United States v. James Leland Johnson

BROWN, Bеfore JOHN R. Chief Judge WISDOM, BELL, GEWIN, THORNBERRY, COLEMAN, GOLD- BERG, GODBOLD, AINSWORTH, DYER, SIMPSON, MORGAN, CLARK Judges. INGRAHAM, Circuit PER CURIAM: opinion The Court en banc is of the panel1 correctly decided that inspections performed of motor vehicles by police officers, were entitled who property be on the vehicles where the way damaged located, were which in no deter- vehicles and limited to were mining correct within bers thereof not searches Amendment; meaning of the Fourth Brown, John R. Judge, and Chief alternatively, of such and that if either Thornberry Wisdom, Judges, Circuit inspections Amend- constituted a specially concurred opinion. and filed search, search warrant ment then no Godbold, Judge, Circuit dissented inspections necessary because such opinion. and filed did not violate were reasonable and people to secure persons, houses, To papers or effects. extent Glisson v. 1969) find inspection constitution- such a search expressly infirm, ally that decision opinion. overruled 1. 413 F.2d 1396. Judge, joined “inspect- THORNBERRY, purpose of the citizen for the of Circuit BROWN, ing” Judge in it. The and order by JOHN R. Chief concurring Judge, employed a

WISDOM, means to create Circuit the specially: “frisk” an is that which automobile considering Supreme rejected in Court inspection of serial the We believe Terry “stop person, in and frisk” of the were in this numbers involved Ohio, 1, 1868, v. 88 S.Ct. subject Amend- to the Fourth searches (1968), to carve L.Ed.2d 889 which is reached in the result ment, but we concur particular from out and conduct isolate by majority the the because we believe by of the reach the Fourth Amendment reasonable. searches were describing of it as the semantic device less than a “search” or “seizure.”1 (dissent- GODBOLD, Judge Circuit ing) : because A search no less “checking.” “inspection” called an or the that I from the conclusion dissent is not The mandate of the Constitution “inspections” of the two vehicles by euphemisms. to be avoided meaning not searches within my this In view Fourth Amendment. Terry way by pointed addition, and, erroneous, conclusion is police and officer the encounter between unnecessary to the decision because appro- citizen there can be achieved an holding “inspections” that if the of the rеcognition to priate giving balance due I were searches were reasonable. governmental and at stake interest pretermit reasonableness discussion from the citizen’s interest freedom I remand other than to that prop- security intrusion and in the of his development of the facts. further by erty. Terry In this was achieved authority original narrowly panel, ma- in the and now the drawn banc, jority permit a reason- the court en seek to him to make protect create a doctrine under which the able search sufficient new case, given governmental are access to the automobile interest —in “ * * * per- ‘arrest,’ suggestion There is some and an or ‘seizure’ of ‘stop’ son, the use of such tеrms and between a ‘frisk’ and ‘search’ from con- ‘frisk’ such conduct is out is twofold. It seeks to isolate stages purview scrutiny the Fourth Amend stitutional the initial side the policeman ment because neither action rises to the the contact between rigid by suggesting level of the citizen. And a ‘search’ ‘seizure’ within justification meaning all-or-nothing of the model of We Constitution.12 reject Amendment, emphatically regulation it ob- this notion. under upon utility case, example, “12. scures the of limitations pplice initiation, Appeals scope, as Ohio Court well as the stated regu- distinguish action as a of constitutional ‘we means must be careful in- lation. the “frisk” authorized herein dangerous $ $ $ $ cludes “frisk” # ‘stop-and- weapon. by no authorizes “Thе distinctions of classical means evidentiary theory contraband, atten- a search for frisk’ thus serve to divert inquiry material, anything in the tion the central else ab- grounds Fourth reasonableness sence of to ar- Amendment —the particular all the circumstances of rest. Such a search controlled per- governmental requirements of a citizen’s invasion security. probable Amendment, sonal ‘Search’ and ‘seizure’ cause reject Terry, talismans. We therefore 5 Ohio essential.’ State 114, App.2d 130, 122, notions that Fourth Amendment does 214 N.E.2d play also, g., not come at all as a limitation e. Ellis v. Unit- into See stop upon police 86, 88, U.S.App.D.C. officers conduct if the ed something Comment, (1959); short called ‘technical 264 F.2d ” аrrest’ or a ‘full-blown search.’ n. 81 65 Col.L.Rev. 860 and 17, 19, (1965).” 88 S.Ct. logic danger pro- L.Ed.2d at “The ‘stop’ ceeds distinctions between a weapons Impala nec- a search for the extent Chevrolet revealed regard- panel essary protect opinion. majority officer — less of whether officer has briefs tell us that Johnson was arrested All almost cause to arrest for a crime. two weeks after pickup, brought Impala done within the Fourth the standards that he jail parked county’s Thus action of the Amendment. it in the subject impounded lot, character authorized remained scrutiny. re- FBI constitutional There was was notified of the and an arrest utility jail of tained “the limitations came to the and examined initiation, scоpe, of the well as the as the the on confidential number police Thus, it, action as a means of constitutional the frame. I as understand 17, regulation.” at purport the decision not at does to allow an at 1878, L.Ed.2d 903. Rather than officer to ‍‌​​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌​‌‌‌​​‌​‍seize a vehicle and remove Terry majority adopted “inspec- follow the have elsewhere in order make his rejected inappro- the course which tion.” Nor is there in this involved priate, by creation, the the propriety verbal character- constitutional of a ization, activity police “stop” of of purposes an enclave of “in- vehicle of exempt specting” investigative from the it. Constitution. This kind of by

detention or of a seizure vehicle physical police means of either force or authority (the practical effect of which per decision of the court The curiam liberty, often will of be a restraint at only en banc the tells us decision temporary, vehicle), least of those in the panel of the As was correct. I under- independent raises constitutional issues panel stand the of three decision the presented by “inspect- that are not judges “inspection” issue, on vehicles, ion” of two Johnson’s in each light facts, is this: instance out carried where the police “inspection” of motor vehicle it, parked found and with no in it. one doorpost to determine the identification supra, See Terry, n. (еither number and secret number 88 S.Ct. 20 L.Ed.2d both) or is not a search within the meaning Amendment, of the Fourth if— neither On vehicle there forced (1) entitled to be is entry passenger compart- into a locked premises where the vehicle compartment, by or ment motor use located; (2) “inspection” does key presume or otherwise. Thus I damage vehicle; (3) inspecting “damage” entry limitation allows officer has information sufficient na- only entry where avail- otherwise reliability give “legiti- ture and him a by opening an door unlocked able — * * * mate reason to check the serial lifting an unlocked hood —and number.”2 any forcing entry by physical allow inspection keys place force, locks, Each picking made оf skeleton use pick- though where the vehicle was located. The or similar means means even up yard truck was in the Johnson’s neither dents metal nor breaks custody glass. Obviously entry, home. nature of the forced language per positively the en banc curiam an more order * * * “inspections Inspection limited to it.” to determine determining gen- correct the correct number could include a compartment glove numbers An thereof.” eralized search of the number, registration determine correct the num- and interior and docu- ought vehicle, However, ber which to be ments of assume title. great per embraces a deal than more the “in- curiam does intend to broad- spection” panel sсope panel gave authorized en the deci- which the sion, actually which was check the in this the examinations made automobile, e., which is on i. instance. “the checking mere of the serial number of key, geographical physical concepts or sledgehammer, skeleton whether terms, the citizen’s a much in terms of hanger, but constitutes or greater coat bent “right privacies “the life”—his citizen’s invasion Gonzales, let alone.” Texas entry consists than 1968). If F.2d 145 door hood. opening unlocked * * * majority wrong understanding my landmark decision bigger hole driven even have Boyd 1886, 116 U.S. I think. than Fourth Amendment 746, first 6 S.Ct. 29 L.Ed. “legitimate the es the doctrine that reason articulated I assume * * * amendment was the fourth serial number” sence chеck the arbitrary against protection suspect intrusions “legitimate reason means alleged privacies stolen,” of life. The Su into was the the car instance, recently preme Court reaffirmed “legitimate in this reason” Warden, Maryland suspicion principle Pen the whole world itentiary Hayden, 1967, 387 U.S. people, places v. and events. of 782, 294, 1642, 18 L.Ed.2d 87 S.Ct. majority does rest decision that the Court and went on to note power upon to search the familiar increasing to extent discarded has an to the occu- incident of vehicle pants. arrest concepts property in fictional resolv war- It not rest ing public of issues of a instrumen- rantless search mobile security. tality It does stand for contraband.3 рower weapons to on the search Supreme Boyd Id.) In at 147-148. prob- of a crime where fruits thusly: phrased Court cause to do so. Ma- able roney, Chambers v. principles laid down 1975, 42, 26 399 U.S. 90 S.Ct. very of con- opinion essence affect 22, L.Ed.2d 419 Since the [June 1970]. They security. liberty stitutional Impala, decision is not limited form concrete reach farther than the goes beyond power of court, then of the case before impounded to safe- an vehicle circumstances; with its adventitious guard police.4 owner and both invasions, they apply all part its em- Government and sanctity a man’s ployees, I to the Fourth Amendment return privacies It is and the life. home right people to itself: “The of the be breaking and the doors his persons, houses, papers, in secure rummaging that con- drawers his effects, against unreasonable search- offense; stitutes the essence of seizures, shall not violated.” es and be but it is invasion his indefeasi- security, personal right personal necessary that ble All constitute property, liberty private where “actual intrusion” into what search an right constitutionally scope forfeited protected. never been that has offense; public longer protected no his ana- conviction some of what is right lyzed property it is the this sacred of common law invasion of terms discussed, Brinegar States, 160, 338 Cotton and Graham are v. United U.S. infra. impounded (1949); 1302, vehi- is unclear 69 93 L.Ed. S.Ct. 1879 event, apply States, 251, 305 clе rationale would Scher v. 59 United U.S. agent’s because, apparently, in- 174, (1938); FBI 151 Carroll 83 L.Ed. purport States, spection 132, to be related v. 45 S.Ct. did United compli- purpose 280, 69 L.Ed. 543 procedure record- valid ance with a protecting impounded property. ing States, 234, Harris 390 v. United U.S. extending police power 992, (1968); As to a similar 88 S.Ct. 19 L.Ed.2d 1067 vehicle, States, v. see abandoned Williams v. 371 F.2d to an Cotton United States, (5th ‍‌​​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌​‌‌‌​​‌​‍(9th 1967); Cir. 382 F.2d Cir. States v. Gra- United United 1968). ham, 1967). (6th 391 F.2d 439 Cir. recognized This court has and constitutes which underlies judgment. ordinarily implies search Lord Camden’s examination essence of of an added.) property emphasis individual of his Initial discover contraband or evidence of some 29 L.Ed. 6 S.Ct. at at law, violation of prose- to be used in at 751. action, cution оf a criminal United in Olmstead dissent Pennington, States v. [No. 5th 478, 48 S.Ct. States, U.S. 438 Cir., 29, 1970]; June Marshall v. United (1928), 72 L.Ed. 944 (5th 1970). Cir. way: expressed it this Justice Brandéis In a host of cases the movable nature They pur makers of Constitu- [the of the automobile has been considered as govern- conferred, against tion] determining factor whether war- right ment, alone —the let be rantless search of an automobile is rea- rights and the comprehensive of most suggest sonable.5 These cases do not right by civilized men. most valued “inspecting” “checking” an auto- recognized mobile is less than expressly This court movable “right character of an let in Brock alone” be 1955), causes be an “effect” 223 F.2d holding illegal privacies citizen no to stand on it an life and no let premisеs in his bed- and look alone. Rather a man’s applicability reiterate hoping room to obtain evidence window finding give Amendment while a search the basis for standards of stringent. reasonableness less warrant to the house. States, ubiquitous, moving 267 v. United U.S. movable and Carroll 280, overwhelming 153-154, such 132, L.Ed. has im- 45 S.Ct. pact 543, (1924), Supreme on modern Court American life that it is 551-552 easy slip focusing all right particular too to into in the on considered this thing subjected police action, to to fall context the automobile. unwittingly feeling that, into the after * * * intolerable and be all, it open doesn’t amount to much to prohibition if a unreasonable a car door or lift the hood. But every stop automo- were authorized protects people, Fourth Amendment finding liquor, chance of bile places. States, Katz v. United subject lawfully persons all thus 347, 351, 507, 576, 88 S.Ct. 19 L.Ed.2d using highways inconveni- (1967). attempt To to decide wheth- indignity a search. ence and of such “area”, er tangible sense of may stopped in cross- Travelers be so place (in thing Katz, telephone boundary ing because an international booth) constitutionally protected de- reasonably self-protection of national genuine flects attention from the Fourth entering country requiring one problem, protec- Amendment which in, to come himself as entitled tion of the interest of the citizen him- belongings his as effects Paraphrasing Boyd, self. Id. it is not lawfully brought in. be But opening lifting car door or the country, lawfully those within the en- of the hood that is the essence public highways, titled to have use offense invasion but “the citi- [the right passage inter- to free without right personal indefeasible se- zen’s] ruption unless curity, liberty personal private prop- competent known to a official author- erty.” search, probable ized to for cause be- lieving Amend- carrying are “This inestimable [Fourth vehicles belongs security right illegal personal ment] contraband merchandise. 364, g., Maroney, supra; 5. E. 84 S.Ct. v. 376 U.S. Chambers v. supra; Carroll 11 L.Ed.2d Preston perhaps even less. But officers in the streets citizen on much to the as Maroney not author- closeted Chambers the homeowner as to our cities guns, “inspect” dispose ized to the cаrs study of his secret his in 8-9, green money, supra, and trench coat Terry, sweater U.S. at affairs.” “legitimate reason.” because had a 20 L.Ed.2d at 898. right They could invade the citizen’s out, Terry points And, as alone, let and to have his let 20 L.Ed.2d 88 S.Ct. alone, because —and because —there propriety abstract is not issue probable the car cause examine admissibility police conduct but guns stemming weapons, from The rule the search. secured evidence the same circumstances that constituted excluding operates as the the evidence probable cause for arrest. to unlawful principal deterrent Chambers, dissenting opinion In his in conduct.6 suggests probable Justice Harlan However, concur- Justice Harlan’s is never cause alone sufficient to search out, ring opinion points Katz in warrant, without a that other and but protects Amendment exigent required. circumstances ‍‌​​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌​‌‌‌​​‌​‍enough. places people and not Thus all articulated in views right The citizen’s Chambers, prob- there has be at least person subjectively but for each absolute able to over- cause of reasonable be viewed terms must prop- ride the citizen’s have Thus, being expectation alone. let governmental erty free invasion. privacy of Justice Harlan contrasts “Probable cause” is mere shib- home, telephone or of the booth one’s cavalierly boleth to be discarded. closed, objects, activ- door with carried on ities or statements requirement cause view. history. deep roots our that are general warrant, opinion not told either We are person to be arrested was name “legitimate why rea- this case the lesser blank, assistance, left of and the writs invading applies to son” standard7 against inveighed, which James Otis property purpose citizen’s for perpetuated prac- oppressive both making identification, other and an while allowing police tice of to arrest stringent apply in- more standards suspicion. and search on Police con- vading may it for other reasons which be judicial control, place trol took the compelling. Society much nо more has showing “probable no since cause” interest, greater perhaps inter- less even magistrate required. before est, “inspecting” suspicious for cars Virginia Rights, Declaration money guns, stolen and narcotics than 12, 1776, against adopted June rebelled “inspecting” them for identification practice: emphasis upon the numbers. If general warrants, whereby “thing,” guns “That and with bank robber messenger may officer be com- or money car, or trafficker narcotics places suspected manded search drugs, no ex- more has reasonable committed, without evidence a fact pectation than in those items any person persons seize not plate, or to or thief in his door has government, in its below, able cause.” 6. As X discuss this consideration judicial brief, asks for affirmation in this is broadened stated something “legitimate as less government position reason” the information probable like cause. Would than secured confer arrest “probable “legitimate gen- reason” and read be unassailable the basis an fairly do but cannot cause” as same eralized search. so. because the We “lesser” standard phrase employed “prob- than rather named, partic- requirement gives or whose offence cause ularly supported by greater authority evi- described and grievous oppressive, are initiate dence action than could be granted.” ought magistrate disрassionate not to be exercised requested to issue a search warrant. Maryland Rights Declaration of police authority This all the more (1776), XXIII, equally em- Art. coupled dubious when it is with the ab- phatic : regulation sence of constitutional over warrants, “That all or without oath scope (ex- of what has been initiated affirmation, suspected cept by the awkward and artificial device places, any person prop- or seize or saying point some the “investi- erty, grievous oppressive; are gation” progressed so far general and all warrants —to search.) has become places, suspected apprehend or to sus- pected persons, naming de- without argument An сan be constructed that scribing place, person in or the is a difference where the illegal, ought special —are invasion is to seek identification num- granted.” I.e., bers. because identification bers, otherwise, And see North Carolina secret are iden- Declaration for Rights (1776), XI; purposes Pennsyl- tification can have Art citizen X; expectation vania Constitution no re- (1776), Art of their maining (1780), private Massachusetts Constitution identifi- are for — I, cation, expect ergo, Pt Art XIV. the citizen must them to be for the available to the philosophy That later was reflected purpose intended. But in the Fourth Amendment. And as being function of device early American decisions be both itself, exempt device immediately fore and adop after its identifies, instrumentality show, tion common report, rumor or increasing- our Fourth Amendment. suspicion, “strong even reason ly complex world our vehicles motor suspect” adequate was not support things iden- numbered prin warrant arrest. And that tangible tification. effects So are such ciple day. has survived to this See mowers, appliances, as household lawn Re, United States v. Di 332 U.S. motors, and outboard even the watches 593-595, 222, 227, 228], 92 [68 S.Ct. on our Add such wrists. to the list 210, 219, 220; L.Ed. Johnson v. United kept home, papers and documents 10, 13-15, 333 U.S. [68 deposit person, safe or on the box 439-441; 369], 92 L.Ed. checks, licenses, drivers’ bank social se- Giordenello curity cards, cards, poli- credit insurance 480, 486, 1245, 1252], L. S.Ct. [78 cies, securities, mortgages, and dеeds and high Ed.2d Its water 1509. was registration papers and Johnson (US) supra, v. United States glove compartment often carried opium coming where the smell of the car.8 All of these items have enough sup a closed room was not to primary secondary qualities of identi- port an arrest search a without subject them, fication, but this warrant. sought view, being when not in to Henry States, at 361 U.S. 98 by police beyond 100-101, action out reach of at L.Ed.2d 134 at 137-138 The discard the Fourth Amendment.9 stamped any tifying piece It is difficult see rational dis- number on a paper. opening tinction between the door or identifying the hood to obtain number stamped metal, opening glove course, Of observation of an automobile compаrtment plate registration to examine license a search when exposed public often so carried there obtain the iden- vehicle is observation. custody, revealing the route taken over under circumstances to retrace in which the been from an uncertain have led which safeguard duty a derelict in his remark on had one-sentence doubt-filled dissenting opinion to a he left unattended in the middle of the in a issue side night alley. suspect dimen a dark After the principle of constitutional new (an invalid) arrested not held 346 F. was arrest Simpson United sion. station, single, (10th taken to 1965), held unconstitu 2d 291 Cir. arresting officer waited at the scene for for search vehicle tional warrantless slip” pur numbers, a tow truck and filled a “tow out including description car, car. with pose entered the FBI every serial aspect of number, he obtained it “ha[d] The court held by opening slip” exploratory prohibited the door. On the “tow the classic but acknowledged responsibility he Id. at his crime.” for evidence of tape property cellophane the vehicle and the As it. later obtained A 295. impression car, to his examination the deci- also number secret duty squarely sion rests on his reheard make The case was held invalid. standing. keep impounded property. a record of Two en banc issue opening chiefly mere of the door of “[T]he concerned dissenters were making purpose such a they issuе, said: but also not], circumstances, * * * record under the [is saying Possibly Iwhat am search, was, but if it circumstances obtaining of a serial is that the under which it done make motor ber from a vehicle entirely search an reasonable one.” not, we reach If search at. all. added.) (Emphasis F.2d at 392. though it were the same result as A examination of the car was second meaning reasonable search within morning later the same made of the Constitution. agent, police pound by an FBI who also a rule It is no answer to doorpost by opening secured the contrary adopted to that here would held, The court “it is not a the door. pro- permit an indiscreet officer to all, such circumstances miscuously sеarch automobiles with here.” Id. at 393. as we have immunity and that must the laws is understandable because an Cotton apply equally guilty those expectation of accused has no privacy guilty. who are not If search of an property, once the in his automobile is made without custody pursuant it into have taken cause, having right complain one safeguard it, duty and must damages suppress recover property protect and themselves .the incriminating evidence which is seized. making of that for which record equally Such remedies are available responsibility. But have assumed guilty person, provided ato he has slightest application to John- has not the question the search. truck, “inspected” in thе pickup son’s Id. yard And home in his absence. nothing probably to do with it has Next came Cotton v. United agent’s FBI examination Johnson’s 1967), and United jail. ear in the lot at the Graham, (6th States v. “legitimate verbiage 1968). present reason” em- Cir. In the case the originated ployed panel present relied on but these two cases es- analysis Cotton in the Ninth discussion either Circuit’s chewed discussion or examination ‍‌​​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌​‌‌‌​​‌​‍the ear. second them. In Cotton the car in was v. Gra- But view. United States the reason is one of convenience ham, (6th handy 442 2 391 F.2d n. Cir. that is a iden- 1968). device, tification but that is no expectation privacy in what

449 Circuit F.2d at But Ninth was 371 393. absent when the examination took place. said activity clearly relied the dissenters had what Thеir constitut- Simpson, single protected by sentence of ed a “search” being true, Ninth did note that the dis- Circuit Amendment. That law of- recognized justify senters had that there had ficers “must their conduct be- probable been, always to be cause.10 fore courts which have be, jealous and must of the individual’s type Graham same of case right within the broad Cotton, on which it The court relies. sweep of the Fourth Amendment.” ground found there no search was Rabinowitz, United States v. station, the cars were law- at L.Ed. 653 fully custody safekeeping, cus- totality Under the of the cir- tody lawfully suspect from a obtained surrounding cumstances the examina- lawfully right arrested so that no Agents Neely by tion of the automobile privacy had breached.11 391 F.2d been search, Mearas, made without justification necessity, was unrea- In this in United circuit, States sonable, requiring suppression Greer, (N.D.Miss. F.Supp. any evidence obtained therefrom. 1969), Judge Keady given to District Holzhey 223 F.2d analysis Cotton Graham careful (5th 1955). Cir. give. has declined which court 297 F.Supp. Mrs. Greer’s con remarkably Greer similar on facts sent, by giving keys, was least as pickup. to Johnson’s Officers went giv broad as Mrs. Johnson’s insofar as warrant, suspect, the home of without a ing prem some sort of to be on the to obtain num the vehicle identification ises. they suspected ber an automobile given by They keys stolen. were Weaver v. United F.2d suspect’s wife, took unlocked the car and 1967), reed. The slender doorpost government аccused, number. The under a arrest not held state un- lawful, contended gave agent the examination was voluntarily an FBI Judge Keady search. held that copy registration, his recognized Cotton showing search. He number. Graham limited to Subsequently police opened the situation local the car safekeeping which the automobile is in doorpost door and the observed already lawfully or is otherwise avail saw to be the same. Lat- language policeman. agents able In er FBI furnished the number applies precisely pick officials, Georgia Johnson’s arrested the who ac- up he held: appeared there, cused he when and it de- veloped vehicle was stolen. This short, by those dеcisions cited court held that the identification government not to de- foreclose serve ber, government’s used initiate contention, fendant’s but rather to bol- illegally case, was obtained because undisputed ster it. The here are facts voluntarily supplied by the accused agents that FBI entered without war- independent, lawful In an source. el- upon private, protected property rant dictum, liptical the court then said: possession of one in of an automobile ruling in order to con- examined Because of our the evi- firm suspicion sought a mere it had been suppressed dence to be was ob- stolen. The defendant had not been independent, tained from an lawful arrested, wаy source, unnecessary had in no consented it is to de- us private property cide whether the visual search Lou- Simpson, supra, addition, 10. See the discussion of 11. In court found following footnote time the occurred cause had to believe that stolen. cars were 450 Massey However, F.2d illegal In v. United or not. derman was 1966) (10th Cir. the Tenth Circuit Agent Louderman

the method which doorpost a search in- because public held valid identifica- used to obtain nothing arrest, a but invalidated cident of the vehicle tion number next secret number conducted the a questioning a more routine than garage (the government day con- at a the state. person from out of arrested illegal). this search was checking cеded subsequent of the His routine. mere ber the vehicle was “inspection” decision that an The age with mil- highly In motorized is, of a course, than a rule less traversing the nation’s lions of vehicles government The com of convenience. mounting highways number of and its with recitals of mences brief crimes, and related automobile thefts growing of stolen car cases and number imagination we if it would tax The need to them. its able these circum- under were to consider utility argument (by of a search [emphasis visu- stances added] styled) euphemism means as a whatever agent car inspection by aof an FBI al by discovering detect offenders evi constituted identification relating something new and dence is illegal search, search. less much an made to It was automobiles. Amendment constitutional The Fourth and in his memo Lord Camden against prohibition unreasonable Carrington,12 opinion in Entick v. rable original] and [emphasis searches Supreme “one our Court as described seizures. English liberty,” landmarks of hardly square de- rejected at 882. This Id. he it. is not a cision that govern- say that This is not dictum has the Weaver search. But if require and de- mental interest does sweeping scope, than far it is less rep- protection serve case. instant what articulated important aand area resent a sensitive gave agent voluntarily Weaver the FBI activity. problem The is safe- showing registration copy Georgia of his guarding government’s interest the car’s numbеr. consistent the Con- manner with told he make a Weaver wanted to damage to does the least stitution car, routine there was check of gov- from citizen’s to be free objected. no Id. evidence that Weaver scrutiny, intrusion and exam- ernmental expectation of 880. had little Weaver ination.14 privacy left. Nikrasch, F.2d States v. 3. 1966), no evi- there was exemplifies inventory- peculiarly impounding dence of This ing. expressed in the consideration The defendant and com- value of his female Terry, taking panion disorderly outside conduct con- arrested duct, dis- semantic Fourth Amendment he drove his own rigid station, gave “suggest[s] all-or-noth- request and on the tinctions officer’s regulation ing keys. justification him his Hours offi- modеl of another later Amendment, doorpost cer obscures examined both and secret scope, utility as numbers. limitations held the Seventh Circuit initiation, action as the warrantless searches were unreasonable well regulation.” means of constitutional violated the Fourth Amendment. already being Howell, St.Tr., 12. 19 manufac- automobiles identification number tured Boyd than on the door- the dashboard rather 6 S.Ct. at L.Ed. at 749 post, sight it is in where governmental be viewed outside car. interest due wiE urgent. course become less Most new by are 20 L.Ed. to be measured familiar analysis discrim 2d Fourth Amendment at 903. Without standards but a body majority progress eventually from new ination the the of law which will anyone doorplate placed for hаve point that at some the “in- — spection” opening a see the door which for the number will become so many daily opened pervasive “just use of the be car will invasive and that identi- number, fying” times —to “searching.” the confidential will become Simi- larly, placed in a location known one on vehicle can foresee —and the cloud on generally only considerably bigger the horizon to law enforcement offi is than a case, coming argument cers. In this as to the blue man’s hand —the Cor over the item vette of Count One: for observed first time in * * * plain opened view when the door is agent had serial This “inspect” doorplate.17 the motor number of number Corvette, Litigants, government, from Johnson’s blue taken even do our confidential location on the frame direct what how courts decide. But gasoline By misunderstanding he there need no the vehicle. be use about numbers, government rubbed what cleaned off has in mind about them, fingerprint over a ink over laid automobile searches. Its brief for this ink, up piece tape, picked case en banc scotch includes these contentions: piece paper, laid it across a white (1) “Legitimate reason” is less than by that method could read the probable cause to assume vehicle is * * * number. “suspicious stolen. includes circum- stances of a minimum kind.” Any many Dyer attorney tried who has (2) power “inspec- Act cases is familiar with the use of to make the removers, grease-dissolving paint tion” for sol- carries with it cleaning, lifting power ‍‌​​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌​‌‌‌​​‌​‍vents, stop the car on steam vehicle that hoist, cellophane tape, purpose. and even detec- tion to find and “lift” devices15 (3) If the discloses that secret number.16 operator the car stolen the can ar- be case, rested, general- impounded As a result the decision the car and a limits of allowable action ized carried out. the car Mason, F.Supp. 15. United States v. numbers from the tires on a vehicle. (D.N.H.1968) outward, it one held a violation of On tire the number faced the Fourth to remove on Amendment cars others faced inward and garage, agent from defendant’s them to an had car to find take to crаwl adjacent put hoist, garage, each them. problem respect specialized and examine them detec- “se- tion cret” it called instrument to secure the confidential that “secret,” Massey iden- numbers. See also that is useful supra, government tification, citizen in which the but whether has expectation conceded its secret security and whether interest number was invalid. by the been invaded action oc- pickup, 16. As to the we are not told where may sought curring. The number secret number was located what exempt out Fourth Amendment it, means was used to obtain merely it is a identifica- because useful agent the FBI “made a of it.” As list device, automatically within tion nor is Impala, us that briefs tell the Fourth Amendment because the car for con- examined styled “secret.” fidential number on the frame. upheld possibility view rule must be “[T]he I do not foreclose positioned, rightfully where the viewer the confidential number be located through eyes seeing place neither ac- or elsewhere in a frame criminally cusatory investigatory.” sufficently open nor to view that observation States, 422 F.2d 185 v. Marshall of it is not a search. United States Cf. 1970). Gunn, Cir., June [5th holding copying 1970] valid the of serial large become nose has camel’s very quickly. camel Boyd especially language

apropos: * * * ob- it is least thing mildest in its

noxious repulsive illegitimate form; but get practices unconstitutional namely, way, footing in that first slight deviations approaches and silent ** procedure. legal modes L.Ed.

at 752. respectfully dissent.

I Plaintiff-Appellee, SKALET,

Morris Health, FINCH, Secretary of H.

Robert Welfare, Defendant- Education Appellant.

No. 20093. Appeals, Court of States Sixth Circuit.

Sept.

Case Details

Case Name: United States v. James Leland Johnson

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 13, 1970

Citation: 431 F.2d 441

Docket Number: 27025_1

Court Abbreviation: 5th Cir.