United States v. Robert C. McCormick
502 F.2d 281
9th Cir.
1974
Check Treatment

*3 “[a]ny vehicle (argued), Los Leonard Kesselman N. being in viola- which or is used has been Gatos, Cal., defendant-appellant. for any provision of section 781 tion Atty. Daffer, James H. Asst. U. S. in, title, upon, this or or means (argued), Cal., plain- Francisco, San any which violation of said section tiff-appellee. taking place, taken or is be seized shall WALLACE, Before DUNIWAY and ...” and forfeited. Judges, EAST,* Circuit District part: provides, U.S.C. 781 § Judge. (a) (1) It shall be to trans- unlawful OPINION any convey port, or contraband carry, any in, upon, or of (2) article means Judge: DUNIWAY, Circuit aircraft; vessel, vehicle, or conspir- McCormick was convicted of possess any ar- conceal or contraband ing make, possess, sell and otherwise vehicle, upon any vessel, in or ticle notes, deal counterfeit Federal Reserve any- aircraft, upon person or or of 18 in violation U.S.C. §§ upon any vehicle, or vessel, one in or and 473. aircraft; (3) vessel, any or ve- use February On McCormick hicle, or aircraft to trans- facilitate the View, arrested at his Mountain Califor- portation, conveyance, carriage, con- home, pursuant war- an arrest nia, receipt, cealment, possession, pur- agents ar- rant. When Secret Service giv- chase, barter, exchange, or sale, parked arrest, rived make the ing any away of article. blocking driveway, in McCormick’s (b) section, As the term this egress automobile, Buick for his a blue “contraband article” means— Riviera, driveway. which was in the Between fifteen after McCormick’s ice agent drove the Buick to the sub- minutes arrest, and one Secret Serv- hour tered, [*] (3) Any falsely or counterfeit [*] [*] made, coin [*] forged, or obliga- [*] al- * East, Judge William Honorable G. Senior United District States for the District of Ore sitting by gon, designation. security of the United but whether the or other search was tion reason foreign government; any Rabinowitz, able.” United or of States States para- apparatus, or or L. [70 or materal used,

phernalia intended Ed. or Under the 653]. fitted used, in the of this we have been cannot hold or making shall unreason made, falsely any such under the able Fourth Amendment the validly forged, altered, counterfeit coin or examination aof security. obligation held or other for use as evidence proceeding. in a forfeiture Id. at 61- that, not doubt if seiz We do at 791. February 17, 1972, on ure of the car February valid, the later search Assuming validity of the initial sei- Cooper 1972, was also valid. v. Cali zure under U.S.C. think that § fornia, applicable this would be to the rationale *4 There, L.Ed.2d 730. California later search. they Cooper’s car when officers seized However, Supreme as the Court charge. arrested him a narcotics clear, Cooper later did made the Court of the seizure car was Cal. pass upon legality original not Safety 11611, Health Code § Cooper’s Apparently of seizure car. that provides any making that officer an ar question presented was not in the case. rest for a any violation seize narcotics shall Coolidge Hampshire, supra, v. New conceal, store, vehicle trans points Cooper out did the Court port, possession sell or facilitate the of validity not rule on the of statute au- narcotics. The officers searched thorizing the seizure: car where it one week was stored after Cooper, petition- seizure of seizure, and the evidence seized by er’s car was mandated California Cooper’s was introduced at trial. The statute, ques- legality upheld. search was as rationale is propo- tioned. The case for the stands follows: given unquestionably that, sition petitioner’s Here the officers seized legal seizure, special circum- are they required do because were may subsequent stances that a validate They so state it law. seized be- 464, warrantless search. 403 U.S. they cause of the crime for which ar- n.21, (emphasis sup- 91 petitioner. They rested seized it plied). impound they keep it and it upheld We have several times searches proceedings until forfeiture were con- of vehicles seized under U.S.C. 782. 49 § subsequent cluded. Their of search prevents our But none of our considering now eases “legal the car—whether the State validity constitutional title” closely or it not—was petitioner related the seizure in this case. arrested, to the reason 1972, Cir., Arias, In United 9 v. States impound- reason car had been 641, upheld subsequent 453 F.2d we a ed, and the being it reason was re- a seized Arias’ car car where petitioner’s tained. The forfeiture of was seized at the time of his arrest and place car did not take until over four knew, time, the officers at that that the lawfully months after it was seized. being car was used to the con- facilitate It would be unreasonable to hold that (453 summation a crime F.2d at having the police, to retain the car in The case falls within the automobile ex- custody their length for such a ception require- to Fourth Amendment right, time, had no even for their own ments, discussed protection, infra. search it. no an- say swer to decisions, could Our other Lockett v. United warrant, obtained 168; a search Cir., Kap- States, 1968, for 9 “[t]he States, Cir., relevant test is not 1967, whether it is rea- lan v. United 9 375 procure warrant, 895; Browning States, sonable to a search F.2d v. United

285 rule, decided Burge is, as a 420, seizure] judicial v. 1966, Cir., F.2d 366 policeman officer, or 408, 1965, Cir., States, 9 United agent.” John- enforcement Government decisions before all decided were 10, States, 1948, U.S. Coolidge son v. United New v. Supreme 369, 367, L.Ed. 436. 14,-68 S.Ct. supra; v. Califor- Hampshire, Chimel 2034, nia, 89 S.Ct. U.S. question A search seizure Robin- 685; United States L.Ed.2d 23 son, begins proposition therefore with rule “the most basic constitutional 427; Almeida-Sanchez L.Ed.2d sei is that ‘searches [and this area States, v. United judicial outside the conducted zures] process, To the 37 L.Ed.2d by judge prior approval without read cases can be of our extent per magistrate, se are unreasonable holding that, a ear can every as subject under the Fourth Amendment— with- under 49 be seized U.S.C. § specifically to a few established ” long warrant, so out a exists, exceptions.’ well delineated law, good longer state 403 U.S. at hereafter. considered reasons 454-455, quoting Katz 91 S.Ct. at reasons, consider For similar unnecessary from other to discuss cases Unless dealing and search- circuits with seizures meets one seizure Only one of es under 782.1 thereby 49 U.S.C. exceptions, § of these the evidence *5 n.l, them, Stout, v. United States obtained is inadmissible at trial. Weeks it, post Coolidge case, like our is a States, 1914, v. 34 232 U.S. United ease, supported under the Arias can be S.Ct. 58 L.Ed. 652. exception Fourth Amend- automobile agents made The fact that requirements. ment act the seizure and to an Congress not remove that seizure does applies. Amendment The Fourth II. purview Katz and search from the of the to the valid We therefore turn per se itself rule. Unless the statute ity car. of the seizure of McCormick’s exceptions to the falls within one of the proposition that the We start with the yield requirement, it must warrant equally applies Fourth Amendment against right searches secure be provides It and to seizures. searches from the and seizures. This is clear “right people to be that the of the secure Supreme decision Almeida- Court’s houses, persons, papers, ef their supra, in States, Sanchez v. United which against fects, unreasonable searches government’s justification for a sole seizures, violated, shall not be was search of upon issue, Warrants shall authorizing a the search. federal statute affirmation, supported cause, by Oath or The Court held that a statute cannot describing place particularly justify an unconstitutional otherwise things persons searched, be and the search: guarantee interposes to be seized.” This magis police Since neither automo- this Court’s between citizens objective must bile decisions nor its admini- trate whose weigh evaluation “right inspection provide people strative any of the to be se decisions against support constitutionality cure” for the the need to enforce law. stop right privacy must reason and search in the “When ably yield right simply we are left with the to the of search stat- [and 983; States, See, g., Francolino, 1. 2 F.2d Ted’s Motors v. United e. v. United States Cir., 1954, 777; Cir., 1966, 1013; 8 v. v. 217 F.2d United States F.2d United States 367 Stout, Cir., 1264; Troiano, 416; Cir., 1966, F.2d Siri 10 434 365 F.2d United Cir., States, Trotta, Cir., 1968, 514; marco v. United 315 F. v. States Cir., 1965, States, 2d 699. Drummond v. United purports person auto- ute that to authorize accused’s his imme- or under searched, stopped mobiles to diate control. Preston v. United States, a rea- and “within without warrant 376 U.S. external distance from sonable boundary United States.” justifications These are absent clear, course, no Act of Con- agents and Four Service here. Secret gress can a violation of the authorize two local officers raided McCoi' Constitution. 413 immediately placed mick’s house and him at 2539. him; under arrest and handcuffed Cir., In v. Howard United driveway. car remained in the outside held that evi- Under no circumstances could the car dence found in a search of a car was be considered under his con “immediate purportedly seized under U.S.C. § trol.” supra, suppressed. 782 should be Reversal 456-457, 91 403 U.S. at cause, for lack of and the usual States, supra. See also Preston United applied. Fourth Amendment tests were background exception With this we scrutinize IV. The automobile does both apply. Section 782 and deter- the seizure to mine whether falls within an The seizure also of McCormick’sBuick requirement. qualify fails to ex- under the automobile ception requirement, III. incident to the to arrest apply. does not first announced Carroll States, 1925, 267 U.S. search McCormick’sautomobile Carroll, 69 L.Ed. qualify does not as a search incident upheld a federal author- statute arrest, viz. search “of the area within izing the of an warrantless search auto- the control of the arrestee.” United ax-resting prob- mobile if officer Robinson, supra, States v. able cause to believe that the automobile 94 S.Ct. 471. We assume that the arrest *6 illegal transporting was “in the act of” valid, of McCormick inside his was house liquor. Id. at 280. The so that the first condition of a warrant- Court has read Carroll to hold that less search incident to an arrest is met. Coolidge, supra, unnecessary a search at warrant [is] probable where there cause to search is stopped highway; an automobile on the leading The case in this area Chimel is movable, occupants the car is the are California, 1969, 395 U.S. 89 S.Ct. alerted, may contents car’s 23 L.Ed.2d which limits a again never be found if a warrant must seai’chincident to arrest the arrestee’s oppor- obtained. be tunity . [T]he person and “the area ‘within his imme- fleeting. to search is construing diate phrase control’— Maroney, 1970, Chambers v. 399 U.S. mean the area from within which he 42, 51, 90 S.Ct. might gain possession weapon of a or destructible evidence.” Id. at justification justification S.Ct. at 2040. The for this for a warrantless search exception to and requirement the warrant seizure under these is circumstances police that the have the rests the weapons need necessary to seize and other difference between a search things might dwelling store, house, which be used to assault or other escape, respect an officer or effect an as structure of which proper well prevent readily may the official need to the warrant be ob- tained, destruction of ship, evidence of the of a crime— a search motor things might boat, easily wagon, automobile, happen or for contra- weapon where the band goods, practicable or where it is evidence on not the transport warrant, ve- used to the mick’s car been because secure qua non of contraband, sine of the quickly moved out second hicle can be circumstances, exigent Carroll, locality jurisdiction in which here sought. aspect absent. On this must be Carroll nearly supra, those at facts are identical Coolidge: agents added). (emphasis learned Secret Service at 285 45 S.Ct. McCormick’s Buick war thus authorizes Carroll transport two and one-half when rantless seizures automobiles of the car. months before the seizure present. two factors are driveway parked in The car was arresting probable 1. The officer has his house when it was seized con- cause to believe the automobile being it was then was indication contraband, tains illegal purpose.2 used for All that exigent 2. There are agents had reasonable cause to be- associated with automoble. lieve was that it had been so used. Six Assuming cause, the officer has entered to arrest house any McCormick, him seize quickly Carroll does allow hand- he automobile, Moreover, those automobiles cuffed. if he even could gained which are and for which “it is car, movable access to his he could not have practicable away, a warrant.” Id. secure driven it because a car was blocking driveway. “The word not a talisman ‘automobile’ is In Carroll and presence Coolidge terms, the Fourth Amend- whose more this automobile disappears.” away moving ment fades Cool- resembled a house than a idge Hampshire, supra, v. New 403 U.S. mobile there were no vehicle. Because 461-462, exigent at circumstances at the time of seizure, jus- the later cannot be proceed We therefore to examine supra. Maroney, tified under Chambers v. present facts case and the statute amount “[N]o cause can to which Buick McCormick’s justify a or seizure seized, to determine whether ” ‘exigent circumstances,’ absent Cool- above two factors were to au- idge thorize a warrantless seizure. so sei- A. Probable cause. zure here does not fall within the auto- Our examination of the record leads require- mobile us conclude that at the time McCor- ment.3 mick’s car was seized the officers had plain V. view does not probable cause to believe that *7 the car apply. had been in the manner denounced 781, subject in and so was § to forfeiture The seizure of McCormick’s car However, under justified “plain cannot be § was no the under exception cause to believe that view” require was be- it to ing This, ment, so used at the police time of seizure. which allows the seize however, matter; not plain does end the as evidence or contraband in view seen, probable have Coolidge alone cause does not without a warrant. justify Hampshire, supra, places seizure. limits on the doctrine. “[P]lain view alone never is Exigent B. circumstances. enough justify the warrantless seizure Although agents of evidence. . . . where the [E]ven probable cause object to believe that McCor- contraband, is . . . Coolidge supra, See also exception New apply, government bile must 461, 18, 403 at U.S. N. 91 S.Ct. 2022. show that at time of the warrantless search the officers had reason to Relieve Cir., Connolly, See also mobility exposure United States v. 9 of the ear made it 1973, impracticable 935: “For the automo- to seek a warrant.” 288 alleged only to which this use a warrantless is may and make not enter particular put 91 at automobile S.Ct. seizure.” 403 U.S. at McGonigle possible subjects original). its (emphasis The Secret Mr.

2039 Furthermore, re- oppor- agents ample . . loss. here had Service They of the owner tunity turn the automobile warrant. obtain a valid any possible description subject not him to would exact knew the automobile’s possession penalties over criminal to believe and had concerning any public policy it had seizure that frustrate two months before the automobiles, dis- transport as automobiles. This been used contraband. governed de- sense, tinction between what been ease is this only per Coolidge plain se and scribed as contraband and the view has indeed authorize the seizure contraband therefore cannot derivative recognized Pennsylvania in of the automobile. itself mandatory requirement its of forfei- Coolidge did, how illegal liquor, stills, ture ever, emphasize not faced only discretionary such forfeiture ” involving with “a ease contraband. things illegally used. automobiles gov Id. at 91 S.Ct. 2022. Can We, therefore, do not have argue ernment that Section 782 declares analogous way case before us be con McCormick’s automobile itself to contraband involved Jeffers subject traband and therefore to seizure Trupiano and these cases can in plain without a warrant if found ? view way impair be deemed to the continued We think not. There is a difference validity Boyd [v. possession say, of, between the us let 116 L. 616, 6 29 S.Ct. (see Jeffers, narcotics United States v. which, Ed. like involved 746] this 342 U.S. S.Ct. property intrinsically illegal 59) illegal (see Trupiano L.Ed. anor still Plymouth character. One 1958 Sedan States, 1948, v. United 334 U.S. Pennsylvania, 1663) L.Ed. 699-700, (footnotes possession (see of an automobile One omitted) Plymouth Pennsylvania, Sedan v. Because McCormick’s is per se, is still L.Ed.2d Possession of the former point and the seizure of the automobile always illegal; per it is contraband se. justified “plain is not under view” Possession an automobile, on the other requirement. hand, always illegal; is not it is deriva The seizure of the there- automobile was contraband, illegal tive use fore unconstitutional and was the so sub- illegal: possession makes its nega- sequent photographic search. The Trupiano Both concerned Jeffers treasury thereby tive of a seal obtained objects possession which, with- suppressed. should have been more, out constitutes a crime. The repossession per of such contra- se Unlike the statute in Almei Trupiano band Jeffers da-Sanchez, supra, 49 U.S.C. § subjected pen- them to criminal *8 question silent on the war of whether a alties. The return of contraband the required. rant is The is not un statute clearly would have frustrated the ex- face; constitutional on its a warrantless press public against policy posses- the pursuant seizure made it to which can objects. sion of such justified excep independently under an apparent It is requirement tion the the that nature the property though here, merely not be hold termed contra- unconstitutional. We seizing Pennsylvania, band quite that is before an item of differ- derivative agent nothing remotely ent. is There contraband even under Section the possessing except in criminal must first a an obtain valid warrant automobile. distinguished qualify as an ex- 453 F.2d at 643. the in We requirement. in ception facts Arias in Howard See from the facts F.Supp. good Schultz, 1205 because the had reason Melendez (D.Mass.1973). believe that had the in Arias used violation of the affirmed law. We Arias’ judgment is reversed of conviction The conviction, holding where that the offi- pro- for further ease is remanded cers cause believe that ceedings opinion. with this consistent the to facilitate been Judge (dissent- WALLACE, Circuit transportation contraband, the a war- ing) : following pur- rantless seizure suant to 49 781 and is U.S.C. §§ respectfully

I dissent. valid. agree majority I that the with the if argues majority apparently that valid, the the car was subse- seizure the search Arias valid not was because quent search valid. But I do was also it was conducted with liberty not feel find the seizure in- at that had been majority the forfeiture statute vio- valid. The that concludes Cool- lated, prob- officers had idge the because exigent able cause and (1971), circumstances. 29 L.Ed.2d 564 exigent If there were circumstances in requires suppress the us to evidence. Arias, however, not discuss we did them However, Coolidge Court was never holding upon nor Indeed, base our presented them. possibility of a with the lawful the Arias fact situation indicates that to a for- seizure exigent circumstances, if there were ever probable cause. The feiture statute and they longer at the time existed that majority Coolidge seems to as ex- read cluding officers conducted search. Arias simply such a result because the employed a woman to drive a load Court did mention forfei- car from Mexico to her home Los An- ture seizures an to the war- geles. The was discovered requirement. rant This construction port agreed entry driver dealing assumes that the with cooperate apprehending Arias. The possible exceptions all whether or not woman drove the car to her load home were in that I issue in case. can- where she and officials customs waited interpretation. not concur with such pick up for Arias to the car. When Arias governed by I believe this case arrived, wagon parked he left his station Arias, United States v. proceeded at the woman’s home and (9th 1972), post-Coolidge 642-643 Cir. Ap- drive the load car down street. case, where we affirmed a similar seizure parently recognizing that he was under majority’s attempt search. The surveillance, he returned to woman’s distinguish Arias basis that home where he was arrested. There is upheld search could have been on the no indication he was either basis of the automobile does wagon attempting station flee change the fact that there our court logical time his arrest. in- did facing not do so. The issue us ference is he either load in Arias was whether the officers had just gotten car or had out of it. probable cause to believe that the car had wagon The station was seized and tak- transportation used to facilitate facility en to a federal where it was sub- argued of contraband. Arias “ sequently searched. clear from the clearly bring ‘the facts of this case pur- case that the search was conducted ruling within the of Howard v. United suant to the forfeiture statute. We sta- (9th 1970),’ 423 F.2d 1102 Cir. ted: provisions the forfeiture of 49 U.S.C. 781 and Although cannot cursory §§ vindicate a weapons *9 seizing vehicular search wagon where yielded nega- of Arias’ station ’” ‘probable are without thorough . . results, . . tive probe, a more thoroughfares public It travels where to 49 U.S.C. §§ facility occupants and its contents on Ter- both federal at a conducted [Ijnso- plain quantity view .... are minal disclosed Island protection far capsules as Fourth Amendment “marihuana red seconal vehicle, lodged left rear extends to motor vehicle’s in the debris” right privacy is the panel. touchstone quarter inquiry. of our omitted). (footnotes 642-643 Lewis, search and no for the Cardwell v. There was warrant

apparently 2464, 2469, the seizure. no warrant for (1974). exigent circumstances There were justifying than The seizure other Further, majority fails to acknowl ally might move concern that an usual edge easily ally that an have moved could left. after the officers had Once the car any destroyed the car and If evidence. wagon had taken to the station require majority means the offi possibility facility, federal there was no guard the car while cers stand over destroyed. evidence would be they awaiting warrant, are ground upheld the on the search We seizure, in effect but re authorized a cause for once the officers quired a for search. See seizure, subsequent search was Terry Ohio, under the Fourth Amendment. reasonable (1968). 20 L.Ed.2d 889 Such an rely upon justifi- didWe other authorization with would be inconsistent cation for the search or seizure. beginning premise their “if the sei valid, fact zure of situation this case is indis- . was tinguishable later from Arias. The officers . was also valid.” importantly, More I a re cause to believe that McCor- find such quirement transport mick had to be used the Buick inconsistent with Unit Evans, ed contraband. The officers seized the car States v. (9th building and drove it to the federal Cir. office I would affirm. subsequently where it was If searched. exigent present were circumstances Arias, exigent then there were also Un- this case. Arias, we less are overrule are com-

pelled uphold the search of McCor-

mick’s car. Perry MULLIS, Mullis Petroleum d/b/a majority require a warrant Co., Plaintiff-Appellee,

for the seizure and this situa- McCormick, following tion because ARCO PETROLEUM CORPORATION arrest, gained could not have access to Corporation, and Atlantic Richfield Thus, they conclude, his car. it “more Defendants-Appellants. moving resembled a house than a mo- No. 73-1625. theory appears bile vehicle.” Such a to be me inconsistent with the recent Appeals, United States Court of teachings Supreme plurality of a Seventh Circuit. distinguishable factually in a case Argued Feb. enough enlightenment: provide close Aug. Decided expectation privacy One has a lesser in a motor vehicle because its function transportation and it seldom serves repository

as one’s residence or as the personal effects. A car little

capacity escaping public scrutiny.