rejecting “Government’s position that [defendant’s] trial tactic, denying knowledge of the [contraband-filled] bag, strips him of Fourth Amendment protection”
How later courts described this case
- rejecting “Government’s position that [defendant’s] trial tactic, denying knowledge of the [contraband-filled] bag, strips him of Fourth Amendment protection”
- questioning seamlessness of web woven by Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and its precursors
- expectation of privacy attaches to closed but unsealed paper bag
- applying Sanders to require warrant to search closed but untaped paper bag
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge
(dissenting).
I concur with Judge Tamm’s opinion to the extent that it holds the examination of the inside of the paper bag was legal. I also concur in Judge Wilkey’s opinion to the extent that it holds that Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979) should not be applied retroactively-
I have examined the leather pouch. It is a small money pouch, 7" X 8" square, 2" wide at the bottom, made of soft, red leather with a zipper along the top. I would not place the paper bag or the small poiich in the category of “personal luggage”. Cf., 442 U.S. at 765 , 99 S.Ct. at 2594 . In my opinion the luggage cases are not applicable. In fact, with respect to the paper bag, a prominent strip cartoonist, Reggie Smythe, had his character, Andy Capp, make a joke of such claim — Andy Capp: “Where’s your mother off to?” Flo: “She’s stayin’ with Auntie Ada for a few days.” Andy: “There she goes now, down to the bus station with ’er matchin’ luggage.” Flo: “Matchin’ luggage?” Andy: “Yeah, two carrier bags from the supermarket.” 1 The factual situation here is a far cry from the locked footlocker in United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977).
The seizure of the bag and pouch was supported by probable cause and was reasonably related to the justification for the stop which was very strong probable cause. Cf., United States v. Cortez, 449 U.S. 411 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1980); Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).
Despite what some decisions state, I have great difficulty in agreeing that subsequently looking into the bag and the pouch from the top should be determined to be “unreasonable” — which is the constitutional standard. Amend. IY, U.S.Const. Having properly seized the paper bag and the small pouch the police would have acted unreasonably in my opinion if they had not merely looked inside.
. Washington Post, June 21, 1980.