Petition — United States v. Stevie

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NORAEL SPDGK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

ROBERT CHARLES STEVIE

UNITED STATES OF AMERICA, PETITIONER

U.

RAYMOND LEE REYNOLDS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

: KENNETH S. GELLER

Assistant to the Solicitor General

JOSEPH S. DAVIES, JR.

JOEL M. GERSHOWITZ

Attorneys

Department of Justice

Washington, D.C. 20530

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

| No.

UNITED-STATES OF AMERICA, PETITIONER

v.

ROBERT CHARLES STEVIE

UNITED STATES OF AMERICA, PETITIONER

Vv.

RAYMOND LEE REYNOLDS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH 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 Eighth Circuit in this case.

OPINIONS BELOW

‘The opinion of the en banc court of appeals (App.

A, infra, 1la-15a) is reported at 582 F.2d 1175. The

(1)

2

opinion of the panel (App. B, infra, 16a-31a) is re-

ported at 578 F.2d 204.

JURISDICTION

The judgments of the court of appeals (Apps. D

and E, infra, 33a-34a) were entered on August 15,

1978, and a petition for rehearing was denied on

October 18, 1978 (App. C, infra, 32a). On November

9, 1978, Mr. Justice Blackmun extended the time

within which to file a petition for a writ of certio-

rari to and including December 17, 1978. The juris-

diction of this Court is invoked under 28 U.S.C. 1254

(1).

QUESTION PRESENTED

Whether contraband seized by law enforcement offi-

cers as a result of an immediate, probable cause

search without a warrant of a suitcase found inside

an automobile stopped on the highway should have

been suppressed.

STATEMENT

After separate trials on stipulated facts* in the

United States District Court for the District of Min-

nesota, respondents were convicted of possession with

intent to distribute of approximately 250 pounds of

marijuane, in violation of 21 U.S.C. 841(a) (1). They

were sentenced to 30 months’ imprisonment, to be

followed by two years’ special parole. After a divided

1 Respondents stipulated that the evidence adduced at the

joint suppression hearing would constitute the record for

purposes of their trials.

3

panel of the court of appeals affirmed (App. B, infra,

16a-31a), the court reconsidered the case en banc and

reversed, one judge dissenting (App. A, infra, la-

15a).

The evidence at the hearing on respondents’ motion

to suppress showed that on February 9, 1976, Officer

John Boulger and Agent Markus Kryger of the Drug

Enforcement Administration Task Force, acting on

a tip from a previously reliable informant, went to

the Minneapolis-St. Paul International Airport to ob-

serve James Erickson, who was allegedly returning

from Phoenix, Arizona, or Las Vegas, Nevada, with

a large quantity of marijuana (1 Tr. 6). The agents

knew that Erickson was associated with Theodore

Luciow, whose twin brother Anthony had been ar-

rested in possession of a substantial quantity of mari-

juana found in a car rented from Avis in Arizona in

the name of “Raymond Reynolds” (1 Tr. 9-11). They

also had reliable information that Anthony Luciow

had gone to Arizona to purchase this marijuana from

Reynolds (ibid.).

Among the passengers disembarking from a Las

Vegas flight shortly after midnight were respondents,

who attracted the agents’ attention because they were

acting “‘in a suspicious manner” and were “apprehen-

sive of things around them” (1 Tr. 16-17). As the

agents watched, respondent Stevie removed two large

and heavy suitcases from the baggage carousel (1 Tr.

20). Agent Kryger then walked up next to respond-

ent Stevie and observed the name “M. Roberts” and

a Phoenix address on the suitcases. After looking

4

warily at Agent Kryger, respondent Stevie engaged

a skycap to handle the luggage and returned for

three more large suitcases. Respondent Stevie gave

directions to the skycap and then joined respondent

Reynolds at the Avis automobile rental counter

(ibid.). Respondents’ gestures indicated that their

conversation pertained to the agents (1 Tr. 26).

After respondents had departed, Agent Kryger

learned from the salesperson at the counter that they

had rented a station wagon in the name “R. Reynolds”

of Phoenix, Arizona, and that the rental forms were

signed “Raymond L. Reynolds” (1 Tr. 28).

Agent Kryger and Officer Boulger, driving separate

vehicles, followed respondents’ station wagon out of

the airport parking lot (1 Tr. 30-31). The agents,

who were in radio contact with each other and with

the DEA office, observed the passenger in the station

wagon continually face the rear and the driver fre-

quently look into his rear-view mirror (1 Tr. 32).

Although the agents had originally planned to follow

respondents to their destination, they soon decided

that that was impractical because it appeared that

the suspects were becoming increasingly aware of the

surveillance (1 Tr. 33). They therefore stopped re-

spondents’ station wagon on the highway.

Agent Kryger approached the vehicle and asked

the driver for his license, which revealed that he was

Raymond L. Reynolds of Phoenix, Arizona. At the

same time, Officer Boulger established the passenger’s

identity as Robert Stevie. Hence, neither of the names

of the two men matched the name Agent Kryger had

5

observed on their luggage at the airport (1 Tr. 33-

34). As Agent Kryger stood by the open window of

the station wagon, he detected the odor of marijuana

emanating from the rear of the vehicle (1 Tr. 37).

The agents immediately ordered respondents out of

the car and arrested them (1 Tr. 38-39). They then

removed one of the suitcases from the floor of the

back seat of the station wagon and opened it (1 Tr.

40-41). Inside were several wrapped bricks of mari-

juana (ibid.).

A majority of the panel of the court of appeals

affirmed respondents’ convictions, finding that the ini-

tial stop of respondents’ vehicle was justified under

Terry v. Ohio, 392 U.S. 1 (1968), that the odor of

marijuana coming from the station wagon supplied

probable cause to arrest respondents and to search

their vehicle and its contents, and that the warrant-

less search of the suitcase was valid under the auto-

mobile search exception to the warrant requirement,

which the panel viewed as unaffected by United States

v. Chadwick, 433 U.S. 1 (1977) (App. B, infra, 21a-

29a). On rehearing en banc the court of appeals re-

versed, one judge dissenting. Although it agreed with

the panel that the agents had lawfully stopped the

station wagon and had arrested respondents and

seized their suitcase on probable cause, the court con-

cluded that the search of the suitcase without a war-

rant violated the Fourth Amendment, as construed in

Chadwick (App. A, infra, 5a-12a).

6

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals raises an im-

portant question of Fourth Amendment law identical

to that now before the Court in Arkansas v. Sanders,

cert. granted, No. 77-1497 (Oct. 10, 1978). In Sand-

ers, on similar facts,’ the Supreme Court of Arkansas

construed United States v. Chadwick, supra, to pro-

hibit police officers from conducting a warrantless,

on-the-spot search of a suitcase found inside an auto-

mobile stopped on a public street, even though the

officers had probable cause to believe that the suitcase

contained contraband. The Court’s decision in Sand-

ers should control this case.

Prior to Chadwick, the federal courts of appeals

had relied upon the automobile exception to the war-

rant requirement (see Carroll v. United States, 267

U.S. 182 (1925) ; Chambers v. Maroney, 399 U.S. 42

(1970) ) to uphold the warrantless, probable cause

search of luggage or other closed containers found

inside an automobile. See, e.g., United States v.

Chuke, 554 F.2d 260, 262-264 (6th Cir. 1977) ; United

* The facts in Sanders showed that on April 23, 1976, a

reliable informant notified police officers in Little Rock,

Arkansas, that the defendant would be arriving at the Munici-

pal Airport that afternoon with a green suitcase containing

marijuana. Police officers went to the airport and observed

defendant leave the terminal with a green suitcase and place

it in the trunk of a taxicab. As the cab drove away from the

airport, the officers stopped it and ordered the defendant to get

out of the vehicle and the cab driver to uniock the trunk. They

then opened the suitcase and found 9.3 pounds of marijuana

(77-1497 Pet. App. 2a).

7

States v. Canada, 527 F.2d 1874, 1880 (9th Cir.

1975), cert. denied, 429 U.S. 867 (1976); United

States v. Tramunti, 518 F.2d 1087, 1104-1105 (2d

Cir.), cert. denied, 423 U.S. 882 (1975); United

States v. Issod, 508 F.2d 990, 998 (7th Cir. 1974),

cert. denied, 421 U.S. 916 (1975); United States v.

Soriano, 497 F.2d 147, 149-150 (5th Cir. 1974) (en

banc), cert. denied, 483 U.S. 911 (1977). Although

Chadwick did not involve the search of an automobile,

and, indeed, although the Court’s opinion had ex-

pressly reaffirmed the validity of the automobile ex-

ception (433 U.S. at 12),° the circuits have disagreed

about the impact of Chadwick on these prior rulings.

The Fifth Circuit, like the Eighth Circuit in this

case, has stated that Chadwick requires law enforce-

ment officers to obtain a warrant before opening a

suitease seized from a motor vehicle. United States v.

Fontecha, 576 F.2d 601, 605 (5th Cir. 1978). See

also United States v. Montgomery, 558 F.2d 311, 312

(5th Cir.), cert. denied, 434 U.S. 927 (1977). On the

* This Court has never had occasion to apply the automo-

bile exception to the probable cause search of a chattel

taken from a motor vehicle. However, it has frequently

upheld the warrantless search of enclosed areas of an

automobile, such as a glove compartment or trunk, that

are in many ways indistinguishable from a suitcase or brief-

case found inside an automobile. See, e.g., Texas v. White,

423 U.S. 67, 68 (1975) (front seat console) ; Cady v. Dom-

browski, 418 U.S. 488, 487 (1978) (locked trunk) ; Scher v.

United States, 305 U.S. 251, 258 (1988) (locked trunk) ;

Chambers Vv. Maroney, supra, 399 U.S. at 44 (glove compart-

ment). See also United States v. Chadwick, supra, 438 U.S.

at 23 n.4 (Blackmun, J., dissenting).

8

other hand, in United States v. Finnegan, 568 F.2d

637, 640-641 (9th Cir. 1977), the Ninth Circuit ruled

that the automobile exception justified the warrant-

less, probable cause search of a suitcase left inside

an automobile following the arrest of the driver. See

also United States v. McGrath, 448 F. Supp. 1338,

1341-1342 (S.D. N.Y. 1978); ef. United States v.

Gaultney, 581 F.2d 1187, 1144-1145 (5th Cir. 1978).

The Court should hold this petition pending its

decision in Sanders. If the Court concludes in Sand-

ers that a warrant is not required to conduct an im-

mediate search, on probable cause, of a suitcase or

other chattel taken from an automobile under circum-

stances that would allow the motor vehicle itself to

be searched without a warrant, it should grant cer-

tiorari in this case and either reverse the judgment

of the court of appeals or, if appropriate, remand for

reconsideration in light of the decision in Sanders.‘

* The search in this case, like the one in Sanders, took place

prior to June 21, 1977, the date of the Court’s decision in

Chadwick. The Eighth Circuit’s holding that Chadwick should

be given retroactive effect (see also United States v. Schleis,

582 F.2d 1166 (8th Cir. 1978)) is in conflict with the deci-

sions of four other circuits (United States v. Choate, 576

F.2d 165, 182 n.20 (9th Cir. 1978), cert. denied, No. 78-42

(Nov. 6, 1978) ; United States v. Berry, 571 F.2d 2 (7th Cir.

1978), cert. denied, No. 77-6605 (Oct. 2, 1978) ; United States

v. Reda, 563 F.2d 510 (2d Cir. 1977), cert. denied, 485 U.S.

973 (1978) ; United States v. Montgomery, 558 F.2d 311 (5th

Cir.), cert. denied, 484 U.S. 927 (1977) ; see also United States

v. Powell, 449 F. Supp. 562, 564 (E.D. Pa. 1978)) and is con-

trary to this Court’s consistent approach to the issue. As the

Court observed in United States v. Peltier, 422 U.S. 581, 585

(1975) :

{[I]n every case in which the Court has addressed the

9

If, however, the Court affirms the judgment of the

Arkansas Supreme Court in Sanders, this petition

should be denied.

CONCLUSION

The Court should defer consideration of this peti-

tion pending the decision in Arkansas v. Sanders and

should then dispose of the petition in light of that

decision.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KENNETH S. GELLER

Assistant to the Solicitor General

JOSEPH S. DAVIES, JR.

JOEL M. GERSHOWITZ

DECEMBER 1978 Attorneys

retroactivity problem in the context of the exclusionary

rule, whereby concededly relevant evidence is excluded

in order to enforce a constitutional guarantee that does

not relate to the integrity of the factfinding process, the

Court has concluded that any such new constitutional

principle would be accorded only prospective application.

See also Williams vy. United States, 401 U.S. 646 (1971);

Desist v. United States, 394 U.S. 244 (1969); Linkletter v.

Walker, 381 U.S. 618 (1965). Indeed, retroactive application

of Chadwick is particularly inappropriate in the Eighth Cir-

cuit in view of the established pre-Chadwick law in that cir-

cuit upholding the warrantless search of chattels on probable

cause. See United States v. Schleis, 548 F.2d 59 (1976),

vacated and remanded, 423 U.S. 905 (1977) ; United States v.

Wilson, 524 F.2d 595, cert. denied, 424 U.S. 945 (1975);

United States v. Buckhanon, 505 F.2d 1079 (1974). See gen-

erally United States v. Peltier, supra, 422 U.S. at 542;

Chevron Oil Co. v. Huson, 404 U.S. 97, 107 (1971).

la

APPENDIX A

UNITED STATES COURT UF APPEALS

FOR THE EIGHTH CIRCUIT

No. 77-1335

UNITED STATES OF AMERICA, APPELLEE

v.

ROBERT CHARLES STEVIE, APPELLANT

No. 77-1424

UNITED STATES OF AMERICA, APPELLEE

v.

RAYMOND LEE REYNOLDS, APPELLANT

Submitted: April 13, 1978

Filed: August 15, 1978

ON PETITION FOR REHEARING EN BANC

Before GIBSON, Chief Judge, and LAY, HEANEY,

BRIGHT, ROSS, STEPHENSON and HENLEY,

Circuit Judges, en banc.

2a

HEANEY, Circuit Judge.

This case is before the Court pursuant to a peti-

tion for a rehearing en banc. In an opinion issued

on November 17, 1977, a panel of this Court held

that the initial stop of the appellants’ rented station

wagon was justified, that probable cause existed to

search one of the suitcases located in the rear of the

station wagon and that the warrantless search of the

suitcase at the scene of the arrest was valid under

United States v. Chadwick, 483 U.S. 1 (1977).

United States v. Robert Charles Stevie and United

States v. Raymond Lee Reynolds, Nos. 77-1335 and

77-1424 (8th Cir., filed November 17, 1977). We

leave the panel opinion untouched except insofar as

it upholds the warrantless search of the appellants’

suitcase.

I.

The background needed for the consideration of

this case is furnished by the panel opinion’s detailed

recitation of the facts, which we quote below.

On February 9, 1976, in response to a tip from

an informant who had provided reliable infor-

mation in the past, Officer John Boulger and

Agent Markus Kryger of the Drug Enforcement

Administration Task Force were at the Minne-

apolis-St. Paul International Airport to conduct

a surveillance of incoming passengers. Their in-

tention was to observe one James Erickson, who,

according to their information, had traveled to

Phoenix, Arizona, to purchase a large quantity

of marijuana and was to arrive by air from

either Phoenix or Las Vegas, Nevada. As a re-

sult of prior occurrences, the agents knew of

3a

James Erickson and that he had connections with

Theodore Luciow. They further were aware that

Theodore Luciow’s twin brother, Anthony, had

been arrested in possession of approximately 300

pounds of marijuana contained in an Avis rental-

ear rented in Arizona by Raymond Reynolds. At

that time reliable informants told them that

Anthony Luciow had gone to Arizona to pur-

chase this marijuana from Reynolds.

Among passengers embarking from a Las

Vegas incoming flight shortly before midnight,

two young, white males caught the agents’ atten-

tion because they were acting “[i]n a suspicious

manner’ and were “apprehensive of things

around them.” The two men, appellants Stevie

and Reynolds, did not communicate with each

other but maintained a distance of approximate-

ly fifty feet between themselves. In addition,

it was noted that Stevie was walking faster than

the other passengers.

When they reached the lower level of the air-

port, Stevie proceeded to the baggage claim area

and Reynolds approached the Avis car rental

counter, neither speaking to the other. Stevie

removed two large suitcases from the baggage

carousel. Agent Kryger observed that these ap-

peared to be heavy. At that point, without pre-

tense of secrecy, Agent Kryger walked up next

to Stevie and observed the name “M. Roberts”

and a Phoenix address on the bags’ nametags.

' After looking warily at Agent Kryger, Stevie en-

gaged a uniformed skycap to handle the luggage

and returned for three more large, new suit-

cases. He gave directions to the skycap and then

4a

walked over to the Avis counter and spoke to

Reynolds for the first time since the agents had

commenced observing them. Their gestures indi-

cated that the conversation pertained to the two

agents, who continued to observe them until

Officer Boulger went out to his car in the airport

parking lot. Stevie then left the building and

joined the luggage handler who had taken the

bags directly to the Avis parking lot and loaded

them into a rented Oldsmobile station wagon.

After Reynolds left the Avis counter area,

Agent Kryger spoke to the person at the counter

and learned from her that the automobile had

been rented to an R. Reynolds of Phoenix, Ari-

zona, who signed his name “Raymond L. Reyn-

olds.”

When Reynolds and Stevie left the airport

parking lot they were followed by Agent Kryger

and Officer Boulger in separate vehicles. The

two agents were in radio contact with each other

and with the DEA office. They exchanged infor-

mation as to Reynolds’ name and his connection

with the Luciow brothers. In addition they

learned from their office that the middle initial

of the Ray Reynolds involved in the case of

Anthony Luciow was “L.” As they followed the

rented automobile on a four-lane express high-

way, they observed that the passenger in the car

was continually facing the rear and the driver

was frequently looking into his rearview mirror.

Although Agent Kryger testified their initial in-

tention was to follow the appellants to their

destination, the agents determined this would be

impracticable and so stopped them on the high-

way.

5a

Agent Kryger approached the driver’s side and

asked the driver for his identification. The

driver produced a driver’s license which revealed

that he was Raymond L. Reynolds of Phoenix,

Arizona. Officer Boulger established that the

passenger’s identity was Robert Stevie. Thus,

neither of the identities matched the name “M.

Roberts” on the suitcase nametags. As Agent

Kryger was standing at the window of the car

examining the driver’s license he smelled the dis-

tinctive odor of marijuana.

At this point the agents instructed Reynolds

and Stevie to get out of the car and placed them

under arrest. The agents opened one of the suit-

cases that had been placed on the floor of the

rear area of the rental station wagon. Inside

they found wrapped bricks of a vegetable sub-

stance later determined to be marijuana.

Id. at slip op. 2-5 (footnotes omitted).

II.

The panel opinion upheld the search of the suitcase

under the automobile exception to the Fourth Amend-

ment warrant clause. Jd. at slip op. 9-12. In reaching

its decision, it considered the application of the Su-

preme Court’s decision in Chadwick which held that,

absent exigent circumstances, a warrant must be ob-

tained prior to a search of an arrestee’s luggage once

it comes under the exclusive control of the arresting

officer. See United States v. Chadwick, supra at 15-

16; United States v. Ronald Schleis, No. 76-1256 slip

op. at 6 (8th Cir., to be filed concurrently). The

6a

panel opinion distinguished Chadwick on the ground

that, in Chadwick, the footlocker was outside an auto-

mobile at the time it was seized and, in this case, the

suitcase was inside an automobile at the time of the

search and seizure. It concluded that the right to

conduct a warrantless automobile search was not cir-

cumscribed by Chadwick since the Court in Chadwick

clearly recognized and reaffirmed the unique treat-

ment given to automobiles in a Fourth Amendment

context. Id. at slip op. 9-10.

While we agree with the panel opinion’s analysis

that Chadwick does not circumscribe the automobile

exception, we cannot agree that the automobile ex-

ception, and not Chadwick, applies to the facts of this

case. We hold that an individual’s expectation of

privacy in the contents of luggage—which was estab-

lished by the Court in Chadwick '—is entitled to the

protection of the Fourth Amendment whether the

luggage is located inside or outside an automobile.”

' The search of the appellants’ suitcase took place on Febru-

ary 9, 1976, over a year before the Supreme Court issued its

decision in United States v. Chadwick, 483 U.S. 1 (1977). We

have today held that the decision in Chadwick presents no

question of retroactivity and, thus, we need not reach that

issue here. United States v. Ronald Schleis, No. 77-1256, slip

op. 14-18 (8th Cir., to be filed concurrently).

* We stress that in so holding, we do not limit the automo-

bile exception to the Fourth Amendment warrant clause.

Searches of motor vehicles—such as the search of a U-Haul

truck for stolen loading equipment in United States v. Young,

567 F.2d 799 (8th Cir. 1977)-—will continue to be upheld

under the automobile exception.

Ta

III.

The fact that the search of the suitcase occurred

in an automobile at the time of the appellants’ arrest

does not automatically validate the search.

A.

The government first seeks to justify the search of

the suitcase under the automobile exception to the

Fourth Amendment warrant clause. The Supreme

Court “has recognized significant differences between

motor vehicles and other property which permit war-

rantless searches of automobiles in circumstances in

which warrantless searches would not be reasonable

in other contexts,” because of both the inherent mo-

bility, and the diminished expectation of privacy, in a

motor vehicle. United States v. Chadwick, supra at

12. It is clear in this case that the law enforcement

officers could legitimately immobilize the station

wagon and seize the suitcases located in the rear

pursuant to the automobile exception. It does not

necessarily follow, however, that the contents of the

suitcase located in the station wagon are subject to

search under the automobile exception, anymore than

they would be if the officers had seized them any

other place. United States v. Chadwick, supra at 17

n.l (Brennan, J., concurring). As the Supreme

Court has noted, “[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 (1971).

8a

In Chadwick, the Supreme Court rejected the gov-

ernment’s contention that luggage should be analo-

gous to automobiles for Fourth Amendment purposes.

United States v. Chadwick, supra at 12-13; United

States v. Ronald Schleis, supra, slip op. at 6. In

reaching its decision, the Court contrasted the pri-

vacy interests in luggage with those in an automobile.

The factors which diminish the privacy aspects

of an automobile do not apply to respondents’

footlocker. Luggage contents are not open to

public view * * * nor is luggage subject to regu-

lar inspections and official scrutiny on a con-

tinuing basis. Unlike an automobile, whose pri-

mary function is transportation, luggage is in-

tended as a respository of personal effects, In

sum, a person’s expectations of privacy in per-

sonal luggage are substantially greater than in

an automobile.

Id. at 13.

The Court concluded that an individual has a legiti-

mate expectation that the contents* of luggage will

* We note that the individual’s expectation of privacy is in

the contents of the luggage and not in the luggage itself. As

the Court stated in Chadwick,

[r]espondents’ principal privacy interest in the footlock-

er was, of course, not in the container itself, which was

exposed to public view, but in its contents. A search of

the interior was therefore a far greater intrusion into

Fourth Amendment values than the impoundment of the

footlocker. Though surely a substantial infringement

with respondents’ use and possession, the seizure did not

diminish respondents’ legitimate expectation that the

footlocker’s contents would remain private.

United States v. Chadwick, supra at 18-14 n.8.

9a

remain free from public examination and, thus,

absent an exigency, it is unreasonable to conduct a

warrantless search of an arrestee’s luggage. /d. at 11.

The Ninth Circuit, in sustaining the search of a

suitcase taken from a car, has held that Chadwick

does not apply to luggage taken directly from an auto-

mobile.* United States v. Finnegan, 568 F.2d 6387,

641 (9th Cir. 1977). We cannot read Chadwick in

this manner. The Court in Chadwick clearly held

that an individual has a legitimate expectation of

privacy in the contents of luggage. Every factor

which the Court cites in support of its holding re-

mains present whether the luggage is inside or out-

side an automobile. Moreover, no Supreme Court

decision directly supports the Ninth Circuit’s posi-

tion, and every Court of Appeals decision supporting

the position was decided prior to the Supreme Court’s

decision in Chadwick.

We conclude, therefore, that the appellants’ ex-

pectation of privacy in the contents of the suitcase

*The Ninth Circuit also reached a similar conclusion in

United States v. Raymond Wesley Ficklin, Jr., and Richard

Paul Seefeldt, Nos. 77-2928 and 77-8220 (9th Cir., filed Febru-

ary 10, 1978), petition for cert. filed, 46 U.S.L.W. 3741 (U.S.

May 17, 1978) (No. 77-1635), where it sustained a search of

plastic and burlap bags located in a car trunk. The Ficklin

case might be distinguished, however, on the ground that there

is not as great an expectation of privacy “in plastic and burlap

bags (which the officer immediately recognized as the type

customarily used to haul marijuana)”. Jd. at slip op. 8. We

need not reach that question here.

10a

was not dissipated because they placed it in the rear

of a station wagon.’

B.

The government next seeks to justify the search on

the ground that Chadwick does not apply to a search

that is not remote in time and place to the arrest.

We do not find this argument to be persuasive. As

this Court today states in United States v. Ronald

Schleis, supra:

Chadwick establishes that the critical factor is

the extent to which the property is within the

control of the law enforcement officers, rather

than the amount of time or space between the ©

arrest and the search. United States v. Ester,

442 F.Supp. 736, 739 (S.D. N.Y. 1978). Once

the officers obtain exclusive control, the require-

ment for a warrant under Chadwick is triggered.

Ordinarily, the initial seizure at the time of

arrest would be sufficient to place the property

within the officer’s exclusive control. To other-

° Other Courts have also interpreted Chadwick to require a

warrant prior to a search of luggage seized from an automo-

bile. In United States v. Vallieres, 443 F.Supp. 186 (D. Conn.

1977), the Court suppressed the contents of two closed suit-

cases seized from the trunk of an automobile in the course of

an arrest. It upheld the search of an unzippered suitcase be-

cause its contents were in plain view. See United States v.

Pugh, 566 F.2d 626 (8th Cir. 1977) (upholding the search of

an open briefcase found in an automobile under the plain view

exception). In Sanders v. State, 262 Ark. 595, 559 S.W.2d

704 (1977), petitions for cert. filed, 46 U.S.L.W. 8680 (U.S.

April 19, 1978) (No. 77-1497), the Court invalidated the

search of a suitcase taken from a taxi during the course of an

arrest.

lla

wise interpret Chadwick “would enable police

and federal agents to circumvent the Chadwick

holding by encouraging them to conduct a search

of luggage at the time and location of the seizure

in conjunction with a lawful arrest.” Note,

Criminal Procedure—Search and Seizure—Per-

sons Lawfully Arrested for Alleged Possession of

Narcotics have a Privacy Interest in a Footlock-

er in Their Possession at the Time of Their

Arrest which is Protected by the Warrant Clause

of the Fourth Amendment. United States v.

Chadwick, 6 AM.J.CRIM.LAW 81, 94 (1978) [.]

Id., slip op. at 11-12.

In this case, the appellants were under arrest and

were outside of the station wagon when the officers

searched the suitcase inside the rear of the station

wagon.’ Moreover, the government has demonstrated

no exigent circumstances which required that the suit-

case be searched at the scene of the arrest. The suit-

case had clearly come under the exclusive control of

the officers and, thus, the requirement for a warrant

under Chadwick was triggered.

IV.

In sum, the warrantless search of the appellants’

suitcase cannot be justified under the automobile ex-

° The suitcases were no longer within the appellants’ im-

mediate area of control and, thus, were not subject to search

under Chimel v. California, 395 U.S. 752 (1969), and its

rationale of protecting officers from possible physical harm

and preventing possible destruction or concealment of evi-

dence.

12a

ception or as a search incident to arrest. Thus, the

search was violative of the appellants’ Fourth Amend-

ment rights.

Reversed.

GIBSON, Chief Judge, Dissenting.

After carefully considering Judge Heaney’s opin-

ion and reconsidering the panel opinion in this case,

published at 578 F.2d 204, I would affirm the con-

victions. As determined by the panel opinion, the

search of the suitcase should be upheld as within the

automobile exception to the warrant requirement.

United States v. Finnegan, 568 F.2d 687, 641-42

(9th Cir, 1977).

~ I have little to add to the panel opinion but will

correct the apparent misapprehension of the ma-

jority as to the distinction the panel drew between

Chadwick and the present case. The majority view

Chadwick as involving seizure of a footlocker outside

an automobile while the present case involves a search

and seizure inside an automobile. Actually, in both

cases the luggage was inside an automobile when

seized. However, in Chadwick, the Government con-

ceded that no automobile search was involved because

the seizure occurred immediately after the footlocker

was placed in the automobile’s trunk and before the

trunk had been closed or the engine started. This

fleeting contact was not sufficient to bring the auto-

mobile search exception into play.

13a

By contrast, the seizure in this case occurred on a

four-lane express highway. The suitcases had been

transported a considerable distance in the automobile

by the defendants. The search was conducted im-

mediately after the automobile was stopped. Thus

the present case is distinguishable from Chadwick by

the significant contact the suitcases had with the

automobile. United States v. Chadwick, 483 U.S.

at 22-24 (Blackmun, J., dissenting). The reasons

justifying warrantless automobile searches apply,

in my opinion, to searches of containers found inside

the automobile. See cases cited in United States v.

Chadwick, 483 U.S. at 23 n.4 (Blackmun, J., dis-

senting).

There is one other element of the majority’s deci-

sion that disturbs me, The majority opinion in this

case and in United States v. Schleis, No. 76-1256

(8th Cir. to be filed concurrently), seem carefully

crafted to suggest that warrants will now be required

for a search of most personal property that has been

reduced to the exclusive control of law enforcement

officers. The dictum in the panel opinion in United

States v. Haley, No. 78-1005 (8th Cir. to be filed

concurrently) carries this suggestion one step fur-

ther. It correctly upholds the warrantless opening of

a zippered leather container found in plain view in

a car, but only because of the exigent circumstances

of an apparently injured man needing assistance.

To assume that the expectation of privacy in a zip-

pered bag approaches the expectation of privacy in a

lda

locked footlocker is carrying the analogy beyond its

reasonable limits. The entire opinion in Chadwick is

premised on the obvious expectation of privacy en-

joyed by a person who double-locks a footlocker.

As properly noted in Chadwick, the warrant clause

of the Fourth Amendment “protects people from un-

reasonable government intrusions into their legiti-

mate expectations of privacy” but how much “‘legiti-

mate” expectation of privacy should a person be

permitted to enjoy in the concealment and trans-

portation of contraband? If Chadwick is viewed as

applying to all closed pieces of luggage and con-

tainers that are subject to personal modes of trans-

portation, then the enforcement of the criminal laws

will be severely diminished by the inability of the law

enforcement officers to discover and apprehend those

who are in the pursuit of lawless activities. The

additional time, energy, and cost in attempting to

locate a magistrate and secure a warrant cannot help

but impair and diminish the effective operation of

law enforcement officers. This is not to say that the

Fourth Amendment is not a prized personal consti-

tutional right enjoyed by free people, but the Fourth

Amendment proscription is “against unreasonable

searches and seizures.” In this situation I do not

think that the defendant had, should have had, or

could have had any “legitimate” expectation of pri-

vacy in the concealment of marijuana in a closed

piece of luggage being transported on a public high-

way of this country. I view this search as reasonable.

——E———

—

15a

The application of Chadwick to personal property

other than locked luggage remains to be decided in

this circuit. I do not agree with the statement in

United States v. Marchand, 564 F.2d 988, 991-92

(2d Cir, 1977), cert. denied, 98 S. Ct. 732 (1978),

suggesting that police must now obtain a warrant

before opening a wallet found in plain view and ex-

tracting a driver’s license therefrom. The language

is particularly regrettable since it had no impact on

the outcome of Marchand’s appeal and is therefore

dictum.

In light of my conclusion that the instant case

involves an automobile search not governed by Chad-

wick, I express no views on the retroactive applica-

tion of that decision. I would affirm the convictions

of Stevie and Reynolds.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

16a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 77-1335

UNITED STATES OF AMERICA, APPELLEE

v.

ROBERT CHARLES STEVIE, APPELLANT

No. 77-1424

UNITED STATES OF AMERICA, APPELLEE

v.

RAYMOND LEE REYNOLDS, APPELLANT

Submitted: August 31, 1977

Filed: Novembér 17, 1977

APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MINNESOTA

Before GIBSON, Chief Judge, HEANEY and WEB-

STER, Circuit Judges.

WEBSTER, Circuit Judge.

17a

In separate trials on stipulated facts, the appellants

were found guilty by the District Court’ of posses-

sion with intent to distribute marijuana in violation

of 21 U.S.C. §841(a)(1). Approximately 250

pounds of marijuana concealed in suitcases were

seized in a search of the station wagon in which

appellants were riding. On appeal they contend that

this evidence, which was the corpus delecti of the

case, should have been suppressed because it was the

fruit of an unreasonable seizure of the automobile

and an illegal search of its contents in violation of

the Fourth Amendment.

Following the filing of briefs in this appeal the

Supreme Court rendered its decision in United States

v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476 (1977),

holding that the search of a double-locked footlocker

was subject to the Fourth Amendment’s warrant re-

quirement when it was sei: d on probable cause but

not searched until later at the station house. The

applicability of Chadwick was argued on appeal.

Because of this, we deem it appropriate to set forth

the facts of this case in some detail.

On February 9, 1976, in response to a tip from an

informant who had provided reliable information in

the past, Officer John Boulger and Agent Markus

Kryger of the Drug Enforcement Administration

Task Force were at the Minneapolis-St. Paul Inter-

national Airport to conduct a surveillance of incom-

*The Honorable Donald D. Alsop, United States District

Court for the District of Minnesota.

18a

ing passengers. Their intention was to observe one

James Erickson, who, according to their information,

had traveled to Phoenix, Arizona, to purchase a

large quantity of marijuana and was to arrive by air

from either Phoenix or Las Vegas, Nevada. As a

result of prior occurrences, the agents knew of James

Erickson and that he had connections with Theodore

Luciow. They further were aware that Theodore

Luciow’s twin brother, Anthony, had been arrested

in possession of approximately 300 pounds of mari-

juana contained in an Avis rental car rented in

Arizona by Raymond Reynolds. At that time reliable

informants told them that Anthony Luciow had gone

to Arizona to purchase this marijuana from Reynolds.

Among passengers embarking from a Las Vegas

incoming flight shortly before midnight, two young,

white males caught the agents’ attention because they

were acting “[i]n a suspicious manner” and were

“apprehensive of things around them.” The two men,

appellants Stevie and Reynolds, did not communicate

with each other but maintained a distance of approxi-

mately fifty feet between themselves. In addition, it

was noted that Stevie was walking faster than the

other passengers.

When they reached the lower level of the airport,

Stevie proceeded to the baggage claim area and Reyn-

olds approached the Avis car rental counter, neither

speaking to the other. Stevie removed two large suit-

cases from the baggage carousel. Agent Kryger ob-

served that these appeared to be heavy. At that point,

ct tt

19a

without pretense of secrecy, Agent Kryger walked up

next to Stevie and observed the name “M. Roberts”

and a Phoenix address on the bags’ nametags. After

looking warily at Agent Kryger, Stevie engaged a

uniformed skycap to handle the luggage and returned

for three more large, new suitcases. He gave direc-

tions to the skycap and then walked over to the Avis

counter and spoke to Reynolds for the first time since

the agents had commenced observing them. Their

gestures indicated that the conversation pertained to

the two agents, who continued to observe them until

Officer Boulger went out to his car in the airport

parking lot. Stevie then left the building and joined

the luggage handler who had taken the bags directly

to the Avis parking lot and loaded them into a rented

Oldsmobile station wagon.

After Reynolds left the Avis counter area, Agent

Kryger spoke to the person at the counter and

learned from her that the automobile had been rented

to an R. Reynolds of Phoenix, Arizona, who signed

his name “Raymond L. Reynolds.”

When Reynolds and Stevie left the airport parking

lot they were followed by Agent Kryger and Officer

Boulger in separate vehicles. The two agents were in

radio contact with each other and with the DEA

office. They exchanged information as to Reynolds’

name and his connection with the Luciow brothers.

In addition they learned from their office that the

middle initial of the Ray Reynolds involved in the

case of Anthony Luciow was “L.” As they followed

the rented automobile on a four-lane express high-

20a

way, they observed that the passenger in the car was

continually facing the rear and the driver was fre-

quently looking into his rearview mirror. Although

Agent Kryger testified their initial intention was to

follow the appellants to their destintion, the agents

determined this would be impracticable and so stopped

them on the highway.

Agent Kryger approached the driver’s side and

asked the driver for his identification. The driver

produced a driver’s license which revealed that he was

Raymond L. Reynolds of Phoenix, Arizona. Officer

Boulger established that the passenger’s identity was

Robert Stevie. Thus, neither of the — identities

matched the name “M. Roberts” on the suitcase name-

tags. As Agent Kryger was standing at the window

of the car examining the driver’s license he smelled

the distinctive odor of marijuana.’

At this point the agents instructed Reynolds and

Stevie to get out of the car and placed them under

arrest. The agents opened one of the suitcases that

had been placed on the floor of the rear area of the

2 Agent Kryger testified that he smelled the odor of mari-

juana when Reynolds rolled down the car window to produce

his driver’s license. Officer Boulger testified that he also

smelled the odor when he opened the front door on the passen-

ger’s side to allow Stevie to get out of the cold winter air

after the two appellants had been requested to step out of the

car. Although the parties produced experts whose testimony

conflicted as to whether the odor of marijuana packaged as

this was could be detected, the District Court found that

“Kryger was able to and did detect the odor of marijuana”

when Reynolds rolled down the car window.

2la

rental station wagon.’ Inside they found wrapped

bricks of a vegetable substance later determined to be

marijuana.

This appeal presents the following issues for con-

sideration: (1) whether the initial stop of the rental

car was justified, (2) whether there existed probable

cause to search the suitcase, and (3) whether the

warrantless search of the suitcase at the scene is

valid in light of the recent Supreme Court decision

of United States v. Chadwick, supra. ‘

Appellants’ initial contention is that the agents did

not have “specific and articulable facts” as required

by Terry v. Ohio, 392 U.S. 1, 20-22 (1968), to justify

stopping the car for an investigatory stop. They

argue that the facts of this case present insufficient

indicia of criminal activity to justify the agents’

actions in stopping appellants’ vehicle.

Terry requires a dual inquiry into the reasonable-

ness of an investigatory stop. The reviewing court

must determine: “(1) whether the facts warranted

the intrusion on the individual’s Fourth Amendment

rights, and (2) whether the scope of the intrusion

was reasonably related ‘to the circumstances which

justified the interference in the first place.’ ”’ Carpen-

ter v. Sigler, 419 F.2d 169, 171 (8th Cir. 1969). The

District Court applied this standard and held the

facts warranted the agents’ suspicions that criminal

activity might be afoot. We agree.

* According to Agent Kryger the search occurred within

five minutes after they stopped the car.

22a

The agents were at the airport as a result of the

tip of an informer, whose information had proven

reliable in the past, that a sizable shipment of mari-

juana was about to arrive there. Although they did

not see the party they were expecting, they inde-

pendently observed and noted the suspicious conduct

of the two appellants. The fact that Stevie and Reyn-

olds consciously avoided communication became sig-

nificant when it later became apparent that they

knew each other and in fact left the airport in the

same automobile. Additionally, Agent Kryger noted

that the suitcases were large and very heavy, and

Stevie and Reynolds acted suspiciously when Kryger

conspicuously appeared to be curious. Most signifi-

cantly, the name on the automobile rental form was

one the agents were aware of from prior drug ac-

tivity and belonged to a person who may have been

associated with the party they were expecting to

observe. Finally, there was appellants’ furtive con-

duct in their automobile. Altogether, there were more

than sufficient objective facts known to the police

officers to justify an investigatory stop for further

inquiry. See Adams v. Williams, 407 U.S. 1438

(1972); United States v. Bailey, 547 F.2d 68 (8th

Cir. 1976); United States v. Geelan, 509 F.2d 737

(8th Cir. 1974), cert. denied, 421 U.S. 999 (1975);

Orricer v. Erickson, 471 F.2d 1204 (8th Cir. 1978) ;

Carpenter v. Sigler, supra.

ee a ee ee ee

23a

II.

The second half of the Terry test—whether the

scope of the intrusion was reasonably related to the

circumstances justifying the interference in the first

instance—must be answered in the affirmative. The

stop was proper, as was the demand that appellants

provide identification. As a result of this reasonable

and limited intrusion, two additional facts became

known to the officers when they requested identifi-

cation from Stevie and Reynolds. The first was that

the name on the luggage nametag previously ob-

served at the airport did not match that of either

of the appellants. It is not uncommon for drug

traffickers to travel under assumed names.‘ Of even

more crucial significance, however, the officers de-

tected the odor of marijuana emanating from the

interior of the automobile.’

This Court has held that the presence of the odor

of marijuana is sufficient to establish probable cause

for purposes of a search warrant. Miller v. Sigler,

353 F.2d 424 (8th Cir. 1965). See also United States

v. Solis, 586 F.2d 880 (9th Cir. 1976) ; cf. Johnson v.

United States, 3833 U.S. 10 (1948) (odors may be

evidence of probable cause necessary to support a

search warrant). Similarly, it has been held that the

‘This form of discrepancy along with informant’s report

has been held sufficient to support a finding of probable cause

to arrest. United States v. Scott, 545 F.2d 38, 40 (8th Cir.

1976), cert. denied, 429 U.S. 1066 (1977).

* See note 2 and accompanying text supra.

24a

odor of marijuana may be used to establish probable

cause to arrest, see United States v. Bronstein, 521

F.2d 459, 463 (2d Cir. 1975), cert. denied, 424 U.S.

918 (1976), and to search a mobile vehicle, see United

States v. Strickland, 584 F.2d 1886 (10th Cir.), cert.

denied, 429 U.S. 831 (1976); United States v. John-

ston, 497 F.2d 397 (2d Cir. 1974); United States v.

Troise, 483 F.2d 615 (5th Cir.), cert. denied, 414

U.S. 1066 (1973); United States v. Diamond, 471

F.2d 771 (9th Cir.), cert. denied, 412 U.S. 982

(1973). Similarly, the odor of marijuana, together

with other strong circumstantial evidence, provided

both probable cause to arrest and to search the auto-

mobile in which Stevie and Reynolds were riding.

ITI.

At oral argument, appellants contended that the

suitcases within the station wagon were protected

from a warrantless search by Chadwick v. United

States, supra. The parimeters of Chadwick will no

doubt be fully developed in subsequent cases. It is

sufficient in this case to say that we detect no intent

to circumscribe more narrowly the existing automo-

bile exception to the warrant requirement, and in

fact the Supreme Court in Chadwick clearly recog-

nized and distinguished the prior cases establishing

the exception.

In Chadwick federal narcotics agents arrested

three persons outside a Boston train station after

they had placed a large footlocker in the trunk of

——e

25a

their car. At the time of the arrest, the car’s trunk

was still open and the engine had not been started.

The three were taken to the federal building along

with the, as yet unopened, footlocker. An hour and

a half after the arrests the agents opened the double-

locked footlocker even though “[f]acilities were read-

ily available in which the footlocker could have been

stored securely” and it was “not contended that there

was any exigency calling for an immediate search.”

97 S.Ct. at 2480. Inside the footlocker they found

large amounts of marijuana.

The Supreme Court opinion in Chadwick made it

clear that “the footlocker’s brief contact with Chad-

wick’s car” did not give rise to its consideration as

an automobile search exception to the warrant re-

quirement. 97 S.Ct. at 2483-84. It then reaffirmed

the unique treatment given to automobiles in a

Fourth Amendment context:

Our treatment of automobiles has been based

in part on their inherent mobility, which often

makes obtaining a judicial warrant impractica-

ble. Nevertheless, we have also sustained “war-

rantless searches of vehicles . . . in cases in

which the possibilities of the vehicle’s being re-

moved or evidence in it destroyed were remote,

if not non-existent.” Cady v. Dombrowski, 413

U.S. 433, 441-442 . . . (1973); accord, South

Dakota v. Opperman, ... 428 U.S. at 367. ..;

see Texas v. White, 423 U.S. 67... (1975);

Chambers v. Maroney; Cooper v. California, 386

U.S. 58... (1967).

26a

The answer lies in the diminished expectation

of privacy which surrounds the automobile:

“One has a lesser expectation of privacy in

a motor vehicle because its function is trans-

portation and it seldom serves as one’s resi-

dence or as the repository of personal effects.

. . . It travels public thoroughfares where

both its occupants and its contents are in

plain view.” Cardwell v. Lewis, 417 U.S.

588, 590... (1974) (plurality opinion).

Other factors reduce automobile privacy. “All

States require vehicles to be registered and op-

erators to be licensed. States and localities have

enacted extensive and detailed codes regulating

the condition and manner in which motor ve-

hicles may be operated on public streets and

highways.” Cady v. Dombrowski, 413 U.S., at

441. . . . Automobiles periodically undergo of-

ficial inspection, and they are often taken into

police custody in the interests of public safety.

South Dakota v. Opperman, 428 U.S., at 368... .

97 S.Ct. at 2484. We therefore conclude that the

right to conduct a warrantless automobile search has

not been diminished by Chadwick and that tradi-

tional tests may be applied to determine the reason-

ableness of the scope of a challenged search.

Cady v. Dombrowski, 413 U.S. 483 (1973), upheld

a search of the locked trunk of an automobile that

had been disabled in an accident and towed away at

the direction of the police. In Cooper v. California,

386 U.S. 58 (1967), the accused was arrested on a

heroin charge. One week after the arrest, the police

a ee a i

mans cite oe a ———

Smee

27a

searched the car without a warrant and found evi-

dence in the glove compartment. The Court held that

the search was not unreasonable because the reason

for the search was closely related to the reason the

car had been stopped and seized. Chambers v.

Maroney, 399 U.S. 42 (1970), upheld a “thorough”

warrantless probable cause search of an automobile

that produced two revolvers from a compartment

under the dashboard. The search upheld in Texas v.

White,.423 U.S. 67 (1975) (per curiam) extended

to the area between the seats of the car. See also

Scher v. United States, 305 U.S. 251 (1938) (war-

rantless search of automobile trunk for bootleg

whiskey); Carroll v. United States, 267 U.S. 132

(1925) (68 bottles of whiskey found behind up-

holstery of automobile seats); United States v. Col-

lins, 582 F.2d 79 (8th Cir.), cert. denied, 429 U.S.

836 (1976) (bank robbery evidence found in trunk).

Relying upon these decisions, appellate courts have

held that the exception to the warrant requirements

extends to briefcases, suitcases, and other containers

found inside automobiles. See, e.g., United States v.

Giles, 586 F.2d 136 (6th Cir. 1976); United States

v. Canada, 527 F.2d 1374 (9th Cir. 1975), cert.

denied, 429 U.S. 867 (1976); United States v. T'ra-

munti, 513 F.2d 1087, 1100-04 (2d Cir.), cert. denied,

423 U.S. 832 (1975); United States v. Anderson, 500

F.2d 1811, 1815 (5th Cir. 1974) (‘fa contempora-

neous search of containers in the vehicle which could

reasonably be employed in the illicit carriage of

28a

contraband is also constitutionally permissible.”’) ;

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

1974) (en banc), reaffirmed sub nom. without pub-

lished opinion, United States v. Aviles, 585 F.2d 658

(1976), cert. pending Nos. 76-5132, 76-5148; United

States v. Evans, 481 F.2d 990 (9th Cir. 1973). Cf.

United States v. Matlock, 558 F.2d 1828 (8th Cir.

1977) (briefcase seized while passenger was attempt-

ing to remove something from it).

The search in United States v. Tramunti, supra,

was very similar to the one that took place in this

case. Following the arrest of two persons who were

riding in an automobile, police officers opened a suit-

case they had seen placed in the back seat of the car

and which had appeared to be very heavy. Although

the arrestees were handcuffed and were no longer in

a position affording access to the suitcase, the Second

Circuit upheld the on-the-scene search of the suitcase

as one based upon probable cause. 513 F.2d at 1104.

Once probable cause was established the same factors

that support the automobile exception to the warrant

requirement supported the warrantless search of the

suitcase located inside the automobile. The Court

found that the search was reasonable for Fourth

Amendment purposes because it was “immediate, on-

the-spot, and of a container reasonably thought to

contain narcotics.” Id.

Similar exigent circumstances exist in the case

before this Court. The automobile was stopped on a

busy highway shortly after midnight. The suitcase

was in the open rear area of a station wagon. The

te en

29a

odor of marijuana appeared to come from the suit-

case. These factors supplied sufficient justification

for an immediate search of the luggage in the station

wagon at the scene. The marijuana seized following

the search was properly admitted as evidence.

Affirmed.

HEANEY, Circuit Judge, dissenting.

The majority properly finds that the initial investi-

gatory stop of the rental car was justified and that

there was probable cause to search the automobile.

It errs, however, in holding that a warrantless search

of the suitcase was justified. In my judgment, United

States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476 (1977),

controls. In that case, the Supreme Court states:

[T]he Government insists that the search was

reasonable because the footlocker was seized con-

temporaneously with respondents’ arrests and

was searched as soon thereafter as was practica-

ble. The reasons justifying search in a custodial

arrest are quite different. When a custodial

arrest is made, there is always some danger that

the person arrested may seek to use a weapon, or

that evidence may be concealed or destroyed. To

safeguard himself and others, and to prevent the

loss of evidence, it has been held reasonable for

the arresting officer to conduct a prompt, war-

rantless “search of the arrestee’s person and the

area ‘within his immediate control’—construing

that phrase to mean the area from within which

80a

he might gain possession of a weapon or de-

structible evidence.” Chimel v. California, 395

U.S., at 763. See also Terry v. Ohio, 392 U.S. 1

(1968).

Such searches may be conducted without a

warrant, and they may also be made whether

or not there is probable cause to believe that the

person arrested may have a weapon or is about

to destroy evidence. The potential dangers lurk-

ing in all custodial arrests make warrantless

searches of items within the “immediate control”

area reasonable without requiring the arresting

officer to calculate the probability that weapons

or destructibie evidence may be involved. United

States v. Robinson, 414 U.S. 218 (1973); Terry

v. Ohio, supra. However, warrantless searches

of luggage or other property seized at the time

of an arrest cannot be justified as incident to

that arrest either if the “search is remote in time

or place from the arrest,” Preston v. United

States, 376 U.S., at 367, or no exigency exists.

Once law enforcement officers have reduced lug-

gage or other personal property not immediately

assoviated with the person of the arrestee to their

exclusive control, and there is no longer any

danger that the arrestee m.ght gain access to

the property to seize a weapon or destroy evi-

dence, a search of that property is no longer an

incident of the arrest.’

Footnote nine reads as follows:

Of course, there may be other justifications for

a warrantless search of luggage taken from a

suspect at the time of his arrest; for example, if

officers have reason to believe that luggage con-

3la

tains some immediately dangerous instrumental-

ity, such as explosives, it would be foolhardy to

transport it to the station house without opening

the luggage and disarming the weapon. See, e.g.,

United States v. Johnson, 467 F.2d 630, 689 (CA

2 1972).

Id. at 2485.

Here, no exigency existed. The officers had no

reason to believe that the suitcases contained danger-

ous instrumentalities or that the evidence would be

concealed or destroyed. The officers had control of the

suitcases. They could have conveniently taken them

‘o their headquarters and obtained a search warrant.

I recognize that two justices of the Supreme Court

would approve the search made here. My reading of

the majority opinion, however, does not convince me

that their views represent those of the majority.

I, therefore, dissent.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

82a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1978

76-1256

UNITED STATES OF AMERICA, APPELLEE

v8.

RONALD M. SCHLEIS, APPELLANT

77-1335

UNITED STATES OF AMERICA, APPELLEE

vs.

ROBERT CHARLES STEVIE, APPELLANT

77-1424

UNITED STATES OF AMERICA, APPELLEE

vs.

RAYMOND LEE REYNOLDS, APPELLANT

APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MINNESOTA

The Court having considered petitions for rehearing

en banc filed by counsel for appellee and, being fully

advised in the premises, it is ordered that the petitions

for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as

a petition for rehearing, it is ordered that the peti-

tion for rehearing also be, and it is hereby, denied.

October 18, 1978

A TI Rs

88a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1977

No. 77-1835

[Filed Aug. 15, 1978, Robert C. Tucker, Clerk]

UNITED STATES OF AMERICA, APPELLEE

V8,

ROBERT CHARLES STEVIE, APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

JUDGMENT

THIS CAUSE came on to be heard on the original

designated record of the United States District Court

for the District of Minnesota and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court, that the

judgment and sentence of the said District Court, in

this cause, be, and the same is hereby, reversed in

accordance with majority opinion of this Court.

August 15, 1978

OE

84a |

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1977

No. 77-1835

[Filed Aug. 15, 1978, Robert C. Tucker, Clerk]

UNITED STATES OF AMERICA, APPELLEE

V8.

RAYMOND LEE REYNOLDS, APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT CoURT |

FOR THE DISTRICT OF MINNESOTA

JUDGMENT

THIS CAUSE came on to be heard on the original

designated record of the United States District Court

for the District of Minnesota and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court, that the

judgment and sentence of the said District Court,

in this cause, be, and the same is hereby, reversed in

accordance with majority opinion of this Court.

August 15, 1978

ou. 8. GOVERNMENT PRintine orrice; 1976 2790116 221