United States v. Steve Vickers
599 F.2d 132
6th Cir.
1979
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*1 MERRITT, Bеfore ENGEL and Circuit PECK, Judges, Judge. Senior Circuit MERRITT, Judge. Defendant was convicted in District possessing Court of with intent conspiring to distribute it and of so. do appeal argues On he taken during a warrantless search of a locked footlocker should not have been admitted into evidence. We and reverse his authority conviction on the of United States receiving tip, Aftеr an informant’s offi- cers of the Tennessee Bureau of Criminal Drug Identification and the Enforcement began Administration of а ‍‌​​‌‌​​‌‌​‌​​‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​​​​​​​‌‍surveillance trailer, which, according to tractor informant, contained ap- predicted, the informant the defendant proached proceeded, the tractor trailer and officers, sight out of to unload a place from the truck and to it in away, the trunk of his car. He drove fol- by agents, lowed and was after driving agent key An took the few milеs. ignition out of the car and opened the vehicle’s trunk to look for a which, ac- footlocker or like cоntainer informant, cording approximately to the pounds marijuana would be secreted. *2 133 expected, part the as trunk contained two of the lawful search of defendant’s locked opened footlockers. automоbile, Officers the because the search was under- footlockers and discovered the taken while the footlockers were still in Defendant was then pretrial arrested. His contact with the automobile. We cannot denied, suppress motion to was and he was accept argument. this government’s The convicted. position would divest the defendаnt of his expectation privacy of in the locked foot- Chadwick, In Supreme the Court held merely lockers because he ‍‌​​‌‌​​‌‌​‌​​‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​​​​​​​‌‍them unreasonable the warrantless search of a in an automobile. The simple act of trans- loсked footlocker which had been taken car, porting view, a footlocker in a parked in our car at thе time of give does not rise to any defendant’s arrest. The arrest occurred police, exigent when more Chadwick, than probable who had those in nor cause to it believe that the does undermine the privacy rights creat- contained mari- juana, by saw ed the padlock.2 defendant load the footlocker’s See locker into Johnson, his сar at States v. parking railroad station 588 F.2d 147 lot. Officers removed the locker from the car States v.

and took it to the building 1978) (en federal 1175 banc). in Boston We cannot they where opened it without a believe warrant. the result in Chadwick turned that, The Court although held on the mere fortuity cir- that the footlоcker in justified cumstances the car, warrantless seizure that case resting was found in a trunk, of the ‍‌​​‌‌​​‌‌​‌​​‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​​​​​​​‌‍those circumstancеs abated rather than in a car that had been once the footlocker came into the by police, officers’ as in this case. Nor should it “exclusive control” and longer jus- could no any make police difference thаt the in this tify a warrantless search of the footlocker’s case chose to search the footlockers оn the 13, contents. 433 U.S. at 97 at S.Ct. scene waiting rather than until the foot- The distinguished 1 Court the automobile police lockers had bеen removed to the sta- search ground cases on the per- cases, that “a tion as in Chadwick. In both son’s expеctations privacy personal lawfully footlockers were in the “exclusive luggage are substantially greater thаn in police control” of the when the search oc- an automobile.” Id. Although curred. government contend- argument ed at oral that the control in this We can meaningful see no distinc case was less sure than in Chadwick because tiоn between this case and Chadwick. here the footlockers were not taken Here, as in the officers had tak government building, candidly counsel con- en the footlockers into ‍‌​​‌‌​​‌‌​‌​​‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​​​​​​​‌‍their “exclusive con danger ceded that there was no they trol” before conducted the warrantless spirited away footlockers could have been Thus, searсh. slightest “there was not the guard from a composed of several officers danger that the footlocker or its contents and four cars. could have been removed before a valid search warrant could be obtained.” Id. Wе therefore government’s hold that the government The argues, however, searching that the failure to obtain a warrant before footlocker search should be treated merely justified the footlockers cannot and that Statеs, 132, arrests, California, Carroll v. United 267 U.S. 45 lawful Chimel v. 395 U.S. 280, (1925); 752, S.Ct. 2034, 69 L.Ed. 543 Preston v. Unit 89 S.Ct. 23 L.Ed.2d 685 be- States, 364, 366-67, ed 376 U.S. 84 S.Ct. cause the search here occurred beforе defend- (1964); ‍‌​​‌‌​​‌‌​‌​​‌​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​‌​‌​‌‌​​​​​​​​‌‍Cooper California, L.Ed.2d 777 government sought ant’s arrest and the has not 386 U.S. 16 L.Ed.2d 357 justify its failure to obtain a this warrant (1967); Chambers v. exception requirement. to the warrant Nor do (1970); South Dako inventory we decide the effect of Chadwick on Opperman, ta v. Opperman, supra South Dakota v. objectionable note because the search here impounded before the was occurred vehicle 2. We'do not decide in this case the effect of inventoried. scope Chadwick on the of searches incident to during I would affirm the dis- found search suppressed. have been trict court. Our review the record discloses that

the introduction into evi-

dence could been not have harmless error.

Accordingly, is of conviction

reversed.

ENGEL, Judge, dissenting. respectfully majori I dissent. Unlike the UNITED STATES of ty, am I unable to this case cannot and not meaningfully be dis tinguished from United v. States v. PHILLIPS, Leslie Marion question The footlockers in were Defendant-Appellant. seized and searched at a time concurrent No. 78-5221. with apprehension and arrest of defend ant They Vickers. were located when States Court of seized inside Vickers’ automobile which was Sixth Circuit. ramp turning halted searched on a Oсt. an highway Briley interstate onto Parkway, thoroughfare greater May Nashville area which led to the Nashville

airport. Given the existed,

which then I opinion am of the

the search might and seizure be properly appropriate

measured pertaining law see, g., automobile e. Chambers

v. 46-52,

1975, 26 and that Chad

wick, supra, was not intended to an carve

exception to that law. See United v. States

Ochs, (2d F.2d 1254-1255 Cir.

1979); Gaultney, v. States 581 F.2d

1137, 1144-45 (5th Cir. United States Finnegan, 640-41

1977). See also United States

F.2d 1978) 1180-81 en banc

(Gibson, C. J. dissenting), petition for cert.

filed, (U.S. 15, 1978) U.S.L.W. Dec.

(No. 78-971). This is particularly true

when a search on the highway to determine presence marijuana might well have

been less intrusive than the alternative

(which majority opinion appears to com

pel) requiring both the footlockers and

motor vehicle to

station before it could be known with cer

tainty that the footlockers contained con

traband and that the automobile could be

seized.