Petition — United States v. Chadwick

In the Supreme Court of the United States

OCTOBER TERM, 1975

UNITED STATES OF AMERICA, PETITIONER

VU.

JOSEPH A, CHADWICK, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

FRANK H. EASTERBROOK,

Assistant to the Solicitor General,

JEROME M. FEIT,

MICHAEL W. FARRELL,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinions below ......... viithataliiasiaialingens lian i

Re ee 2

Question presented 0. NR he Poe ll 2

Constitutional provision involved 2

Statement _.... OS Se ls STEER adae 2

Reasons for granting the petition —.......____.. 8

EAN TES ED eS yee? TY 19

pa RS 8 Ney AER la i. ed la

I ee Cais 3la

a . 82a

CITATIONS

Cases:

Almeida-Sanchez v. United States, 413

ERR yp Sea a a 13

Cady v. Dombrowski, 413 U.S. 483 —. 16

Carroll vy. United States, 267 U.S. 182... 14,15

Chaires v. State, 480 S.W.2d 196 _..__. it oe

Chambers v. Maroney, 399 U.S. 42....13-14, 17

Chimel v. California, 395 U.S. 752 —. 11

Coolidge v. New Hampshire, 403 U.S.

a ar ee 9, 10, 15, 16

Cooper v. California, 386 U.S. 58 18

Draper v. United States, 358 U.S. 307_. 15

Jackson, Ex parte, 96 U.S. 727 este 17

Katz v. United States, 389 U.S. 347 __.... 17

Nugent v. United States, 409 U.S. 1065_ 15

People v. McKinnon, 7 Cal. 3d 899, 500

i | ZPneae ESTE 11

Preston v. United States, 376 U.S. 364_ 14

Cases—Continued

Rios vy. United States, 364 U.S. 253

State v. Wolfe, 5 Wash. App. 163 _......

Texas v. White, 423 U.S. 67 -

United States v. Anderson, 500° F.2d

STEIN Aisne sip vsitlinipsntchstslenensstinsaaghibenisasllieb grit |

United States v. Battle, 510 F.2d 776__.

United States v. Bronstein, 521 F.2d

i kai ns shai Na lie eel

United States v. Buckhanon, 505 F.2d

ET wipeitiats eRe Ee ORE SERIA a SE RR

United States v. Ciotti, 469 F.2d 1204,

vacated on other grounds, 414 U.S.

ARES eS RT ERE IG SSRIS ARPS SD

United States v. -Eatherton, 519 F.2d

RECA ENG Da meee:

United States v. Edwards, 415 U.S. 800.

United States v. Garay, 477 F.2d 1306...

United States v. Hand, 516 F.2d 472...

United States v. Johnson, 467 F.2d 630,

certiorari denied sub nom. White v.

United States, 410 U.S. 9382

United States v. Kaye, 492 F.2d 744...

United States v. Lonabaugh, 494 F.2d

| NIBP cA STONY 22K SNS AE

United States v. Maynard, 439 F.2d

GE RTE I i) eh EN nt ORL SS SAO

United States v. Mehciz, 487 F.2d 145,

certiorari denied, 402 U.S. 974 _......

United States v. Micheli, 487 F.2d 429_.

United States v. Race, 529 F.2d 12

United States v. Robbins, 424 F.2d 57,

certiorari denied, 402 U.S. 985 _......

United States v. Robinson, 414 U.S. 218.

United States v. Soriano, 497 F.2d 147_..

5, 12

Cases—Continued Page

United States v. Valen, 479 F.2d 467,

certiorari denied, 419 U.S. 901 _.. 11

United States v. Van Leeuwen, 397 U.S.

BP eid 17

United States \ v. . Watson, No. ‘14-538, de

cided January 26, 1976 - 16

United States v. Wilson, 524 F2d 595,

certiorari denied, No. 75-5884, March

RANE Gee ree 11

U nited States ex rel. Milwaukee Social

Democratic Publishing Co. v. Burleson,

PI aH 17

United States ex rel. Muhammad v. Man-

cusi, 432 F.2d 1046, certiorari denied,

402 U.S. 911 - 12

Waugh v, State, 20, Md. “App. 682, 318

A.2d 204, reversed on other grounds,

275 Md. 22, SY MD ecco 11

Constitution and statutes:

United States Constitution:

Fourth Amendment 2, 3, 4, 8, 12

eS 4

) | Scotia 4

Ss PP ia 17

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JOSEPH A. CHADWICK, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the First Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. la-30a) is not yet reported. The opinion and sup-

plemental opinion of the district court (App. C, in-

fra, pp. 32a-63a) are reported at 393 F. Supp. 763.

(1);

2

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 31a) was entered. on March 29, 1976. On

April 19, 1976, Mr. Justice Brennan extended the

time for filing a petition for a writ of certiorari to

and including May 28, 1976. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a search warrant is required before fed-

eral agents may open a locked footlocker that is prop-

erly in their possession and that they have probable

cause to believe contains contraband.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT

1. On May 8, 1973, federal agents in Boston re-

ceived reliable information from their San Diego

counterparts that respondents Machado and Leary

(then traveling as “Mrs. Machado”) had loaded a

ee = te es se ee

brown trunk or footlocker onto an Amtrak train in

California and were bound for Boston (App. C, in-

fra, p. 34a). The footlocker was leaking talcum pow-

der, which is often used to cover up the odor of con-

trolled substances. Respondent Machado also fit a

profile used by Amtrak officials to spot drug traffick-

ers (ibid.).

The train arrived in Boston on the evening of May

10, 1973, and federal agents met it at the station.

The agents saw Machado make a telephone call af-

ter his arrival, but they were unable to see the num-

ber called or to overhear the conversation (App. C,

infra, p. 35a). They observed the footlocker as it was

removed from the train, placed on a baggage cart

and taken to the station area, where it was claimed

by Machado and Leary. Machado and Leary placed

the trunk on the floor and sat down on it. Two suit-

cases were nearby.

The agents confirmed their suspicions by having

a dog trained to smell controlled substances go to the

footlocker.* The dog “alerted” to the footlocker by

scratching on it, indicating that a controlled sub-

stance was inside (App. A, infra, p. 4a; App. C,

infra, p. 35a). The agents did not have the dog sniff

the suitcases.

Respondent Chadwick soon arrived at the station

in an automobile. Leary and Machado, with the help

1 Investigation with the aid of a trained dog is permissible

under the Fourth Amendment. United States v. Race, 529

F.2d 12 (C.A. 1); United States v. Bronstein, 521 F.2d 459

(C.A. 2).

a“ 4

of a porter, took the footlocker and suitcases to Chad-

wick’s car. The footlocker and one suitcase were

loaded into the trunk; Leary took the other suitcase

and entered the front seat (App. C, infra, pp. 35a,

52a-53a). The agents then arrested all three respond-

ents. Shortly after his arrest, respondent Chadwick

made incriminating statements to the agents. The

footlocker and the two suitcases were taken to a fed-

eral building in Boston where, approximately 90

minutes after the seizure, they were opened (id. at

35a-36a). The footlocker had been double-locked, and

it was opened with keys that had been in the posses-

sion of Machado. The footlocker and both suitcases

contained marijuana (td. at 35a, 53a).

2. On November 2, 1973, an indictment returned

in the United States District Court for the District

of Massachusetts charged respondents Machado,

Leary and Chadwick with possession of marijuana

with intent to distribute it, in violation of 21 U.S.C.

841(a) (1), and with conspiracy to commit that crime,

in violation of 21 U.S.C. 846. Respondents filed pre-

trial motions to suppress Chadwick’s statements and

the evidence obtained from the footlocker and the

suitcases. In reply, the government argued that the

search of the suitcases was a proper inventory inspec-

tion, necessary to protect agents against charges that

they had stolen property that had been seized. It

justified the opening of the footlocker both as a search

incident to an arrest and as a search based upon the

“automobile exception” to the Warrant Clause of the

Fourth Amendment. The district court rejected each

of these arguments and suppressed the evidence ob-

tained from the searches (App. C, infra, pp. 45a-51a,

54a-61a). It also suppressed respondent Chadwick’s

statements, holding that there had not been probable

cause to arrest him and that the statements were

tainted fruit of the illegal arrest (id. at 37a-44a,

62a-63a).

3. A divided court of appeals affirmed the suppres-

sion of the marijuana found in the footlocker.’ The

court concluded that the footlocker had been properly

seized (App. A, infra, pp. 17a, 19a). It then inquired

whether it was reasonable to open it. Beginning with

the premise that warrantless searches are presump-

?The court of appeals also affirmed the district court’s

suppression of respondent Chadwick’s statement and of the

marijuana found in the suitcases. We do not agree that there

was not probable cause to arrest Chadwick, but we have not

presented this as a question for this Court because it ap-

pears to involve only the application of settled principles to

particular facts. As to the opening of the suitcases, we be-

lieve that under many circumstances it is reasonable to in-

spect personal belongings discovered near a person at the

time of his arrest in a public place, a proposition with which

the court of appeals has agreed. See Pet. App. 23a; United

States v. Eatherton, 519 F.2d 603 (C.A. 1). In the present

case, however, the agents did not possess probable cause to

believe that the suitcases contained contraband, they were not

recovered from an area within the immediate control of re-

spondents at the time of their arrests, and the only justifi-

cation offered in the court of appeals for their inspection

was the agents’ desire to “inventory” their contents. Under

these circumstances, the opening of the suitcases does not

present the same questions as does the opening of the foot-

locker, and we do not seek review of the judgment of the

court of appeals insofar as it affirmed the district court’s

suppression of the marijuana seized from the suitcases.

6

tively unlawful in the absence of one of a few narrow

circumstances, the court stated that “[t]he question

* * * is whether [this] warrantless search fits within

one of the exceptions to the constitutional require- ©

ment of a warrant” (id. at 8a). It concluded that it

did not.

The “automobile exception” did not control, the

court held, because the seizure of the footlocker oc-

curred just after it had been deposited in the parked

ear’s trunk and before any effort had been made to

drive the car away. In these circumstances, the car

“was nothing more than a platform or resting place

for the footlocker,” and the court perceived no reason

“why the footlocker’s placement in the car trunk

should make it any more searchable than if the arrest

had occurred in the station area” (id. at 9a-10a).

The court also held that the opening of the foot-

locker could not be justified as incident to the arrest

of respondents. Noting that the trunk was securely

locked and weighed approximately 200 pounds, the

court held that the trunk was not “in any meaning-

ful sense * * * under [respondents’] immediate con-

trol” at the time of their arrest, because they could

not«have either quickly removed it or reached inside

it to destroy evidence or obtain weapons (App. A,

infra, p. 15a).

Finally, the court rejected the argument that mov-

able containers such as footlockers should be treated

like automobiles. The court conceded that “baggage

or goods in transit present some of the same char-

acteristics as automobiles. Unless immobilized, such

7

items may disappear before a warrant is obtained”

(App. A, infra, p. 17a). Expressly declining to

follow other courts of appeals in this regard, how-

ever, the court refused to permit the warrantless

search of the footlocker. The court believed that a

rule allowing the search of such belongings on prob-

able cause has not “received sufficient recognition

by the Supreme Court outside the automobile area,

or generally, fcr us to recognize it as a valid exce)-

tion to the fourth amendment warrant requiremen'’’

(ibid.). The court concluded that “[i]f an excep-

tion of this character is to be translated to an en-

tirely different class of objects, we think the Su-

preme Court should make the judgment” ‘id. at 18a-

19a).°

The dissenting judge, aligning himself with other

courts that the majority had declined to follow, ar-

gued that the opening of the footlocker was proper

once “there was probable cause to believe that it con-

tained contraband and was being used in committing

the offense” (App. A, infra, p. 29a). In his view,

“the principles which control the right of an officer

to arrest without a warrant a person who is com-

mitting a felony in his presence in a public place

should also permit the officer to open a suitcase, a

* In a similar vein, the court earlier had said that, although

the Supreme Court might “relax the ‘immediate control’ test

in the baggage search area, by reinterpretation or otherwise[,]

* * * it would be speculation, and perhaps even presumption,

for - to initiate such a change” (App. A, infra, pp. 12a-13a,

n. 4).

footlocker or other container which he has probable

cause to believe is being used to commit the offense

in his presence and to seize the contraband therein”

(id, at 29a-30a; footnote omitted).

REASONS FOR GRANTING THE PETITION

1. The agents’ decision to open the footlocker, on

probable cause to believe that it contained contra-

band, involves a fundamental but unresolved issue

regarding the meaning of the Fourth Amendment.

Simply put, the question here is whether portable

containers such as footlockers and suitcases should

be treated like dwellings or like automobiles for

Fourth Amendment purposes, “tated more general-

ly, the issue is whether probable cause searches of

personal belongings seized outside the privacy of the

home or office are presumptively unreasonable un-

less authorized by a warrant.

The court of appeals’ holding that it was reason-

able to seize the footlocker but unreasonable to search

it without a warrant, although the officers had prob-

able cause to believe that it contained contraband,

exacerbates the confusion now reigning in the lower

federal courts, The court of appeals recognized that

it was taking a minority position and that other

courts have adopted a variety of different approaches

to the search of movable containers; the court con-

cluded, however, that if standards applicable to one

class of objects (automobiles) are to be applied “to

an entirely different class of objects,” this Court

ee Se ere «

should make the judgment (id. at 18a-19a). This

Court should accept the invitation of the court of

appeals to resolve this problem.

2. This case raises once again an issue that has

sparked the “conflict that has been so notable in

this Court’s attempts over a hundred years to de-

velop a coherent body of Fourth Amendment law”

(Coolidge v. New Hampshire, 403 U.S. 448, 474).

This conflict has been “caused by disagreement over

the importance of requiring law enforcement officers

to secure warrants” (ibid.). The underlying basis

of that disagreement was summarized by Mr. Justice

Stewart in Coolidge (id. at 474-475; footnotes omit-

ted) :

Some have argued that a determination by a

magistrate of probable cause as a precondition

of any search or seizure is so essential that the

Fourth Amendment is violated whenever the po-

lice might reasonably have obtained a warrant

but failed to do so. Others have argued with

equal force that a test of reasonableness, applied

after the fact of search or seizure when the

police attempt to introduce the fruits in evi-

dence, affords ample safeguard for the rights

in question, so that “[t]he relevant test is not

whether it is reasonable to procure a search

warrant, but whether the search was reason-

able.”

Both sides to the controversy appear to rec-

ognize a distinction between searches and seiz-

ures that take place on a man’s property—his

10

home or office—and those carried out elsewhere.

It is accepted, at least as a matter of principle,

that a search or seizure carried out on a sus-

pect’s premises without a warrant is per se un-

reasonable, unless the police can show that it

falls within one of a carefully defined set of

exceptions .-based on the presence of “exigent

circumstances.” As to other kinds of intrusions,

however, there has been disagreement about the

basic rules to be applied, as our cases coucern-

ing automobile searches, electronic surveillance,

street searches and administrative searches

make clear.

This case (unlike Coolidge) does not involve “a

search or seizure carried out on a suspect’s prem-

ises” and does not therefore implicate the “accepted

* * * principle, that [such] a search or seizure * * *

without a warrant is per se unreasonable, unless the

police can show that it falls within one of a care-

fully defined set of exceptions based on the pres-

ence of ‘exigent circumstances’” (ibid.). Rather, it

involves the kind of search and seizure with regard

to which there has been uncertainty and disagree-

ment “about the basic rules to be applied” (id. at

475).

The decisions of the courts of appeals concerning

the search of personal belongings seized on prob-

able cause outside the home have reflected that dis-

agreement. Some, like the court below, hold that the

opening of a package is per se unreasonable unless

Le. eile lll,

11

authorized by a warrant.‘ Others have adopted the

rule that probable cause alone is sufficient to justify

the search of a personal belonging that has been

properly seized.’ Some adopt a presumptive warrant

requirement, but relax that requirement when the

package is seized from a vehicle* or when the pack-

age is seized at the time of arrest, whether or not

the package is within the scope of the area for search

incident to arrest delineated in Chimel v. California,

395 U.S, 752.’ And still other courts appear to dis-

‘See, e.g., United States v. Garay, 477 F.2d 1306, 1308

(C.A. 5); United States v. Anderson, 500 F.2d 1311, 1317-

1818 (C.A. 5); United States v. Lonabaugh, 494 F.2d 1257

(C.A. 5). Cf. United States v. Hand, 516 F.2d 472, 476, n. 10

(C.A. 5) (en bane).

° See, e.g., United States v. Wilson, 524 F.2d 595, 598-599

(C.A. 8), certiorari denied, No. 75-5884, March 1, 1976;

United States v. Buckhanon, 505 F.2d 1079, 1082 (C.A. 8);

United States v. Valen, 479 F.2d 467 (C.A. 3), certiorari

denied, 419 U.S. 901; United States v. Johnson, 467 F.2d 630,

639 (C.A. 2), certiorari denied sub nom. White v. United

States, 410 U.S. 932; United States v. Mehciz, 437 F.2d 145

(C.A. 9), certiorari denied, 402 U.S. 974 (although this case

involves a suitcase seized at the time of arrest, the court an-

nounced a rule under which arrest would be irrelevant).

Several state courts have reached the same result. People Vv.

McKinnon, 7 Cal. 3d 899, 500 P.2d 1097; Waugh v. State, 20

Md. App. 682, 318 A.2d 204, reversed on other grounds, 275

Md. 22, 338 A.2d 268; Chaires v. State, 480 S.W.2d 196 (Ct.

Crim. App. Texas); State v. Wolfe, 5 Wash. App. 153.

* See, e.g., United States v. Soriano, 497 F.2d 147 (C.A. 5)

(en banc).

* See, e.g., United States v. Battle, 510 F.2d 776, 778-779

(C.A.D.C.); United States v. Kaye, 492 F.2d 744, 746 (C.A.

6); United States v. Ciotti, 469 F.2d 1204 (C.A. 3), vacated

on other grounds, 414 U.S. 1151; United States v. Maynard,

12

tinguish “small” packages from “large” packages,

applying a presumptive warrant requirement only to

the latter.’

This profusion of what appear to be arbitrary dis-

tinctions fully justifies Judge Thomsen’s description

of the law as qa “thicket through which state and

federal judges, as well as state and federal law en-

forcement officers, must struggle in cases such as

this” (App. A, infra, p. 29a). There is no reason

why officers must be required to cope with such in-

scrutable mysteries when dealing with the mundane

matter of what to do with properly seized packages.

This is a problem arising often in law enforcement,

and the difficulties are real; we believe that the

Court should address the problem here.

3. Our submission is that there is no support in

the history or language of the Fourth Amendment

439 F.2d 1086 (C.A. 9); United States ex rel. Muhammad Vv.

Mancusi, 432 F.2d 1046 (C.A. 2), certiorari denied, 402 U.S.

911; United States v. Robbins, 424 F.2d 57 (C.A. 6), certi-

orari denied, 402 U.S. 985. These cases do not, by and large,

require separate probable cause to believe that the package

contains contraband or evidence.

* See, e.g., United States v. Eatherton, 519 F.2d 603 (C.A.

1); United States v. Micheli, 487 F.2d 429, 431 (C.A. 1).

As these cases indicate, the First Circuit’s own attempt to

establish a coherent rule for package searches has been un-

successful. The court of appeals could articulate no principled

difference between the footlocker search here and the search

of a briefcase upheld in Katherton. The result, to use the

court’s own words (App. A, infra, p. 15a), is a “ ‘gossamer

thin’ distinction which arresting officers could find imprac-

ticable, if not impossible, to follow * * *.”

for the view that every search or seizure—regard-

less of the nature of the privacy interest at stake—

is presumptively invalid where a warrant could have

been but was not obtained. In making this argument,

we are not disputing what “is by now axiomatic

that the Fourth Amendment’s proscription of ‘unrea-

sonable searches and seizures’ is to be read in con-

junction with its command that ‘no Warrants shall

issue, but upon probable cause’” (Almeida-Sanchez

v. United States, 418 U.S. 266, 277 (Powell, J., con-

curring) ), nor are we denying that both the concept

of probable cause and the presence or absence of a

warrant are to be considered as bearing on the rea-

sonableness of a search. Rather we submit that

whether a search or seizure without a warrant should

be deemed presumptively unreasonable depends on a

determination whether the privacy interest at stake

is of such magnitude that the interposition of a

neutral and detached magistrate should be required

to make the probable cause determination.

The classic example of a presumptively unreason-

able search is one involving the warrantless entry into

a home. But the footlocker here had been removed

from the home and transported across country in the

baggage compartment of a train. Respondents’ ex-

pectations of privacy in it were surely no greater

than their expectations of privacy in the contents of

a car.

This Court has held that once a car has been

properly seized, its interior can be searched with-

out a warrant, even if a delay intervenes. Cham-

14

bers v. Maroney, 399 U.S. 42; Texas v. White, 423

U.S. 67. The reason for this rule can be traced to

the diminished expectation of privacy that attends

belongings willingly taken outside the house or office.

It also is supported by the fact that a car is readily

movable. And, finally, it is supported by the diffi-

culty a court must face in determining the relative

intrusiveness of immobilization and search.

Arguably, because of the preference for a mag-

istrate’s judgment, only the immobilization of the

car should be permitted until a search warrant

is obtained; arguably, only the “lesser’ intrusion

is permissible until the magistrate authorizes

the “greater.” But which is the “greater” and

which the “lesser” intrusion is itself a debatable

question and the answer may depend on a varie-

ty of circumstances. For constitutional pur-

poses, we see no difference between on the one

hand seizing and holding a car before present-

ing the probable cause issue to a magistrate and

on the other hand carrying out an immediate

search without a warrant. Given probable cause

to search, either course is reasonable under the

Fourth Amendment. [Chambers v. Maroney,

supra, 399 U.S. at 51-52.]

All of these considerations apply to footlockers and

other items of portable personal property no less than

to automobiles.’

* Chambers drew guidance from prior decisions involving

automobiles, beginning with Carroll v. United States, 267 U.S.

132. In one of those cases, Preston v. United States, 376 U.S.

364, the Court stated: “Common sense dictates, of course, that

Pe en

15

The court of appeals, while acknowledging that

“baggage or goods in transit present some of the same

characteristics as automobiles” (App. A, infra, p.

17a), declined to follow this reasoning to its conclu-

sion. It attempted to distinguish the package cases in

other circuits by arguing that they involved “hand-

carried briefcases and other luggage” (id. at 13a)

questions involving searches of motorcars or other things

readily moved cannot be treated as identical to questions

arising out of searches of fixed structures like houses” (id.

at 366; emphasis added). On the other hand, in Coolidge v.

New Hampshire, 403 U.S. 443, Mr. Justice Stewart, speaking

for a plurality of the Court, observed that if Carroll and its

progeny permit “a warrantless search of an unoccupied ve-

hicle, on private property and beyond the scope of a valid

search incident to arrest, then it would permit as well a

warrantless search of a suitcase or a box. We have found

no case that suggests such an extension of Carroll” (id. at

461, n. 18). The Coolidge plurality was reluctant to extend

the principles of Carroll to a search of an automobile (or

other container) “on private property.” See also Rios v.

United States, 364 U.S. 253, 261, in which the Court, appar-

ently without detailed consideration of the problem, articu-

lated a presumptive warrant requirement for a package seiz-

ure and search without probable cause. On the other hand, in

Draper V. United States, 358 U.S. 307, 314, the Court without

detailed consideration upheld the warrantless opening of lug-

gage seized at the time of an arrest.

In Nugent v. United States, 409 U.S. 1065, three Justices

dissented from the denial of a writ of certiorari in a case

that presented the issue whether police could search, with

probable cause but without a warrant, a trunk found in the

basement of an apartment building which they had entered

with the landlord’s consent. It is apparent, then, that the Court

has not yet chosen an occasion explicitly to consider the ap-

plication of Carroll and its progeny to the search of con-

tainers other than automobiles.

16

that clearly was movable, while the footlocker in this

case “was far from portable, and too heavy even to be

carried by the average person” (id. at 15a). But

this cannot be persuasive, for a car, once seized (as

in Texas v. White, supra), loses the mobility that

may have justified the seizure; the Court still has

upheld subsequent searches. And all of the other

baggage search cases involve packages that had been

reduced to the officers’ possession before being opened.

4. The court of appeals, in our view, gave insuffi-

cient consideration to the combined weight of three

factors: the nature of the property searched by the

agents, the fact that the property was in the agents’

lawful possession at the time of the search, and the

fact that a “serious personal intrusion” (United

States v. Watson, No. 74-538, decided January 26,

1976, concurring, slip op. 4 (Mr. Justice Powell) )

into respondents’ privacy already had occurred be-

cause of their arrest prior to the search.

The agents did not search a home, a place of busi-

ness, or similar area, those places for which a war-

rant historically has been required. Nor did they

search personal effects that could be found only by

entering private premises (Coolidge v. New Hamp-

shire, supra; see Cady v. Dombrowski, 413 U.S.

433, 446-447). Nor, lastly, was the search an in-

vasion of a person’s private thoughts or communica-

tions, as to which the locus of the intrusion may

17

fairly be deemed irrelevant (Katz v. United States,

389 U.S. 347).”

The agents searched a container of personal posses-

sions that they encountered outside the privacy of the

home and in circumstances recognized by the court

of appeals to justify their seizing it forthwith.” Cf.

21 U.S.C. 881. Once that lawful intrusion had oc-

curred, respondents’ privacy interest in the contents

of the footlocker had diminished to the point that a

further intrusion, on probable cause, did not require

the pre-search interposition of a magistrate. Indeed,

as this Court recognized in Chambers v. Maroney,

supra, to require a search warrant in such circum-

stances would be to demand precise and wholly un-

workable calculations as to what constitutes the

“greater” and what the “lesser” intrusion.

Respondents’ privacy interest in their personal ef-

fects was further diminished by the fact that they

” Likewise, it was not a search of a letter or package sent

by first-class mail (United States v. Van Leeuwen, 397 U.S.

249). Because “ ‘the use of the mails is almost as much a

part of free speech as the right to use our tongues’” (id.

at 251, quoting United States ex rel. Milwaukee Social Demo-

cratic Publishing Co. Vv. Burleson, 255 U.S. 407, 437 (Holmes,

J., dissenting) ), the Court has held that such letters and

packages “are as fully guarded from examination and in-

spection, except as to their outward form and weight, as if

they were retained by the parties forwarding them in their

own domiciles” (Ez part. Jackson, 96 U.S. 727, 733).

™ The privacy interest of respondents was especially slight

here because the agents had probable cause to believe that the

footlocker contained nothing but contraband. In other words,

they had probable cause to believe that there were no legiti-

mate privacy interests in the contents of the footlocker.

18

were under lawful arrest at the time of the search.”

As Mr. Justice Powell observed in United States v.

Robinson, 414 U.S. 218, 237-238, “a valid arrest jus-

tifies a full search of the person, even if that search

is not narrowly limited by the twin rationales of

seizing evidence and disarming the arrestee. The

search incident to arrest is reasonable under the

Fourth Amendment because the privacy interest pro-

tected by that constitutional guarantee is legitimately

abated by the fact of arrest” (footnotes omitted).

See also United States v. Edwards, 415 U.S. 800,

808-809, which emphasized the reduced privacy in-

terest that an arrestee retains in his effects and ap-

proves the statement of a lower court that “ ‘[w]hile

the legal arrest of a person should not destroy the

privacy of his premises, it does—for at least a rea-

sonable time and to a reasonable extent—take his

own privacy out of the realm of protection from police

interest in weapons, means of escape, and evi-

dence.’ ” *

% This argument does not apply to respondent Chadwick,

if the court of appeals was correct in concluding that his arrest

lacked probable cause.

18 This was particularly so, the Court held, “in view of the

existence of probable cause linking the clothes [removed from

the defendant] to the crime” for which he had been arrested

(id. at 806). Similarly, in Cooper v. California, 386 U.S. 58, 61,

the Court upheld the search of a defendant’s car a week after

his arrest, noting that the search “was closely related to the

reason petitioner was arrested * * *.” Here, too, the search

of the footlocker was “close:y related” to the reason respond-

ents were arrested. In these circumstances, the abatement of

19

In sum, given the nature of the property searched,

the lawful seizure of that property, respondents’ ar-

rests, and the existence of probable cause to believe

that the footlocker contained contraband, it was rea-

sonable for the agents to open it.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

JEROME M. FEIT,

MICHAEL W. FARRELL,

Attorneys.

May 1976.

their privacy interest effected by their arrest also encom-

passed the opening of the footlocker.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 75-1165

UNITED STATES OF AMERICA, APPELLANT

v.

JOSEPH A. CHADWICK, ET AL.,

DEFENDANTS, APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Before CoFFIN, Chief Judge, CAMPBELL, Circuit

Judge, THOMSON,* Senior District Judge

March 29, 1976

CAMPBELL, Circuit Judge. The United States has

appealed under 18 U.S.C. § 3731 from the district

court’s allowance of motions to suppress evidence.

* From the District of Maryland, sitting by designation.

2a

Chadwick, Machado, and Leary, following their

arrest on May 10, 1973, were indicated for posses-

sion of marijuana with intent to distribute and for

conspiracy. 21 U.S.C. §§ 841(a)(1) and 846. Prior

to their trial, they moved to suppress evidence of

marijuana seized from a footlocker, two suitcases

and Chadwick’s person, and Chadwick’s remarks

while in custody. After an evidentiary hearing, the

district court ruled in the defendants’ favor, 393 F.

Supp. 763, and it reaffirmed and amplified its rulings

after hearing the Government’s motion for recon-

sideration. Jd. at 773. This appeal followed.

The circumstances of defendants’ arrests and the

subsequent searches were described by federal agents

Richard G. Christopher and Paul L. LaVoie, both

assigned to the Office for Drug Abuse Law Enforce-

ment (ODALE), and by Robert Walsh, police officer

for Penn Central Railroad. On May 8, 1973, infor-

mation was relayed to LaVoie in Boston from the

ODALE office in San Diego, California, that an old

brown trunk or footlocker, suspected to contain mari-

juana, was en route from California to Boston by

Amtrak train. The San Diego office had been tipped

off by an Amtrak official, who suspected that the

footlocker contained marijuana because it was leak-

ing taleum powder, a material used to cover up the

odor of controlled substances, and because of its un-

usual weight for its size, almost two hundred pounds.

The appearance of the person shipping the footlocker,

identified as Machado, fit a profile used by Amtrak

officials to spot drug traffickers. The tag bore Ma-

8a

chado’s address in Scituate, Massachusetts. Accord-

ing to ticketing information, he was accompanied by

another person later identified as Leary.

Descriptions of both Machado and the footlocker

were transmitted to the Boston agents who learned

that the train would arrive in Boston the evening

of May 10. Between the eighth and the tenth, the

agents sought no search or arrest warrants, but con-

tinued investigating. When the train passed through

New Haven, Connecticut, prior to its arrival in Bos-

ton, Amtrak officials checked tue baggage compart-

ment and verified that the footlocker was still on

board. Agent Christopher testified that “the suspi-

cion was sufficient to justify an expenditure of men

and energy at South Station,” and so six law en-

forcement officials were gathered at South Station

at 6:50 p.m. on May 10 to await the train. It finally

arrived at 8:50 p.m., approximately one hour behind

schedule. A few minutes later, Agent Christopher

spotted a suspect fitting Machado’s description inside

the terminal. Christopher saw Machado make a tele-

phone call but was unable to see the number which

was dialed or overhear the conversation. Agent Chris-

topher also saw the footlocker as it was removed

from the baggage car, placed on a baggage cart, and

taken in to the station area, where it was claimed by

Machado and a female companion, later identified

as Leary. They placed it on the floor near an aban-

doned magazine stand and sat down on it. Agent

Christopher neve: saw the trunk open. The couple

also had with them two suitcases.

4a

The agents had brought with them Duke, a de-

tector dog, trained to sniff out controlled substances.

Duke’s handler walked him on his leash by Machado

and Leary several times. Agent Christopher then

told the handler to release Duke near the footlocker,

whereupon Duke went to the locker and gave an

“alert response” by scratching on it, indicating that

he detected a controlled substance inside. The han-

dler had not been instructed, however, to have Duke

also smell the suitcases, and so immediately after

the alert to the footlocker, he picked up Duke’s leash

and walked Duke out of the building.

Chadwick was seen for the first time a few min-

utes later walking into the terminal. He came over

to Machado and Leary and the three engaged in con-

versation for a moment. Chadwick then left the ter-

minal’ and went outside to the street where a Dodge

Polara, later found to have been rented, was parked.

Machado and Leary engaged a red cap who physi-

cally transported the footlocker out to the car where

Chadwick was waiting. Leary climbed into the front

passenger seat, putting one of the suitcases inside

the passenger compartment. The red cap loaded the

footlocker into the trunk of the Dodge with the help

of Machado and Chadwick, the red cap doing most

of the lifting. The other suitcase was placed in the

trunk of the Dodge with the footlocker.

1 The district court found that the three “engaged in brief

conversation after which they all left the station with a rail-

road porter.” However, it is clear from Agent Christopher’s

testimony that Chadwick left the terminal alone, before

Machado, Leary, and the luggage.

5a

As soon as the red cap was clear of the vehicle,

before the trunk lid was closed or the car engine

started, the federal agents closed in and arrested the

trio. It was then about 9:15. Machado and Chad-

wick were standing at the back of the vehicle; Leary

was seated in the front seat. The two males were

quickly frisked and all three were handcuffed. No

guns or weapons were found on any of them. Keys

to the footlocker and receipts and documents of own-

ership were found on Machado, but no keys or docu-

ments were found on Chadwick so as to link him to

the footlocker. A key was found on Chadwick’s per-

son, of which a duplicate or similar type was found

in Leary’s possession; it was believed to be a safe

deposit box key, not a trunk key. They were all

then taken in government vehicles, Chadwick and

Machado in one and Leary in another, to the John

F. Kennedy Building (JFK). The Dodge Polara was

seized for the purpose of forfeiture because of its

use to facilitate the transportation of marijuana, 21

U.S.C. § 881.. One of the agents drove it to JFK at

the same time, the footlocker and suitcases still in-

side. Subsequent to the arrest, Agent Christopher

testified, the footlocker was under his control at all

times. No accomplices were suspected or known to

be in the area.

En route to JFK, a five minute trip, Officer Walsh

read to Chadwick and Machado their Miranda rights.

Agent Christopher repeated the warnings and asked

Chadwick point by point if he understood those rights

and that he could waive those rights. Chadwick ac-

6a

knowledged that he understood that he could waive

them. He was not requested to execute a waiver and

there is no evidence that he did so. Machado refused

to give his name or answer any questions. There

was then a brief exchange between Agent Christo-

pher and Chadwick. As Agent Christopher recounted

the conversation :

“T asked the defendant Mr. Chadwick his

name, and he gave it to me.

I asked the defendant Machado his name, and

he refused to answer.

I then asked Mr. Chadwick how it came to

be that he was—where he was from? And he

said, Salem, New Hampshire.

I asked him why he was all the way down

here from Salem, New Hampshire? And he said

that Mr. Machado had called him.

He asked me how I knew what was in the

trunk. And I told him that he had it wrong; I

asked the questions.

I asked him how he knew what was in the

trunk, and he didn’t answer. He said he didn’t

know what was in the trunk.

I asked him what his phone number was.

He said he didn’t have a phone.

Then I asked him how he could get a call from

Mr. Machado?

He said that everything that he said I was

twisting, and he didn’t care to answer any more

questions.”

Chadwick said nothing further. After they arrived

at JFK, Agent Christopher put Chadwick through

Ta

routine booking information. Miranda warnings

were repeated and there was further conversation:

“IT took routine booking information—name,

address, and so on.

At that time Mr. Chadwick stated that he

lived, I think it was 100 Riverway in Brookline

or near Boston. I don’t recall if it was Brook-

line or not. :

I again asked him for his phone number at

that address. He said he had no phone.

I asked him how he got the phone call from

Mr. Machado. He said he received it on the

phone of a friend who lived in the apartment

above him at 100 Riverway, that would be the

third floor apartment.

And I believe I asked him how he knew to be

at that phone at that particular time to receive

a call. I don’t believe he responded to that ques-

tion.

I don’t think there were any other questions

other than booking information asked of him.”

A small quantity of marijuana was found on Chad-

wick’s person.

The footlocker and suitcases were taken into the

ODALE office at JFK within minutes of the prison-

ers’ arrival. The footlocker was double-locked with

a padlock and regular trunk latch, which the agents

first noticed when they removed it from the Dodge

Polara at JFK. It was opened in the ODALE office

by the agents, using the keys found on Machado,

sometime between 9:30 and 11:00 p.m. A large quan-

tity of marijuana was found inside. Agent Chris-

8a

topher testified that the search was delayed until they

reached JFK because there were too many people on

the street at South Station when the arrest was made.

The two suitcases were also brought into the ODALE

office for inventory pursuant to Drug Enforcement

Administration regulations. The agents did not sus-

pect that they contained marijuana. Both suitcases

were locked; none of the defendants claimed owner-

ship or produced keys, and permission to open the

suitcases was not sought or obtained from any of

them. The agent in charge broke the suitcases open.

Marijuana was found inside both. No inventory list

of their contents was offered into evidence, nor was

there evidence that one was prepared.

No search warrants were ever secured for either

the footlocker or the suitcases.

Warrantless Search of Footlocker

The warrantless footlocker search was made at the

ODALE office an hour or so after defendants were

arrested and the footlocker seized. At the time of

the search, the agents had without doubt probable

cause to believe there was a controlled substance

therein. They did not, however, possess a search

warrant. The question, therefore, is whether their

warrantless search fits within one of the exceptions

to the constitutional requirement of a warrant, for,

as the Supreme Court has said, “searches conducted

outside the judicial process, without prior approval

by judge or magistrate, are per se unreasonable un-

der the Fourth Amendment—subject only to a few

9a

specially established and well-delineated exceptions.”

Katz v. United States, 389 U.S. 347, 357 (1967),

quoted in Coolidge v. New Hampshire, 403 U.S. 443,

454-55 (1971); United States v. Watson, 44 U.S.

L.W. 4112, 4116, 4117 (U.S. Jan. 26, 1976) (Powell,

J., concurring). The burden, moreover, “is on those

seeking the exemption to show the need for it.”

United States v. Jeffers, 342 U.S. 48, 51 (1951).

At the first suppression hearing, the Government

sought to justify the warrantless search of the foot-

locker under the so-called automobile exception.

Chambers v. Maroney, 399 U.S. 42 (1970); Carroll

v. United States, 267 U.S. 182 (1925); see Texas v.

White, 44 U.S.L.W. 3327 (U.S., Dec. 1, 1975). It

argued tzat as the vehicle itself could have been

searched without a warrant, so also could the foot-

locker, as part of its contents. See United States v.

Tramunti, 513 F.2d 1087, 1104-05 (2d Cir. 1975);

United States v. Soriano, 497 F.2d 147 (5th Cir.

1974) (en banc). But the district court, Acm. [sic]

Coolidge v. New Hampshire, supra, at 461-62 (Stew-

art, J.), to the effect that “[t}he word ‘automobile’ is

not a talisman in whose presence the Fourth Amend-

ment fades away and disappears,” held that “there

was no nexus between the search and the automobile,

merely a coincidence.” It pointed out that the agents

had monitored the progress of the porter and de-

fendants as they moved the footlocker from the sta-

tion to the vehicle. The arrest and seizure occurred

just after the footlocker had been deposited in the

parked car’s trunk. The trunk lid was still open,

10a

the driver was not yet at the wheel, and the motor

had not yet been started. “Under the circumstances,”

said the court, “the floor of the autmobile was noth-

ing more than a platform or resting place for the

footlocker.” We agree. No reason comes to mind

why the footlocker’s placement in the car trunk

should make it any more searchable than if the ar-

rest had occurred in the station area. See Coolidge

v. New Hampshire, supra.

Upon petitioning the district court for reconsidera-

tion, the Government no longer pressed the automo-

bile exception, but rather turned to its present theory,

that a warrantless search of the footlocker was per-

mitted “incident” to the arrest of its owner (Macha-

do),? and that such a search was therefore lawful

when conducted a short time later at the ODALE

office. See United States v. Edwards, 415 U.S. 800,

803 (1974) (“searches and seizures that could be

made on the spot at the time of arrest may legally

be conducted later when the accused arrives at the

place of detention”). But see Preston v. United

States, 376 U.S. 364, 367 (1964).

The district court found the Government’s new

theory unpersuasive. The court held that the foot-

locker could not have been searched incident to the

2 Machado does not contest the lawfulness of his arrest,

and we have no doubt that the agents had probable cause to

arrest him and could do so without an arrest warrant. United

States v. Watson, 44 U.S.L.W. 4112 (U.S. Jan. 26, 1976);

see United States v. Race, No. 75-1169 (ist Cir., Jan. 30,

1976).

lla

arrest as it was then outside the area of defendants’

immediate control. The court relied on Chimel v.

California, 395 U.S. 752 (1969), which restricts a

warrantless search incident to an arrest to the ar-

restee’s person and the area “within his immediate

control,” meaning “the area from which he might

gain possession of a weapon or destructible evidence.”

Id. at 763. The court found that a “double-locked,

two hundred pound container” that had already been

placed in the open trunk of the automobile at the

time of the arrest was not an “area within his im-

mediate control’; and as the search of the locker

could not be justified as a search incident to the ar-

rest had it taken place contemporaneously with the

arrest, the later search was illegal a fortiori. 393 F.

Supp. at 375 & n.4.

The Government now contends (1) that the dis-

trict court erred in relying on Chimel, and (2) that

the footlocker was within defendants’ control at the

time of arrest, even under Chimel.

As to the first point, the Government stresses that

Chimel involved the search of a house, and points to

language in Weeks v. United States, 232 U.S. 383

(1914), and in this court’s decision in United States

v. DeLeo, 422 F.2d 487, 492, cert. denied, 397 U.S.

1037 (1970), as evidencing a special concern for the

sanctity of the home; consequently, it argues, the

stringent standards enunciated in Chimel are ap-

plicabie only to a search of a dwelling. The Gov-

ernment would have [us] to test the legality of a

12a

warrantless search incident to an arrest outside of a

dwelling under a standard of “reasonableness.”

However, the Chimel formulation, limiting an inci-

dent-to-arrest search to the person and to the area

within the arrestee’s control, has recently been re-

peated with approval in a case that did not involve a

building search. United States v. Robinson, 414 U.S.

218, 225-26 (1973). Nor is its rationale, to prevent

access to weapons and destructible evidence, suited

only to houses. Courts have applied it in situations

analogous to this. See United States v. Rothman,

492 F.2d 1260, 1265-66 (9th Cir. 1973); United

States v. Colbert, 454 F.2d 801 (5th Cir. 1972),

rev'd on other grounds, 474 F.2d 174 (1973) (en

banc). And, of course, the fourth amendment itself

is not limited to dwellings.’ See, e.g., United States

v. Van Leeuwen, 397 U.S. 249 (1970) (first-class

mail search); Rios v. United States, 364 U.S. 253

(1960) (package search).

Thus we find Chimel relevant, and, indeed, we

know of no decision of the Supreme Court that is

more relevant to the arrest situation presented here.*

* The fourth amendment provides:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

*This is, of course, not to say that the Supreme Court

might never relax the “immediate control” test in the bag-

gage search area, by reinterpretation or otherwise. But it

13a

Moreover, in the area of criminal investigatory

searches at least, the Supreme Court has not clearly

signalled any retreat from the requirement that war-

_rantless searches be confined to “well-delineated ex-

ceptions”—such as the arrest exception. Katz v.

United States, supra. The requirement, coupled with

the Court’s explicit rejection in Chimel of the more

flexible guidelines prevailing in the pre-Chimel era,

see, e.g., United States v. Rabinowitz, 339 U.S. 66

(1950), rules out our adopting the Government’s pro-

posed “reasonableness” approach. The question be-

fore us is simply whether the search falls within the

boundaries of the particular exception.

Applying Chimel, we find no error in the lower

court’s decision that the footlocker was not an area

within the arrestee’s immediate control. In so hold-

ing, the district court rejected the Government’s at-

tempt to analogize the footlocker search to that of

hand-carried briefcases and other luggage, searches

of which various Courts have approved. See Drap-

er v. United States, 358 U.S. 307 (1959); United

States v. Buckhanon, 505 F.2d 1079, 1082 (8th Cir.

would be speculation, and perhaps even presumption, for us to

initiate such a change. Even assuming that greater flexibility

is desirable to accommodate searches for contraband, it is

debatable whether the arrest exception would be the best

vehicle to accomplish this. See infra. The arrest exception

does not require probable cause to search, and if the mere fact

of arrest were to allow an unlimited baggage search, it might

be feared that people would be arrested on technicalities in

order to search all their belongings. We take no position on

the matter but feel, in any event, that revisions of this sort

are best left to the high Court.

l4a

1974); United States v. Maynard, 439 F.2d 1086

(9th Cir. 1971); United States v. Mehciz, 437 F.2d

145 (9th Cir.), cert. denied, 402 U.S. 974 (1971);

United States ex rel. Muhammad v. Mancusi, 432

F.2d 1046 (2d Cir.), cert. denied, 402 U.S. 911

(1970). The district court said,

“ . . In all of these cases, the luggage that

was searched was being carried by the defend-

ant at the time of his arrest. It may be that

hand-carried luggage is encompassed in the

phrase ‘area within his immediate control.’ But

the footlocker in this case was not hand-carried

luggage... .”

Since the decision below, this circuit has also upheld

a warrantless search of a hand-carried briefcase at

the scene of the arrest, after the arrestee was hand-

cuffed and in custody. United States v. Eatherton,

519 F.2d 603, 610-11 (1975). However, we must

agree with the district court that there is a consider-

able difference between items such as Eatherton’s

hand-carried briefcase and the footlocker here. Port-

able objects in hand such as zipper bags, briefcases

and small suitcases, fit without too much difficulty

into Chimel’s “immediate control” standard. Their

size, accessibility, and portability all liken them to

“personal effects” ’ found on an arrestee’s person,

such as clothing or a cigarette package in one’s pock-

5In another setting, Chief Judge Coffin has described a

briefcase as a “personal effect” that “does not clearly fall

either within the realm of a personal search or a search of

the premises.” United States v. Micheli, 487 F.2d 429, 431 (1st

Cir. 1973).

15a

et, which may lawfully be searched without a war-

rant as incident to an arrest. See United States v.

Robinson, supra; United States v. Edwards, supra.

To exclude searches of such items can create “gossa-

mer thin” distinctions which arresting officers could

find impracticable, if not impossible, to follow; and,

where the justification for a search depends to a

great extent on the reasonable judgments which the

arresting officers could have made at the time of ar-

rest, see United States v. Robinson, supra, those dis-

tinctions would appear unwarranted.

However, a two hundred pound footlocker is quite

different. It is difficult to liken this footlocker to a

hand-carried bag and say in any meaningful sense

that the footlocker or, more importantly, its con-

tents, were under defendants’ immediate control. It

was far from portable, and too heavy even to be

carried by the average person. It had also, as the

agents well knew, just been unloaded from a train’s

baggage car after a cross-country trip suggesting,

as proved to be the case, that it was tightly secured

and could not be onened; nor did the agents observe

it open before they themselves opened it. We thus

see no basis for disturbing the court’s finding that.

for purposes of the Chimel standard. “this footlocker

was simply not within the control of the defendants

at the time of arrest.” °

6 This is not to sav that ever a bulky foot'ocker could never

be such an area if, for examnle, there was reason for the

16a

While, as noted, we understand the Government to

be relying on the search-incident-to-arrest exception,

part of its argument suggests that it may also be

looking in the direction of liberalized luggage search

rules approved in several other circuits. These, while

arising in an arrest context, draw heavily upon the

rationale underlying the automobile search exception

in Chambers v. Maroney, supra. United States v.

Mehciz, supra; United States v. Wilson, No. 75-1247

(8th Cir., Oct. 21, 1975); United States v. Buck-

hanon, supra; see United States v. Johnson, 467 F.2d

630, 639 & n.8 (2d Cir. 1972), cert. denied, 410 U.S.

932, 413 U.S. 920 (1973). The courts in question

would apparently allow the warrantless search of

luggage for contraband upon the individual officer’s

determination of probable cause."

arresting officers to believe that the arrestee had immediate

access to its contents. The district court’s findings on this

score, are, of course, entitled to much weight.

In holding that the footlocker search was not within the

arrest exception, we do not, as the dissent would indicate,

question the validity of Machado’s arrest, nor do we get into

any question of whether the search was unduly delayed. We

simply hold that the footlocker was beyond the “area of con-

trol” that is searchable without a warrant incident to an

arrest.

*The scope and basis for the novel exception, beyond an

analogy to Chambers, are barely spelled out in any of the

cited cases. One reason that we hesitate to follow such cases

is that they present no clear view of the principles to be

applied.

lia

It will be remembered that in Chambers v. Ma-

roney, supra, the Court reaffirmed an established

exception, first announced in Carroll v. United States,

supra, allowing the warrantless search of a moving

vehicle which officers had probable cause to believe

held contraband. The rationale for the Carroll and

Chambers exception was the likelihood that the ve-

hicle would escape before a warrant could be secured.

Chambers took Carroll a step further by allowing

not only an immediate on-the-spot search but a later

warrantless police station search, sinc the Court

reasoned, immobilization of the vehicle until a war-

rant could be secured was not necessarily a lesser

intrusion than a warrantless search, id. at 51-52.

Admittedly baggage or goods in transit present

some of the same characteristics as automobiles. Un-

less immobilized, such items may disappear before a

warrant is obtained, and immobilization (a step

which most courts, including ourselves, will permit,

given cause), is arguably just as annoying to the

owner as a search. But whatever can be said for this

theory, we do not believe that it has received sufficient

recognition by the Supreme Court outside the auto-

mobile area, or generally, for us to recognize it as a

valid exception to the fourth amendment warrant re-

quirement. Baggage predated automobiles, yet Car-

roll and its progeny do not mention baggage as a

separate category comparable to vehicles. As we have

already noted, exceptions to the warrant rule have

18a

been termed “specially established” and “well-deline-

ated”. United States v. Katz, supra.‘ The would-be

exception in question hardly fits that description.

And we cannot be sure that the intrusion of search-

ing an item of baggage is no greater than detain-

ing it. As to first-class mail, the Supreme Court

has held that it is greater. United States v. Van

Leeuwen, supra. Certainly such an exception could

have considerable impact, as its premises might seem

to apply not only to baggage but to mail, express

packages, and moving freight of all description. The

Chambers automobile search exception itself is of a

somewhat broader character than other exceptions;

it does not, for example, require an accompanying

arrest. The fourth amendment is “something less

than a seamless web,” Cady v. Dombrowski, 413 U.S.

433, 440 (1973). Standards applicable to one par-

ticular exception may not be readily translatable into

another. If an exception of this character is to be

translated to an entirely different class of objects,

8 Justice Powell has recently underscored this proposition,

stating that “[t]here is no more basic constitutional rule in

the Fourth. Amendment area than that which makes a war-

rantless search unreasonable except in a few ‘jealously and

carefully drawn’ exceptional circumstances.” United States v.

Watson, 44 U.S.L.W. 4112, 4117 (U.S. Jan. 26, 1976) (con-

curring), quoting Jones Vv. United States, 357 U.S. 493, 499

(1958). This rule is quite different from the more expansive

principles applicable to warrantless arrests, which, e.g., allow

a police officer to arrest solely on probable cause and with-

out a warrant someone who has committed a felony. Jd.

19a

we think the Supreme Court should make the judg-

ment.

We are constrained to agree, therefore, with the

district court that the warrantless search of the foot-

locker did not fall within any recognized exception

to the general warrant requirement, and that there-

fore the search was in violation of the fourth amend-

ment. We would add that there was no special ex-

igency justifying a warrantless search under the cir-

cumstances, see United States v. Johnson, 333 U.S.

10, 14 (1948). The Government does not argue that

there was. The district court found that the footlocker

“was not in imminent or even potential danger of

being destroyed or spirited away.” Doubtless, the

agents had the power to detain the footlocker tempo-

rarily at their office or otherwise until a warrant

could be procured. See United States v. Brignoni-

Ponce, 422 U.S. 873, 878-82 (1974); United States

v. Van Leeuwen, supra, at 252; Terry v. Ohio, 392

U.S. 1, 16-19 (1968).° But they were not empowered

to search it:

We affirm the district court’s order supressing the

contents of the locker.

®° Government agents are given power by statute to seize

contraband, 21 U.S.C. § 881. Without deciding how this stat-

utory authority meshes with the fourth amendment warrant

requirement and its exceptions, see, e.g., 21 U.S.C. § 881

(b) (1), it reinforces the agents’ power to detain baggage at

least temporarily. The Government does not contend, how-

ever, that the agents’ powers under 21 U.S.C. § 881 gave

them any greater authority to search than would exist under

normal fourth amendment principles.

20a

Warrantless Search of the Suitcases

The government does not argue that in breaking

open the two locked suitcases and searching them,

the agents were acting pursuant to the search-inci-

dent-to-arrest exception. The district court specific-

ally found that the suitcases were outside defendants’

control at the time of arrest, and we agree.

The Government argues only that regulations of

the Drug Enforcement Administration,” as inter-

preted by the agency, “mandate a complete inventory

of the personal belongings of the arrested person,”

and that compliance with such regulations was rea-

sonable and not in violation of the fourth amend-

ment. The district court found to the contrary. It

considered the reasons advanced for the inventory—

safeguarding the arrestee’s personal property, in-

sulating the agents from later claims or theft of lost

property, and institutional safety—and then found,

1° Agents Manual, { 6662.25. Collection and Handling of

Other Personal Property:

Personal property of non-evidentiary value which is found

in a seized automobile will be handled as outlined in § 6654.23.

Agents Manual, {| 6654.23. Seizure Procedures:

Upon seizing the vehicle, it must be thoroughly searched. A

search performed pursuant to civil seizure need not be con-

temporaneous with an arrest, and no search warrant is

necessary. Remove all articles from the vehicle which are not

part of the vehicle itself.

Personal property in the vehicle should be returned to the

owner or the person from whom the vehicle was seized, and

a receipt obtained.

2la

“None of these considerations is available to

justify as inventory searches the breaking into

these suitcases. It is simply not credible to sug-

gest that a closed, locked suitcase posed a threat

to the institutional safety. ... No more credible

is the theory . . . that the search was necessary

to protect the agents from later claims of theft

or lost property. It is difficult to see how the

integrity of agents is safeguarded by picking the

lock to a suitcase. Such forcible entry would

likely invite more, rather than fewer, claims of

theft. Breaking open the suitcases (the descrip-

tion used by the agent who testified) was an

unreasonable and, therefore, unacceptable ap-

proach to the problem.”

The Supreme Court has not attempted to define

| generally the conditions in which inventory searches

are consistent with the fourth amendment. See

Harris v. United States, 390 U.S. 234 (1968). In

inquiring. into the reasonableness of the Govern-

ment’s actions in this case, and weighing the privacy

rights of the defendants against the Government’s

interest in doing what it did, the court followed the

approach of the eighth circuit in United States v.

Lawson, 487 F.2d 468 (1973), and the California

State courts, see Mozzetti v. Superior Court of Sacra-

mento County, 4 Cal. 3d 699, 484 P.2d 84, 94 Cal.

Rptr. 412 (1971). That approach is somewhat at

variance with the tenor of decisions in the fifth

circuit which tend to validate “routine” inventory

procedures unless shown to be carried out in par-

ticularly bad faith. See, e.g., United States v. Kele-

22a

har, 470 F.2d 176 (1972); United States v. Lips-

comb, 4385 F.2d 795 (1970), cert. denied, 401 U.S.

980 (1971).

We agree generally with the approach taken in

Lawson and find no reason to overturn the findings

below. This is not to dispute the propriety of reason-

able inventory procedures designed to safeguard

clothing and personal effects; and if in the course

of such reasonable good faith efforts an officer

stumbles across incriminating evidence, the evidence

will not be suppressed. See Cady v. Dombrowski,

supra; Fagundes v. United States, 340 F.2d 673,

675-76 (1st Cir. 1965); cf. Cabbler v. Superinten-

dent, 18 Cr L 2814 (4th Cir. Dec. 8, 1975). But

just because of its designation as such, an inventory

is not immune from the fourth amendment. United

States v. Lawson, supra, 471-72. We see an inven-

tory as occupying a middle ground between a crimi-

nal investigatory search, which must comply strictly

with warrant and probable cause standards, and

those actions which fall totally outside the fourth

amendment. See, e.g., Harris v. United States, supra;

Fagundes v. United States, supra. Like the search

of a code inspector, an inventory may be initiated

and carried on upon a less formal basis than a

criminal search and will be upheld so long as it

serves a proper governmental purpose and does not

amount to an excessive intrusion. Cf. Camera v.

Municipal Court, 387 U.S. 523 (1967). The test is

reasonableness, and when, as here, there is a dis-

pute, all the facts must be examined. We intimate

23a

no judgment as to the propriety of inventorying un-

locked suitcases, nor even locked ones given sufficient

reasons, such as suspicion that there may be ex-

plosives inside. But breaking open the two locked

suitcases here was an unreasonable intrusion that

exceeded any proper governmental interest shown

to exist. As the court below pointed out, to protect

the agents from the later claims, the suitcases could

have been sealed with tape which the agents could

have initialled, or placed in a locked storeroom with

the keys kept in an envelope along with other per-

sonal property of defendants. Forcing the locks

served no apparent purpose other than to satisfy

the agent’s curiosity.”

Suppression of Chadwick’s Conversation with the

Agent

The district court suppressed Chadwick’s remarks

made in response to Agent Christopher’s questions

a few minutes after Chadwick’s arrest. Chadwick

was then being driven by the arresting officers to

the ODALE office. He had been advised of his Mi-

randa rights, as the court found, but, as Agent

Christopher himself testified, had not expressly in-

1 The court also found that defendant’s permission to open

the suitcases was not sought before the locks were picked,

although Agent Christopher testified that none of them claimed

ownership. Nor was an inventory list ever offered to defend-

ants. The regulations relied on are also, at best, ambiguous

as to the authority for such actions. Under the circumstances,

the court was entitled to entertain doubts as to the motive

behind breaking into the suitcases.

24a

dicated that he waived his rights, by signing a form

or otherwise. The court found (1) that Chadwick’s

arrest was illegal for lack of probable cause and

(2) that his responses were “tainted” by the illegal

arrest. On the last point, the court found that the

Government had not proven a voluntary and know-

ing abandonment of rights, particularly as Chad-

wick was interrogated within a few short minutes

after being illegally arrested. Relying on Wong Sun

v. United States, 371 U.S. 471 (1963), it found the

custodial interrogation to be inherently coercive

“even as to one who is lawfully in custody,” and

even more so “where the initial arrest is illegal.”

On whether there was probable cause to arrest

Chadwick, we agree with the district court that

there was not. That Chadwick arrived at the station

to meet the other defendants and assisted in putting

the footlocker in his rented car was suspicious but

fell somewhat short of being “sufficient to warrant

2. prudent man in believing that the petitioner had

committed or was committing an offense.” Beck v.

Ohio, 379 U.S. 89 (1964). Chadwick could have

been, as the district court found, a friend or relative

who knew nothing of the contents of the footlocker.

Association with known or suspected criminals does

not, in and of itself, establish probable cause. Sibron

v. United States, 392 U.S. 40 (1968); United States

v. DiRe, 332 U.S. 581 (1948). In a case where the

facts were similar but even more indicative of guilt,

the ninth circuit found no probable cause to arrest.

United States v. Jit Sun Loo, 478 F.2d 401 (1973).

25a

See also United States v. Linnear, 464 F.2d 355 (9th

Cir. 1972); United States v. Bazinet, 462 F.2d 982

(8th Cir. 1972), cert. denied, 409 U.S. 1010.

The Government argues that because Chadwick

momentarily “possessed” the footlocker, his knowing

involvement in the marijuana offenses can be in-

ferred from his possession. United States v. Phillips,

496 F.2d 1395 (5th Cir. 1974); United States v.

Bonham, 477 F.2d 1137 (83rd Cir. 1973; United

States v. Palmer, 467 F.2d 371 (D.C. Cir. 1972);

People v. Reisman, 29 N.Y. 2d 278, 277 N.E.2d 396,

327 N.Y.S.2d 342 (1971); People v. Nettles, 23 I.

2d 306, 178 N.E.2d 361 (1961), cert. denied, 369

U.S. 853 (1962). The district court found that, at

the time of.arrest, Chadwick in fact exercised no

“dominion or control” over the footlocker. His con- -

tact “was less than that of a porter.” This may be

an overstatement: the footlocker was put in the

car, and the agents could infer that Chadwick was

the driver of the car although Chadwick’s appearance

on the scene had been entirely unexpected. Still,

Chadwick’s possessory interest was so slight that one

cannot fairly infer knowledge of the contents from

that fact. See Leary v. United States, 395 U.S.

6, 36 (1969); cf. 9 Wigmore on Evidence § 2491,

at 288 (3d ed. 1940).”

12 Cf. United States v. Race, No. 75-1169 (1st Cir., Jan.

30, 1976) (sole possession of consignee of crate reasonably

believed to contain contraband held sufficient to establish

probable cause to arrest).

26a

The Government contends that the agents could

also rely for probable cause on their policeman’s

noses. An agent, to be sure, is an expert of sorts,

and from certain facts he may be able to derive

meaning that would elude an untrained or inex-

perienced person. But it is one thing to credit an

agent’s skilled interpretation of adequate facts, and

another to credit the agent’s suspicions simply be-

cause the agent is an agent. Good hunches are the

foundation of good police work, but they are not prob-

able cause. The case cited by the Government, United

States v. Kancso, 252 F.2d 220 (3d Cir. 1958), and

others, United States v. Davis, 458 F.2d 819 (D.C.

Cir. 1972) and Ortiz v. Craven, 442 F.2d 418 (9th

Cir. 1971), all presented a factual basis from which

the trained observer could reasonably believe that the

suspect had committed or was committing an offense.

We affirm the ruling below that the arrest was

illegal.

We also affirm the court’s exclusion of Chadwick’s

remarks. Wong Sun was recently reaffirmed by

Brown v. Illinois, 422 U.S. 590 (1975), and while

the latter scarcely answers all the questions left

after Wong Sun, it makes plain that Miranda warn-

ings alone do not validate admissions secured fol-

lowing an illegal arrest. Here, as the district court

found, the admissions were made a few short min-

utes after the arrest, a factor militating against

admissibility, id. at 603.

It is true that weighing in the Government’s favor

is the relative innocuousness of the arrest: while

ee ae

27a

the agents should have known that they lacked prob-

able cause, they had good reason to suspect Chadwick,

and there is no evidence that they acted in bad faith.

Still the error was not a mere technical infraction,

such as Justice Powell described in his concurrence

in Brown v. Illinois, as when officers rely on a war-

rant later invalidated. Jd. at 611. Furthermore,

the district court found that Chadwick did not ef-

fectively waive his Miranda rights, and that conse-

quently his admissions were not themselves volun-

tary, see Escobedo v. Illinois, 378 U.S. 478, 490 n.

14 (1964), the “threshold requirement” of admis-

sibility. 422 U.S. at 604. This finding was perhaps

not compelled in the circumstances, but it was not

clearly erroneous. Leavitt v. Howard, 462 F.2d 992,

996 (1st Cir.), cert. denied, 409 U.S. 884 (1972).

Taken together, the court’s findings amount to a

supported determination that the admissions were

not a product of “free will’ as required under Wong

Sun and Brown v. Illinois, supra, at 603. We neces-

sarily place much reliance in these matters on the

“learning, good sense, fairness and courage of fed-

eral trial judges.” Nardone v. United States, 308

U.S. 338, 342 (1939).

Affirmed.

28a

THOMSEN, Senior District Judge, concurring and

dissenting :

I agree that there was no sufficient justification to

arrest Chadwick or Ms. Leary, that the statements

Chadwick made after his arrest were properly sup-

pressed, and that there was no justification for open-

ing Ms. Leary’s suitcase or Machado’s suitcase as

and when they were opened; but I respectfully dis-

sent from that portion of the opinion which holds

that opening the footlocker in the JFK building vio-

lated Machado’s Fourth Amendment rights.

The information which the agents had received be-

fore the train arrived in South Station justified their

suspicion that the footlocker contained contraband (a

large quantity of marijuana). After Duke, the de-

tector dog, trained to sniff out controlled substances,

gave an “alert response”, the agents had probable

cause to believe that the footlocker contained contra-

band; they also had probable cause to believe that

Machado, who had traveled on the same train with

the footlocker and had claimed it when it was un-

loaded from the train and was then sitting on it, was

committing a felony in their presence. They might

have arrested Machado then, United States v. Watson,

U.S. —— 44 LW 4112 (January 26, 1976),

and did not lose that right by waiting until Machado

caused the footlocker to be placed in the trunk of the

automobile. I believe that the agents could also have

seized and searched the footlocker in the station, after

the dog gave the affirmative signal, on the ground

a

Se ee eee rer ay ee ern ne rages

29a

that there was probable cause to believe that it con-

tained contraband and was being used in committing

the offense. This conclusion is supported by United

States v. Buckhanon, 505 F.2d 1079 (8 Cir. 1974);

United States v. Johnson, 467 F.2d 630 (2. Cir.

1972), cert. denied, 410 U.S. 982, 413 U.S. 920

(1973) ; United States v. Mehciz, 487 F.2d 145 (9

Cir.), cert. denied, 402 U.S. 974 (1971). |

A railroad station, after the arrival of a train, is

not a good place to conduct such an arrest and search,

especially when the agents did not know whether one

or more men might respond to the telephone call

Machado had made. Nor is a street outside the sta-

tion a good place to open a footlocker containing

marijuana. The agents acted wisely in arresting

Machado at the car, and in postponing until they

arrived at JFK opening the footlocker, to confirm the

fact that it contained contraband. If it had proved

not to contain contraband, the agents should and pre-

sumably would have released Machado immediately.

He was not hurt by the delay in opening the foot-

locker.

The thorough review of Fourth Amendment cases

in the majority opinion herein illustrates the thicket

through which state and federal judges, as well as

state and federal law enforcement officers, must

struggle in cases such as this. I believe that the cases

cited above justify the conclusion that the principles

which control the right of an officer to arrest with-

out a warrant a person who is committing a felony

in his presence in a public place should also permit

80a

the officer to open a suitcase, a footlocker or other

container which he has probable cause to believe is

being used to commit the offense in his presence and

to seize the contraband therein.’

2 No invasion of a house or other real property was involved

in this case.

ee ee

ok a A A le i ee et ct

3la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 75-1165

UNITED STATES OF AMERICA, APPELLANT

v.

JOSEPH A. CHADWICK ET AL.,

DEFENDANTS, APPELLEES

JUDGMENT

Entered March 29, 1976

This cause came on to be heard on appeal from

the United States District Court for the District of

Massachusetts, and was argued by counsel.

Upon consideration whereof, It is now here or-

dered, adjudged and decreed as follows: The order

of the District Court is affirmed.

By the Court:

/s/ Dana H. Gallup, Clerk.

32a

APPENDIX C

UNITED STATES DISTRICT COURT,

D. Massachusetts

Crim. No. 73-239-T

THE UNITED STATES

Vv.

JOSEPH A. CHADWICK ET AL.

Jan. 13, 1975

SUPPLEMENTAL OPINION—April 10, 1975

OPINION AND ORDER

TAURO, District Judge.

Defendant Joseph Chadwick and his two co-defend-

ants, Bridget Leary and Gregory Machado, are

charged in a two count indictment with possessing

marijuana with intent to distribute, and with con-

spiring to possess with intent to distribute.

Before the court is Chadwick’s motion to suppress

the fruits of warrantless searches of a footlocker,

two suitcases, and of his person. The searches were

conducted by government agents some time after his

arrest outside the South Station railroad terminal

on May 10, 1973. He has also moved to suppress

statements made by him after his arrest.

33a

In support of his motion, Chadwick asserts 1) that

his warrantless arrest was without probable cause;

2) that there was no justification for a search of

his person; 3) that although he was in a custodial

situation when he made statements to federal agents,

he was not warned of his rights; and 4) that the

warrantless search of the footlocker and luggage can-

not be justified by any exception to the requirements

of the Fourth Amendment.

Following the hearing on Chadwick’s motion to

suppress, defendant Leary filed a motion to suppress

all evidence obtained by the warrantless searches of

the footlocker and suitcases that were seized by the

federal agents. She also moved to suppress any state-

ments made .by her following her arrest on the

grounds that the arrest was made without probable

cause. Both Leary and Chadwick rely on the same

grounds for suppressing the evidence obtained as a

result of the warrantless search of the footlocker.’

The Government has chosen to rely on the same argu-

1 Marijuana was found in both of the suitcases as well as

in the footlocker. For convenience in reference and because

the items searched are legally indistinguishable, both the

Government and the defendants have focused on the foot-

locker. While some factual details are different (the suitcases

were not leaking talcum powder; the dog alerted to the foot-

locker, not the suitcases; the suitcases were smaller than

the footlocker; there was no evidence of a second lock on the

suitcases; the information from San Diego related to the

footlocker, not the suitcases), none of these factors, either

singly or in combination would warrant a different result on

the motion to suppress. Accordingly, the decision of this court

applies to both the suitcases and the footlocker.

34a

ment in opposition to both motions. Accordingly, the

motions to suppress are consolidated in this opinion.

The circumstances surrounding the defendants’ ar-

rest and the subsequent search are as follows.

On May 8, 1973, federal agents in Boston received

reliable information from their San Diego counter-

parts that a footlocker suspected of containing mari-

juana was being shipped by train to Boston. This

information indicated that the trunk in question was

leaking talcum powder, a substance used to mask

the odor of marijuana, and that the shipper, the

defendant Machado, fit a profile used by Amtrak offi-

cials to spot drug traffickers. The destination ad-

dress of the footlocker was Machado’s Massachusetts

residence. Machado obtained passage for two to Bos-

ton on the same train in the name of Mr. and Mrs.

Machado. His traveling companion was subsequently

identified as the defendant Leary. This information,

together with a description of Machado, was fur-

nished by Amtrak officials to the San Diego agents

and was relayed to agents in Boston.

The Boston agents determined that Machado’s train

was due at approximately 7:50 p.m. on May 10,

1973. While some preliminary investigation was done

on May 8, 9 and 10, the agents made no attempt to

secure search or arrest warrants. When the train

stopped at New Haven on May 10, Amtrak officials

verified that the footlocker was still aboard. This

information was conveyed to the Boston agents who

placed South Station under surveillance.

35a

The train arrived in Boston approximately one

hour late. The agents identified Machado from the

description that had been provided them. They ob-

served Machado and Leary take possession of an old

brown footlocker and two suitcases. A trained de-

tector dog was brought into the station rotunda near

where Machado and Leary were waiting. The dog

“alerted” to the presence of marijuana in the foot-

locker which Machado and Leary had claimed.

After claiming the footlocker, Machado was ob-

served making a telephone call. The agents were

unable to see the number that was dialed, nor did

they overhear any portion of the conversation.

Shortly thereafter, Chadwick entered South Sta-

tion and went up to Machado and Leary. The three

engaged in brief conversation after which they all

left the station with a railroad porter who was push-

ing the footlocker on a baggage cart. Leary entered

the passenger side of a Dodge Polara automobile

parked outside South Station. Machado and Chad-

wick assisted the porter in placing the footlocker

onto the floor of the automobile’s trunk. The auto-

mobile engine was not running and the trunk lid

was wide open. At this point, approximately 9:15

p.m., federal agents, who were among a number of

law enforcement officials staking out the area, placed

all three defendants under arrest and took possession

of the automobile and the footlocker as well as the

personal luggage of defendants Machado and Leary.

Subsequent to their arrest, keys and documentation

indicating his ownership of the footlocker were found

86a

on the defendant Machado. No such evidence was

found on the defendant Chadwick.

The defendants were driven to the John F. Ken-

nedy Federal Building (J.F.K.) in government ve-

hicles. A government agent drove the Dodge Polara

with the footlocker still in its trunk to J.F.K. Some-

time between 9:30 and 11:00 p.m., federal agents

opened the footlocker in their J.F.K. offices, and

found a large quantity of marijuana. Marijuana

was also found in the two suiteases. At no time did

the federal agents secure a search warrant.

Arguably incriminating statements were made by

the defendant Chadwick subsequent to his arrest,

either in the vehicle on the way to J.F.K. or at the

agents’ J.F.K. offices.* A search of Chadwick’s per-

son following his arrival at J.F.K. revealed a small

amount of marijuana.

The statements made by Chadwick were part of a con-

versation that he had with two federal agents. While the

anegts who accompanied Chadwick to the J.F.K. building

testified differently as to where the conversation occurred,

they both agreed as to the substance of the conversation.

Chadwick said that he had come down from Salem, New

Hampshire, to pick up a friend. Then he asked the agent

how he knew what was in the trunk. The agent responded

that he would ask the questions and asked Chadwick how he

knew. Chadwick said that he did not know what was in the

trunk. Precisely where the conversation occurred is immaterial

for the purposes of this motion to suppress since both agents

agreed that it occurred after Chadwick was arrested.

37a

I. PROBABLE CAUSE TO ARREST CHADWICK

Chadwick claims that his arrest was without prob-

able cause, and this court agrees.

Probable cause to effectuate a warrantless arrest

only exists “if the facts and circumstances known

to the officer warrant a prudent man in believing

that the offense has been committed.” Henry v.

United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171,

4 L.Ed.2d 134 (1959). Accord, Brinegar v. United

States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.

Ed. 1879 (1949); Carroll v. United States, 267 U.S.

132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The

circumstances surrounding Chadwick’s arrest fall

short of meeting this standard.

There is no evidence as to whom Machado called

from the South Station. But even if it may be pre-

sumed that Machado called to inform Chadwick of

his and Leary’s arrival, a non-criminal explanation

of Chadwick’s conduct is at least as likely as one

indicating that “an offense has been or is being com-

mitted.” Brinegar v. United States, 338 U.S. at 176,

69 S.Ct. at 1311.

Simply stated, the non-criminal explanation is that

two friends of Chadwick arrived by train from an

out-of-town trip. The train was late. They called

and asked him to pick them up at the station. He

arrived at the station, exchanged pleasantries and

assisted the porter in placing their luggage in the

open trunk of a car. Then, he was arrested.

There was no evidence that agents had been alert-

ed, during the several days they were awaiting Ma-

38a

chado’s and Leary’s arrival, to the likelihood or even

the possibility of a third party accomplice being in-

volved. There was no evidence that Chadwick was

recognized as a trafficker by the agents who observed

him entering South Station. There was no evidence

that the defendant Chadwick knew what was in the

trunks, nor can such knowledge be inferred from the

record. The most the government can squeeze from

these operative facts is that, when arrested, Chad-

wick was in the presence of two people suspected of

criminal activity. His presence at the railroad sta-

tion and his momentary contact with the footlocker,

as he assisted the porter and Machado in placing it

in the trunk of the car, are fully explicable in terms

of noncriminal conduct and add nothing to the gov-

‘\ernment’s case. “Mere presence at the scene of a

criminal offense does not support an inference of

guilt of that offense.” Newsom v. United States, 335

F.2d 237, 239 (5th Cir. 1964). See, e.g., McDonnell

v. United States, 472 F.2d 1153, 1156 (8th Cir.),

cert. denied 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d

402 (1973).

The Government concedes, at page three of its

memorandum, that to a2 lay observer the circum-

stances of Chadwick’s involvement might appear in-

nocent, but argues that an experienced agent would

recognize them as being significant. According to

the Government, an experienced observer could read-

ily detect that Chadwick was being used as a “mule”

—a courier for transporting drugs. This argument

would appear to urge adoption of a subjective stand-

39a

ard of probable cause which would require, as a

threshold matter, an evaluation by the court of an

agent’s experience and ability in order to weigh what

criminal significance he might have legitimately

ascribed to a given set of circumstances. To adopt

such a standard would set an unfortunate precedent

with the distinct possibility of facially inconsistent

results, depending on the impression a particular

agent made on a particular judge.

Certainly, as was noted in United States v. Kancso,

252 F.2d 220, 222-223 (2d Cir. 1958), government

agents, in their efforts to protect the public, must

depend on a variety of resources, including their own

knowledge and expertise. This is why undercover

efforts are permitted, and the law with respect to

entrapment is geared to protect unwary innocents

as opposed to unwary criminals. It is quite another

matter to say, in effect, that probable cause is in the

eyes of the beholder; that the results of a probable

cause hearing could vary depending on whether the

key witness happened to be a government_agent as

opposed to a private citizen. It would be impossible

to rationalize such an approach with a concept so

fundamental to fair trial; i. e., that, subject to ex-

ceptions not here material, the weight and credibility

of all testimony is to be judged by the same stand-

ards.

We do not handcuff our government agents by

requiring that they arrest only when the facts upon

which they wish to rely would warrant a man of

reasonable caution—as opposed to one of extraordi-

40a

nary sophistication—in concluding criminal activity

was taking place. They are merely required to meet

a standard that can be understood by the average

reasonably prudent person.

The Supreme Court has consistently rejected any

attempt to dilute the probable cause safeguard. Nei-

ther mere suspicion nor subjective good faith can

substitute for objective, probable cause as a basis

for arrest.

Anything less [than probable cause] would in-

vite intrusions upon constitutionally guaranteed

rights based on nothing more substantial than

inarticulate hunches, a result this Court has con-

sistently refused to sanction.

Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880,

20 L.Ed.2d 889 (1968) citing Beck v. Ohio, 379 U.S.

89, 96-97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Rios

v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.

Ed.2d 1688 (1960); Henry v. United States, 361

U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

The Government’s effort to justify the arrest on

the grounds that Chadwick was at least in construc-

tive possession of the footlocker and, therefore, is

presumed to know of its contents must also fail.

There is no evidence sufficient to warrant a finding

that, at the time of arrest, Chadwick had exercised

any dominion or control over the subject footlocker.

His contact with the footlocker in the South Station

was less than that of the porter. His assisting the

porter and Machado in placing the footlocker in the

trunk was not an exercise of dominion and control.

4la

Indeed, the fact that the footlocker had been placed

on the floor of the car’s trunk did not transform

Chadwick’s role or status into a possessory one. As

a matter of fact, the agents had no information prior

to Chadwick’s arrest that he owned or had rented

the Dodge Polara, or that he was the one who drove

it to South Station. On the facts available, Chadwick

was no different from thousands of others who pick

up passengers at various terminals and yet cannot

be deemed to have dominion or control of their bag-

gage. The evidence being insufficient to warrant a

finding of possession, there can be no permissible in-

ference of knowledge with respect to the contents of

the footlocker.

Even assuming, however, that somehow at least

a joint constructive possession on the part of Chad-

wick could be presumed, the facts do not warrant a

presumption of knowledge as to the footlocker con-

tents.

In Leary v. United States, 395 U.S. 6, 89 S.Ct.

1532, 23 L.Ed.2d 57 (1969), which dealt with a sta-

tutory presumption of knowledge, the Court estab-

lished that such a presumption is unconstitutional

“unless it can at least be said with substantial assur-

ance that the presumed fact is more likely than not to

flow from the proved fact on which it is made to

depend.” Jd. 395 U.S. at 36, 89 S.Ct. at 1548. This

standard is also applicable to common law inferences

such as an inference of guilty knowledge from the

fact of unexplained possession of stolen goods. See

Barnes v. United States, 412 U.S. 837, 845 n. 8, 93

42a

S.Ct. 2357, 37 L.Ed.2d 380 (1973). Thus, there can

be no automatic inference from Chadwick’s momen-

tary joint possession of the footlocker trunk that he

knew the trunk contained marijuana.

None of the cases cited by the Government ade-

quately support its position that knowledge of the

contents can automatically be inferred from momen-

tary possession. Primary reliance is placed on People

v. Nettles, 23 Ill.2d 306, 178 N.E.2d 361 (1961),

cert. denied, 369 U.S. 853, 82 S.Ct. 939, 8 L.Ed.2d

12 (1962). That case dealt with possession of nar-

cotics that were found in the apartment in which the

defendant was living, a factual situation clearly dis-

tinguishable from the operative circumstances of this

case.

State v. Funk, 490 S.W.2d 354 (Mo. Ct.App.

1973), also cited by the Government, stands for the

proposition that one in exclusive control of a dwell-

ing may be deemed to knowingly possess what is con-

tained therein. That court drew a major distinction,

however, between exclusive and joint control and con-

cluded that where control was joint, some further

evidence must be adduced connecting the defendant

with the drug. Jd. 490 S.W.2d at 361. Accord, United

States v. Bonham, 477 F.2d 1137 (8rd Cir. 1973).

In this case, there was no such evidence tying Chad-

wick to the footlocker or its contents.

The Government also cited People v. Reisman, 29

N.Y.2d 278, 327 N.Y.S.2d 342, 277 N.E.2d 396

(1971), in support of its position. There the evidence

showed that the defendant claimed two packages of

43a

marijuana addressed to him at Kennedy Airport.

While it may well be valid to infer that a person

knows the contents of a package addressed to him,

such a proposition has no application to the facts of

this case. The destination address of the footlocker

was Machado’s, not Chadwick’s. The trunk was

claimed by Machado, not Chadwick. Even the dicta

of Reisman indicating that one may be presumed to

know the contents of his automobile is of no assis-

tance to the Government, there being no evidence

prior to his arrest that Chadwick owned, drove or

leased the Dodge Polara.’

Judged against the standards established by the

Supreme Court in Barnes v. United States, 412 U.S.

837, 93 S.Ct. 23857, 37 L.Ed.2d 380 (1973); Turner

v. United States, 396 U.S. 398, 90 S.Ct. 642, 24

L.Ed.2d 610 (1970); and Leary v. United States,

395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969),

this court must conclude that the Government has not

sustained its burden of demonstrating that the pre-

sumed fact—knowledge—follows more likely than not

from the proved fact—momentary, joint possession.

Chadwick’s conduct is wholly explicable as non-crim-

inal conduct and the Government has adduced no

additional evidence linking him with the footlocker

containing marijuana.

There having been insufficient cause to justify

Chadwick’s arrest, his subsequent statements and all

* The ancillary issue as to whether or not, under the cir-

cumstances, the footlocker was part of the “contents” of the

automobile at the time of arrest is discussed in part III infra.

44a

evidence seized during the post-arrest search of his

person is suppressed.‘ Wong Sun v. United States,

871 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

II. PROBABLE CAUSE TO ARREST LEARY

Defendant Leary has claimed that the agents also

lacked probable cause to arrest her. This court dis-

agrees and holds that the facts and circumstances

surrounding her arrest were sufficient in themselves

to warrant a man of reasonable caution in the belief

that she was committing an offense. Brinegar v.

United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93

L.Ed. 1879 (1949).

At the time of her arrest, the agents reasonably

believed that she was the wife of the defendant Ma-

chado. The tickets for the cross-country train trip

were in the name of Mr. and Mrs. Machado. They

were seen together in San Diego prior to the depar-

ture of the train. They arrived together at South

Station; claimed the luggage together and were

standing together when Chadwick entered South Sta-

tion. When they left the station, she immediately en-

« Chadwick’s alternate basis for suppressing his post-arrest

statements—lack of Miranda warnings—was not supportable

on the basis of the evidence presented at the hearing. The

credible testimony disclosed that the Miranda warnings were

read to both Chadwick and Machado by a railroad police

officer who accompanied them to J.F.K. The federal agent

who drove the vehicle then went over each of the rights and

asked the defendants whether they understood each facet of

their Miranda rights. Both defendants indicated that they

understood their rights. This occurred prior to the conversa-

tion recited in note 1 supra. Hearing Transcript 31-35.

DOIN cea mil tas

45a

tered the automobile while her “husband” and Chad-

wick assisted the porter in placing their luggage in

the trunk.

Having redeemed their luggage together, Machado

and Leary had joint possession and control of the

footlocker trunk. The agents had probable cause to

believe that it contained marijuana. The agents had

probable cause to believe that the “wife” knew the

contents of the baggage that accompanied her and

her husband across the country. Indeed it strains

credulity to suggest that a spouse would not know

the contents of such a significant piece of luggage.

That Leary was not the wife of Machado and that,

in fact, she may not have known the contents of the

footlocker is immaterial to a finding that the agents

had reasonable cause to believe the contrary. Accord-

ingly, this court finds that there was probable cause

to arrest the defendant Leary.

Ill. THE WARRANTLESS SEARCH

OF THE FOOTLOCKER

While the defendants, Chadwick and Leary, have

disclaimed ownership of any of the luggage seized,

they have standing to challenge the search. Jones v.

United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d

697 (1960), gives a defendant standing to object to a

search when charged with a crime wherein posses-

sion of the article is itself an essential element.

It is conceded that the footlocker was searched

without a warrant. Warrantless searches are per se

46a

unreasonable, subject to a few carefully delineated

and limited exceptions. Katz v. United States, 389

U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The

search, therefore, can be justified only if it meets the

requirements of some exception to the warrant re-

quirement.’

The Government seeks to justify this search as an

automobile exception, see Chambers v. Maroney, 399

U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) ; Car-

roll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69

L.Ed. 543 (1925), contending that the facts of this

case are controlled by United States v. Soriano, 497

F.2d 147 (5th Cir. 1974) (en banc).

In Soriano, the evidence showed that federal law

enforcement officials followed a taxi occupied by

three people whom the agents had probable cause to

believe were transporting heroin. Upon arrival at

the Miami International Airport, the agents arrested

the occupants of the cab, and removed three suitcases

from that vehicle. The agents peeked into one of the

suitcases at the place of arrest; the other two were

searched at a place other than that of arrest. The

district court suppressed the heroin found in all three

suiteases. The court of appeals affirmed. Reversing

both the district court and the court of appeals panel,

the Fifth Circuit Court of Appeals, sitting en banc,

‘The recognized exceptions to the warrant requirement

are (1) hot pursuit; (2) plain view doctrine; (3) emergency

situation; (4) automobile search; (5) consent; and (6) in-

cident to arrest. United States v. Mapp. 476 F.2d 67, 76 (2d

Cir.1973).

47a

sustained the search on the rationale of Chambers

v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d

419 (1970).

Chambers involved a warrantless automobile search

at the police station following a late night arrest of

the four defendants who were in their automobile

parked in a dark parking lot. In upholding the de-

layed search, the Court held that a lawful search

could have taken place on the spot because the auto-

mobile was readily movable and the opportunity to

search was fleeting. The Court then reasoned that a

warrantless seizure is arguably as intrusive of pro-

tected Fourth Amendment rights as a warrantless

search. Noting that, for constitutional purposes,

there was little to choose between a warrantless

search and a warrantless seizure pending receipt of

a search warrant from a magistrate, the court con-

cluded, in the context of that case, that “[g]iven

probable cause to search, either course is reasonable

under the Fourth Amendment.” 399 U.S. at 52, 90

S.Ct. at 1981. The delayed search was treated as if

the initial exigency validating the warrantless seiz-

ure had continued.

Chambers was based on Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the

Supreme Court case that first articulated the auto-

mobile exception to the warrant requirement. The

search in Carroll occurred on the open highway after

police officers had stopped a speeding vehicle suspect-

ed of containing contraband liquor.

48a

While the exact parameters of the automobile ex-

ception have not been determined, it is important to

note at the outset out “[t]he word ‘automobile’ is not

a talisman in whose presence the Fourth Amendment

fades away and disappears.” Coolidge v. New Hamp-

shire, 403 U.S. 448, 461-462, 91 S.Ct. 2022, 2035,

29 L.Ed.2d 564 (1971) (Stewart, J.).

In all of the so-called automobile exception cases

there was a nexus between the search and the auto-

mobile; a danger that if the warrantless search were

not permitted, contraband might well disappear. In

this case, there was no nexus between the search and

the automobile, merely a coincidence. The challenged

search in this case was one of a footlocker, not an

automobile. The search took place not in an automo-

bile, but in J.F.K. The only connection that the auto-

mobile had to this search was that, prior to its seiz-

ure, the footlocker was placed on the floor of the auto-

mobile’s open trunk.

Unlike the situation in Soriano, the footlocker had

not beer. transported in the automobile. It was being

delivered from and not to a public transportation

terminal. From the time that the defendants ap-

proached the automobile until they were arrested and

in custody, the trunk lid of the automobile was never

closed. The footlocker remained in plain view at all

times. The motor of the car was not running. No

one was in the driver’s seat behind the wheel. Under

these circumstances, the floor of the automobile trunk

was nothing more than a platform or resting place

for the footlocker.

49a

Arguably, the Boston agents had probable cause

to arrest Machado and Leary when they claimed the

footlocker at South Station. Even if they did not

have probable cause at that instant, they clearly had

probable cause after the detector dog had alerted to

the presence of marijuana in the footlocker trunk.

Had the arrest taken place in the station area, a

warrant would have been required before the foot-

locker could have been permissibly searched, Had

the arrest taken place while the footlocker trunk was

on the porter’s trolley, a warrant would have been

required. See United States v. Garay, 477 F.2d 1306,

1308 (5th Cir. 1973); United States v. Anderson,

500 F.2d 1311 (5th Cir. 1974). To hold that merely

placing the footlocker onto the floor of the trunk of

an automobile, parked with its motor off and its

driver’s seat empty, invokes the automobile exception

would be to trigger consideration of the automobile

exception anytime an automobile was even remotely

in the picture.

But even assuming the facts of this case warrant

consideration of the automobile exception, the ra-

tionale under which we validate searches of automo-

biles without a warrant is of no help to the Govern-

ment here. The concept of a vehicle containing con-

traband liquor fleeing on the highway in the night.

is very remote from the situation in this case. See

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280,

69 L.Ed. 543 (1925). The various extensions of

Carroll have all been justified on the presence of

some exigency, a realistic danger that evidence would

50a

disappear unless a warrantless search were per-

mitted. In Chambers, the Court extended the rule

by allowing the officers to defer the search of the

automobile until it was taken to the stationhouse.

In Soriano, the court allowed the luggage that was

seized from a taxicab in which the defendants ar-

rived at an airport to be searched in part at the

airport and later in full at the stationhouse.

However great or slight the exigencies might have

been in those cases, none of them are present here.

The automobile was not moving. There were no

known or suspected accomplices in the area. In fact,

the agents had deferred the arrest until the defend-

ants were outside the station precisely to determine

whether there were other individuals involved. The

defendants were arrested, handcuffed and placed im-

mediately into government vehicles. There were nu-

merous officers present, including city policemen, rail-

road guards and federal agents. The arrest took

place within 10 blocks of the federal courthouse past

which the agents traveled on their way to J.F.K.

where the actual search took place. The footlocker

was locked with two different locks and, immediately

after the arrest of the defendant, the keys that

opened the locks were obtained by federal agents.

The footlocker, which weighed two hundred pounds,

was not in imminent or even potential danger of

being destroyed or spirited away.

In brief, no exigency that would justify a warrant-

less search on the grounds of an automobile excep-

tion to the warrant requirement of the Fourth

5la

Amendment can be found on the facts of this case.

To rule otherwise would be to establish a per se

rule permitting a warrantless search any time an

automobile was even remotely involved in an arrest.

While such a rule might be convenient for law en-

forcement officers, as well as for courts which are

required to decipher and distinguish the many pre-

cedents in this troublesome area, it would be an un-

necessary and undesirable dilution of existing Fourth

Amendment safeguards.

The Government has placed exclusive reliance on

the automobile exception as a basis for validating

this warrantless search. That argument has been

rejected. The court has examined the other excep-

tions to the warrant requirement and finds that none

of them are applicable to the facts of this case. There

being no justification for the warrantless search of

the footlocker trunk and suitcases, all evidence ob-

tained therefrom is hereby ordered suppressed.

52a

SUPPLEMENTAL OPINION

On January 13, 1975, an opinion and order was

entered granting the defendants’ motion to suppress.

On February 7, 1975, the Government filed motions

to reconsider and to vacate." The motion for recon-

sideration was granted and a hearing held on the

motion to vacate.

In support of its motion to vacate, the Govern-

ment introduced additional evidence with respect to

the search of the suitcases and also offered an addi-

tional theory to support the footlocker search. Al-

though none of this evidence was inconsistent with

the court’s previous findings of fact, it did provide

more detail concerning the search of the two suit-

cases. The court makes the following supplemental

findings of fact, but incorporates by reference the

findings and conclusions made in its original opinion

dated January 13, 1975.

SUPPLEMENTAL FINDINGS OF FACT

As the three defendants departed the South Station

terminal, the defendant Leary was carrying one of

the two Tourister suitcases (see January 13, 1975

1 The Government filed a notice of appeal on February 10,

1975. By an order dated February 25, 1975, the Court of

Appeals granted leave to the district court to entertain and act

on the Govermment’s Motion for Reconsideration. While re-

taining appellate jurisdiction of the case, the Court of Appeals

stayed further prosecution of the appeal pending the action

of this court on the Government’s motion.

53a

opinion at p. 767) which she placed in the passenger

compartment of the automobile. The other suitcase

was placed in the automobile trunk with the foot-

locker. Neither suitcase was opened or removed from

the vehicle before the federal agents drove the auto-

mobile to J.F.K.

At their J.F.K. offices, the agents opened the foot-

locker first, using the keys that had been found on

the defendant Machado. It was at this time that

the marijuana was first seen in the footlocker. (See

January 13, 1975 opinion at pp. 767-768).

After having opened the footlocker, the agents

then sought to open the two suitcases, ostensibly for

the purpose of inventorying their contents. Both

suit cases were locked. The agents opened both suit-

cases by picking their locks. Marijuana was found

in both suitcases. Permission to open the suitcases

was not sought or obtained from any of the de-

fendants and the agents made no effort to secure a

search warrant. Although the Government claims

that the purpose for searching these suitcases was

to inventory the items contained therein, no inven-

tory list was introduced into evidence. Moreover,

there was no evidence that an inventory list was

prepared and given to the defendants. The Govern-

ment represented that the inventory search was con-

ducted pursuant to a procedure specified in the

Agents Manual.’

* Agents Manual, {| 6662.25 (A) (2). Collection and Handling

of Other Personal Property:

Personal property of non-evidentiary value which is

54a

I

THE FOOTLOCKER SEARCH

The Government’s original opposition to defend-

ant’s motion to suppress the fruits of the footlocker

search was based exclusively on the “automobile ex-

ception” to the search warrant requirement. (See

January 13, 1975 opinion at pp. 767-768). The

Government now asserts that this search should be

justified as one incident to arrest. Its theory is that

had the search taken place when the defendants were

arrested, it would have been valid,” and the mere

fact it was delayed does not make it any less valid

as an exception to the warrant requirement of the

Fourth Amendment. The court disagrees.

found in a seized automobile will be handled as outlined

in 6654.23.

Agents Manual, { 6654.23 Seizure Proceedures:

Upon seizing the vehicle, it must be thoroughly searched.

A search performed pursuant to civil seizure need not be

contemporaneous with an arrest, and no search warrant

is necessary. Remove all articles from the vehicle which

are not part of the vehicle itself.

Personal propery in the vehicle should be returned to

the owner or the person from whom the vehicle was seized,

and a receipt obtained.

’ Since a lawful arrest is a necessary condition precedent to

a search incident to arrest, this argument is not applicable

to the defendant Chadwick since his arrest was illegal. See,

e.g., Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168,

4 L.Ed.2d 134 (1959); January 13, 1975 opinion at pp. 767-

771.

55a

In the recent cases of United States v. Robinson,

414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)

and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488,

38 LEd.2d 456 (1973), which dealt with warrantless

searches of the person, the Court noted essential

differences between a search of a person as con-

trasted with a search of the area within his control.

A key issue to be determined in the latter situation

is the scope and meaning of the phrase “area within

his control.”

An analytical framework for applying that phrase

to differing factual settings was given by the Court

in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct.

2034, 2040, 23 L.Ed.2d 685 (1969):

There is ample justification, therefore, for a

search of the arrestee’s person and the area

“within his immediate control”—construing that

phrase to mean the area from within which he

might gain possession of a weapon or destructi-

ble evidence.

The vitality of the Chimel test has not been affected

by Robinson, Gustafson, or other subsequent Su-

preme Court opinions.

In arguing that a search of a 200 pound, double-

locked footlocker is encompassed in the phrase “area

within his immediate control,” the Government has

cited five cases, Draper v. United States, 358 U.S.

307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United

States v. Buckhanon, 505 F.2d 1079 (8th Cir. 1974);

United States v. Maynard, 439 F.2d 1086 (9th Cir.

1971); United States v. Mehciz, 487 F.2d 145 (9th

56a

Cir.), cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29

L.Ed.2d 1389 (1971); United States v. Lugo-Baez,

412 F.2d 435 (8th Cir. 1969), cert. denied, 397 U.S.

966, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). In all

of these cases, the luggage that was searched was

being carried by the defendant at the time of his

arrest. It may be that hand-carried luggage is en-

compassed in the phrase “area within his immediate

control.” But the footlocker in this case was not

hand-carried luggage. It was a double-locked, 200

pound container that had already been placed in the

open trunk of an automobile at the time of the

arrest. At the time of the arrest, the defendants

had been immediately handcuffed and surrounded

by numerous federal and local law enforcement of-

ficials. To hold under these circumstances that this

footlocker was an area “from within which [the de-

fendant] might gain possession of a weapon or de-

structible evidence” would be to render meaningless

the limitations imposed by the Court in Chimel. As

a matter of fact, practicality and law, this footlocker

was simply not within the control of the defendants

at the time of arrest.‘

¢ Since this court has ruled that the search of the footlocker

could not be justified as a search incident to arrest had it taken

place contemporaneously with the arrest, there is no need to

determine whether the delayed search could be justified as

“substantially contemporaneous.” Compare Preston v. United

States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777

(1964) “[o]nce an accused is under arrest and in custody,

then a search made at another place, without a warrant, is

simply not incident to arrest,” with United States v. Edwards,

57a

II

THE SEARCH OF THE SUITCASES

In its memorandum in support of its motion for

reconsideration, the Government asserted that “the

opening of the suitcase was effected—not as a search

for more incriminating evidence—but simply to in-

ventory the contents of the suitcase according %

established DEA procedure.” Government Memoran-

dum at 3. Because the Government placed exclusive

reliance on the inventory search exception, it did not

attempt to justify the search of the luggage on the

search incident to arrest exception. In any event,

the suitease searches could not be upheld as incident

to arrest because there was no showing that, at the

time of arrest, the suitcases were within the im-

mediate possession or control of any of the defend-

ants.

At the time of arrest, both suitcases were locked.

One was in the automobile trunk and was as inac-

cessible as the footlocker. The other was somewhere

in the passenger compartment of the automobile.

While the defendant Leary was seated on the pas-

senger’s side of the front seat, there was no evi-

dence that the suitease was even within her reach

415 U.S. 800, 803, 94 S.Ct. 1234, 1237, 39 L.Ed.2d 771 (1974),

“searches and seizures that could be made on the spot at the

time of arrest may legally be conducted later when the

accused arrives at the place of detention.” See Coolidge v.

New Hampshire, 403 U.S. 443, 457, 91 S.Ct. 2022, 29 L.Ed.2d

564 (1971).

58a

let alone her control. “[{T]he burden is on those seek-

ing the exemption [from the warrant requirement]

to show the need for it.” United States v. Jeffers,

342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951).

That burden has not been sustained.’

The Government’s attempts to justify the suitcase

searches as “inventory searches” must also fail. This

search was not required or authorized by the section

of the Agents Manual pursuant to which the Govern-

ment claims the agents were acting. The relevant

portion provides only that “upon seizing the vehicle,

it must be thoroughly searched .. . . Personal prop-

erty in the vehicle should be returned to the owner

or the person from whom the vehicle was seized,

and a receipt obtained.” Agents Manual { 6654.23

(March 19, 1974). This section does not require or

even suggest that the agents are authorized to

forcibly open a closed, locked suitcase for the pur-

pose of “‘inventorying” its contents.

Even assuming the Agents Manual could be con-

strued to have authorized the-suitcase searches, such

authorization would not validate an otherwise un-

constitutional search. An inventory search is, none-

theless, a search within the meaning of the Fourth

5 Even if the suitcase search at a different time and place

could be justified as “incident to arrest,” it would be difficult

to justify that extension to the facts in this case. Both suit-

cases were locked and no one had the keys to open them.

The agents were forced to pick the locks in order to open

the suitcases. Such facts demonstrate rather forcefully that

the suitcases were not an area from which an arrestee could

readily obtain either a weapon or destructible evidence.

59a

Amendment. See, e.g., Preston v. United States, 376

U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964);

United States v. Lawson, 487 F.2d 468 (8th Cir.

1973) ; Mozzeti v. Superior Court. 4 Cal.3d 699, 94

Cal.Rptr. 412, 484 P.2d 84 (1971); cf. Terry v.

Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968). The reasonableness of an inventory search

is to be tested against established constitutional prin-

ciples, and not on the basis of routine administra-

tive practice.

Inventory searches have been justified for a num-

ber of reasons including safeguarding the personal

property of the arrestee, insulating the agents from

later claims of theft or lost property, as well as

institutional, safety. None of these considerations

is available to justify as inventory searches the break-

ing into these suitcases. It is simply not credible

to suggest that a closed, locked suitcase posed a

threat to the institutional safety. The suitcases were

securely in the possession of the agents and the de-

fendants were all in custody. No more credible is

the theory advanced by the Government that the

search was necessary to protect the agents from

later claims of theft or lost property. It is difficult

to see how the integrity of agents is safeguarded

by picking the lock to a suitcase. Such forcible entry

would likely invite more, rather than fewer, claims

* Agent Christopher testified that the inventory was not

conducted because of concern for institutional safety and that

the agents did not suspect that the suitcases contained ex-

plosives. See Transcript, March 6, 1975 hearing at p. 14.

60a

of theft. Breaking open the suitcases (the descrip-

tion used by the agent who testified) was an unrea-

sonable and, therefore, unacceptable approach to the

problem.

Other reasonable alternatives, less drastic but at

least as effective, were available to the agents. The

locked suitcases could have been placed in a locked

storage facility, the key to which locker could then

have been sealed in an envelope and kept with the

other personal property taken from the defendants.

Alternatively, the agents could have placed sealing

tape over the lock of the suitcase which could have

been initialed by the defendants and/or an agent.’

Either of these procedures would have been reason-

able. The Government’s approach was not. Since

“t]he scope of the search must be ‘strictly tied to and

justified by’ the circumstances which rendered its ini-

tiation permissible,” Terry v. Ohio, 392 U.S. 1, 19, 88

S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968) (citations

omitted), the present search, which went far beyond

the permissible limits of an inventory search, cannot

be upheld on that rationale.

Both of the cases cited by the Government in sup-

port of its inventory search raticnale are readily

distinguishable. In Harris v. United States, 390 U.S.

234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), an

*For a discussion of other reasonable alternatives to an

inventory search, see Mozzetti v. Superior Court, 4 Cal.3d 699,

94 Cal.Rptr. 412, 484 P.2d 84 (1971); Note, The Inventory

Search of an Offender Arrested for a Minor Traffic Violation,

53 B.U.L.Rev. 858, 869 (1973).

6la

incriminating piece of evidence came into plain view

when a police officer opened the door of defendant’s

impounded car for the purpose of closing the win-

dow since it had just started to rain. Since that

minimal intrusion to safeguard the car was a legiti-

mate police function, Harris is merely an applica-

tion of the plain view doctrine. Justice Douglas,

concurring, noted that this case did not undermine

the Court’s previous holding in Preston v. United

States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777

(1964), where the Court held illegal a full-blown

inventory search. In Cooper v. California, 386 U.S.

58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the Court

upheld an inventory search of an automobile that

was being held subject to forfeiture proceedings.

The search occurred one week after the defendant

had been arrested and the car impounded. Since

“the reason for and nature of the custody may

constitutionally justify the search,” 386 U.S. at 61,

87 S.Ct. at 791, the Court held that an inventory

search pursuant to a forfeiture proceeding was con-

stitutionally permissible.

In this case, there was no claim that the suitcases

were being held for forfeiture proceedings. The

agents viewed the suitcases as the personal property

of the defendants and intended only to “safeguard”

their contents pending release of the defendants.

Neither Harris nor Cooper justifies the agent’s pick-

ing the locks of these suitcases.

62a

Iil

SUPPRESSION OF CHADWICK’S STATEMENT

The Government challenges this court’s order sup-

pressing the statements made by the defendant Chad-

wick shortly after his illegal arrest. (See January

13, 1975 opinion at pp. 770-771). The Government’s

position is that the agent’s recitation of Miranda

warnings to Chadwick purged his statement of any

taint occasioned by the illegal arrest. This court

disagrees.

The Government has focused on only one of two

factors deemed important by the Court in Wong Sun

v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.

2d 441 (1963). The threshold question is whether

Chadwick’s statement was voluntary. The mere reci-

tation of Miranda warnings is not a guarantee that

the statement made was voluntary. Miranda teaches

that in-custody interrogation is inherently coercive,

even as to one who is lawfully in custody. That co-

ercive element is exacerbated where the initial arrest

is illegal.

It is probable that even today, when there is

much less ignorance about these matters than

formerly, there is still a general belief that you

must answer all questions put to you by a polive-

man, or at least that it will be the worse for

you if you do not.°

® Devlin, The Criminai Prosecution in England (1958), as

quoted in Wong Sun v. United States, 371 U.S. 471, 486

n. 12, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).

63a

The second element that led to the suppression of

the defendant Toy’s statement in Wong Sun was the

perceived need to impose sanctions on the illegal con-

duct of the police. The Court held that this could

best be achieved by depriving the police of the fruits

of their illegal conduct. Only where the statement

was made as a result of an “intervening independent

act of free will” did the Court uphold the admission

of the statement made following an illegal arrest.

Both factors are relevant to this case. Although

the defendant had received his Miranda warnings in

the agents’ car shortly before the allegedly incrimi-

nating statement was made, he was not requested to

execute nor did he execute a waiver of his Miranda

rights. The Government has the heavy burden of

establishing that Chadwick both voluntarily and

knowingly abandoned his right to remain silent. This

is particularly so since he was interrogated within

a few short minutes after being illegally arrested.

The Government has failed to meet this burden.

The court reaffirms its opinion and order of Janu-

ary 13, 1975. The motion to vacate that order is

hereby denied.

WY v. S. GOVERNMENT PRintine oFrrice; 1976 206346 2468

a