Petition for Writ of Certiorari — Johnson v. Montana

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83-1625 [Are]

No.

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

UNITED STATES OF AMERICA

LYLE GERALD JOHNS, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REx E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOSHUA I, SCHWARTZ

Assistant to the Solicitor General

GLORIA C, PHARES

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the warrantless probable cause search of

bales of marijuana discovered in two pickup trucks,

which would have been lawful if undertaken at the

scene of the seizure or “soon” after the bales had

been taken to the station house, was rendered unlaw-

ful by the passage of several days between seizure

and search.

(1)

PARTIES TO THE PROCEEDING

In addition to the named respondent, Manuel Jesus

Duarte, Roberto Leon Gomez, Dennis Eugene Hear-

ron, Carlos Torres Leon, John Lizaraga Redmond,

and Jose Oros Soto were defendants in the district

court and are respondents here.

TABLE OF CONTENTS

Page

eo 1

EE ee 1

EEE SE 2

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

a ee reemenneneneenngeneNenenesenEss 24

a la

EE a l6a

ET 29a

CE 33a

Is eeseeemnennannsssussnoeas 34a

TABLE OF AUTHORITIES

Cases:

Arkansas Vv. Sanders, 442 U.S. 753 _.......... 6, 7, 8, 10, 17, 20

Cady v. Dombrowski, 413 U.S. 483 —............... 12, 14

Cardwell v. Lewis, 417 U.S. 583 ............................ 12, 13, 23

Carroll v. United States, 267 U.S. 132 —................ 9,13

Chambers Vv. Maroney, 399 U.S. 42, aff’g 408 F.2d

1186, aff’g 281 F. Supp. 96 _................................ passim

Cooper V. California, 386 U.S. 58 —.........--............ 14

Husty Vv. United States, 282 U.S. 694 14

Illinois v. Andreas, No. 81-1843 (July 5, 1983) ...... 20

Illinois v. Lafayette, No. 81-1859 (June 20, 1983) .. 14

Michigan Vv. Thomas, 458 U.S. 259 ...........0..-.00...... 18

New York v. Belton, 453 U.S. 454 ............................ 18

Robbins v. California, 453 U.S. 420 0.00000... 4,5

Sharpe Vv. United States, 660 F.2d 967, vacated and

remanded, 457 U.S. 1127, on remand, 712 F.2d

65, petition for cert. pending, No. 83-529 _....._.... 22

South Dakota v. Opperman, 428 U.S. 364 ................ 19

Texas V. Brown, No. 81-419 (Apr. 19, 1983) -......... 20

ee 138, 15

(111)

Cases—Continued Page

United States v. Chadwick, 433 U.S. 1 .......... 6, 7, 10, 13, 14

17, 19

United States v. Edwards, 415 U.S. 800 _................ 20

United States v. Haley, 669 F.2d 201, cert. denied,

EE Renee a 8

United States v. Jacobsen, No. 82-1167 (Apr. 2,

EEE Sa ee a ee aS alata idchieetiniaataas 20

United States v. Rivera, 654 F.2d 1048, on rehear-

KR EE eee ae 21-22

United States v. Ross, 456 U.S. 798 —........................ passim

United States v. Schecter, 717 F.2d 864 ................. 22

Constitution, statutes and rules:

ee 4, 14, 15, 16

EE ES ae 2

RN 2

I I III 1 iat crnrierattnpeiteaierieneideemeiaiaiaamaiaieead 2

Fed. R. Crim. P.:

I iin hil i ceeeslahiatnialiaiatlliadinns 16

Re ee 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No.

UNITED STATES OF AMERICA

Vv.

LYLE GERALD JOHNS, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH 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 Ninth Circuit in this case.

OPINIONS BELOW

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

la-15a) is reported at 707 F.2d 1093. The district

court’s opinion (App. B, infra, 16a-28a) and its sup-

plemental order and memorandum (App. C, infra,

29a-32a) are unreported.

JURISDICTION

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

infra, 33a) was entered on June 10, 1983. A petition

(1)

for rehearing was denied on January 4, 1984 (see

App. E, infra, 34a). On February 27, 1984, Justice

Rehnquist extended the time in which to file a petition

for a writ of certiorari to and including April 3,

1984. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

On September 1, 1981, a grand jury sitting in the

District of Arizona returned a two-count indictment

charging respondents with conspiracy to possess mar-

ijuana with intent to distribute it, in violation of 21

U.S.C. 3846, and possession of merijuana with intent

to distribute it, in violation of 21 U.S.C. 841(a)(1).

Prior to trial, the district court granted respondents’

motion to suppress the marijuana that was the basis

of the prosecution, and the government appealed

pursuant to 18 U.S.C. 3731. The court of appeals

affirmed.

1. At approximately 1:30 a.m. on August 4, 1981,

United States Customs Officer Scott Eshelman re-

ceived a report from an unidentified informant of

suspicious activity at the Tucson Dragway. The in-

formant related that an airplane had landed at the

location outside Tucson and had been met by a car.

At the request of Customs officials, the County Sher-

iff’s Department stopped the car as it was leaving

the scene. No criminal activity was detected, but the

occupants of the vehicle were identified as respond-

ents Johns and Hearron. The two men were allowed

to proceed on their way. This information was re-

layed to Officer Eshelman’s superior, Customs Officer

Dale Harper. Harper had been investigating Johns

for some time and had information linking him with

respondents Leon and Duarte in an international

drug smuggling operation. App., infra, 2a, 17a-18a.

Based on the available information, Officer Harper

decided to initiate surveillance at Leon’s residence.

Finding no vehicles at that location, Harper moved

on to Duarte’s residence. There he observed pickup

trucks belonging to Leon and Duarte. After meeting

a third vehicle at a nearby gasoline station, the two

pickups proceeded east on Interstate Highway 10.

Officer Harper contacted other Customs officers, who

maintained ground and air surveillance on the two

trucks as they traveled 100 miles to a private air-

strip near Bowie, a small town located about 50 miles

from the Mexican border. App., infra, 2a, 18a-19a.

Shortly after the trucks arrived at the airstrip the

first of two small planes that were later identified as

belonging to respondents Johns and Hearron landed.

The agents on the ground were unable to see what

transpired from their vantage point, but their coun-

terparts in the air informed them that one of the

pickup trucks had approached the first plane. That

plane ultimately departed, and was followed by the

second small plane, which landed and later departed.

The Customs officers on the ground approached to in-

vestigate. As they approached the trucks they de-

tected the odor of marijuana. One of the officers saw

one of the respondents throwing a blanket over the

contents of one of the trucks. In the trucks the offi-

cers found some 40 square packages wrapped in plas-

tic and dark green trash bags secured with tape.

App., infra, 2a, 19a-20a; 11/9/81 Tr. 134; 12/11/81

Tr. 35.’

1 One of the officers, an “experienced law enforcement offi-

cer[] with many years of on-the-job experience, including the

investigation of marijuana cases” (App., infra, 22a n.2), testi-

Respondents Duarte, Leon, Gomez, Redmond and

Soto were arrested on the ground at the airstrip. Be-

fore leaving the scene, the officers noticed some vege-

table matter loose on the ground that they believed to

be marijuana. Meanwhile, the two small planes were

followed back to the vicinity of Tucson by Customs

officers in the surveillance airplane. Respondents

Hearron and Johns, the pilots, were arrested upon

landing. App., infra, 2a, 21a-23a.

The packages and bags found in the two pickup

trucks were transported to a Drug Enforcement Ad-

ministration warehouse in Tucson. Subsequently—

“Ts]Jeveral days” later by the district court’s descrip-

tion (App., infra, 22a), but see pages 20-21 note 14,

infra—DEA agents took core samples from some of

the bales, which were sent for laboratory analysis

and proved to be marijuana. App., infra, 2a, 22a.

2. All respondents moved to suppress the contra-

band, claiming that the warrantless search of the

bales of marijuana violated their Fourth Amendment

rights. Following an evidentiary hearing, the district

court granted the suppression motion (App., infra,

16a-28a). Relying on Robbins v. California, 453 U.S.

420 (1981), the court held that the insubstantial na-

ture of the containers searched did not excuse the

officers’ failure to secure a warrant (App., infra, 23a-

27a). The district court refused to apply the auto-

fied, based upon his experience, that marijuana is commonly

packaged in this manner (id. at 20a).

At a supplementary hearing on the motion to suppress, one

of the Customs officers testified, for the first time, that several

of the bags in which the marijuana was found were torn in

spots and that the contents of the bags, which appeared to be

marijuana, were visible. The district court declined to credit

this additional testimony (App., infra, 2la-22a n.2).

mobile exception to the warrant requirement on the

ground that “[t]he defendants were arrested and the

contraband secured at the DEA warehouse’ before

the search of the bags was carried out (id. at 24a).

Finally, the district court declined to recognize a

“plain odor” exception to the warrant requirement

(ibid.) and found the evidence insufficient to estab-

lish that the plastic-wrapped bales “could have only

held marijuana” (id. at 27a-28a).

3. While this case was pending on appeal, this

Court rendered its decision in United States v. Ross,

456 U.S. 798 (1982), in the process overruling Rob-

bins’ v. California, supra, upon which the district

court had relied.* Ross held that the automobile

search exception to the warrant requirement permits

the warrantless examination of the contents of con-

tainers found in a vehicle search conducted upon

probable cause, provided that there is probable cause

‘to believe that the container may contain the object

of the search. The parties submitted supplemental

2 The district court initially found that respondents Johns

and Hearron, the pilots, who had delivered the marijuana

and departed from the Bowie airstrip prior to its seizure, had

not established any “interest in the suppressed evidence”

(App., infra, 28a) and accordingly lacked standing to seek

suppression. But, responding to the court’s invitation to sup-

plement their showing in this regard, Johns and Hearron

argued that they had made a bailment of the marijuana and

retained rights therein sufficient to permit them to challenge

the search of the bags. Although these assertions, if credited,

would seem to establish that the other five respondents lacked

“standing,” the district court revised its order of suppression

to benefit all respondents (App., infra, 29a-32a).

8’ The district court had rejected the government’s sugges-

tion that it defer final consideration of the suppression mo-

tions pending this Court’s disposition of Ross (see App.,

infra, 32a).

memoranda addressing the significance of Ross for

this case. Respondents argued that Ross should not

be applied here because the search antedated the deci-

sion in that case, and asserted that probable cause in

this case had focused exclusively upon the plastic

wrapped bales and did not extend to the pickup

trucks, so that this case would be controlled by

United States v. Chadwick, 4833 U.S. 1 (1977), and

Arkansas v. Sanders, 442 U.S. 753 (1979), rather

than Ross.

While it rejected respondents’ arguments respect-

ing the application of Ross, the court of appeals nev-

ertheless affirmed the order of suppression (App.,

infra, la-15a).* The court concluded initially that

because Ross establishes that warrantless container

searches subject to the automobile search doctrine are

not unlawful, and no legitimate reliance interest

would be undercut by its application, Ross is fully

applicable to searches that antedated its rendition

(id. at 6a-8a). Second, the court of appeals deter-

mined that the focus of the officers’ suspicion here

was not exclusively upon the plastic-wrapped bales.

Emphasizing that law enforcement officers were un-

able to see the transfer of the bales from the air-

plane to the pickup trucks, and that the officers did

not know the nature and packaging of the contraband

transferred before arriving on the scene, the court

explained (id. at 8a-9a) that “it was not obvious

that all the contraband would be in the bales. The

[respondents] could have easily secreted other drugs

elsewhere in the vehicles.”

Although the court of appeals acknowledged that

“(t]he officers had probable cause to search both

* The court of appeals upheld the district court’s ruling ac-

cording “standing” to the pilots, respondents Johns and

Hearron (App., infra, 18a-15a).

[pickup] trucks” and that, “[u]nder Ross, they also

could have opened the packages [without a warrant]

as part of that search” even after the packages had

been secured at the DEA warehouse (App., infra,

9a, 13a), the court held that the taking of core

samples from the bags without a warrant was unlaw-

ful because of the time elapsed—three days accord-

ing to the court’s account of the facts (id. at 2a, 9a),

but see pages 20-21 note 14, infra—between the

seizure of the bags and the ensuing search. The

court relied on cases holding that the search incident

to arrest doctrine does not permit a warrantless

search of property seized from an arrested suspect

after the arrest encounter is completed (id. at 9a-

lla). The court also relied upon the characteriza-

tion in Ross, 456 U.S. at 807 n.9, of Chambers v.

Maroney, 399 U.S. 42, 52 (1970), as extending the

automobile search exception to station house searches

conducted “soon” after a seizure. The court reasoned

that the practical difficulties of guarding an automo-

bile stopped on the highway and the possible dangers

of an on-the-spot search—which it believed to be the

basis for this extension—‘“do not apply to a container

that may be removed from the vehicle and secured by

the police” (App., infra, 12a).

Observing that Ross had not overruled Chadwick

or Sanders, and that those cases require that a war-

rant be obtained to conduct a probable cause search

of a container not subject to the automobile search

doctrine, the court of appeals stated that Ross did

not justify a warrantless search of “containers no

longer in an automobile and secured by the police for

three days” prior to the search (App., infra, 12a).

It stated that the bases for the automobile warrant

exception—which it described as the inherent mobil-

ity of automobiles and the impracticability of secur-

ing a warrant in cases involving the transportation

of contraband—do not apply in these circumstances

(id. at 13a, 15a). Nor did the court of appeals be-

lieve that Ross “so destroys the expectation of pri-

vacy in a container subject to an automobile search

that the container is thereafter subject to search

without a warrant” (id. at 12a). The court con-

cluded that because the officers “could have easily

obtained a warrant” (id. at 13a) during the three *

days between seizure and search, their failure to do

so rendered the search unlawful.

The court of appeals also rejected the govern-

ment’s alternative contention that the plain odor of

marijuana emanating from the plastic-wrapped bales

made it unnecessary to obtain a warrant prior to the

search of the packages (App., infra, 3a-6a). Al-

though it recognized the contrary decision of the

Fourth Cireuit in United States v. Haley, 669 F.2d

201, 203-204 & n.3, cert. denied, 457 U.S. 1117

(1982), the court of appeals held that the odor pro-

vided no more than probable cause and that the par-

cels “did not announce their contents with sufficient

clarity to eliminate the need for a warrant” under

the exception to the warrant requirement recognized

in Arkansas v. Sanders, 442 U.S. at 764-765 n.13

(App., infra, 4a-5a & n.2).

REASONS FOR GRANTING THE PETITION

This is a case in which law enforcement officers

lawfully seized two pickup trucks at a remote air-

strip near the Mexican border after observing a

clandestine nighttime rendezvous between the trucks

and two small aircraft. The initial, concededly law-

ful search of the trucks disclosed that they contained

some 40 bales from which the distinct odor of mari-

juana was emanating. The court of appeals acknowl-

edged that the officers could lawfully have opened the

bales on the spot without a warrant, even though all

suspects on the scene had been arrested, the trucks

were in the custody of the agents, and there was no

longer any substantial risk that the bales could be

removed or destroyed in the time that would be re-

quired to procure a search warrant. Nevertheless,

no doubt in large part because the officers already

knew (as well as anything can be “known’’) what the

bales contained, they did not go through the empty

formality of opening the bales at the time. Several

days later, however, they extracted core samples of

the substance contained in the bales and sent them to

a laboratory for chemical analysis. Because of the

delay in undertaking this action, the court of appeals

held that a warrant was required and suppressed the

marijuana as evidence.

The decision of the court of appeals imposes an

arbitrary restriction upon warrantless probable cause

automobile searches based upon an aberrant analysis

that is incompatible with this Court’s decisions. What

this Court had painstakingly clarified in a series of

decisions from Chambers v. Maroney, 399 U.S. 42

(1970), through United States v. Ross, 456 U.S. 798

(1982), has been cast into new confusion by the deci-

sion below. Review by this Court is appropriate to

rectify this result.

l.a. Ross held that the automobile search excep-

tion to the warrant requirement recognized in Car-

roll vy, United States, 267 U.S. 132 (1925), Chambers

v. Maroney, supra, and other cases extends to all

“containers and packages found inside the vehicle”

(456 U.S. at 820; see also id. at 822) “in which there

is probable cause to believe that [the object of the

search] may be found” (id. at 824). The Court ob-

served that a warrant to search a vehicle would suf-

fice to authorize the search of containers found

therein that could contain the object of the search

(id. at 821), and it concluded that “the scope of the

warrantless search authorized by [the automobile

search] exception is no broader and no narrower

than a magistrate could legitimately authorize by

warrant” (id. at 825 (emphasis added)). ‘When a

legitimate search is under way * * * nice distinctions

between * * * glove compartments, upholstered seats,

trunks, and wrapped packages * * * must give way,”

the Court stated (id. at 821), explaining (id, at 821

n.28) :

The practical considerations that justify a

warrantless search of an automobile continue to

apply until the entire search of the automobile

and its contents has been completed.

b. The court of appeals’ conclusion that a con-

tainer discovered in the course of a lawful warrant-

less automobile search may not itself be searched

without a warrant because of a Japse of three days

between the seizure and completion of the search

finds no support in Ross or any other decision of this

Court. Contrary to the court of appeals’ belief (App.,

infra, 12a), Ross does not carve out a novel excep-

tion to the warrant requirement reflected in United

States v. Chadwick, 433 U.S. 1 (1977), and Arkan-

sas v. Sanders, 442 U.S. 753 (1979), that must be

narrowly construed. Rather, it simply applies the

well-established automobile search doctrine recog-

nized in Carroll and its progeny to searches of con-

tainers found in the course of an auto search (see

456 U.S. at 825). Such container searches were held

to be analytically inseparable from the search of an

automobile. Thus Ross imports no special limita-

tions upon the automobile search doctrine. The ques-

tion in this case accordingly must be resolved by ref-

erence to this Court’s decisions that address the per-

missible scope of warrantless automobile searches.

Those cases indicate that the automobile search doc-

trine is not rendered inapplicable by the passage of

time between seizure of an automobile and comple-

tion of a search.

In Chambers v. Maroney, the Court rejected a

challenge to a warrantless station house search of an

automobile, conducted at a time when no exigency

rendered procurement of a warrant impracticable.

The Court first observed that, because probable cause

was present, the vehicle could have been searched on

the spot without a warrant at the time it was stopped

(399 U.S. at 47-52). But the Court declined to limit

the opportunity for a lawful warrantless search of

the vehicle to the time and place of the seizure, ob-

serving that ‘“‘[t]he probable-cause factor still obtained

at the station house” (id. at 52). The Court did not

comment upon the amount of time that had elapsed

between the seizure and the search; plainly it was

not a material consideration in the Court’s analysis.°

5 The district court and the court of appeals had upheld the

delayed automobile search on a search incident to arrest

theory, reasoning that, because it was dark at the time of the

arrest (and the seizure of the automobile), it was reasonable

to defer the search until it could be conducted at the station

house. See United States ex rel. Chambers v. Maroney, 408

F.2d 1186, 1192 (3d Cir. 1969), aff’g 281 F. Supp. 96, 100

(W.D. Pa. 1968). But this Court rejected the search incident

to arrest rationale of the lower courts, stating “‘the reasons

that have been thought sufficient to justify warrantless

searches carried out in connection with an arrest no longer

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

Court sustained the warrantless search of the trunk

of an automobile that had been towed to a private

garage at the direction of police after an automobile

accident leading to the arrest of the driver (a police

officer) for drunken driving. The search, intended to

recover the arrestee’s service revolver, did not take

place at the scene of the accident, but was conducted

at the garage several hours later. The search was

sustained on a community protection rationale.

Again there was no suggestion that there is any re-

quirement that a warrantless search be conducted at

the earliest practical opportunity. Nor was there any

such suggestion in Cardwell v. Lewis, 417 U.S. 583

(1974). Even though the examination of a car did

not take place until the day after the seizure (see id.

at 587-588), Chambers v. Maroney was deemed con-

trolling. Jd. at 593-596 (opinion of Blackmun, J.).

Significantly, the Court’s only comment on the delay

obtain when the accused is safely in custody at the station

house” (399 U.S. at 47). The Court instead sustained the

challenged search under the Carroll doctrine.

Chambers thus indicates that warrantless automobile

searches are free of the contemporaneity requirements

ordinarily applicable to searches incident to arrest. The court

of appeals’ reliance in this case upon its decisions under the

search incident to arrest doctrine (App., infra, 9a-lla)

accordingly is misplaced. Unlike searches incident to arrest,

which do not rest on probable cause and are ordinarily predi-

cated upon the circunistances existing at the time of arrest,

the justification for a warrantless automobile search, probable

cause, does not disappear with the passage of time in a case

like this. See pages 16-20, infra.

was that it precluded justification of the search as an

incident of the arrest. 7d. at 591 n.7.°

The Court’s opinion upholding a station house au-

tomobile search in Texas v. White, 423 U.S. 67

(1975), confirms that prompt completion of such a

search is not a requirement of the Carroll/Chambers

doctrine. The Court simply stated that, as in Cham-

bers, “‘[t]he probable cause factor’ that developed

at the scene ‘still obtained at the station house’”’

(423 U.S. at 68, quoting Chambers, 399 U.S. at 52

(brackets in original) ). In the Court’s view, a suffi-

cient basis for the search was that “there was prob-

able cause to search respondent’s car” (423 U.S. at

68).

Thus this Court’s automobile search decisions do

not require that a station house search be conducted

at any particular time following a seizure. More gen-

erally, the Court has repeatedly rejected the notion

that the validity of warrantless automobile searches

is somehow conditioned upon exigent circumstances

that make securing of a warrant impractical. See

United States v. Chadwick, 433 U.S. at 12-13;

Cardwell v. Lewis, 417 U.S. at 595-596 (opinion of

Blackmun, J.) (“[WJe know of no case or principle

Ciat suggests that the right to search on probable

cause * * * [is] foreclosed if a warrant was not ob-

* The Court did observe that completion of the investigating

procedures involved in the case could have required that the

seizure of the automobile be prolonged for a significant time

period. 417 U.S. at 595 n.11 (opinion of Blackmun, J.)

7 Justice Marshall, joined by Justice Brennan in dissent,

stated that it was irrelevant that the search was completed

more promptly than a warrant could have been obtained,

observing that “Chambers took such time elements out of the

equation” (423 U.S. at 72 n.*).

tained at the first practicable moment.”); Husty v.

United States, 282 U.S. 694, 701 (1931).

Cooper v. California, 386 U.S. 58 (1967), upheld

the warrantless search of an automobile that did not

take place until a full week after the date of seizure

(see id. at 58). The Court squarely rejected the sug-

gesticu—echoed by the court of appeals in this case

(App., infra, 13a)—that because sufficient time was

available to procure a warrant one accordingly was

required (386 U.S. at 62):

It is no answer to say that the police could have

obtained a search warrant, for “[t]he relevant

test is not whether it is reasonaie to procure a

search warrant, but whether the search was rea-

sonable.” United States v. Rabinowitz, 339 U.S.

56, 66.

The time limits imposed upon warrantless searches

by the court below are irreconcilable with Cooper

and the analysis employed by this Court’s automobile

search decisions generally.* They also contravene the

general principle of Fourth Amendment analysis em-

ployed by this Court that “[t]he fact that the protec-

tion of the public might, in the abstract, have been

accomplished by ‘less intrusive’ means does not, by

itself, render the search unreasonable.” Cady v.

Dombrowski, 413 U.S. at 447; see also Illinois v. La-

fayette, No. 81-1859 (June 20, 1983), slip op. &.

c. Ross itself strongly suggests that the court of

appeals misapprehended the scope of the automobile

search doctrine. The court of appeals seized upon

* While the doctrinal basis of Cooper is not entirely clear

(see 386 U.S. at 61; cf. Ross, 456 U.S. at 809 n.11), it rests at

least in part upon the diminished expectation of privacy sur-

rounding an automobile, and bears a close family relationship

to the automobile search doctrine. See Chadwick, 433 U.S. at

12; see also Cady v. Dombrowski, 413 U.S. at 439-448. No

principled basis exists for distinguishing Cooper here.

the observation in a footnote in Ross, 456 U.S. at 807

n.9, that Chambers v. Maroney and Texas v. White

establish that if an immediate search on the street is

permissible without a warrant, a search “soon there-

after” is permissible (App., infra, 1la). But this de-

scriptive passage simply alluded to and reaffirmed

the teaching of Chambers and White. It obviously

was not intended to create or define an outside tem-

poral limit upon the completion of a warrantless au-

tomobile search.’

In fact, the principle inferred by the court of ap-

peals is contrary to the rule stated repeatedly by the

Court in Ross (456 U.S. at 823, 825): that the scope

of a warrantless automobile search is commensurate

with that which a magistrate could authorize based

upon the probable cause available to the officers. If

the search of the respondents’ pickup trucks had been

authorized by warrant, the officers undertaking the

search of the bales of marijuana would not have been

required to procure a second warrant to complete

that procedure simply because three days had elapsed

between the seizure of the bales and their opening.

Cf. Ross, 456 U.S. at 820-821 & n.27. Rather, absent

a showing that the completion of the search violated

the reasonableness standard of the Fourth Amend-

ment in some concrete respect (or violated the time

limit fixed by the original warrant), completion of

the search would have been authorized by the original

® The facts of Ross include both a preliminary on-the-street

search of an automobile trunk in which a container (a paper

bag) was opened, and a subsequent, more thorough, station

house search of the car in which an additional container (a

zippered red leather pouch) was opened (456 U.S. at 801).

Ross argued (Resp. Br. at 6-7, 13-21) that Chambers Vv.

Maroney should be overruled. But he did not argue that the

timing of the station house search was impermissible.

warrant. There is no more justification here than in

the hypothetical case we have posed for requiring an

additional authorization for completion of the

search.”

d. Contrary to the court of appeals’ suggestion

(App., infra, 1la-12a), the policies that underlie ex-

tension of the auto search doctrine to encompass sta-

tion house searches subsequent to a seizure are not

rendered inapplicable by the passage of time between

the seizure and search. As this Court explained in

Ross, 456 U.S. at 807 n.9, warrantless station house

searches are permitted both because of the “practicali-

ties of the situations presented”—i.e., the hardship

and inconvenience that might result if a warrantless

search could be undertaken only at the scene of the

seizure—and because of the “relatively minor pro-

tection that a contrary rule would provide for pri-

vacy interests.” While the first of these factors may

shed little light on the question whether a station

house search must be undertaken at the earliest prac-

tical time, the second factor has undiminished vitality

1° We note that while the Fourth Amendment requires that

warrants “particularly describ[e] the place to be searched or

the persons or things to be seized,” there is no comparable

requirement that the timing of a search be specified, much less

that it be stated with particularity. Fed. R. Crim. P. 41(c) (1)

requires, however, that a warrant specify a period of time not

to exceed ten days, within which it is to be executed. The

search in this case obviously was completed considerably more

promptly than that. While even the ten day limit would serve

little purpose in the present context (see pages 19-20, infra),

it is clear, at a minimum, that the court of appeals’ decision

has the effect of restricting warrantless automobile searches to

a narrower compass than a warrant would have authorized.

in this setting. Moreover, the Court has made clear

that no case-by-case examination of the strength of

these factors in a particular setting is required, but

rather that the doctrine is an effort to formulate a

“more general rule” that is reasonable for the broad

run of cases, even if application to particular cases

may “appear unsatisfactory” (ibid.). Accordingly,

the policies underlying Chambers and Ross are fully

applicable here.”

The court of appeals seemed to assume (App.,

infra, 12a) that because of the separation of the

bales from the trucks the automobile search doctrine

could no longer apply, and that the bales had to be

regarded as containers subject to the warrant re-

quirement of Chadwick and Sanders. But reliance on

this location factor misses the point of this Court’s

decisions. The applicability of Ross depends not on

the location of a container at some time after the

search of a vehicle has begun, but upon the focus of

the probable cause that authorized the automobile

search and the warrantless seizure of the container.

456 U.S. at 818-819, 823-824. Obviously, at some

juncture in the course of an automobile search that

discloses the presence of containers that are suspected

" Thus the court of appeals’ assertion (App., infra, 12a)

that the rationale for permitting station house searches “do[es]

not apply to a container that may be removed from the vehi-

cle and secured by police” is simply incorrect. In any event,

this reasoning, which the court of appeals attributed to

Chadwick, is inconsistent with the fundamental premise of

Ross—that the search of a container found in the course of an

automobile search should be regarded as part of the automo-

bile search.

of harboring the object of the search, the containers

ordinarily will be separated from the vehicle. Indeed,

this separation will often occur at or before the time

the container is secured in police custody at the sta-

tion house. Insofar as the decision of the court of ap-

peals depends on removal of the containers from the

vehicle rather than on the passage of time, it accord-

ingly would have the effect of rendering Chambers in-

applicable to searches of suspicious containers discov-

ered in the course of a lawful warrantless automo-

bile search. This result would largely overrule Ross,

which teaches that such searches are not to be dis-

tinguished from the search of an automobile itself.

See also New York v. Belton, 453 U.S. 454, 461-462

n.5 (1981).%* And subsequent to Ross, in Michigan

v. Thomas, 458 U.S. 259 (1982), this Court has once

again emphasized that the automobile search doc-

trine is not to be limited as the court of appeals did

here.*

12 In Belton the Court rejected the “fallacious theory” that

a seizure of property associated with a defendant afforded

police such complete control over the encounter as to eliminate

the justification for a search incident to arrest, noting that

under this analysis “no search or seizure incident to a lawful

custodial arrest would ever be valid” (453 U.S. at 462 n.5).

The decision below adopts a comparably fallacious approach

to the search of containers found in an automobile search.

13 Thomas states (458 U.S. at 261):

In Chambers v. Maroney, 399 U.S. 42 (1970), we held

that when police officers have probable cause to believe

there is contraband inside an automobile that has been

stopped on the road, the officers may conduct a warrant-

less search of the vehicle, even after it has been im-

pounded and is in police custody. We firmly reiterated

this holding in Texas v. White, 423 U.S. 67 (1975). See

Accordingly, there is no principled justification for

the court of appeals’ conclusion that the passage of

time between seizure of the marijuana and the tak-

ing of core samples rendered the automobile search

doctrine inapplicable here. Nor is any legitimate in-

terest of an owner of seized property invaded by per-

mitting a warrantless search in circumstances such

as are presented here. Rather than identify any such

interest, the court of appeals was content to suggest

(App., imfra, 13a) that the policies underlying

the automobile search doctrine itself have no appli-

cation here. This simply ignores the “diminished ex-

pectation of privacy which surrounds the automo-

bile,” which provides a principal justification for the

automobile search doctrine itself. See United States

v. Chadwick, 433 U.S. at 12; see also South Dakota vy.

Opperman, 428 U.S. 364, 367-368 (1976). Ross

teaches that this diminished expectation of privacy

extends both to “a vehicle and its contents * * * if

probable cause is given to believe that the vehicle is

transporting contraband” (456 U.S. at 823), and re-

affirms that limiting warrantless searches to on-the-

spot examinations undertaken immediately would

provide no significant protection for privacy inter-

ests (id. at 807 n.9).

The court of appeals did not explain how the pas-

sage of time between seizure of a container and its

search serves at all to alter the individual’s expecta-

tion of privacy in the container. In fact, the resid-

ual expectation of privacy in these circumstances is

also United States v. Ross, 456 U.S. 798, 807, n.9 (1982).

It is thus clear that the justification to conduct such a

warrantless search does not vanish once the car has

been immobilized * * *.

neglible, at best. Because the officers needed no war-

rant—even under the court of appeals’ view of the

law—to open the bales they had seized at the Bowie

airstrip or “soon” after their arrival at the DEA

warehouse, any expectation that their contents would

remain secret here would be wholly unreasonable.

See Illinois v. Andreas, No. 81-1843 (July 5, 1983),

slip op. 5, 7-8; United States v. Edwards, 415 U.S.

800, 805-808 (1974).

The pointlessness of the Ninth Circuit’s rule is es-

pecially evident on the facts of this case, because the

clear odor of marijuana emanating from the large

cache of marijuana seized, as well as the character-

istic appearance of the marijuana bales and the

events preceding the seizure, obviated any need for

an investigative search to ascertain the nature of the

contents of the bales. Indeed, on the facts of this case

a strong argument could be made that the containers

announced their contents and accordingly “by their

very nature [could not] support any reasonable ex-

pectation of privacy” sufficient to trigger a warrant

requirement. Arkansas v. Sanders, 442 U.S. at 764-

765 n.13; see United States v. Jacobsen, No. 82-1167

(Apr. 2, 1984), slip op. 10 n.17; Texas v. Brown, No.

81-419 (Apr. 19, 1983), slip op. 5-6 & n.5 (Stevens,

J., concurring in the judgment). But there is no need

to reach that question here; at a minimum, the odor

and appearance of the marijuana bales assuredly was

sufficient to preclude any enhanced expectation of

privacy from arising because of the lapse of time be-

tween thdseizure and the actual penetration of the

interior of the bales. Assuming that a significant de-

lay in completing the search in fact occurred here,"

14 We do not believe that the record supports the court of

appeals’ characterization of the facts of this case in this re-

the explanation appears to be that the officers were

justifiably confident that they already knew precisely

what they had found. In these circumstances, it is

peculiar indeed to conclude that the mere passage of

a few days’ time made unreasonable the next investi-

gative step preparatory to prosecution: the removal

of core samples for laboratory analysis."

2.a. The court of appeals’ decision conflicts with the

decisions of other courts of appeals that have under-

stood Ross to be applicable in circumstances remark-

ably similar to those presented here. For instance,

in United States v. Rivera, 684 F.2d 308 (5th Cir.

1982), the court of appeals concluded that Ross re-

quired it to uphold a warrantless search of plastic

wrapped bundles that proved to contain marijuana.”

Yet the search in that case—which, as in this case,

took the form of extraction of core samples from the

bales of marijuana—occurred more than 48 hours

after the seizure of the bales. See United States v.

gard. The only evidence of which we are aware that bears on

this point indicates that the core samples were taken the day

after the seizure (12/11/81 Tr. 61). In the court of appeals

respondents Duarte, Leon, Soto, Gomez and Redmond asserted

(Br. 3) that there had been a lapse of three days, but the stipu-

lation reflected in the transcript pages cited in support of this

assertion (11/9/91 Tr. 5) simply does not address the timing

of the station house search. Our argument in this Court,

however, does not in any respect depend upon our disagree-

ment with the court below as to these facts.

15 Indeed, if anything, delay in the conduct of the search is

beneficial to persons whose property has been seized, since it

affords them an opportunity, if they have a substantial chal-

lenge to the lawfulness of the seizure, to move for relief under

Fed. R. Crim. P. 41(e) before any search occurs.

16 Rivera had been held by the court of appeals, upon the

government’s petition for rehearing, pending this Court’s de-

cision in Ross (see 684 F.2d at 309).

Rivera, 654 F.2d 1048, 1050 (5th Cir. 1981).”

Similarly, in Sharpe v. United States, 712 F.2d 65

(4th Cir. 1983), petition for cert. pending on other

issues, No. 83-529, the court of appeals recognized

that Ross required it to “disavow” as “no longer

valid” its prior ruling that a warrantless search of

marijuana bales seized in the search of a pickup

truck was unlawful. Yet the search in question had

occurred at least two or three days after the seizure.

See Sharpe v. United States, 660 F.2d 967, 969 (4th

Cir. 1981)."* The Third Circuit has also expressed

an understanding of this Court’s teaching on the tim-

ing of automobile searches that is inconsistent with

that of the Ninth Circuit. United States v. Schecter,

717 F.2d 864, 870-871 (1983).

b. As we have indicated (pages 19-21 su-

pra), the decision of the court of appeals does not

serve to protect any legitimate or reasonable expecta-

17 The cited opinion is the initial opinion of the Fifth Cir-

cuit in Rivera, which was vacated by that court following this

Court’s decision in Ross.

18 This Court granted our petition for a writ of certiorari

seeking review of the court of appeals’ 1981 decision in

Sharpe, vacated the court of appeals’ judgment, and remanded

for further consideration in light of Ross. United States v.

Sharpe, 457 U.S. 1127 (1982). That remand prompted the

court of appeals’ disavowal of its prior ruling on the warrant

issue. We note that when the case initially came before the

court of appeals, in 1981, Judge Russell, in dissent, had em-

phasized that the bales had not been opened for two or three

days and had concluded, in light of Chambers v. Maroney, that

the delay had no legal significance. 660 F.2d at 981-982. The

court of appeals’ ultimate conclusion on remand that Ross con-

trolled the search issue in the case accordingly cannot be at-

tributed to failure to consider the significance, if any, of the

delay.

tion of privacy that could be harbored by the owner

of a suspicious container seized by police upon prob-

able cause in the course of a legitimate warrantless

search of a motor vehicle. Nor does the arbitrary

time limit adopted advance any other identifiable in-

terest of such individuals. On the contrary, if it is

required, the police will simply adopt the practice of

completing searches at the place of seizure or shortly

after the property has been secured at the station

house—albeit at some cost to the timely accomplish-

ment of other law enforcement tasks that are objec-

tively more pressing, such as attending to the prompt

initial appearance of arrested suspects before a judi-

cial officer or preparing contemporaneous reports of

their investigations.

Of course, there may be cases in which it is im-

possible to complete a search within the ambiguously

defined interval allowed by the court of appeals. See,

e.g., Cardwell v. Lewis, 417 U.S. at 595 n.11 (opin-

ion of Blackmun, J.). It is not at all clear from the

court of appeals’ opinion whether a warrant would be

required where the court is satisfied that the delay

meets some standard of reasonable justification, or,

perhaps, absolute necessity. But even assuming that

the court of appeals would not press the present rul-

ing that far, the result would be to thrust upon the

courts the burden of assessing, on a case by case

basis, whether the delay was “too long” in light of

the factors that explain it, even though the outcome

of this inquiry in no way promotes substantial indi-

vidual privacy interests.

c. In Ross the Court undertook to provide “clarifi-

cation” (456 U.S. at 804) concerning the scope of

the automobile search doctrine and its application to

containers that are found in the course of an auto-

mobile search. The Court noted the special “impor-

tance of striving for clarification in this area of the

law,” observing that “countless vehicles are stopped

on highways and public streets everyday, and * * *

that it is not uncommon for police officers to have

probable cause to believe that contraband may be

found in a stopped vehicle” (id. at 803-804). For the

same reasons, it is appropriate for the Court to re-

store the clarity that prevailed prior to the decision

of the court below. Because the decision of the court

of appeals appears so plainly to conflict with this

Court’s decision in Ross and the consistent thread of

this Court’s other automobile search decisions, sum-

mary reversal may be appropriate.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

GLORIA C. PHARES

Attorney

APRIL 1984

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 82-1080

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

LYLE GERALD JOHNS, DENNIS EUGENE HEARRON,

MANUEL JESUS DUARTE, CARLOS TORRES LEON,

JOSE OROS SOTO, ROBERTO LEON GOMEZ, and JOHN

LIZARAGA REDMOND, DEFENDANTS-APPELLEES

Argued and Submitted Nov. 12, 1982

Decided June 10, 1983

Appeal from the United States District Court

for the District of Arizona

Before TRASK, ANDERSON, and CANBY, Cir-

cuit Judges.

CANBY, Circuit Judge.

United States Customs Officers seized securely

wrapped packages of marijuana from two covered

pickup trucks and, three days later, opened the pack-

ages without a warrant. The trial court granted the

defendants’ motion to suppress the evidence. The

government appeals, raising several possible excep-

tions to the warrant requirement. We conclude that

this warrantless search violated the Fourth Amend-

ment and accordingly, we affirm.

FACTS

After midnight on Tuesday, August 4, 1981, cus-

toms officers, suspecting that a drug transaction

might occur, began ground and air surveillance of

two trucks. Shortly after the trucks stopped near a

remote private airstrip southeast of Bowie, Arizona,

two small airplanes landed in sequence. After both

planes left, the officers approached the two trucks

and smelled the odor of marijuana in the general

area of the trucks. An officer looked inside the trucks

and discovered several sealed boxes and plastic bags.

Officers then arrested the five defendants present at

the two trucks; later, other officers arrested the two

airplane pilots. The agents seized the boxes and bags

and took them to the Drug Enforcement Administra-

tion warehouse in Tucson, Arizona. Three days later,

without obtaining a search warrant, federal agents

opened some of the bales and took core samples,

which laboratory analysis proved were marijuana.

After a hearing, the district court granted a mo-

tion to suppress the evidence seized. Initially, the

court suppressed the evidence only against the five

defendants arrested at the trucks, but later the court

amended its order to include the two pilots as well.

DISCUSSION

The government contends that the trial court er-

roneously suppressed the packages of marijuana

seized from the trucks. The government asserts that

two exceptions to the warrant requirement poten-

tially apply here. Under the government’s first the-

ory, the marijuana in the wrapped bales was in plain

view. Alternatively, the government proposes that

the agents had authority to search the bales under

the automobile exception. In addition, the govern-

ment argues that, even if the search here fits within

neither exception, Johns and Hearron, the airplane

pilots, lacked an expectation of privacy that would

permit them to challenge the search. We take each

issue in turn.

I. Plain View

The government argues that because of the sur-

rounding circumstances and the odor of marijuana

coming from the trucks, no warrant was required to

open the packages because the contents were in plain

view.’ When officers are legitimately in a location

where they observe an unconcealed object, the dis-

covery does not constitute a search. See Katz v.

United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511,

19 L.Ed.2d 576 (1967); Ker v. California, 374 U.S.

23, 42-43, 83 S.Ct. 1623, 1634-35, 10 L.Ed.2d 726

(1963).

The government relies on the experience of the

officers, the extent of the investigation, and the cir-

cumstances of the seizure as the basis for its conten-

tion that the contents of the packages were in plain

view. The government draws some support from the

recently decided case of Texas v. Brown, —— USS.

—, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), in

which the plain view doctrine was applied to uphold

the warrantless seizure of an opaque, knotted party

' The government also argued that the wrapped containers

were “mere cargo,” to which no Fourth Amendment privacy

interests attached. Distinctions based on the likelihood that a

particular closed, opaque container contains personal effects

are no longer permissible. See United States v. Ross, 456 U.S.

798, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982). Since Ross,

we no longer need distinguish between “worthy” and “un-

worthy” containers.

balioon containing heroin. As we read the plurality

and concurring opinions in Brown, however, they es-

tablish only that the seizwre of the container in plain

view was justified when there was probable cause to

believe that it contained contraband. We have no

difficulty in agreeing that in the present case, the offi-

cers acted lawfully and justifiably in seizing the

packages. It is a different question, however, whether

an opaque container that is properly seized may be

searched.

If a movable container is in plain view, sei-

zure does not implicate any privacy interests.

Therefore, if there is probable cause to believe

it contains contraband, the owner’s possessory

interest in the container must yield to society’s

interest in making sure that the contraband does

not vanish during the time it would take to ob-

tain a warrant. The item may be seized tem-

porarily. It does not follow, however, that the

container may be opened on the spot. Once the

container is in custody, there is no risk that evi-

dence will be destroyed. Some inconvenience to

the officer is entailed by requiring him to obtain

a warrant before opening the container, but that

alone does not excuse the duty to go before a

neutral magistrate.

Id. —— USS. at , 103 S.Ct. at 1547 (Stevens,

J., joined by Brennan, Marshall, JJ., concurring).

We conclude, therefore, that Brown does not support

the warrantless search here.’

2 We decline to hold that the contents of the wrapped bales

were in plain view as “containers (for example a kit of

burglar tools or a gun case) [which] by their very nature

cannot support any reasonable expectation of privacy because

-_—

The government contends that the odor detected by

the agents, emanating from the marijuana, brought

that contraband into plain view. The Fourth Circuit

does consider a package which gives off a distinctive

odor to be like a package wrapped in transparent

material, making the contents objectively obvious.

United States v. Haley, 669 F.2d 201, 203-04 & n.3

(4th Cir.), cert. denied, 457 U.S. 1117, 102 S.Ct.

2928, 73 L.Ed.2d 1329 (1982). Our precedent, how-

ever, directs that while the odor of marijuana smelled

by the agents would contribute to probable cause to

believe that the container held contraband, a recog-

nized exception to the warrant requirement was nec-

essary to justify a warrantless search. United States

their contents can be inferred from their outward appear-

ance.” Ross, 102 S.Ct. at 2167 n. 19 (quoting Arkansas v.

Sanders, 442 U.S. 753, 764 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61

L.Ed.2d 235 (1979)). See also Robbins v. California, 453

U.S. 420, 427-28, 101 S.Ct. 2841, 2846-47, 69 L.Ed.2d 744

(1981). The wrapped bales here did not announce their con-

tents with sufficient clarity to eliminate the need for a war-

rant. The government implicitly recognized that fact in the

district court. At the reopened hearing on the motion to sup-

press, a government witness testified that the packages were

torn, exposing the marijuana to plain view and obviating the

necessity of opening the packages to remove samples. The

trial court found this strikingly new testimony to be not

credible.

Nor can we say that the viewing of the packages by the

agents in this case was “inadvertent,” as required for applica-

tion of the plain view doctrine by the plurality opinion in

Coolidge v. New Hampshire, 403 U.S. 443, 470, 91 S.Ct. 2022,

2040, 29 L.Ed.2d 564 (1971). We do not rest our decision on

this ground because it is uncertain whether the “inadvertence”

requirement survived Texas v. Brown, —— U.S. —,

103 S.Ct. 1535, 1542-44, 75 L.Ed.2d 502 (1983) (plurality

opinion of Rehnquist, J.; concurring opinion of White, J.).

v. Ogden, 485 F.2d 536, 539-40 (9th Cir. 1973), cert.

denied, 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764

(1974).* The odor and circumstances of the seizure

supplied the probable cause for a search warrant.

They did not eliminate the need for one.

II. Automobile Exception

‘The government next contends that the warrant-

less search was justified under the automobile excep-

tion to the warrant requirement. For that conten-

tion to succeed, three conditions must be met. First,

the Supreme Court’s decision in United States v.

Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572

(1982), must have retroactive effect. Second, Ross

must apply to the facts of this case. Finally, the

three-day delay must not invalidate the warrantless

automobile search.

A. The Retroactivity of Ross

In United States v. Ross, 456 U.S. 798, 824, 102

S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982), the Su-

preme Court rejected the rule of Robbins v. Califor-

* Thus, most of our cases turn on whether the automobile

exception, as then defined, applied to the searches of the con-

tainers. See, e.g., United States v. Solomon, 528 F.2d 88 (9th

Cir. 1975); United States v. Gibbs, 4385 F.2d 621 (9th Cir.

1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1233, 28 L.Ed.2d

532 (1971).

The Second Circuit also has rejected the view that a dis-

tinctive odor can bring the contents of a container into plain

view. United States v. Dien, 609 F.2d 1038, 1045 (2d Cir.

1979). See also United States v. Johnson, 588 F.2d 147 (5th

Cir. 1979). While the results in Dien and Johnson would be

different now after Ross, that does not affect their analysis of

whether the odor of marijuana in the vehicle brings the con-

tents of the packages into plain view.

nia, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744

(1981), relied on by the district court when it

granted the defendants’ suppression motion. In Rob-

bins, the Court considered whether police officers en-

titled to conduct a warrantless search of an automo-

bile stopped on a public roadway may open a con-

tainer found within the vehicle. The Court reversed

Robbins’ conviction on the ground that a closed opaque

container “may not be opened without a warrant,

even if it is found during the course of the lawful

search of an automobile.” Jd. at 428, 101 S.Ct. at

2847.

The following year, in Ross, the Court reexamined

the automobile exception and concluded that “[i]f

probable cause justifies the search of a lawfully

stopped vehicle, it justifies the search of every part of

the vehicle and its contents that may conceal the ob-

ject of the search.” 102 S.Ct. at 2172. The govern-

ment argues that the decision in Ross must control

here, requiring reversal, while the appellees contend

that the decision should not be given retroactive ef-

fect.

This court already has applied Ross retroactively,

although without discussion of the issue. United

States v. Cleary, 683 F.2d 313 (9th Cir. 1982). See

also United States v. Rivera, 684 F.2d 308 (5th Cir.

1982). The opinion in Ross indicates that the Su-

preme Court intended the rule to apply retroactively.

See 102 S.Ct. ot 2172 (“[I]t is clear that no legiti-

mate reliance interest can be frustrated by our deci-

sion today”). No other result makes sense. The pur-

pose of refusing to apply retroactively a new decision

enforcing the exclusionary rule is to avoid penalizing

police conduct when the police reasonably relied on

existing judicial precedent. United States v. Peltier,

422 U.S. 531, 537-39, 95 St.Ct. 2313, 2317-18, 45

L.Ed.2d 374 (1975); see, eg., United States v.

Stewart, 595 F.2d 500, 504 (9th Cir. 1979). When a

court determines that a particular police practice

does not violate the Constitution, there is no reason

not to apply that decision retroactively. “Because the

Supreme Court has declared searches such as those

involved here to be constitutional, no police miscon-

duct has in fact occurred. Hence, there is no mis-

behavior to be deterred, and the interest in main-

taining judicial integrity is not implicated, especially

in light of the previously unsettled state of the law

in this area.” United States v. Burns, 684 F.2d 1066,

1074 (2d Cir. 1982) (applying Ross retroactively).

B. The Applicability of Ross

The appellees argue that even if Ross is given re-

troactive effect, it does not apply here. They argue

that the customs agents must have known that the

packages contained all the contraband, so that their

suspicion should have focused exclusively on the pack-

ages and not on the trucks. As a consequence, the

automobile search was unauthorized and a warrant

was required to search the containers under the rule

of United States v. Chadwick, 433 U.S. 1, 97 S.Ct.

2476, 53 L.Ed.2d 538 (1977). Ross did not purport

to overrule Chadwick.

The customs officers, however, remained some dis-

tance away while the defendants placed the packages

inside the trucks. The officers did not see the pack-

ages nor have a chance to seize the contraband until

after loading. The officers had probable cause to

search both vehicles, not just the newly-discovered

bales. Their suspicion did not focus solely on the

packages; it was not obvious that all the contraband

would be in the bales. The appellees could have easily

secreted other drugs elsewhere in the vehicles.

In United States v. Chadwick, 433 U.S. 1, 97 S.Ct.

2476, 53 L.Ed.2d 538 (1977), the police officers had

all the facts giving them probable cause to believe

that contraband was in the footlocker and the suit-

cases before those containers were placed in the

trunks of the cars. Placing the containers in the cars

did not give the officers probable cause to search the

entire vehicle. In Ross and in this case, the officers’

suspicions were not so specific. They did not know

the exact nature and packaging of the contraband

transferred from the airplanes to the trucks before

arriving on the scene. The officers had probable cause

to search both trucks. Under Ross, they also could |

have opened the packages as part of that search.

C. The Three-Day Delay

We next must determine whether the fact that the

packages could have been searched without a warrant

at the time of their seizure means that they could be

searched without a warrant some three days later at

the rovernment warehouse. We believe that the clear

thrust of our precedent answers that question in the

negative, and that nothing held cr said in Ross leads

to a different conclusion.

In United States v. Monclavo-Cruz, 662 F.2d 1285

(9th Cir. 1981), an officer arrested a female passen-

ger of an automobile and seized her purse, which was

either in her hand, on her lap, or on the seat beside

her. He did not search the purse immediately, but

did so about an hour later in his office, where he had

taken both the purse and its owner. We assumed

that the initial seizure of the purse was lawful as

incident to the owner’s arrest, but held that the sub-

10a

sequent search was invalid for lack of a warrant. It

made no difference, we said, that the officer was pre-

vented from making the search at the time of the

arrest, because he believed it would have created a

security risk. “The fact that an officer is prevented

from conducting a [permissible search at the time of

the arrest] is not a sufficient reason to justify a

search an hour later at the station. The protection

rationale for the search no longer applies.” Jd. at

1288.

In United States v. Burnette, 698 F.2d 1038 (9th

Cir. 1983), police officers arrested the defendant on

probable cause and seized the purse she was carry-

ing. They conducted a cursory search of the purse at

that time, and subsequently conducted a more thor-

ough warrantless search at the police station. We

held that the search at the station did not violate the

Fourth Amendment because the initial search, prop-

erly conducted at the time of the arrest, diminished

or destroyed any privacy interest the owner had in

the contents of the purse. As long as the purse there-

after remained in police possession, it could be

searched without a warrant. Id. at 1049-50. We

pointed out, however, that “[w]here such a container

is not searched immediately, . . . but. is instead taken

to the police station and searched later, a warrant is

required. United States v. Monclavo-Cruz, 662 F.2d

1285 (9th Cir. 1981).” Id. 698 F.2d at 1049. More-

over, the dissent in Burnette was based on the sole

ground that the record did not support the finding

that the officers had in fact searched the purse at the

time of the arrest. See id. at 1052-56 (Norris, J., dis-

senting). Neither the majority’s reference to Mon-

clavo-Cruz nor the dissent would make much sense if

a warrantless station-house search were rendered

lla

lawful by the fact that an earlier search could have

been made lawfully without a warrant.

The starting premise for both cases is that war-

rantless searches are per se unreasonable under the

Fourth Amendment, subject only to narrowly pre-

scribed exceptions confined to the circumstances that

gave rise to those exceptions. Coolidge v. New Hamp-

shire, 403 U.S. 448, 455, 91 S.Ct. 2022, 2032, 29

L.Ed.2d 564 (1971); see United States v. Martin,

693 F.2d 77, 78 (9th Cir. 1982) (per curiam). Both

Monclavo-Cruz and Burnette dealt with searches of

items initially subject to search incident to a lawful

arrest. There was no reason to stretch that exception

to the warrant requirement so as to permit a later

search at the police station, where “there is no longer

any danger that the arrestee might gain access to the

property to seize a weapon or destroy evidence.”

United States v. Chadwick, 433 U.S. at 15, 97 S.Ct.

at 2485. In the present case, however, the containers

were subject to initial search as part of the auto-

mobile exception to the warrant requirement, under

the holding of Ross. We must therefore examine

Ross further to determine whether anything in its

rationale supports the warrantless searches conducted

in this case.

The automobile exception permits a warrantless

search not only at the spot where the automobile is

stopped but also at the police station “soon there-

after” if the vehicle is impounded. Ross, 102 S.Ct. at

2163 n.9 (citing Chambers v. Maroney, 399 U.S. 42,

52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), and

Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d

209 (1975)). This extension of the automobile ex-

ception resulted, however, from the practical difficul-

ties associated with the detention of an automobile on

12a

a public highway and the possible dangers of a search

there. See Chambers v. Maroney, 399 U.S. at 52, 90

S.Ct. at 1981; Ross, 102 S.Ct. at 2163 n.9, 2166 n.18.

Those considerations do not apply to a container that

may be removed from the vehicle and secured by the

police, as the Supreme Court held in Chadwick, 433

U.S. at 13 n.7, 97 S.Ct. at 2484 n.7.

Ross allows the police to search, either in the auto-

mobile or soon thereafter at the station, all contain-

ers, closed or open, which there is probable cause to

believe may conceal the proper object of the search.

Ross does not, however, overrule the holding of Ark-

ansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61

L.Ed.2d 235 (1979), that a warrant is needed for

search of a closed container in the hands of the police

that is not part of an automobile search itself. We

therefore find nothing in Ross’s expansion of the au-

tomobile search exception to justify extending it to

containers no longer in an automobile and secured by

the police for three days prior to a warrantless

search.*

Moreover, nothing in the Ross decision so destroys

the expectation of privacy in a container subject to

an automobile search that the container is thereafter

subject to search without a warrant. First, Ross al-

lows the police to search all containers only if they

have probable cause to search the vehicle. If there

is probable cause to search only a container, the auto-

mobile exception does not apply. Ross did not over-

rule Chadwick or the holding in Sanders. See Ross,

* See, e.g., United States v. Cleary, 656 F.2d 1302, 1303 (9th

Cir. 1981), vacated, 457 U.S. 1113, 102 S.Ct. 2919, 73 L.Ed.2d

1324, on remand, 683 F.2d 313 (9th Cir. 1982) (search ap-

parently occurred immediately after bag taken to police

station and therefore was part of search of van).

13a

102 S.Ct. at 2168 (quoting Robbins v. California,

453 U.S. at 435, 101 S.Ct. at 2850 (Powell, J., con-

curring) ); Ross, 102 S.Ct. at 2172. Chadwick holds

that placing a package in an automobile does not

destroy the expectation of privacy in that package.

Second, our decision in Burnette would never have

reached the merits if the fact that the police could

have (but did not) search a container forever de-

stroys the expectation of privacy in its contents.

We again emphasize the factual basis of our hold-

ing. Customs officers had probable cause to believe

the two trucks contained contraband. Under Ross,

they could have immediately inspected the packages

as part of the inspection of the trucks. The officers

also could have searched the trucks and packages

soon thereafter at their headquarters. Instead, they

chose to seize and impound the packages. They stored

the packages for three days and then opened them

without a warrant.

The officers could have easily obtained a warrant at

any time during those three days. Exceptions to the

warrant requirement are limited and narrowly pre-

scribed. Neither basis for the automobile exception—

the impracticality of serving a warrant for the trans-

portation of contraband, see Ross, 102 S.Ct. at 2163,

and the special mobility of automobiles, id. at 2165—

applies to packages secured for three days at a gov-

ernment warehouse.

III. Standing

Unlike the other five defendants, whom the officers

arrested at the airstrip, Johns and Hearron had de-

parted in their airplanes a few minutes before the

search of the vehicles and seizure of the containers of

marijuana. The district court found that Johns and

l4a

Hearron had standing to object to the search of the

packages because they shared a bailor/bailee rela-

tionship with the other five defendants, who were not

to be paid until after delivery of the marijuana.

Moreover, the court found that the pilots had an in-

terest in the packages sufficient to maintain a reason-

able expectation of privacy in their contents.°

Unlike Rawlings v. Kentucky, 448 U.S. 98, 105,

100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980), this

case does not involve a “precipitous” bailment to

which the bailee had not consented. Johns and Hear-

ron owned the drugs. United States v. Salvucci, 448

U.S. 83, 91, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619

(1980).° While the pilots lost their power to exclude

others from inspecting the packages, that fact is not

determinative under our precedent. United States v.

Perez, 689 F.2d 1336, 1338 (9th Cir. 1982) (per

curiam).’ Like the defendants in Perez, Johns and

Hearron have met their burden of showing a reason-

able expectation ef privacy based on their formalized

arrangement with the other five defendants for the

transportation of the contraband. The pilots’ inter-

ests in the packages when opened are indistinguish-

5 The government does not challenge the standing of the

other five defendants to object to the search.

6 After its acquiescence at the suppression hearing, the gov-

ernment cannot now contend that the record does not show

that Johns and Hearron had any continuing interest in the

marijuana. See Steagald v. United States, 451 U.S. 204, 209,

101 S.Ct. 1642, 1646, 68 L.Ed.2d 38 (1981); United States

v. Anderson, 663 F.2d 934, 938-39 n. 4 (9th Cir. 1981).

7 But see United States v. DeLeon, 641 F.2d 330, 337 (5th

Cir. 1981) (no expectation of privacy in articles committed

to the custody of coconspirators).

lda

able from those of the other defendants. Jd. The

pilots have standing.

CONCLUSION

The warrantless search here violated the Fourth

Amendment and the district court correctly sup-

pressed the evidence thus obtained. Although the

containers were in plain view, the marijuana inside

them was not. While Ross holds that the officers

could have searched the packages, either on the spot

or shortly thereafter, the automobile exception does

not allow a warrantless search of containers seized

and secured by the police for three days before the

search. The rationale for the automobile exception to

the warrant requirement then no longer applies. Fi-

nally, the district court correctly found that Johns

and Hearron had standing.

AFFIRMED.

l6a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CR 81-188 TUC ACM

UNITED STATES OF AMERICA, PLAINTIFF

v8.

LYLE GERALD JOHNS, ET AL., DEFENDANTS

[Filed Jan. 8, 1982]

MEMORANDUM OF DECISION AND ORDER

This memorandum and erder addresses the ques-

tion of the legality of a Drug Enforcement Agency’s

(DEA) warrantless search and taking of core sam-

ples of marijuana out of sealed boxes and garbage

bags taken from five of the defendant’s possession at

an isolated private air strip near Bowie, Arizona.

On September 1, 1981, a grand jury for the United

States District Court for the District of Arizona in-

dicted the seven defendants. The first count of the

indictment charges the defendants with conspiring to

possess marijuana with the intent to distribute it and

conspiring to distribute marijuana, in violation of

21 U.S.C. § 846. All of the defendants are also

charged with violation of 21 U.S.C. § 841(a)(1),

possessing marijuana with the intent to distribute it.

The defendants have made numerous motions, in-

cluding a motion to suppress evidence of the core

samples of marijuana taken from the sealed bags

and boxes that had been seized from the defendants

camper-trucks at the air strip on August 4, 1981. In

17a

view of the court’s ruling on the motion to suppress,

no rulings will be made on the other motions unless

the Government indicates to the court that this mat-

ter will proceed to trial as to some or all of the de-

fendants and rulings are necessary.

FINDINGS OF FACT

In the early morning hours of August 4, 1981, at

approximately 1:30 a.m., Customs Officer Scott Eshel-

man received a call at his home from an unidentified

informant who told Eshelman that there was suspi-

cious activity in the form of a plane landing and being

met by a car at the Tucson Dragway, just east of

Tucson. Eshelman then called the Pima County Sher-

iff’s Department and asked that they dispatch a unit

to investigate the report. At the Tucson Dragway

the sheriff’s department stopped and identified two of

the defendants in this case, Gerald Johns and Dennis

Hearron, as they were leaving the Tucson Dragway.

The officers who stopped Johns and Hearron were un-

able to detect any criminal activity by the defendants

and the men were released.

After receiving the information regarding suspi-

cious activity at Tucson Dragway from the confiden-

tial informant and notifying the sheriff’s department,

Customs Officer Eshelman notified his superior, Cus-

toms Officer Dale Harper, of the information he had

received. Officer Harper was on his way to the Drag-

way when he received a message that Johns and

Hearron had been identified by the sheriff’s depart-

ment and released.

Officer Harper had been investigating Johns for

some time in the past and had information which

linked Johns and defendants Carlos Leon and Manuel

18a

Duarte to a drug smuggling operation.’ After re-

ceiving the information that Johns and Hearron had

been stopped and identified, Harper decided to go to

Leon’s residence and establish surveillance. Upon ar-

riving at Leon’s house, Harper found no vehicles

present. He then went to Duarte’s residence and

found Leon’s truck and Duarte’s truck parked in the

yard. Both trucks were covered by camper shells.

Harper established surveillance. Someone came out

from Duarte’s residence, got in Leon’s truck and

drove it around to the back of the house. Soon there-

after both trucks left and went to a nearby gasoline

station. There they were met by an individual driv-

ing a yellow Volkswagen. All three vehicles returned

to Duarte’s residence and shortly thereafter the

trucks left and proceeded towards Interstate 10, the

major freeway which runs east-west through south-

ern Arizona.

When the vehicles entered Interstate 10 and pro-

ceeded east Harper contacted other customs officers

‘Harper had been in close contact with Agent Charles

Schwarz of the Narcotics Unit of the Tucson Police Depart-

ment. Schwarz had made available to Harper information

that indicated Johns and Leon were involved in an interna-

tional drug-smuggling operation. This information was based

on personal observation of Johns’ activities and an extensive

phone toll analysis. The customs office had received informa-

tion that Johns’ aircraft had been in and out of the Sierra

Vista Airport, located 15 miles from the international bound-

ary, on numerous occasions and that the plane had been flown

there by both Johns and Leon. Leon had been spotted by

customs officers buying fuel in four 55 gallon drums at the

Sierra Vista airport on several occasions. Harper also had

personal information connecting Leon and Duarte. He had

observed Leon go to Duarte’s place of business and take

Duarte’s pickup truck to a C.B. Radio Shop. He was also

aware of Duarte’s prior drug conviction.

19a

and had surveillance established on the trucks. The

trucks traveled about 100 miles to a private airstrip

near Bowie, Arizona. By this time the customs offi-

cers had established surveillance both on the ground

and through the air.

Bowie, Arizona is a small rural town in southern

Arizona some 50 miles from the Mexican border. The

customs officers admit that at the time they estab-

lished surveillance of the vehicles and followed them

to Bowie they did not know the purpose of the ve-

hicles trip. Shortly after the two trucks stopped at

a picnic ground near the air strip two small planes

landed on the strip. At this time the customs aircraft

was circling 10,000 feet overhead and the ground

surveillance unit was approaching the air strip. The

customs officers later identified the planes that landed

on the air strip as belonging to the defendants Johns

and Hearron. However, the customs officers admit

that they did not know where the planes had come

from or what the planes might contain.

The ground surveillance unit consisted of Customs

Officers Gerald Young and Scott Eshelman. The

ground crew had followed the trucks to the Bowie

airstrip and remained a short distance away. They

could not see the activity at the Bowie airstrip but

they were able to see the airplanes come in for land-

ing and could see the planes as they were taking off.

The ground unit was informed by the air unit that

one of the trucks had met the first airplane that

landed. They then received instructions from the air

unit to investigate the trucks.

When the ground unit officers approached the

trucks they were parked back to back under some

trees. Officer Eshelman parked his car about thirty

20a

yards from the trucks. He got out with his gun

drawn, not to make an arrest, but for his own safety

because of the remoteness of the area and the number

of suspects. The defendants were in an area behind

the trucks when the officers approached. Eshelman

ordered the defendants to come out from behind the

trucks and lie on the ground. When Eshelman first

approached the area he noted that one of the defend-

ants was throwing a blanket over the containers in

the back of a truck and was closing the back of the

truck. Officer Young approached the scene as Officer

Eshelman was getting out of his car with his gun

drawn. Officer Young asked Officer Eshelman to

check the vehicles for the presence of other people.

As Officer Eshelman approached the trucks he de-

tected what he believed was the odor of marijuana.

Officer Young testified he saw dark plastic wrapped

around what appeared to be square packages or con-

tainers. He further testified that from his experience

he knows that marijuana is commonly wrapped in

this manner. Eshelman had proceeded to the truck

with the closed back end and informed Young that

there was marijuana in both trucks. All of the testi-

mony indicates that what the officers saw at the air-

strip were square boxes wrapped in dark plastic and

sealed with tape. The plastic bags are common green

trash bags.’

2 A dispute later arose as to what the officers actually saw.

The hearing on the motion to suppress was held on Novem-

ber 9, and November 10, 1981. The government and the de-

fendants presented all of their testimony and the matter was

continued to December 4, 1981, for oral argument. The

motion to suppress was argued by counsel on December 4.

At the conclusion of the arguments the court took the matter

under advisement and scheduled all further motions for

2la

After securing the picnic area and viewing the

sealed containers the officers handcuffed and arrested

the defendants. They were read their Miranda rights

hearing on December 11, 1981. The court at the Decem-

ber 4th hearing made some statements which indicated its dis-

appointment that a warrant had not been obtained before

opening the containers which had been seized by customs at

the airstrip. From the court’s statements it was clear that

there was a good possibility that the motion to suppress might

be granted because there had been no testimony that the

customs officers had seen any marijuana when the contraband

was seized nor were the contents of the containers readily

ascertainable because of the shape or other characteristics of

the containers which would put the contents “in plain view”.

The court indicated, as it now finds as fact, that sufficient facts

had not been presented to convince the court that what the

officers observed could have only been marijuana.

On December 11, 1981, the time scheduled for a hearing on

the defendant’s other motions, the government moved to

reopen the hearing on the motion to suppress. The court

granted the motion. Officer Eshelman then testified that

after the arguments on the motion to suppress he had talked

to Officer Young. Officer Young had explained that there was

no evidence presented at the hearing of November 9-10, 1981

that marijuana was seen by the officers at the time the con-

tainers were seized and that the case might be lost because no

search warrant was obtained before DEA opened the contain-

ers. After talking to Young, Eshelman went to the DEA Office

and took some pictures of the bags which were allegedly

already torn at the time they were seized. Eshelman testified

that when he approached the trucks at the airstrip he lifted a

blanket which was covering the containers and saw that sev-

eral of the bags were torn and saw that the contents of several

of the bags was a leafy green substance which he believed

was marijuana.

On cross-examination Officer Eshelman admitted that none

of the reports prepared by the Customs Service indicated that

marijuana was visible at the time the containers were seized,

that he did not recall ever telling the U.S. Attorney that

22a

and advised they would be transported to the DEA

Offices in Tucson, Arizona. After arresting the de-

fendants, Officers Young and Eshelman went to the

airstrip. At this point they spotted what they be-

lieved to be marijuana debris on the ground. The

officers did not seize the debris nor test it. What the

documentary evidence reveals is that the officers

spotted some ambiguous smal] twigs which they be-

lieved were marijuana.

Several days after the containers had been secured

at the DEA warehouse, the DEA officers opened the

containers and took samples for testing. Subsequent

tests proved that they contained marijuana. Counsel

marijuana was visible at the time the containers were seized,

that he attempted to take pictures of the torn bags showing

the marijuana but they did not turn out, that the documentary

evidence which was available to the court unequivocally illus-

trated that what the law enforcement officers seized at the

airstrip were fully sealed boxes covered by opaque, sealed,

green garbage bags commonly used in the home, and that he

did not know when the bags were torn as shown in his subse-

quent pictures of the seized items taken at the DEA warehouse

but that he knew his pictures were taken after the DEA had

taken the core samples from the containers.

The officers’ testimony regarding the sighting of marijuana

at the time of the seizure is “suspect at best.” This is not a

simple case involving possession of a smal] amount of mariju-

ana. It is obviously a ease on which the government spent a

great amount of time and money. The officers involved in the

arrest are experienced law enforcement officers with many

years of on-the-job experience, including the investigation of

marijuana cases. It is difficult for the court to believe that in

preparation for the hearing on the motion to suppress, the

subject of whether marijuana was visible at the time of the

seizure did not arise. The circumstances under which the

testimony was finally presented makes it unreliable and the

court cannot, in fairness to all parties, give the testimony of

December 11 any weight.

23a

have stipulated that no warrant was obtained before

opening the containers.

After the two planes departed the Bowie airstrip

they were followed to Tucson by the customs offi-

cers. Defendants Johns and Hearron were arrested

in the Tucson area upon landing. The customs offi-

cers seized debris inside the plane of Johns which

they believed was marijuana but subsequent testing

of the substance proved that this was not correct.

CONCLUSIONS OF LAW

The question presented to the court is whether the

warrantless search of the sealed boxes and bags

found in the beds of the defendants’ trucks at the

Bowie airstrip was illegal, requiring the suppression

of the evidence seized therefrom? In Robbins v. Cali-

fornia, U.S. ——, 101 S.Ct. 2841 (1981), the

Supreme Court held that the Fourth Amendment pro-

tects peoples’ effects whether they are “personal” or

“impersonal”, that a closed, opaque container may

not, as a general rule, be opened without a warrant

even if found during the course of a lawful search of

an automobile, and that the opening of closed con-

tainers which contained bricks of marijuana without

a search warrant during the lawful search of an au-

tomobile violated the Fourth and Fourteenth Amend-

ments of the United States Constitution.

The court finds the holding of Robbins, supra, con-

trolling in the case at bar. If a defendant had a rea-

sonable expectation of privacy in the articles seized

from him by a law enforcement officer that officer

must either obtain a warrant for the search of the

item or in order to avoid obtaining a warrant bear

the burden before a court of law to demonstrate that

a warrant was not necessary because the circum-

24a

stances of the case fall within one of the carefully

delineated exceptions to the Fourth Amendment war-

rant requirement. In Robbins, supra, the Supreme

Court makes clear that the nature of the container

does not matter when making the determination as to

what articles are entitled to Fourth Amendment pro-

tection. The only exception to this coverage is if the

seized article could be one which could only contain

contraband. As in Robbins, supra, the court is not

convinced by the credible evidence presented that the

seized containers could have only contained contra-

band.

Once it is established that a defendant has a rea-

sonable expectation of privacy in the item seized a

warrant must be obtained unless the government can

establish that an exception to the warrant require-

ment is applicable. No exception to the warrant re-

quirement was established in this case. Although

smelling marijuana will give a law enforcement offi-

cer a right to legitimately search a vehicle and seize

suspected contraband therefrom, United States v.

Garcia-Rodriguez, 558 F.2d 956 (9th Cir. 1977) this

information does not give law enforcement officers a

right to search the item seized without first resorting

to a neutral magistrate for obtaining a search war-

rant. Robbins, supra; Sharpe v. United States, 660

F.2d 967 (4th Cir. 1981); United States v. Rivera,

654 F.2d 1048 (5th Cir. 1981); United States v.

Dien, 609 F.2d 1038 (2d Cir. 1979).

Neither the automobile exception nor the exigent

circumstances exception to the warrant requirement

are applicable in the present case. The defendants

were arrested and the contraband secured at the

DEA warehouse before the DEA officers decided to

open and take marijuana samples from the bags

25a

without receiving a warrant. Nor is the plain view

exception to the warrant requirement applicable be-

cause the evidence presented convinces the court that

the marijuana was not in plain view prior to the

opening of the seized items.

The court’s decision is mandated by the Supreme

Court’s ruling in Robbins v. California, supra. The

government has attempted to distinguish the case at

bar from Robbins in two ways. First, the govern-

ment argues that the defendants cannot be given a

reasonable expectation of privacy in numerous bags

and boxes of marijuana. Secondly, the government

contends, that even if the defendants do have a rea-

sonable expectation of privacy in the contents of the

caized items they cannot complain, under the facts

and circumstances of this case, of the DEA’s failure

to obtain a warrant because the seized items could

have only contained marijuana.

The government relies on United States v. Gooch,

603 F.2d 122 (10th Cir. 1979) for the proposition

that when a cargo or numerous containers are seized

the owners of the containers do not have a reasonable

expectation of privacy in the seized items. In Gooch,

the Tenth Circuit wrote, “We decline to read into the

summary Supreme Court action in Robbins the im-

plicit adoption of a per se rule that would hold a war-

rant required before any form of container or pack-

age found in a vehicle could be searched,” 603 F.2d

at 126. However, the later Robbins decision makes

clear that a reasonable expectation of privacy can be

held in other than personal effects: “[The Fourth]

Amendment protects people and their effects, and it

protects those effects whether they are ‘personal’ or

‘impersonal’”. Robbins, supra, at 2846. The Su-

preme Court’s reason for adopting a “bright line

26a

rule”, which the Gooch court refused in 1979 to read

into the Supreme Court’s action of summarily vecat-

ing the California Court of Appeals decision in Rob-

bins, was to end confusion for law enforcement offi-

cers in their determination of when a warrant was

required. As Justice Powell wrote in his concurring

opinion:

The plurality’s “bright-line rule” would extend

the warrant clause of the Fourth Amendment to

every “closed, opaque container,” without regard

to size, shape or whether common experience

would suggest that the owner was asserting a

privacy interest in the contents. The plurality

would exempt from the broad reach of its rule

only those “closed, opaque containers” where, be-

cause of shape or other characteristic, the “con-

tents may be said to be in plain view.”

Robbins, supra, at 2847, footnote 1.

The defendants in this case manifested a reason-

able expectation of privacy in the contents of their

trucks. The trucks had camper shells over them and

the windows of the camper shells were covered with

an opaque cellophane which kept persons walking by

the truck from being able to observe the contents of

the bed of the truck. The trucks were either closed

or the contents of the trucks had blankets thrown

over them. Most important, the seized contents were

either in cardboard boxes or in double, opaque, green

bags that were sealed with a thick tape. These arti-

cles have been accorded a privacy expectation even

when found in bulk. Sharpe v. United States, supra;

United States v. Rivera, supra; United States v.

Pillo, 522 F. Supp. 855 (M.D. Pa. 1981). The court

finds, given all the facts and circumstances of the

27a

case, and in accordance with Robbins and its progeny,

that the defendants held a reasonable expectation of

privacy in the contents of their trucks.

The government asserts that though the defend-

ants may have a reasonable expectation of privacy in

the contents of the trucks, under the circumstances

of the case the seized boxes and bags fall within the

exception noted in Robbins, that given their shape or

characteristies the seized items could have only con-

tained marijuana. In support of this contention the

government points out that the customs officers who

seized the contents of the trucks had been involved in

similar drug arrests, had personal experience with

these kinds of containers, had been participants in a

surveillance operation which noted two planes land-

ing near the trucks, and had personal knowledge that

at least one of the individuals had been previously

involved in illegal activity. Furthermore, the officers

testified that they smelled marijuana in the area of

the trucks shortly after apprehending the suspects.

Given all these facts, the government contends the

containers could have only contained marijuana.

The court is not convinced, given all the facts and

circumstances of the case, that the officers had suffi-

cient information to conclude that the containers

could have only contained marijuana. Several inci-

dents which occurred in the investigation of this mat-

ter illustrate the danger of the court’s drawing the

conclusion desired by the government. When the

sheriff’s department stopped Johns and Hearron in

the early meruing hours of August 4, 1981 it was

because an informant had called a customs officer and

told him that a plane and a car were meeting at the

Tucson Dragway. Because customs had information

that one of the persons who reportedly used the

28a

Dragway was involved with drugs they went to the

dragstrip, but the men were apparently not engaged

in illegal activity. Later in the day, when these two

men were again stopped after landing near Tucson,

the officers seized what they testified they believed

was marijuana. A subsequent chemical analysis re-

vealed that this was not the case. Certainly, by look-

ing at the bags and boxes seized at the air strip there

is no way to determine that the seized items con-

tained marijuana or for that matter any illegal sub-

stance. Neither the shape nor any other characteris-

tic of the seized containers made their contents read-

ily ascertainable. In short, the court has not been

convinced by the evidence presented that an excep-

tion to the warrant requirement existed given the

facts of the case. It would have been a simple matter

for the DEA officers to apply to a neutral magistrate

for the issuance of a warrant. Having failed to do

so and having failed to convince the court that the

facts excused them from so doing, it is the court’s

conclusion that the evidence seized from the defend-

ants at the airstrip near Bowie must be suppressed.

IT IS ORDERED that the Motion to Suppress is

granted as to all defendants except Johns and Hear-

ron. Although these defendants joined in ‘the Motion

to Suppress, the record is silent as to their claimed

interest in the suppressed evidence. If these two de-

fendants desire to be heard further on this issue they

should file legal memorandum as to their positions

and notice the court for hearing.

DATED this 8th day of January, 1982.

/s/ Alfredo C. Marquez

ALFREDO C. MARQUEZ

United States District Judge

29a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CR 81-188 TUC ACM

UNITED STATES OF AMERICA, PLAINTIFF -

vs.

LYLE GERALD JOHNS, ET AL., DEFENDANTS

[Filed Feb. 3, 1983]

ORDER

This order and memorandum addresses the ques-

tion of the defendants Johns and Hearron’s standing

to object to the introduction of illegally searched

bags of marijuana. This Court’s order of January 8,

1982 explains the facts and law upon which the

court’s original ruling is based. The Court suppressed

the searched evidence as to five of the defendants but

reserved ruling as to Johns and Hearron because the

record was apparently silent as to these defendants

claimed interest in the suppressed evidence. After a

further hearing and oral argument it is the Court’s

ruling that Johns and Hearron have standing to ob-

ject to the introduction of the illegally searched evi-

dence and the Court’s order of January 8, 1982, is

applicable to them.

There are two grounds upon which standing is con-

ferred upon the defendants. First, after a review of

the record and the avowals made by the defendants,

acquiesed [sic] to by the Government,' the court finds

1 The government did not seriously contest any of the de-

fendants standing at the Motion to Suppress. Only after the

80a

Johns and Hearrons’ position with regard to the

totality of factors courts use to determine whether

defendants have standing to object to constitutional

violations is not in any meaningful way different

from that of the other defendants in this case.

The evidence at the suppression hearing, in addi-

tion to that already enumerated in the Court’s previ-

ous order, revealed that the persons who picked up

the bags of marijuana at the air-strip were not to be

paid for their participation until they delivered the

marijuana to another destination. The defendants

Johns and Hearron were identified by customs agents

as the registered owners of the planes that were seen

landing at the air-strip and were apprehended later

in the same day while piloting those planes Johns

and Hearron have made avowals to the Court, acqui-

esed [sic] to by the Government, that they were in a

bailor/bailee relationship with the defendants who

picked up the marijuana. Johns and Hearron avow

that they were to drop the marijuana to the other de-

fendants in Bowie and then were to have the mari-

juana returned to them at a later date. In Rawlings

v. Kentucky, —— U.S. , 100 S.Ct. 2556 (1980),

the Supreme Court evidently recognized the bailment

relationship could be the kind of relationship to which

an expectation of privacy could be accorded under

proper circumstances. Looking at the totality of rele-

vant factors the only factual difference between

Johns and Hearron and the other defendants is that

court’s initial ruling and query regarding Johns and Hearron’s

standing did the government make any argument regarding

these defendant’s standing. For the effect of the Govern-

ment’s acquiescence to questions of fact regarding standing,

see, Steagald v. United States, U.S. ——-, 101 S.Ct. 1642,

at 1646 (1981) ; United States v. Anderson, No. 80-1684 (9th

Cir., decided December 14, 1981, at 6085, n. 4.

3la

the former were not present or in possession of the

evidence when it was seized but had left the scene

moments earlier. The government does not contend

that Johns and Hearron abandoned the bales or in

any way lessened their interest or expectation of pri-

vacy in the seized items. Cases cited by the Govern-

ment in their brief in opposition to Johns’ and Hear-

ron’s standing are distinguishable. Accepting the de-

fendant’s assertions as true, the Court finds that all

of the defendants have asserted a sufficient interest

in the property and evinced identical expectations of

privacy in the seized goods sufficient to confer stand-

ing to object to a constitutional violation of their

seized property.’

A second, equally compelling reason for according

Johns and Hearron standing was explained in United

States v. Rakas [sic], 439 U.S. 128, 99 S.Ct. 241

(1978). In Rakas, supra, the United States Supreme

Court held that the focus of the inquiry in a determina-

tion of a defendant’s standing to object to the admis-

sion of illegally obtained evidence is whether the de-

fendant’s rights were personally violated by the al-

legedly illegal search or seizure. Under this view, re-

gardless of Johns’ and Hearron’s right to contest the

legality of the seizure, they do have a right to contest

the legality of the search. In this case, it is not the sei-

zure but the search which resulted in the illegality.

Johns and Hearron have established they maintained

an interest in the property and that interest was

maintained through the time of the illegal search.

2 See Robbins v. United States [sic], infra, and this court’s

order of January 8, 1982 for the justification for the evidence

seized in this case as being entitled to a “reasonable expecta-

tion of privacy” for Fourth Amendment and warrant require-

ment purposes.

32a

Therefore, the court’s findings of January 8, 1982

with regard to the reasonable expectation of privacy

which was evinced by the property seized is equally

applicable to Johns and Hearron. Their rights were

personally violated when their property, which evinced

objective indices of being entitled to a reasonable ex-

pectation of privacy, was illegally searched. There-

fore they may object to the illegality.

The Government’s motion to stay the order of Jan-

uary 8, 1982, until the Supreme Court reconsiders

Robbins v. United States [sic], 453 U.S. ——, 101

S.Ct. 2841 (1981) in United States v. Ross, 655 F.2d

1159 (D.C. Cir. 1981), cert. granted 50 L.W. 3278,

October 13, 1981 is denied.

Page 8, line 14 of the Court’s order of January 8,

1982 is amended to reflect that suspected marijuana

debris was found in the plane of Hearron as opposed

to Johns.

IT IS SO ORDERED.

2/2/82

/s/ Alfredo C. Marquez

ALFREDO C. MARQUEZ

United States District Judge

33a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 82-1080

DC CR 81-0188-01)

81-0188-07) ACM

UNITED STATES OF AMERICA, PLAINTIFF /APPELLANT

v8.

LYLE GERALD JOHNS, DENNIS EUGENE HEARRON,

MANUEL JESUS DUARTE, CARLOS TORRES LEON,

JosE Oros SoTo, ROBERTO LEON GOMEZ, and JOHN

LIZARAGA REDMOND, DEFENDANTS/ APPELLEES

Appeal from the United States District Court

for the District of Arizona (Tucson)

THIS CAUSE came on to be heard on the Tran-

script of the Record from the United States District

Court for the District of Arizona (Tucson) and was

duly submitted.

ON CONSIDERATION WHEREOFP, It is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause be,

and hereby is affirmed.

Filed and entered June 10, 1983

34a

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CA No. 82-1080

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

vs.

LYLE GERALD JOHNS, ET AL., DEFENDANTS-APPELLEES

[Filed Jan. 4, 1984]

ORDER

Before: TRASK, ANDERSON and CANBY, Circuit

Judges

The panel as constituted in the above case has

voted to deny the petition for rehearing and to reject

the suggestion for a rehearing en banc.

The full court has been advised of the suggestion

for an en banc rehearing, and no judge of the court

has requested a vote on the suggestion for rehearing

en banc. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing en banc is rejected.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.