*1 being after re- by law officers searched America, Appellee, from the arrest scene
moved them STATES UNITED control. being placed under their exclusive attempt to to necessary it I do not find STEVIE, Appellant. Robert Charles control was that exclusive specify when accept to I am reluctant first established. America, Appellee, STATES UNITED that, “Ordinarily, the majority’s dictum arrest would be at the time of initial seizure REYNOLDS, Appellant. within the property Raymond place sufficient Lee adoption The exclusive control.” officer’s 77-1335, 77-1424. Nos. practically would eliminate Appeals, Court of exception search incident arrest Eighth Circuit. adopt requirement. warrant should maze already confused major change April Submitted only Amendment cases if of Fourth Aug. Decided when a involv- vinced of its correctness case ar- ing question has arisen been Rehearings Rehearings En Banc advisory ruling today gued. To issue 18,1978. Denied Oct. likely to further darken premature already murky.
waters are light
I that in also
panel opinion’s reliance on United States
Edwards, (1974), misplaced. How-
L.Ed.2d
ever, element in Edwards the crucial of the cloth- possession
not the defendant’s majority The
ing at the of detention. why seizure reason suggested jailhouse differs from a seizure a subsequent purposes
arrest scene for been that has reduced control of law enforcement
the exclusive significant distinction be-
officers. en- is the
tween Edwards
hanced exhibited places possessions inside who personal luggage.
locked seriously majority’s
I do not lim- that Chadwick should not be
conclusion However, prospective application.
ited to presented by not properly issue is
appeal. Court remanded light our
present case for consideration applies thus other. applies
case or not it whether
el of this Court held that the
stop
initial
the appellants’
wagon
rented station
was
justified,
probable
that
cause existed to
search one of the suitcases located in the
rear
of the station
and that
warrantless
scene of the arrest was valid under United
(1977).
ation of this case is furnished opinion’s facts, detailed recitation of the which quote we below. 9, 1976, February
On response to a tip from an informant provided who had reliable past, information in the Officer Boulger John Agent Kryger Markus of the Drug Enforcement Administration Task Force were Minneapolis-St. Paul Airport International to conduct a surveillance incoming passengers. Their intention was to observe one James Erickson, who, according to their infor- mation, Phoenix, Arizona, traveled to purchase large a quantity marijuana and was to arrive air from either Phoenix or Vegas, Las Nevada. As a occurrences, result of prior agents Peterson, Mark W. Friedberg Mauzy, & knew of James Erickson and that he had argued brief, Minneapolis, Minn., filed connections with Theodore They Luciow. for appellants, Reynolds. Stevie and further were aware that Theodore Lu- brother, ciow’s twin Anthony, had been Joseph Walbran, T. Atty. (ar- Asst. U. S. arrested in possession approximately gued), Minneapolis, Minn., Andrew W. Dan- pounds marijuana contained in an ielson, Atty., Minn., U. S. Minneapolis, on Avis rental car rented in Arizona Ray- brief appellee, for U. S. Reynolds. mond At time reliable GIBSON, Before Judge, LAY, Chief informants told them that Anthony Lu- HEANEY, BRIGHT, ROSS, gone ciow had purchase STEPHEN- to Arizona to HENLEY, SON and marijuana Judges, Circuit from Reynolds. en banc. Among passengers embarking from a Vegas Las incoming flight shortly before
HEANEY, Judge. Circuit midnight, two young, white males caught This case is pursuant before the Court the agents’ they attention because were petition for rehearing en banc. In an acting a suspicious manner” and “[i]n opinion 17, 1977, issued on November pan- “apprehensive things around Anthony Lu- olds involved case men, appellants Stevie The two them.” rent- they followed the was “L.” Reynolds, did not communicate ciow express a distance four-lane maintained ed automobile other but each them- passen- between fifty they feet observed approximately highway, addition, continually facing it was noted ger selves. in the car than walking frequently faster look- and the driver was *3 passengers. Although mirror. ing into his rearview level of their initial inten- Agent Kryger the lower testified they
When reached bag- proceeded to the their airport, appellants follow the to the Stevie tion was to approached and Reynolds destination, agents area this gage claim the determined counter, neither stopped Avis car rental the and so impracticable would be the removed speaking to other. Stevie highway. on the them car- large baggage the two suitcases from the driver’s Agent Kryger approached these Kryger observed that Agent ousel. the for his identifi- and asked driver side point, At heavy. to be that appeared produced driver driver’s cation. The Kry- secrecy, Agent without pretense Ray- that he was revealed license which observed ger up walked next to Stevie Phoenix, Arizona. Reynolds mond L. Phoenix and a the name “M. Roberts” pas- Boulger established that the Officer After nametags. bags’ address Robert senger’s identity was Stevie. looking Kryger, at warily Agent Stevie Thus, identities matched neither the handle skycap uniformed to engaged a “M. on the suitcase the name Roberts” more for three the and returned Agent nametags. Kryger was stand- gave He directions large, new suitcases. examining car ing at the window of the the and then walked over to skycap to the license the distinc- the driver’s he smelled for spoke Reynolds Avis counter and marijuana. tive order of agents had com- the first time since the point agents At instructed observing gestures Their menced them. car get out of the Reynolds and Stevie pertained indicated that conversation placed them under arrest. to ob- agents, who continued two agents opened one of the suitcases went Boulger until serve them Officer rear floor of the placed had been parking lot. airport out to his car wagon. Inside rental area station building joined left the Stevie then they wrapped vegetable found bricks who had taken handler marijua- to be substance later determined lot and bags directly parking to the Avis na. sta- loaded them into rented Oldsmobile omitted). (footnotes wagon. tion counter Reynolds After left the Avis II. area, Kryger spoke Agent opinion upheld search from her at counter learned excep under the automobile R. of the suitcase rented to an the automobile been Arizona, Amendment warrant Phoenix, signed tion to the Fourth Reynolds of who reaching its “Raymond Reynolds.” L. his name clause. Id. at 1171-1172. decision, application of the it considered the air- Reynolds and left When decision Chadwick Supreme Court’s lot were port parking they followed that, exigent circum absent which held Boulger in Agent Kryger and Officer prior stances, be obtained a warrant must agents vehicles. The two separate once it an arrestee’s each other and in radio contact with control the exclusive comes under exchanged infor- They DEA office. v. arresting See officer. his con- Reynolds’ mation as to name and 15-16, 97 Chadwick, at supra, brothers. nection with Luciow F.2d 2476; States office their they addition learned from panel opin- 1978). The (8th Ray Reyn- the middle initial distinguished ion Chadwick on the ground mobility, expecta ent and the diminished that, footlock.er was motor privacy, tion of vehicle. United outside an automobile at the time it supra States S.Ct. at and, the suitcase seized 2484. It this case that the law is clear in was inside an automobile time of the could legitimately enforcement officers im search and seizure. It concluded that wagon mobilize the and seize the right to conduct a warrantless automobile pursuant suitcases located in the search was not circumscribed It does not necessar exception. clearly recog- since the Court in Chadwick follow, however, ily that'the contents of the unique nized and treatment reaffirmed the station are suitcases located in given in a Fourth Amend- to automobiles to search under automobile ex ment context. Id. at 1171. they would be if the ception, anymore than panel opinion’s While we with the place. officers them had seized analysis that does not circum n.1, supra at 17 *4 exception, we scribe automobile cannot J., (Brennan, concurring). 97 2476 As S.Ct. exception, the automobile noted, Supreme Court has word “[t]he not applies facts of this in pres ‘automobile’ is not a talisman whose an expecta case. We hold that individual’s away ence Fourth Amendment fades tion of privacy luggage— in the contents of Coolidge and disappears.” Hamp v. New which was established Court in shire, 443, 461, 2022, 2035, 403 91 U.S. S.Ct. protection Chadwick1 —is entitled to the 29 (1971). L.Ed.2d 564 the Fourth Amendment whether the lug gage is located or outside an inside automob Supreme In Court re ile.2 jected government’s contention that luggage analogous to should be automobiles
III. purposes. for Fourth Amendment United Chadwick, supra States v. 433 at 12- The fact that suitcase 13, 2476; occurred in Schleis, an automobile the time of the States v. supra, at 1170. appellants’ automatically reaching arrest does not its deci sion, validate Court the search. contrasted the privacy luggage
interests in those in an auto mobile. A. The factors which diminish the privacy The first justi seeks to aspects of do not apply an automobile
fy the search of the suitcase under the respondents’ Luggage footlocker. con- exception automobile to the Fourth Amend * * * public tents are not open ment warrant The Supreme clause. Court luggage nor is regular inspec- recognized “has significant differences be scrutiny tions and on a continuing official tween motor property vehicles other automobile, basis. pri- Unlike an whose permit which warrantless searches of auto mary transportation, mobiles in in function is circumstances which warrant- less not is repository searches would intended as a reasonable in contexts,” sum, of both person’s expectations because the inher- effects. a holding, 1. The search 2. We stress that in we do suitcase took so not limit place 1976, February 9, year over a to the Fourth before automobile Amend- Court issued its decision in ment warrant clause. Searches of motor vehi- 1, 2476, States v. 97 cles —such as S.Ct. U-Haul truck for (1977). today loading equipment 53 L.Ed.2d in 538 held stolen United States v. (8th presents Young, the decision in Chadwick 567 Cir. F.2d 799 —will and, thus, retroactivity excep- we need not tinue to be under reach that issue here. United States v. tion. 1166, 582 1978). F.2d dissipated of the suitcase not tents personal luggage in are sub- in they placed it automobile. greater than an because stantially wagon.5 Id. at 97 S.Ct. at that an individual has The concluded Court the contents3 expectation that B. public will free from remain justi government next seeks to and, thus, exigency, absent examination ground that Chadwick fy the search a warrantless to conduct it is unreasonable is not re apply to a search that does not luggage. an arrestee’s search of to the arrest. We mote in time and argument persuasive. to be do not find Circuit, sustaining The Ninth states in United States today this Court car, taken from a has Schleis, supra: apply lug not
held that Chadwick does
establishes that
critical
directly from an automobile.4
gage taken
factor is the extent which
Finnegan, 568 F.2d
United States
is
law
within
control
enforce-
read Chad
We cannot
officers,
ment
rather than the amount of
wick in this manner.
Court
Chad
space
time or
between the arrest and
clearly
wick
held that an individual has
Ester,
search.
legitimate expectation
(S.D.N.Y.1978).
F.Supp.
Once
factor which
luggage. Every
contents of
control,
exclusive
the officers obtain
holding
support
cites
of its
the Court
requirement for a warrant under Chad-
in
present whether the
remains
*5
the
triggered. Ordinarily,
wick is
initial
Moreover,
side
outside an automobile.
or
would be
seizure at the time of arrest
directly supports
Court decision
Supreme
the
within
sufficient
every
position,
the
Circuit’s
Ninth
To
the officer’s exclusive control.
other-
the
Appeals
supporting
decision
Court of
interpret
“would enable
wise
Chadwick
prior
was
position
decided
police
agents to circumvent
and federal
Court’s decision in Chadwick.
holding
encouraging
the Chadwick
therefore,
luggage
a search of
at
conclude,
that the
them to conduct
ap
We
in
the
time and location of the seizure
expectation
privacy
of
in
con-
the
pellants’
expectation
plastic
burlap
expectation
privacy
“in
3. We note that
the individual’s
(which
immediately recognized
bags
is in the contents
the
the officer
not
As the
in
customarily
marijua-
in the
itself.
Court stated
type
haul
as the
used to
Chadwick,
na)”.
slip op.
Id. at
3.
need not
reach
[respondents’
principal
interest
in
here.
was,
course,
the footlocker
not
itself,
public
exposed to
which was
tainer
interpreted
5. Other
have also
Courts
view,
of the
but
in its contents. A search
lug
prior
require
a search of
warrant
greater
a far
intrusion
interior was therefore
gage
In United
seized from an automobile.
Fourth Amendment values than the im-
into
poundment
(D.Conn.
Vallieres,
F.Supp. 186
States v.
443
Though
surely
footlocker.
1977),
suppressed
contents of
Court
respondents’
infringement
a substantial
the trunk
two closed suitcases seized from
possession,
did not di-
seizure
use
an arrest.
It
an
the course of
automobile in
respondents’
minish
unzippered
suitcase
the search of an
would remain
the footlocker’s contents
that
private.
plain view.
were in
See
because its contents
Pugh,
conjunction with a
present
Criminal Procedure —Search
and Sei-
an automobile while
case in-
Lawfully
zure —Persons
Arrested for Al-
volves a search and seizure inside an auto-
leged Possession of Narcotics have a Pri-
Actually,
in both eases the
mobile.
Footlocker
vacy Interest
in Their was inside an automobile when seized.
Time of
Possession at
Their Arrest However,
Chadwick,
the Government
by the
which is Protected
Warrant Clause
automobile
conceded that no
search was
the Fourth Amendment
involved because the seizure occurred im-
States
Am.J.Crim.Law
mediately after
footlocker
placed
(1978)
[.]
the automobile’s trunk and before the trunk
engine
had been closed or the
started. This
fleeting
bring
contact was not sufficient to
In this
appellants
under ar
exception
play.
the automobile search
into
rest
and were outside
when the officers searched the suitcase in
contrast,
By
seizure in
this case oc-
wagon.6
side the rear of the station
More
express
highway.
curred
a four-lane
over,
has demonstrated no
transported
The suitcases had been
a con-
exigent
which required
circumstances
siderable distance in
automobile
suitcase be searched
scene of the
defendants. The search
conducted im-
clearly
arrest. The
come
un
mediately
after
automobile was
and,
der the
of the officers
exclusive control
stopped.
present
Thus the
ease is distin-
thus, the
for a
requirement
warrant under
guishable
from
significant
triggered.
Chadwick was
contact the suitcases had with the automo-
bile. United
IV.
22-24,
(Blackmun, J.,
dis-
sum,
the warrantless
senting). The
justifying
reasons
warrant-
appellants’
justified
suitcase cannot be
un-
apply,
less
my opin-
automobile searches
der
or
as a search
ion, to searches of containers found inside
Thus,
incident
to arrest.
the search was
the automobile.
cases cited in
See
violative of
Fourth Amend-
n.4,
States v.
rant clause the Fourth Amendment people from unreasonable
tects expectations into their
intrusions ex- much privacy” “legitimate” but how should a
pectation
permitted enjoy concealment
transportation contraband? If Chadwick pieces as to all applying
is viewed closed subject to that are containers transportation, then personal modes of America, Appellee, STATES of UNITED criminal laws will be enforcement of the severely inability diminished enforcement officers discover law DRURY, Kemp Appellant. Charles pursuit who are apprehend those 78-1131. No. time, en- lawless activities. The additional attempting to locate ergy, cost in of Appeals, United States Court a warrant cannot magistrate and secure Eighth Circuit. impair effective help but and diminish the operation of law enforcement officers. June Submitted not to Amend- say This is Fourth Sept. Decided not a constitutional prized personal ment is but right enjoyed by people, free “against proscription Amendment
Fourth and seizures.”
unreasonable searches think the de-
this situation I do not had, had, could have
fendant should or “legitimate” expectation marijuana in a closed
in the concealment of on a
piece luggage being transported country. view this
public highway of this I
search as reasonable. application of Chadwick to remains other than locked
to be decided in this circuit. I do not
with the statement in United States
Marchand, (2d denied,
1977), cert.
(1978), suggesting that
police must obtain warrant before now found in
opening wallet therefrom.
extracting driver’s license language particularly regrettable impact it on the outcome
since had no dictum.
Marchand’s and is therefore appeal