William Harris Sharpe v. United States of America, Donald Davis Savage v. United States

712 F.2d 65, 1983 U.S. App. LEXIS 26191

Opinions

ERVIN, Circuit Judge:

The Supreme Court has vacated our decision in Sharpe v. United States, 660 F.2d 967 (4th Cir.1981), and has remanded¹ this case to us, 457 U.S. 1127,102 S.Ct. 2951, 73 L.Ed.2d 1345 (1982), with the direction that we reconsider it in light of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We have now done so. We conclude that by virtue of Ross, the decision of the Supreme Court in Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), upon which we relied as an alternative basis for our decision in Sharpe, is no longer valid. Accordingly, we disavow the rationale set forth in Section IV of the majority opinion. We also modify Section V of that opinion by deleting therefrom the words “either ... or because the warrantless search of the bales was unlawful.”

Finding that Ross does not adversely affect our primary holding that the initial stop of the vehicle and the lengthy detention of the two defendants constituted illegal seizures, we readopt the majority opinion as modified herein, reaffirm our previous decision, and reverse the convictions.

I am authorized to state that Chief Judge HARRISON L. WINTER, a member of the original panel, and Circuit Judges JAMES DICKSON PHILLIPS, MURNAGHAN, and SPROUSE join in the views expressed in this opinion.

1 . The Supreme Court’s order reads, in part ... “this cause is remanded ... for further consideration in light of United States v. Ross, 456 U.S. [798, 102 S.Ct. 2157, 72 L.Ed.2d 572] (1982).” We have complied with this mandate. We do not believe it is appropriate, despite the urging of our dissenting brothers, to go beyond this explicit instruction and to reexamine our principal holding or to reargue the same issues that were addressed in detail in the original majority and dissenting opinions. Our conviction that we should so limit our reconsideration is buttressed by the comments of the dissenting justices who are clearly focusing only on the application of Ross to our principal holding. Had the Supreme Court felt that a reversal was in order, it could and would have said so. If we have misconceived the Court’s wishes, the future will take care of that omission on our part.