case that statute comply requirements must defendant, was violated rests with the U.S.C., they may 3109 before enter Gardner, arrest, effect Sabbath v. United denied 585, 588, (1978). Although con provides: named statute “[t]he flicting testimony express finding below and no may any open officer break outer or inner door point, magistrate apparently of fact on this house, house, any part window of a or resolved this issue the defendant. Our therein, anything to execute a search war- examination of the record leads us to the same rant, if, authority pur- notice of his after comply did in fact conclusion —that pose, he is . ”. refused admittance with the demands of the statute. applies to warrantless entries statute *11 1148 affidavit, necessary mag- remaining a The question locate is whether cus- draft matter, toms officials
istrate,
draft
the war-
violated the fourth
present
amend-
searching
ment
rant,
regain the
the vehicle without
signed, and
scene.
get it
obtaining
first
a warrant. We think that
compelled
situation
This
did
they
not for two
First
reasons.
is
quickly, firmly,
move
and effec-
officers
exigent circumstance
McLaughlin
hold, therefore,
entry
tively. We
and his passenger might have
returned
of
subsequent
of the house
destroy
remove or
the contraband. See
require-
met
the constitutional
Gaultney
Coolidge
443,
New Hampshire,
v.
403 U.S.
of reasonableness.8
ments
2022,
462,
(1971).
S.Ct.
L.Ed.2d 564
suppres-
view of our resolution
Any
standing
watch over the car
reach,
issue,
not
we need not
and do
sion
while a warrant was being obtained
decide,
given probable
whether one who
would have been particularly vulnerable
felony is
for his arrest for a
entitled
cause
given
night
the time of
suspects’
expectation
to an
of
thereafter
ability to use the Garcia house as cover.
merely
he is
his own house.
because
within
Even if these circumstances were not suf-
Court,
judgment
sup-
however,
of the District
ficiently exigent,
The
we would still
case,
pressing the evidence in this
is re-
uphold the
on
strength
search
The case
remanded for further
Supreme
versed.
language
Court’s
in United
not
herewith.
proceedings
Chadwick,
1,
inconsistent
States v.
U.S.
S.Ct.
2476, 53
(1977).
L.Ed.2d 538
In that case
and REMANDED.
REVERSED
the Court observed that it
previously
sanctioned warrantless auto searches in
concurring:
GEE,
Judge, specially
Circuit
any
the absence of
exigencies
by
created
and in most of the
concur in the result
I
mobility
vulnerability
majority opinion.
reasoning
thorough
searched vehicle. 97
at 2484.
Ac-
however,
agree,
that since
I am unable
Dombrowski,
433,
Cady
cord
v.
413 U.S.
decision
Court’s
441-42,
93 S.Ct.
L.Ed.2d
Chadwick,
1, 97
v.
433 U.S.
(1973).
Opperman,
See South Dakota v.
(1977),
rounds SMITH, George Washington As Chadwick, at 2484. Petitioner-Appellant, repos- noted, seldom serve automobiles effects; travel personal itories both occu- thoroughfares where public *12 WAINWRIGHT, Secretary, Louie L. De- plain are in view contents pants and Rehabilitations, partment of Offender subject to extensive themselves are Respondent-Appellee. at 2484. regulation. 97 S.Ct. Opperman, Dakota South
Accord No. 78-1217 367-68, 3092. Summary Calendar.* analysis the Court’s in Chad We take Appeals, United States Court to mean that warrantless searches wick Fifth Circuit. much seems rule. This general are justified case the Court since in that clear 10, 1978. Oct. is immune from holding, luggage cir exigent searches absent warrantless
cumstances, by distinguishing privacy luggage similar items
interest
course,
Of
it
in automobiles.2
from
contrast,
By
Coolidge
Hamp
v. New
shire,
greatly emphasized
the need for
exigent
in warrantless
auto
searches,
the Court stated that if cars could be
searched without warrants and in the absence
circumstances,
luggage.
so could
auto even protection made without the extra affords,” privacy that a warrant Cham v. Maroney, bers 1981, but we nothing exceptional find
about the search in this case.
nothing exceptional
I
about
find
Since
either,
apply
I
in this case
would
the search
Chadwick, grounded in
rule of
general
expectation
diminished
I
automobiles.
would
so
attends
recog-
has
belief
opinions have attenuat-
that its recent
nized
concept
mobility
basis
ed the
searches
such a
in automobile
exigence
almost a fictional
that it
become
degree
So
“mobility-in-law.”
concept, a sort of
recognizing,
Chadwick
shifted
to the sounder basis of
analysis
diminished
privacy,
I think we
expectation of
recognize this.
should
al., Cir., 1970,