stating that “the right of a custodian of the defendant’s property who has been unwittingly involved by the defendant in his crime to exculpate himself promptly and voluntarily by disclosing the property and explaining his connection with it to government agents, must prevail over any claim of the defendant to have the privacy of his property maintained against a war-rantless search by such agents”
How later courts described this case
- stating that “the right of a custodian of the defendant’s property who has been unwittingly involved by the defendant in his crime to exculpate himself promptly and voluntarily by disclosing the property and explaining his connection with it to government agents, must prevail over any claim of the defendant to have the privacy of his property maintained against a war-rantless search by such agents”
- “Since the agents were lawfully in possession of the box, it seems to me that they were authorized to make an inventory search. . . . No principled distinction . . . can be made for inventory search purposes between lawful possession of a ear and lawful possession of a box.”
- federal agents lawfully in possession of a locked box [transferred to them by a gratuitous bailee without the knowledge or consent of the owner] have constitutional authority to make an “inventory search” of its contents
- the “right to exculpate oneself decisively distinguished [Botseh] from [the searches] condemned in the so-called ‘hotel cases’ ”
Written by the judges who cited it.
The opinion
ADAMS, Circuit Judge
(concurring).
The circumstances of this case are unique. The search, although made with the cooperation of FBI agents, was initiated by a private person and pursued at his insistence. There was no question of governmental overbearing with respect to the apparent possessor of the box that was to be searched. This was not an instance where the police in the course of an investigation sought out an opportunity to conduct an inspection of suspect premises. As the factual accounts of the district court 1 and this Court indicate, the FBI agents did not regard the matter as pressing, and they visited Rev. Bradley only in order to accommodate an overwrought citizen, who was concerned about his own inadvertent implication in a serious crime.
Significantly, Rev. Bradley’s narrative and the confirmatory telephone call to Harrisburg gave the agents probable cause to conduct a search. 2 There appears to be no question of that. Nor is this the sort of case where the reconstruction of probable cause must be done on the basis of a dubious “swearing contest” — between the accused on the one hand and the searching officers on the other — over disputed facts, the sort of situation which would make a court regret the absence of a prior presentation of the probable-cause basis for a search warrant before a detached magistrate. The testimony of the agents is corroborated in all significant respects by the testimony of Rev. and Mrs. Bradley.
In short, the contours of the present case are far from those to which the Supreme Court has typically addressed itself as it has composed the law of search and seizure, and particularly the law of consent searches. 3 Although in such cases the Court has declared that a search without a warrant is per se illegal, even when supported by probable cause, except in certain limited and exceptional instances, 4 the facts of this disputed search would overcome all but an irrebuttable presumption of illegality. Strict insistence on technical compliance— and here the agents could have obtained a warrant had they sought one — would overlook the confluence of expectations and *124 events impinging upon the agents who responded to Rev. Bradley’s call. 5 To suppress the evidence found in the metal box might frustrate a criminal prosecution, but it is not at all clear that it would serve the underlying purpose of the exclusionary rule, 6 since the activity in question does not appear to be the sort of premeditated police intrusion that the exclusionary rule is meant to deter.
I am persuaded that this search is sufficiently different from those to which the per se rules have been applied so that it should be judged in the light of its own circumstances. 7 So viewed, the search, in my judgment, cannot be regarded as unreasonable.
Accordingly, I would reverse, but since six judges do not concur in that disposition and I do not favor affirmance, I reluctantly join in vacating the order of the district court and remanding the case for further findings.
. United States v. Diggs, 396 F.Supp. 610 (M.D. Pa.1975).
. Id. at 613 .
. See United States v. Matlock, 415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974).
Perhaps the case most analogous to the present one, is Chapman v. United States, 365 U.S. 610 , 81 S.Ct. 776 , 5 L.Ed.2d 828 (1961), where a landlord detected a smell of mash emanating from a house that he had rented to a tenant. The landlord called the police, who also smelled the odor. The police testified that the landlord told them “to go in the window and see what[’s] what in there.” The landlord related that he had said “if it’s what 1 think it is, what it smells like, yes, you can have my permission to go in.” The evidence of illegal liquor manufacture found during the subsequent warrantless search was ultimately suppressed by the Supreme Court since, although there was probable cause, the landlord could not give consent to search the tenant’s premises.
This case is distinguishable from Chapman . Here the probable cause to search is much clearer than it was in Chapman . Moreover, Rev. Bradley had a very substantial, albeit limited, real possessory interest in the metal box that had been surrendered to his keeping. In contrast, the landlord in Chapman retained only a residual interest in the property. Finally, absent here, but underlying the Chapman decision, was the special sanctity accorded houses in search cases decided prior to Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). Although Katz appeared to afford equal protection of the fourth amendment guarantees wherever there is an expectation of privacy, the former special status of houses and offices relative to other premises and effects would appear to retain some vitality today. See South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976).
. See United States v. United States District Court, 407 U.S. 297, 315-16 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967); Agnello v. United States, 269 U.S. 20, 33 , 46 S.Ct. 4 , 70 L.Ed. 145 (1925).
. See Brinegar v. United States, 338 U.S. 160, 175 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949).
. For a recent discussion of the purpose of the exclusionary rule, see Stone v. Powell, - U.S. -, 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976).
. See South Dakota v. Opperman, - U.S. -, -, 96 S.Ct. 3092 , 49 L.Ed.2d 1000 , where the opinion of Chief Justice Burger, writing for himself and three other Justices and joined in by Justice Powell, cites with approval the concurring and dissenting opinion of Justice Black in Coolidge v. New Hampshire, 403 U.S. 494 , at 509-510, 91 S.Ct. 2022 at 2060: “The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” But see the concurring opinion of Justice Powell, - U.S. -, -, 96 S.Ct. 3092 , 49 L.Ed.2d 1000 , which adheres to the per se rules applied in prior cases.
It is interesting to note that the First Congress framed the warrant requirement of the Fourth Amendment with particular concern to protect against the abuses of the general warrants and writs of assistance that had been employed by the Crown to permit searches without any particular cause. In contrast, there seems not to have been an equivalent concern about abuses of warrantless searches. From this history, it is possible to infer that the prohibition against unreasonable searches and seizures was originally intended to be applied independently of the warrants clause, which had a limited function. This understanding of the separate purposes of the different sections of the Fourth Amendment is, of course, at variance with the reading that has been adopted in the last half-century. See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.Rev. 349, 361-67 (1974).