United States v. Lawrence William Cleary, Jr.

656 F.2d 1302

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 8, 1981
• Docket: 80-1557
• Status: Published

Opinions

NELSON, Circuit Judge:

Lawrence Cleary appeals from his conviction for possession and concealment of counterfeit bills with intent to defraud, a violation of 18 U.S.C. § 472. Because we find that the bills on which the conviction was based were found pursuant to an unconstitutional search, we reverse.

I. Fact Summary

While on routine patrol at the San Diego Airport, Harbor Police Officer Reginald Schumacher approached a van with a broken side mirror and tapped on the driver’s side window. When Cleary, the appellant, opened the window slightly, Schumacher smelled marijuana. Cleary’s hands appeared to be covering an object from which a trace of smoke was rising. The officer reached in and seized the object — a marijuana pipe — and asked Cleary and his passenger, Stephanie Feiler, for their driver’s licenses. As Cleary handed his license to Schumacher, he reached for the door and appeared to Schumacher to be attempting to get out. Schumacher pushed the door closed and called for assistance.

When the other officers arrived, Cleary and Feiler were allowed to exit the van. Cleary was handcuffed. Without giving Cleary his Miranda warnings, Schumacher asked Cleary if he had any more marijuana, to which Cleary responded that there was more inside. Schumacher then looked into the van and removed a canvas-type bag with a zipper (which was broken). When he seized the bag, which was partially wrapped in clothing, he noticed what appeared to be the butt of a gun partially visible. When Schumacher took the bag to a secure location, he removed from it a .44 magnum revolver. He then put the weapon back in the bag and arrested both Cleary and Feiler.

Subsequently, Cleary, Feiler and the bag were transported to the Harbor Police facility at the airport. There, Schumacher emptied the bag without securing a warrant and seized some marijuana debris and counterfeit currency. Secret Service agents later returned to the van and searched its entire contents without a warrant, discovering more counterfeit currency.

The trial court denied Cleary’s motion to suppress the counterfeit currency, and he was convicted in a stipulated facts trial.

II. Reasonable Expectation of Privacy

Because it is clear that the fruits of the warrantless search of the canvas bag must be suppressed if there was a reasonable expectation of privacy in its contents, United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538, 549 (1977), the only issue we need to face in this case is whether such an expectation attaches to a canvas bag with a broken zipper.¹ We hold that it does.

Our starting points for analytical guidance are the Supreme Court’s two major decisions on the expectation of privacy in containers of personal effects: Chadwick, supra, and the more recent Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

In Chadwick, federal narcotics agents arrested three men and seized a double-locked two hundred pound footlocker as it was being placed in the trunk of a car after a narcotics dog signaled the presence of a controlled substance inside the footlocker. An hour and a half later, agents opened the footlocker without a warrant and discovered a large amount of marijuana. In affirming the suppression of the fruits of this warrantless search, the Supreme Court noted that the protections of the fourth amendment, including the warrant requirement, were not restricted to the context of the home. Here important privacy interests were at stake:

By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protections of the Fourth Amendment Warrant Clause.

433 U.S. at 11, 97 S.Ct. at 2483, 53 L.Ed.2d 548.

This language left Chadwick subject to differing interpretations. What were the critical attributes imbuing this footlocker with its reasonable expectation of privacy? How important were the individualized steps cited by the Court as manifesting such an expectation, such as double-locking the trunk? Clearly, one could read Chadwick as requiring such subjective manifestations,. and were this the intended meaning of the Chadwick Court, it would argue against finding such an expectation in the canvas bag found in this case.

That such a reading of Chadwick is incorrect, however, was made clear by the Court in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). In Sanders, police stopped a taxi containing in its trunk a suitcase that had been described by an informant as containing marijuana. They opened the unlocked suitcase without consent or a warrant and discovered the marijuana in it. The holding in Sanders was that warrantless searches of personal luggage were unconstitutional even when the luggage was seized from an automobile. In including an unlocked suitcase within the protected ambit of personal luggage, it is clear that the Court did not rely on the types of precautions that indicate a subjective expectation of privacy (i. e., double-locking) found in Chadwick. Rather, the critical factor relied on was the objective nature of the suitcase as personal luggage, 1. e., the inherent nature of the container itself rather than the behavior of its owner. In order to understand how to make this now critical determination as to what constitutes personal luggage, we turn to the Sanders discussion.

In Sanders, as in Chadwick, the Court noted that “luggage is a common repository for one’s personal effects, and therefore is inevitably associated with the expectation of privacy.” 442 U.S. at 762, 99 S.Ct. at 2592, 61 L.Ed.2d at 244 (emphasis added).² Further, in discussing the differences between the footlocker in Chadwick and the suitcase in Sanders, the Court said:

We do not view the differences in the sizes of the footlocker and suitcase as material here; nor did respondent’s failure to lock his suitcase alter its fundamental nature as a repository for personal, private effects.

Id. at 762-63 n.9, 99 S.Ct. at 2592 n.9, 61 L.Ed.2d 244.

Given these comments, and mindful of the desirability of drawing clear lines in fourth amendment adjudication, see id. at 768, 99 S.Ct. at 2595, 61 L.Ed.2d 248 (Black-mun, J., dissenting),³ we feel confident in holding, at a minimum,⁴ that the term “personal luggage” encompasses those items commonly perceived as being designed for carrying and storing personal effects or papers and which have some sort of device to keep them closed.⁵

The canvas bag in the instant case would clearly meet this test and therefore qualify as personal luggage when new.⁶ Therefore we next need to consider whether the changed condition of this bag, which made it impossible to close, somehow “alters its fundamental character as a repository for personal, private effects.” We think it does not. Even a bag with a broken zipper retains its fundamental character as a private repository — it still gives notice to the outside world of its essentially private character.⁷ Further, the dramatic consequences of an alternative approach must be considered. Holding that there is no reasonable expectation of privacy in such a bag would remove it not just from the warrant requirement in a situation in which the police already have probable cause, but completely out of the realm of any fourth amendment protections. See, e. g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 401 (1978) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), for the proposition that capacity to claim the protection of the fourth amendment depends upon whether the individual claiming it has a legitimate expectation of privacy in the invaded place). To hold that a mechanical breakdown creates fundamental changes with such sweeping consequences would seem a bit extreme. Finally, the clarity of our approach is an obvious asset. The alternative would seem to plunge the police (and courts) into a morass of slippery and largely irrelevant considerations.⁸

Because we conclude that Cleary had a legitimate expectation of privacy in the canvas bag, the fruits of its warrantless search must be suppressed under Chadwick and Sanders.⁹

REVERSED.

1 . Because our holding in this case requires suppression of the counterfeit evidence that supplied the basis for Cleary’s conviction, we need not examine his other arguments that were designed to reach the same result. We also note that we are only concerned here with what was found in the bag’s interior and not visible from the outside. Obviously, exposed objects could be seized under the plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

2 . The analysis of expectations of privacy is thus fundamentally different than when dealing with other types of containers where the expectation is not “inevitable.” See United States v. Mackey, 626 F.2d 684, 687 (9th Cir. 1980) (noting that reasonable expectation of privacy standard is composed of both objective and subjective aspects in case analyzing expectation of privacy in a paper bag).

3 . Justice Blackmun correctly anticipated the large number of cases in which courts would have to analyze different types of containers. See cases cited by dissent, at notes 2-5. We hope that the rule set forth here will dispose of the need for repeated detailed analysis in a significant class of cases.

4 . We emphasize that this test sets forth a minimum. Other types of containers could conceivably be classified as personal luggage. See dissent at note 4. Still other containers may also have the requisite expectation of privacy, particularly when affirmative steps taken by their owners give rise to an implication of such a subjective expectation. Thus while in some circumstances a paper bag might not support such an implication, see United States v. Portillo, 633 F.2d 1313, 1320 (9th Cir. 1980); United States v. Mackey, 626 F.2d 684, 687 (9th Cir. 1980); but see United States v. Ross, 655 F.2d 1159 (D.C.Cir.1981) (en banc) (applying Sanders to require warrant to search closed but untaped paper bag), like the dissent we note that such a container, if secured or sealed, would seem to support such an inference.

5 . Again, we emphasize that this test sets forth a minimum. Although we do not reach the issue, it may well be that, for example, a canvas bag without a closing device could still be considered personal luggage, and thus carry an expectation of privacy in those contents not in plain view. Such a conclusion would not necessarily run afoul of the Court’s cautionary note in Sanders, 442 U.S. at 764 n.11, 99 S.Ct. at 2593 n.11, 61 L.Ed.2d at 245 n.11, which explicitly mentioned as containers with no such expectation packages whose contents could be inferred from their outward appearance (e. g., a gun case) or were subject to plain view.

6 . While the bag was not in evidence before the district court, it was described in testimony. It was a canvas bag approximately 12 inches high, 8-10 inches wide and 18 inches long. As noted previously, the bag had a zipper which did not work.

7 . To require further that the closing mechanism be kept in perfect working order would return the analysis to the difficult area, rejected in Sanders for personal luggage, of individual manifestations. Further, were we to hold to the contrary, the principle would be difficult to contain. If a broken zipper on a canvas bag eliminates an expectation of privacy, why wouldn’t a broken clasp on a purse work the same fundamental change?

8 . Among the inevitable issues would be the appropriate treatment of partially closable or partially closed (beyond what is in plain view) luggage. We feel the more objective analysis suggested by the Court in Sanders precludes the necessity of engaging in such difficult and unproductive exercises.

9 . The Supreme Court’s recent decisions in New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) and Robbins v. California, - U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) do not compel a different result.

Belton involved the permissible scope of a contemporaneous search at the scene of, and incident to, a lawful arrest. The Belton Court emphasized the contemporaneous nature of the search. See - U.S. at --, 101 S.Ct. at 2865, 69 L.Ed.2d at 776 (“[W]e hold that ... a policeman .. . may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (emphasis added)); id. at -, 101 S.Ct. at 2864, 69 L.Ed.2d at 775 (“The search of the respondent’s jacket followed immediately upon that arrest.”). The Belton Court distinguished Chadwick because, in Chadwick, “ ‘the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or justified by any other exigency.’ ” Id. at -, 101 S.Ct. at 2865, 69 L.Ed.2d at 776 (quoting Chadwick, 433 U.S. at 15, 97 S.Ct. at 2485, 53 L.Ed.2d at 551). This case, like Chadwick, involves a search removed from the arrest both geographically and temporally, and hence cannot be justified as incident to that arrest.

The government also argues that the station-house search was merely the completion of the initial search incident to the arrest and could still be justified on that basis. The facts negate this argument, whatever its legal merit. The officer was very careful while testifying to emphasize that he only removed the gun, the butt of which was in plain view, and checked to see if it was loaded or empty. He then replaced the gun without any examination of the interior contents of the bag. Thus there was no search of the bag at the scene of the arrest. We therefore need not address whether the “incident to arrest” exception, designed to protect police officers and prevent destruction of evidence by arrestees, see, e. g., Belton, - U.S. at -, 101 S.Ct. at 2862-63, 69 L.Ed.2d at 773, would support “continuation” searches removed in time and place from the scene of the arrest where the destruction and protection factors are absent.

The Robbins decision is also compatible with our1 result here. There the Court explained the negative implications of note 13 of the Sanders opinion, see note 5 supra, as being that “unless the container is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment.” - U.S. at -, 101 S.Ct. at 2846, 69 L.Ed.2d at 751. As noted in note 1, supra, we are only concerned here with objects not visible from the exterior of the bag and hence not subject to a plain view analysis.