(concurring in part and dissenting in part):
I concur in that part of the opinion of the Court which sustains the validity of the residential search.
I must respectfully dissent from that part of the opinion which invalidates the opening of the suitcases and the examination of their contents.
At Page 4 of the typewritten copy, the majority opinion concedes that the agents had probable cause to believe that the suitcases contained narcotics, that the agents were justified in opening the automobile trunk and removing the suitcases, and that the intrusion into the automobile trunk met the criteria required for a warrantless vehicular search.
In the application of the required standard of reasonableness, what more could have been required?
The majority opinion concludes, however, that although the suitcases were lawfully seized from an automobile they could not, in the absence of a search warrant, be opened. Under the facts of this ease an automobile certainly could have been searched but the majority holds that these suitcases are to be .treated as if they had been seized from such a vehicle, in this instance an automobile at the top of the ramp in front of the Eastern Airlines entrance at an airport. It inescapably follows, I think, that the majority would take the well established law governing warrant-less, probable cause, searches of automobiles and convert into a diametrically opposite rule for the warrantless, probable cause, examination of the contents of packages taken from such vehicles. I have searched in vain for any reported case in the federal judicial system which declares this to be the law; as I understand it, the majority cites none.
Moreover, the majority opinion sets out on this journey in a ease in which it is admitted that we are “without adequate findings below”. Not only that, but the court below originally denied the motion to suppress the contents of the suitcases. A few days later, the ruling was changed for the purpose of making it appealable when the government announced its intention of appealing the residential suppression issue. We ought not to accept appellate jurisdiction under such circumstances. We do not issue advisory opinions. The majority confesses “considerable doubt” of its duty to review the matter.
But to return to the issue which the majority has agreed to decide, I would call attention to the concurring opinion of six Judges of this Court in United States v. Colbert, 474 F.2d 174 (alluded to in Footnote 6 of the majority opinion) in which these Judges would have upheld the warrantless, probable cause, search of brief eases found, not in an automobile, but on a city sidewalk. In my opinion, the suitcases could have been seized and searched as they were leaving the house. That the officers waited until they reached the airport should make no difference.
The majority says that the suitcases should have been detained until a warrant was obtained, that this would have only caused a “temporary delay”. The same could be said for automobiles. Once stopped it is just as easy to detain an automobile as to detain its contents.
The opinion does not say what is to be done with the occupants of a vehicle from which the contents are taken. May they be detained while the warrant is obtained and the search consummated? If it is unreasonable to search a parcel taken upon probable cause from an automobile at the entrance to an airport office then it would be unreasonable to deprive individuals of their liberty while the warrant is obtained. On the oter hand, those in possession of the parcels ought not to be allowed to catch a plane while the hamstrung officer looks for a warrant.
*481It denies reality to say that this automobile was not searched, that only the suitcases were searched. True, the officers knew where to look for the suitcases, but they had to open the trunk of the car to get to them, so this was a search in the customary sense of the term, so held in cases too numerous to mention. The car was stopped, the trunk was-opened, the suitcases were seized.
The majority declines to say that when officers stop an automobile on the probable cause that it contains contraband liquor they must have a search warrant to look in the boxes containing the jugs hidden in the trunk of the car. Why should the law be any different for heroin ?
Reasonableness is the test. If the case were ripe for appellate decision I would, upon the considerations presently available to us, hold the search-of these suitcases to have met every requirement of reasonableness. This is not an ordinary, tin horn heroin case. In the overall picture, nearly four hundred pounds of that deadly stuff was involved.
Since, however, the judgment of the District Court suppressing the contents of the suitcases was clearly entered as an after thought, not as its real opinion in the matter and since it was done solely to engender an appeal not otherwise available, I would remand for adequate findings and for a judgment thereon not prompted by the expressed desire to obtain “a kind of declaratory judgment”.
I respectfully dissent.