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
ROBB, Circuit Judge,
dissenting:
I concur in Judge Tamm’s dissent with regard to the paper bag. As for the leather pouch I concur only because I think the result Judge Tamm reaches is compelled by recent decisions of the Supreme Court. With great respect however I must add that to me this result does nojt make sense. It follows from a rule which creates search-resistant cells or compartments in an area otherwise lawfully subject to search. In my opinion the right to search an automobile should include the right to open any container found within the automobile, just as the right to search a lawfully arrested prisoner carries with it the right to examine the contents of his wallet and any envelope found in his pocket, and the right to search a room includes authority to open and search all the drawers and containers found within the room. It is reasonable to extend a lawful search to the wallet and envelope, and to drawers and containers in a room, and I think it equally reasonable to extend a lawful automobile search to containers in the automobile.
Again with respect I find the “expectation of privacy” test impractical. It conditions an officer’s right to search upon the subjective feeling of the man challenging the search — or at least upon such feeling as a judge thinks he might reasonably entertain. This amorphous standard causes and will continue to cause doubt and confusion among law-enforcement officers and courts.