*1 America, Appellee, UNITED STATES al., Wesley et WEBER
Roland
Defendants, Appellants. to 80-1540.
Nos. 80-1533 Appeals, Court of Circuit.
First
Argued April 1981. Sept. 30, 1981.
Decided Oct.
As Amended
Rehearing Denied Dec.
Philip DeMassa, A. Diego, Cal., San whom O’Mara, Patricia S. Diego, Cal., San brief, was on for defendants, appellants. Margaret McGaughey, D. Asst. U. S. Atty., Portland, Maine, with whom Thomas II, Delahanty, E. Atty., U. S. and James W. Jr., Brannigan, Portland, Atty., Asst. U. S. Maine, brief, appellee. were on that, items, chart, COFFIN, Judge, ALDRICH walkie-talkie Before Chief BOWNES, Judges. defendants, sup- should have been Circuit to some pressed. ALDRICH, Judge. Circuit Senior The Facts Weber, Strimpel, Defendants operative events occurred on and Tice, Tice, Lewis, McDougal, Michael Mark Maine, Bay, near Little Machias Decem indicted, alia, for inter and Jackson were *3 bay, 12 and 1978.3 The as shown on ber with import, possess to and conspiracy to to & the Loran-lined edition U.S. C. G.S. distribute, of to hashish in violation intent reality in a chart No. 1201 in evidence4 is 846 and 963. After commence 21 U.S.C. §§ viz., cove, south, It the % mile wide. faces trial, a jury of defendants and ment ocean, open exposed, is without is and and agree entered into an government counsel Lying centrally wharves or facilities. other ment, court, the follow approved by the to water, bay, deep the are two small off trial ing effect. Defendants would waive islets, and Ledges. known Black Two a by jury by and would submit to trial Cutler, agreed upon certain- facts and half miles the east is the town of court to testimony defendants twenty and exhibits which an and anchorage, with excellent suppress moved be unsuccessfully had to miles to east is the Canadian border. trial, evi stipulate and would that the fore west, from Two miles to the but cut off charge every to de dence sufficient land, point of is Machias by islands and a fendant, reserving right appeal but of twenty a and miles Bay pier and Naval suppress. refusal In from court’s west is Coast station at the U.S. Guard return, government agreed to dismiss Jonesport. counts, the substantive and to recommend Bay of Machias easterly side Little conspiracy count. certain sentences The Point terminates at Dennison Point. guilty, Thereafter defendants were housed, partly partly and sparsely cleared they appeal.1 are as and No other errors road, end of the and front- wooded. At the respects in two the mo serted. Because Cove, ing from on Bear a small inlet suppress granted, tions to should have been large are a house bay, outbuildings reverse, defendants, part, we as to four Cottage. Warden known Hill Coastal otherwise affirm. but yards MacKeen resided 200 inland In connection with its action on the mo Cottage. persons Other resided further the court issued an extensive memo tions back. opinion, reciting the facts found randum however, begins, The cast characters of evidentiary hearing, together result of an Cunniff, Special Agent with of the U.S. legal with its Since this memo conclusions. Administration, Drug Enforcement (a) published, randum was not will sum we Watkins, Trooper Division Maine somewhat, quote extensively marize but therefrom;2 Special Investigations who worked con- (b) assert note certain “facts” incorrectness; During cert with him. late summer and defendants, ed and their these became interested in a (c) supplement fall officers summarize and the district (d) Dodge Wagon rulings, court’s deal with the two Power wheel drive chart, Seemingly imposed ship’s copy than 4. The of this Exhibit con- the court less sentences, agreed likely taining private markings, most because of was unlawful- certain States, 1980, However, seized, ly post. Bifulco itself is the chart government publication but none this in such com- standard principles judicial is clear on the record. mon use under notice it, markings. will minus It refer obviously quotes opinion, 2. All in this unless way significant, improper, would be in no otherwise, are from court’s memorandum. copy of this for the vessel to have unmarked aboard, prejudice there is chart no objections warrant-sup- 3. Defendants’ limited use. ported search on December 14 are too frivolous require discussion. camper cap, truck a covered and a that he bright had been seen in the moon- Blazer, regis- light. K-5 Maine Chevrolet both Laurent could see the Tusker tered, but with owners. The lights undiscoverable without its could discern no handwriting purchase details.” on both sets docu- appeared similar, and both
ments vehicles Shortly before this another coastal Cottage seen at times on the Hill warden, Fetterman “had observed a small purchased been property. Cottage had boat, later determined to be a Zodiac Melrose, year before one whose inflatable rubber boat with a 15-horse- mailing answering address power motor, Boston operating outboard without service, been lights, and who had never seen. The occupants, with two come out of currently occupied by property Bay Lou Little Machias around Dennison Walker, proving Linda proceed the former ulti- Point and to the Tusker. About mately five to be defendant Weber. Weber told minutes later Fetterman saw the Zodiac, neighbors carpen- lights that he Nebraska still was a with two occupants, depart Tusker ter who had answered an advertisement and head *4 directly caretaker, and into Bear Cove. As the occupy leaving was Zodiac cove, was approaching the the Coast shortly. patrol Guard lights boat on its turned and facts, together many The above with oth- Fetterman, started toward the Tusker. court, properly by ers found the showed a MacKeen, and Cunniff and who had ar shoreside, example, drug smug- classic of a shore, rived at the the change saw Zodiac set-up, gling finding and the court so can- its course and head toward the wooded not be faulted. On December 1978 the area to the of Bear east Cove. After activity night ocean commenced. was proceeding yards, stopped about calm, bright clear and with moon. At briefly something and was thrown overb warden, Allen, about P.M. another coastal oard.6 The Zodiac then moved into called MacKeen’s attention shore ledges, between two where the offi boat, large “a black and later white iden- sight cers lost They of it. heard noises seagoing tug tified the 135-foot Tusker the they bushes which took to be the Panamanian with registry, lights of its occupants working way of the boat their out, lying point about a mile off the half through the A few underbrush. minutes the Black Ledge. on inland side of ... later the out Zodiac floated from between engines The boat’s intermittently ran the ledges.7 two position its ledge. maintain behind the “Fetterman, and MacKeen Cunniff boat, Allen While continued to watch the went to spot the where the Zodiac had MacKeen house returned to his and noti- they landed. There found two sets of the fied Coast the Maine Guard and State tracks the beginning at snow line mark- Police. ing Alongside the reach tide. high the they bag. tracks a canvas found Cunniff p.m. 9:35 the Guard Coast station “[A]t contained, bag, along searched the Jonesport dispatched at patrol 41-foot camping supplies, food and two Petty boat under the command Officer legal yellow paper listing sup- sheets of thereafter, Shortly Paul E. Laurent. the plies equipment including and 82-foot cutter Point was Hannon under- p/u.’ notations ‘Mac’ ‘blue Cunniff way. By p.m. patrol 10:33 boat had returned to MacKeen’s house. MacKeen arrived the area. Laurent had been and Fetterman off to follow set sight instructed to remain out behind tracks in the snow. After about 20 min- island, he by but mistake overshot the tracks, utes at point the end of the at a island and fell dead in water at the impeded where the underbrush further Bay. progress, mouth Little Machias In that they lying found two men position patrol sleeping boat was silhouetted bags. MacKeen and Fetterman against sky suspected operating and Laurent arrested them for a boat with- morning, the next at night. “Early See Me.Rev.Stat. about 6:00 lights
out two a.m., Cunniff, Vittum, men identified accompanied by Ann. § defendants Weber themselves coastguardsmen, MacKeen and two went if he asked Weber MacKeen Strimpel. Naval Station. Cutler Cunniff Walker,’ but Weber insisted ‘Lou opened boarded the Tusker and the hatch The two men were his was Weber. name leading the main cabin. Without en- pressure gauge searched, air and a Zodiac tering, anyone if was there. He he asked Weber.” found on Samsel, said, who answered ‘Come in’ the officers to the mess and led “6 containing recovered box Divers later hall. identified himself and Cunniff approximate equipment loca- from radio get those with him and asked Samsel to tion. “7 crewmembers, night, small two which he boat from other Later that almost Zodiac Point Hannon all Mark Tice did. When three — floating plugs swamped off the coast with the assembled the mess and Lewis —were compart- pulled along air one side along that side deflated.” area, placed them under arrest ments Cunniff nar- conspiracy to Machias to violate federal Strimpel and Weber taken laws, arrested for violation of he told them formally cotics federal laws. narcotics vessel seized under U.S.C. § meantime, boarding party rights He their his then read them
“In boat, patrol card, led however, from the Coast Guard omitting, the fi- Miranda Laurent, had boarded the Petty Officer question they whether nal wished p. 11:00 As Tusker at about m. rights. waive Each defendant indi- vessel, *5 approached party had not that vidually acknowledged he under- flying foreign flag. ed that she was informing After rights. stood each of his were persons found aboard: Only three rights, defendants of their Cunniff did Samsel, who himself identified defendant them, ‘interrogate’ ‘question’ not or master, Mark Tice as the and defendants go quarters to their and told them to they stated that had and Lewis. Samsel belongings. personal collect Each Norfolk, Virginia, to been en route from cabin, his defendant then went to accom- pulled had into Little Nova and Scotia officer, and his panied by an collected of a winter Bay because bad Machias boat, belongings. While still aboard the difficulties with storm and mechanical stated to Cunniff the Tusker Samsel electrical He steering systems. and Singapore; had come from her last produced regis the vessel’s Panamanian Norfolk; port call had been and tration, Survey and which named ‘Ocean they mechanical difficulties and had had gave Study, as the owner and Ltd.’ traveling he concerned about further telephone California number.9 Lewis said repairs. the Tusker copied the boarding party information heating problems. had had water and registration they wanted from and did, Lewis When Cunniff asked what he papers. and crew’s seamen’s Laurent Lewis he was the bur- stated that boat’s boarding party, another member of the sar, Navy jet pilot, was a retired that he Samsel, by then searched accompanied thrown anything and that he had not marijuana the vessel for bales. None Tice stated overboard. Mark that he made, No were were found.... arrests boat and he did engineer taken, no evidence was and the [physical] been, they had where not know where however, not seized. vessel was why they going, were were get that the Tusker needed to into stated Maine, spent he so time because much port request and at repairs, his below He also stated that Samsel deck. Hannon, which had arrived Point by calling the would obtain instructions m., p. about 11:15 escorted the Tusker managing company, Ocean Research. Station, Naval where both into Cutler then Navy were driven to up pier. at the three defendants vessels tied Washington County opened Sheriff’s office in the case Drinan removed each item, Machias, listing drive each on a receipt, Vittum’s car. On the which McDougal signed. this, While doing stated that Michael Tice Dri Samsel nan bulge noticed a lining foam Jackson had been on the boat and had glued case which place. days left two earlier in a Zodiac with a lining From behind the he removed a 15-horsepower engine.10 knife, kitchen envelope, a manila maps three topographical of the Dennison by “9 A check Guard later Coast night disclosed that the California number was Point area that had been folded to fit answering that of an service.” together. He opened the manila en Footnote 10 reads follows. velope, sealed, and found two sealed Tusker, envelopes addressed to leaving “10. Before a Mi Cun- Panier, Diego, chael San California.13 clipboard niff seized 6-10 charts and a The items found behind the foam lining paper, which he found on a table in were by seized Drinan. the wheelhouse. He money also seized days, “Over the next three 16 metal personal papers and some from the crew- canisters, measuring each approximately personal members and some items from by by containing hashish,.and 10" 10" 20" living quarters.” each, weighing pounds between and 75 chart, seizure This included the Exhib- were found in shore various and sea areas it 8. vicinity Little Bay Machias Later Michael Tice and Jackson were Cutler more Harbor. Two canisters were stopped in a blue driven McDou Island, found in March 1979 on Deer arrested, gal and after some conversa about a mile east of Bear Cove in Little McDougal tion was also arrested.5 Bay. eight Machias The first canisters “The three defendants the truck were found a fisherman on the morn- were taken Building to the Federal ing of December but the officers did Bangor, where the were taken men discovery not learn of the until after all jail parked facilities truck was and the the defendants had been arrested. The garage. and locked in the The men opened by canisters were seized and only questioned to the extent without warrants. necessary *6 booking. The truck was returned to “On December 14 Steadman executed a agency. so, the rental to doing by Prior search warrant issued Magistrate Drinan removed the tires and for the Tusker. No rainslicker hashish or found, other was from the truck. contraband In the Marshal’s office Stead- navigational man equipment, seized he found a radio up walkie-talkie rolled charts and papers. other During the slicker.12 the booking of McDougal, Drinan if asked there was “12 stipulated It has been Jackson was anything McDougal wanted to recov yellow the owner of the rainslicker and radio. er from the truck it before was returned “13 envelopes The two sealed were later the agency. to McDougal said he wanted opened pursuant to a warrant secured seat, the aluminum case in the front film was Steadman. Some also seized and developed pursuant to a warrant.” which was his and which contained ex (Quotations The Fantasies are from de- pensive photographic equipment. Drinan brief.) fendants’ retrieved He case. then asked McDougal give to receipt itemizing him a I. a “damaged The Tusker was ... ves- camera equipment. McDougal sought refuge in a small sel town’s [that] vessel, found, linking McDougal In connection the court “At the information began questioning, was, however, time he his Drinan did not He aware notations ‘Mac’ McDougal. p/u’ (taken ‘pick- intend arrest He had been in- and ‘blue Drinan to mean up’), bag formed of Samsel’s statement Jackson and on the list in the canvas Tusker, but, although had Tice been on the shore.” suspicious, specific he he realized that had no likely that just it from which “Little to as harbor,” referred elsewhere ” originated. . . . contraband Harbor.” Machias Little Machi- there fact, no town. because there was was not “controverted” In It appro- vessels, likely a harbor nor any neither other Bay no evidence of light particularly refuge, priate place otherwise. sources or Harbor, unless a proximity of Cutler counsel, during inadvertently That of movement. possibility lost all vessel had brief, deliberately, in a argument, but oral the case. conspicuously not This was unsupported statements make such should appeared the Tusker reason disciplinary purported fact raises serious had been ports her lights cabin was because least, it minds. At questions in our with foil. shielded de- seriously question means that we must and incle- difficulties II. “Mechanical to cover. brief from cover fendants’ stop in Little necessitated the ment weather Summary Bay.” Machias sum, apparent reason for there was no In weather, it had been inclement If there was, when she to be where she the Tusker undisputed that it was over. It was her, was, put out the Zodiac to or for night.” “very calm opera- drug smuggling except as a or other crew The actions of the Zodiac’s III. tion; Even on being likely. the most drugs consistent with the were “innocuous and view, the Zodiac the most innocent motoring neighbor a concerned behavior of it can- illegally lights, without operating ves- to a distressed to offer assistance out shore, that, coming she not be said inquire . . . They out sel.” “motored of a exempt classifications fell within in dis- appeared their vessel to be since vessel, foreign or a lifeboat. U.S.C. tress.” 1453(c)(1) (4). introduction With this § conceiva- Viewed from shore in defendants’ approach the issues raised the vessel was sign of distress was that ble suppress. motions to enough to evoke lights surely not without — Standing residents, even sizable concern from local ques first dealt with Although the court Moreover, generous minded. the most defendants standing particular tions belong not known to Zodiac was matters, we will particular respect boats, resident, being bay later, merely list at the until leave this wharves, or other facilities. which no one had outset certain items as to “marginally oper- was a (cid:127)IV. The Tusker See object. personal interest a sufficient not be inferred able vessel” and could Illinois, 1978, 439 U.S. generally Rakas v. ... since that she “had crossed border 58 L.Ed.2d 100 miles the nearest border is at least Salvucci, within Bay, Little Machias and not north of could 619. The court *7 range.” [her] that defendants abandoned properly find going tug. ocean The Tusker was 135' Zodiac, near the bag canvas found the the Samsel, master, boarding original At landed, Zodiac had spot where the Norfolk, they were en route from stated adja equipment of radio found box The Virginia Canadian Nova Scotia. Mustone, v. Cf. United States cent waters. miles, miles, was 20 not 100 distant. border Cir., 1972, 970, 972. While 1 469 F.2d know, Moreover, they as counsel must since standing some defend assumed as to court Zurosky, post, the rele- United States cite floating canisters respect to the ants with and inter- border is between territorial vant subsequent containing hashish discovered waters. In this instance this national arrests, for that we see no basis all of the some miles. 3V2 the can being apparent assumption, Tusker, isters, were coming if from the there V. “It not controverted of the approach lawful evening jettisoned upon the present were other vessels
559 Guard, being Cir., distinguished McCambridge, 1977, Coast from United States v. 1 865, put as a convenience in connec overboard 551 F.2d 870. Their connection with off-loading. But even if some probable tion with the Tusker and her intent was manifest, a possessory defendants could claim inter and because had left and est, longer that would no entitle them to seeking escape, it was proper to legitimate of a ex standing in absence custody. them take into United States 1128, cert. pectation privacy. Cir., v. Sal Miller, 1978, 589 United States 1 1117, F.2d vucci, 958, ante. denied, 1499, 440 U.S. 99 S.Ct. 59 771. L.Ed.2d boarding
The December 12 of the Tusker boarding The court the initial found 18, The December 6:00 A.M. on entry legitimate Tusker border search. Tusker correctness, require of this does not No contraband had been found on discussion, as plainly the Coast Guard could However, the Tusker on December 12. reasonably conclude she had come in from previously stated, at the time of the Coast 1581(a); ternational waters. 19 U.S.C. § parties approaching, Guard’s on shore had States, 1973, Almeida-Sanchez v. United 413 splashes heard a series of which well could 266, 272-73, 2535, 2539, U.S. 37 S.Ct. 93. hasty disposition have been objects. At 596; Zurosky, L.Ed.2d 1 morning, 6:00 the next while she was tied Cir., 779, 1979, 787-88, 614 F.2d cert. de up pier, to the Naval Cunniff several nied, 967, 2945, 64 others boarded the vessel and arrested Sam Note, generally L.Ed.2d 826. See High sel, Tice, Mark and Lewis. Defendants Drug Smuggling, Seas: The Fourth that, complain procedurally, agents did Amendment, and Warrantless Searches knock, sufficiently not identify them Sea, 725, 93 (1980). Harv.L.Rev. 731-38 selves being before invited in. On the facts existed, probable Since cause we need not court, ante,6 by the add pursue the correctness of Fifth Circuit’s quite evidently fact this was analysis 1977, v. Ramsey, pier open public, Naval the court 606, 1972, 431 97 U.S. S.Ct. 52 L.Ed.2d finding was warranted in no violation and Williams, Cir., 1980, in United States v. 5 Miller, sufficient consent. United States v. (en banc). F.2d 1063 ante; Bradley, United States v. Strimpel 1185, aff’d, arrest Weber and 455 F.2d U.S. 528; S.Ct. Robbins v. By following footprints through the MacKenzie, Cir., 1966, cert. snow landed, from where the Zodiac had denied, MacKeen and upon Fetterman came Weber L.Ed.2d and Strimpel lying in sleeping the woods in bags. They boating arrested them for a The December 13 6:00 A.M. violation, viz., running lights. De Tusker fendants contend this excessive re sponse misdemeanor, merely resulting The entry in the arrest of pretext. matter; We pursue justified, need not the defendants objective grounds the officers had for treat has shown consent to en ing differently these defendants ter. to enter Consent not consent average search, boating offender of laws. particularly to search entire And, addition, said, knocking the court “After board- assume on a steel bulkhead Tusker, ing opened hatch, Opening Cunniff the hatch would a fruitless act. *8 entryway leading cabin, put entry, calling to main his and into the cabin was a inside, ‘Anyone inquired, attracting head there?’. reasonable method of the attention appeared awake, Samsel give who to be answered inside in to those order them notice. party 3109, and invited Cunniff and his applicable, in. As the No violation of Section even if government out, points there is no doorbell has been shown.” ship’s might reasonably a hatch and Cunniff
560
having stipulated that
government
The
far
removed
portion
vessel, notably that
were,
Tice,
where
Lewis have “stand-
Mark
where defendants
8,
Consent
chart,
search,
was found.
Exhibit
we will address
ing”
object
signify consent
did not
the mess area
further,
enter
hold that
issue no
but
v.
Cf. Walter
wheelhouse.
search the
were vio-
crew members
rights of all three
649, 656-57,
1980,
States,
447 U.S.
lated, although
might
have reached
2401,
(dicta)
2395,
rable to an automobile arrest, McDougal etc. of Maroney, Chambers v. U.S. extensive find- Although the court made It does not driving McDougal, who ings about plain truly chart was appear that agents stopped it to when the blue ante, view, Hampshire, Coolidge v. New Tice, Michael arrest Jackson and 467-68, 2038-39, but in 91 S.Ct. at his behalf defend- complaints made on legitimately the officers were not any event brief, general original outside ants’ went, wheelhouse, inde- where was no one that there utterly frivolous had collected pendently, after defendants any respect take action right to quarters. crew’s belongings from the the canis- discovery of until the defendant manifestly a search for Taking, charts was with- ters, he was arrested were two: evidence, as the justified and not to be cause, his camera and that probable out in connection inventory permitted excessively searched. case with seizure of the vessel under U.S.C. Cir., Pappas, 1 881. United States
§ first, the search of Taking the latter was the chart 331. Nor inventory its case to McDougal’s camera California, destruction, subject to Chimel agent to. vacated, contents was consented ante, being ship good faith eyes close his required would watched.
561 something discovery lining. of behind the The search of Jackson’s rainslicker (1969) 731, 740, Frazier v. 394 Cupp U.S. 89 An hour after the arrest of the 1420, 1425, 22 S.Ct. L.Ed.2d 684. United Cf. occupants, three the officers removed the Jeffers, Cir., 1975, 253, 7 States v. 524 F.2d contents of the rented blue before again 255-56. We refuse to hold “that returning it to included, its owner. These expressions of consent relieve the officer of back, from rolled-up Jackson’s rainslick obtaining the need of a warrant when they unrolled, er. finding This a walkie speaker not aware that search talkie. Unlike the early morning unlawful damaging will disclose evidence.” Leavitt search of the Tusker even while a warrant Cir., 1972, 992, Howard, 998, v. 1 462 F.2d it lawfully being sought, with 884, denied, 175, cert. 34 S.Ct. for urgency, no cause mishandling and the L.Ed.2d 140. boat, exposed patrol permitting the arrest, As to it is black letter jettisoning canisters, this action was law that an improper arrest does not vitiate understandable. Before the Court’s all-em See, g., Mitchell, e. conviction. Menard v. bracing definition of containers and its re D.C.Cir., 1970, 486, 430 F.2d 491 n.26. Fur ,the jection plurality opinion Robbins v. ther, finding probable the court’s cause California, (1981) 420, 101 S.Ct. U.S. justified. being In addition to his with 2841, 744, view of our Tice, Jackson officers had can importance expectations of inquiring into bag “Mac,” vas p/u” reference to “blue g., Goshorn, both of e. point McDougal. privacy, which could well States eight tires, oversize, In the Cir., 1980, truck were four officers might being which the officers suspi testified to reasonably thought unrolling cious. The total would seem sufficient permissible slicker without a warrant. quite apart McDougal’s statement of Now, however, obliged we feel to hold it having picked up Jackson and Tice as hitch was not. hikers, which the officers cause good had plurality opinion,7 (all In Robbins the believe false. quotations are from 453 U.S. reply In defendants’ it was brief 2846) criticized lower various court sought argue McDougal’s pre-arrest cases “that have drawn a distinction be suppressed statements should have been be pieces tween of sturdy luggage, like suitcas given cause he warnings. was not Miranda es, containers, and flimsier like cardboard late, This except was too for clear error. It say, boxes.” went on “What one not, however, 52(b). F.R.Cr.P. We do re suitcase, person may put may into a another gard it as even error. To ask a driver’s put paper bag.” test into of “con passengers connection his with was not simply tainer” was whether was “closed “routine,” merely but understandable and opaque.”8 [and] straightforward. See United Pratt, definition, particularly the opaque- F.2d 90-91. No This warnings Miranda ness, were called expeetation-of-privacy for. met re- Except passenger compartment, for restrictions advanced in Justice within where opinion, concurrence-in-the-judgment boxes, Powell’s luggage, bags, clothing, well justices mainly appeared the other to wish to holding encompasses only the like. Our exception,” extend the “automobile than rather compartment passenger interior of an disagree general definitions of contain- encompass automobile does not ers. trunk.” brother, dissenting our Unlike read this not Belton, (1981) In New York special enlargement general as a mean- 2860, 2864, L.Ed.2d container, ing emphasis but as closed Court stated in footnote open may inspected “ as well ones capa- object ‘Container’ here denotes very specific of an a warrant area automo- holding object. ble of another thus in- It ' bile. open glove compartments, cludes closed consoles, receptacles any- or other located *10 562 or, through, The effect illegal could see seizures.
quirement.
If one
a
contents from
the
alternatively, know
trial,
Had
been a normal
the
there
ex-
be no such
there could
shape,
tell-tale
would
defendants’ central defense
have
otherwise,
objective
the
test was
pectation;
at
presence
that
Tusker’s
Little
been
the container was
met
the fact
inadvertent,
Bay
Machias
due to elec
“closed.”
trical,
indicated,
already
etc. failure. As
suggestion that the officers
There was no
overwhelmingly to
the evidence
seems
inside the rainslicker
what was
could tell
However,
the most
contrary.
perhaps
indi
unrolling,
presumption
and the
before
8,
vidually damning
was Exhibit
evidence
contrary in the absence of
would be to
copy of
found in the wheel
chart 1201
suggestion
was no
there
Equally,
such.
of Little Machias
house. On it the mouth
Con-
discovery
was inadvertent.
spot,
Bay
designated
with a red
with a
we
dissenting
posit,
brother’s
trary to our
appeal
it. Had this
fol
leading
course
a
envisage
proscribed
do
as a
container
manner
ordinary
a trial
lowed
expected
to lead to
mere fold that could
admitted,
improperly
had this chart been
han-
in the normal course of
revelation
strong
was so
that even
the other evidence
handling”
course of
does
dling.
If “normal
might possibly
such a clincher
been
line,
bright
totally
it seems
create
nonprejudicial
merely
cumulative and
general
where
clearly sharper than
rule
California,
Chapman
v.
within
rule of
court,
ultimately the
will
police,
824,
1967,
18, 22,
827,
386
17
as to the owner’s
reach factual conclusions
clearly this
L.Ed.2d 705. Rather
would
plastic
true that in Robbins the
intent.
It is
walkie-talkie.
seem so
to Jackson’s
fastened,
bags
and the slicker was not.
However,
not what occurred. De
this is
fine,
However,
making
think it would be
and waivers were
stipulations
fendants’
harmful,
inquire
into
distinctions
assumption
and condition not
made
subjective
the clo-
purpose of
extent of
merely
right
appeal
pres
string
rolled-up
Arguably,
sure.
around a
erved,9
properly
but that the evidence
could be intended
increase
slicker
fairness,
them.
In
this
against
admissible
The
physical protection,
privacy.
not the
should mean all the evidence.
Seventh
pur-
“bright
line” definition and
Robbins
courts,
state
in
important
Circuit
two
however,
by intro-
pose,
would be blurred
opinions, have held that a
well-considered
subjective
questions of
intent.
ducing such
right
has no
to decide for defendant
court
within,
enclosed,
is
We hold that if what
or
instances,
(in
that his decision
those
object
objectively
cannot be
another
guilty)
been the same had
plead
would have
known,
reasonably believed to be
or at least
court considers harmless
the evidence the
known, by
inspection,
external
without
Wisconsin, 7
present.
Jones v.
not been
object,
opening
undoing that
a warrant is
445-46;
Cir., 1977,
440,
People v.
562 F.2d
it, in the
to discover
true sense
needed
366, 378-80,
Grant, 1978,
380
45 N.Y.2d
word,
case falls
some
unless the
within
257,
429; People v.
N.E.2d
408 N.Y.S.2d
exception. There was none
recognized
393,
Hill, 1974,
731,
Cal.Rptr.
117
12 Cal .3d
sought,
should have
here. A warrant
been
1,
v. Mona
528 P.2d
also State
29-30. See
was not admissible
the walkie-talkie
han, 1977,
N.W.2d
251
against
76 Wis.2d
Jackson.
Compare
general procedure,
pleas,
propriety
conditional
not here involved.
func
Mendoza,
plea,
tionally equivalent
guilty
5
491
to a conditional
Cir.,
Sepe, 5
express approval.
F.2d
with United States
received our
See
has never
proce-
Warwar, Cir., 1973,
present
vacate his and have trial I construe Robbins to two mandate dis- walkie-talkie, without evidence of the tinct lines analysis. of Fourth Amendment *11 Lewis, Tice and a new trial Mark First, “closed, if an object opaque is a con- without use chart. If elect to may tainer” it not be searched a so, government’s stipulations, by do warrant, exception an to the absent war- terms, equally will be vacated. The requirement. Second, rant even if an ob- suppress court’s actions motions ject “closed, qualify opaque does not as a affirmed, are otherwise convictions container”, required a warrant will be Weber, Strimpel, McDougal of and Michael search it if has someone manifested rea- affirmed, rights Tice are as their were not expectation object. sonable of privacy in Illinois, invaded. Bakas v. ante. This dual advantage creating test has the of COFFIN, Judge (dissenting Chief in bright guide police line to officers while part). preserving the Fourth Amendment’s tradi- emphasis tional on protecting an individu- agreeing parts While with all of other expectation al’s of privacy. I deem opinion, unnecessary court’s it both inappropriate this record conclude ruling my view, This today, court’s required that the Fourth Amendment ex- holding misconstrues the in Robbins. While clusion of walkie-talkie found Jack- agrees object court that an must be up I son’s rolled rainslicker. would instead plurali- “closed opaque” satisfy [and] ruling affirm the district court’s that de- formulation, ty’s it adopts overly an broad fendant Jackson had not manifested a rea- definition of court “container”. The inter- expectation privacy sonable of in the rain- prets Robbins mean that test of “[t]he slicker. simply ‘container’ was whether opaque’ ‘closed ”. Thus whenever [and] Supreme The standards announced something “within in” or enclosed an California, 453 U.S. Court in Robbins object “open[ed]” that must be or undo[ne]” 420, 2841, (1981), 69 744 101 L.Ed.2d S.Ct. contents, identity to reveal the of its that govern this case. The held that Court object is a container for Fourth Amend- carefully warrantless search of a wrapped purposes. ment The court therefore holds package sealed violated Fourth that since the rainslicker had to unrolled argued Amendment. Four Justices walkie-talkie, to reveal the a warrant was “closed, any opaque container” merits required to conduct the search. protection. Fourth Amendment Id. at 426, 101 Stewart, S.Ct. at 2846 (opinion of holding Supreme The court’s relies on the J., joined Brennan, White, Marshall & “all-embracing Court’s of con- definition JJ). Belton, It was this combination characteris- 453 York v. U.S. tainers” in New expectation tics 2860, that “manifested an 454, 2864 n. 4 n. 101 460 S.Ct. public (1981), contents would remain object free “any capable holding Id. at 101 object.” examination.” another it is my inap- S.Ct. at But in view Chadwick, United (quoting propriate 2846 beyond to extend this definition 1, 11, 2476, 2483, 433 97 subject U.S. S.Ct. 53 matter that case. Court (1977)). L.Ed.2d 538 dealing Justice Powell con- Belton with a search contem- judgment poraneous curred in the “because the man- a lawful arrest of custodial package ner in which the issue occupant at was care- an automobile and held that fully wrapped peti- justified evidenced such a since sealed broad definition was container, article, expectation privacy any including tioner’s in its is within con- tents.” 453 Id. at reach under of the arrestee and falls S.Ct. at Cox, Cir., 1972, rejected 10. A court further has the conditional States v. plea procedure partly for the reason that it can lead to reversal because of harmless error. any- including California, contemporaneous 395 U.S. of Chimel
rule
arrest —
Belton,
anything else. Rob-
(1969).
thing
could hold
L.Ed.2d
contrast,
bins,
in other
restricts officers
458,
ON is not papers inadvertent unless the rum- COFFIN, Judge, Chief ALDRICH Before justified. maging initially E.g., itself was BOWNES, Judges. Circuit Scios, States v. D.C. ALDRICH, Judge. Circuit Senior (en banc); F.2d 963 n.15 Ochs, n.l, (“an ante otherwise valid rehearing by- filed have been Petitions search”). Here it apparent is all defendants wholesale, not charts were seized as a result respect granted who were a new to those “plain of inadvertent observation view” what, petition trial. Defendants’ continues marking them. tell-tale on one of See Wal- brief, objectionable, in their States, ter v. United 447 U.S. denied, affirmatively is unmeritorious. It is 653-54, 2395, 2399-2400, to strike portion as is the motion L.Ed.2d opinion “The Fantasies.” entitled For this there was no basis. difficul petition government’s into two falls ty justifying a warrantless seizure of a parts: for defendants Mark Tice well chart illustrated the extensive Lewis, complained who of the warrant- path Miller, we followed in United States v. which, by markings less seizure of chart Cir., 1117, 1125-26, cert. thereon, conclusively refuted their claim denied, presence bay the vessel’s justifica possible L.Ed.2d None of the accidental, Jackson, and for defendant *13 tions there indicated dupli and found was exposed whose unrolled rainslicker a walk- government’s present cated here. The consider separately. ie-talkie. We them claim, (or, that the charts taken were we The Chart. add, examined) would even part government states, “. .. the Agent duty inventory Cunniff’s “to and exposed were lying charts in [6-8] safeguard purely contents” is [the vessel’s] plain the ... in wheelhouse We view.” do imaginative. There was no inventorying, not, evidence, agree with that char entire the vessel was crewless and un acterization. The charts may have been in guard. der It equally say seems cavalier to plain charts, view as signifi but not their the “charts subject were to forfeiture.” testimony, cance. The of Agent sole This assumes the point. whole The vessel Cunniff, was, night was searched drugs for the before. “I saw charts lying some on a table government show the does not charts which I call a chart table near where the taken by protesting for evidence tug was, wheel of the I collected all agent out pull the did not drawers and charts, of these seized them.” search for other evidence elsewhere. appear Thus it did not whether the charts Nor are we persuaded the unfolded, were folded or even the government’s argument that we overlooked question what, chart in top was on the “subject the charts were to administra size, light pile. of their was necessarily If inspection,” tive and misconstrued the ef government has the showing burden of government fect of counsel’s trial conces that “plain signifi- view” means that standing, sion of defendants’ because “ap portion cant chart in question was pellate neglected Government counsel open exposed, it has failed to show it. point anything out obvious.” If is obvi While there many opin ous, have been it is this was not an administrative plain view,1 where, ions as to is in (document) what inspection. do we know of Nor here, government’s that, any burden is show may subject rule whatever that a discovery inadvertent, discovery inspection (assuming, administrative Ochs, Cir., 1. See United denied, (listing cases), F.2d n.8 cert. up, top of laying slicker “folded doubt, are) was seen loses all fourth that charts
we may When the was surren- be seized those tires.” protection amendment time, warrant, any agency for rental the slicker at dered without a office, That be to swallow the where “it was would to the Marshal’s purpose. taken Matthew 23:24. gnat. with the inside camel unrolled the radio discovered weight, Although, by it.” bulk and standing; pointed out our As to pres- may well made its walkie-talkie evidentiary p. that on opinion, ence, identity, its known before but not had serious doubts as we would have record think unrolling, might be natural not to Tice and Lewis to right of Mark slicker, where so ex- particularly of the wheelhouse, object to search of protected container under posed, stipulation2 light government’s cases, say we cannot the court prior advisedly— the word they stood —we use suppress. declining was unwarranted in stipulation ad If the was ill with Samsel. vised, this is not the time to correct it even prior rescind- ruling Our as to Jackson is if, suggests by as the now cit ed, With and his conviction affirmed. Arra, opinion ing our in United Stated petitions rehearing exception, both n.6, F.2d two are denied. might well have had a problem. defendants alone, this, the govern and as In to Samsel attempt scope
ment’s to limit of stand disputed vis-a-vis articles can
ing her gave daughter who
recall mother go long to swim so as she
permission out kept away the water. America, Appellee, UNITED STATES The Rainslicker area,
The uncertainties in the law this
leading
panel,
initial division
FLAHERTY, Defendant,
Thomas E.
*14
expounded
greater length
have been
at far
Appellant.
the several
v.
opinions
America, Appellee,
UNITED
STATES
Ross,
D.C.
2. These three was conducted Cunniff defendants Vessel,” standing 13th concede on those three district court seized from the ... I will to “items stated, days three defendants.” . for these counsel whatever