United States v. Henry Golembiewski

HEANEY, Circuit Judge

(dissenting).

I respectfully dissent. Probable cause to search the car did not exist when the car was stopped for a traffic violation. Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968). See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). As I read the record, the trooper did not discover the pry marks on the trunk and glove compartment until after the defendant and his companion were in custody, and he was never aware that the Texas license plates had expired. The trooper knew only that the car’s license plates belonged on another car owned by the defendant and that the defendant offered no proof of ownership of the car other than a traffic ticket received in Illinois the preceding day. These facts did not *1216give rise to reasonable cause to believe the car was stolen and thus did not justify a search. Indeed, counsel for the government conceded this point on oral argument.

The state trooper was justified in taking the car’s serial number, which was in plain view on the dashboard, and in checking with the National Crime Information Center to confirm or refute his suspicion that the car was stolen. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). But he had no reasonable cause for believing the ear was stolen until he received the report from the N.C.I.C., which he did not receive until he was in the sheriff’s office.

He then placed the defendant under arrest; but by that time, the car was no longer on the highway, the defendant and his companion were already in custody, and the car was immobilized. Absolutely no showing was made that it was impracticable to obtain a warrant.

Warrantless searches of automobiles were initially justified on the basis of the mobility of the ear and the consequent probability that evidence would be forever lost if a search on the spot was not permitted. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Supreme Court expressly recognized this rationale in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), when it stated:

“* * * [T]he blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search it and it was a fleeting target for a search. The probable cause factor still obtained at the station house and so did the mobility of the car. * * * ” 399 U.S. 42, 52, 90 S.Ct., 1975, 1981.

On the facts here, I cannot find that a warrantless search was justified under the Carroll rationale. “ * * * In cases where the securing of a warrant is reasonably practicable, it must be used. * * Carroll v. United States, supra 267 U.S. at 156, 45 S.Ct. at 286.

The majority would justify this war-rantless search on the basis of Chambers v. Maroney, supra. But Justice White, writing for the majority in Chambers, partially justified the warrantless search in that case on the ground that probable cause to search the car existed at the time the car was taken into custody. My reading of Chambers is that, under such circumstances, the officers retain the right to search the car even after it has been moved to another location. The practical consideration involved is the difficulty police officers have in conducting a search on the spot, either because of physical surroundings or for reasons of safety. See, Chambers v. Maroney, supra, n. 10. It is significant that neither Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), nor Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), were reversed by Chambers.

Here, probable cause to search the car did not arise until after the car had been brought to the police station and the trooper had received a report indicating the car was stolen. Under these circumstances, there is no sound reason for permitting a warrantless search. To do so is to permit searches of automobiles at any time or place so long as probable cause to search exists when the search is made. I do not understand the Supreme Court to have gone this far.

While I can see some basis in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), justifying this search, I cannot agree that Cooper should be so broadly construed. The Supreme Court’s interpretation of Cooper v. California, supra, in Dyke v. Taylor Implement Mfg. Co., supra, was narrow. I believe that Cooper should be confined to its facts.

I cannot agree that the admission of evidence regarding the license plates, loose ignition switch and door key was harmless. A jury could find that a man riding in a car for two days would see something as obvious as a loose ignition *1217switch, and that his observation would put him on notice that the car might be stolen. The license plates under the front seat would make it difficult for the defendant to convince the jury that he had no knowledge the ear was stolen, when he also testified the license plates presently on the car belonged to him.

I do not find the admission of this evidence harmless beyond a reasonable doubt, Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and I would, therefore, reverse.