United States v. Kathryn Frances Hand

DYER, Circuit Judge,

with whom WISDOM, THORNBERRY, GOLDBERG, SIMPSON and LEWIS R. MORGAN, Circuit Judges, join, dissenting as to Part I:

On April 8, 1971, Mrs. Hand was suspended and relieved of her duties as bookkeeper and office manager of the Union and departed. On the following day she telephoned Hale, the federal examiner, from her home to talk about the shortage of funds and to tell him of her willingness to make restitution. During this conversation Mrs. Hand told Hale that she would send someone to the Union’s office to pick up her personal belongings, some books, scarves, and two purses. In gathering up her property for delivery to Mrs. Hand’s messenger, Hale made a deliberate, warrantless search of the purses and found incriminating evidence in them.

I find it passing strange that exigent circumstances, the foundation used by the majority to approve the search of the purses, was not urged in the district court, is never mentioned in the record, was not argued or relied upon by the Government in its original briefs, and makes its appearance for the first time in the panel opinion. The majority, upon finding probable cause for the search, adds to it “the exigency of Mrs. Hand’s stated purpose to send for the purses,” and concludes that “the scale is decisively tipped.”

A “stated purpose” to send for her purses is hardly an exigent, pressing, critical or urgent circumstance upon which to premise a parallelism with automobile search cases. Hale had the purses in his sole and exclusive possession and was under no contraint to deliver them to Mrs. Hand’s messenger or anyone else before obtaining a search warrant. To apply the word “exigent” to this situation is to say “when I use a word, ... it means just what I choose it to mean — neither more nor less.” 1

Lewis Carroll, Through the Looking Glass

*478The majority now vindicates warrant-less searches of “mobile objects” in any context if a preceding warrantless seizure is constitutionally permissible. The express source of this reasoning is Chambers itself, which indicated that with respect to an automobile, a permissible warrantless seizure justified an immediate warrantless search. What the 'majority ignores in expanding Chambers to inter the non-auto search cases of United States v. Anderson, 5 Cir. 1974, 500 F.2d 1311; United States v. Lonabaugh, 5 Cir. 1973, 494 F.2d 1257; United States v. Garay, 5 Cir. 1973, 477 F.2d 1306, is that Chambers was expressly limited by Coolidge v. New Hampshire, 1971, 403 U.S. 443, 463 n. 20, 91 S.Ct. 2022, 29 L.Ed.2d 564, solely to the auto-search situation. Beyond this, Chambers cannot go.

More fundamentally, the majority’s simplistic equation sweeps so broadly as to flout settled principles of Fourth Amendment law. The extent of a governmental intrusion into an individual’s protected privacy has always been a critical component in determining reasonableness under the Fourth Amendment. For example, Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, unmistakably teaches that a determination of the lawfulness of a warrantless seizure is only half the inquiry. Any ensuing search, an additional incursion, “must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Id. at 19, 88 S.Ct. at 1878. Had Terry, when accosted on the street by the investigating officer, been transporting a suitcase, a full-scale search of the bag’s contents would have presented a far different situation than a limited pat-down of his outer garments accomplished for the narrow purpose of detecting weapons. “The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation.” Id. at 28-29, 88 S.Ct. 1883. (Emphasis supplied).

Nor is Terry v. Ohio sui generis. The Supreme Court has consistently inquired into the extent or scope of a warrantless incursion, demanding that the imposition on the citizen be no greater than the occasion requires. See, e. g., United States v. Van Leeuwen, 1970, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282; Chimel v. California, 1969, 395 U.S. 752, 762-64, 89 S.Ct. 2034, 23 L.Ed.2d 685; Sibron v. New York, 1968, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917. This Court has, until today, faithfully adhered to this analysis. See, e. g., United States v. Gravitt, 5 Cir. 1973, 484 F.2d 375; United States v. Cyzewski, 5 Cir. 1973, 484 F.2d 509; United States v. Skipwith, 5 Cir. 1973, 482 F.2d 1272. In short, necessity remains the sine qua non of exceptions to the warrant requirement. Auto searches aside, when the exigencies necessitating a warrantless incursion dissipate, resort to the magistrate must be had. As the Supreme Court has stated, “[w]e are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.” McDonald v. United States, 1948, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153.

Whatever may be the final delineation of exceptions to the warrant requirement, we must vigilantly bear in mind that absent imperative circumstances a warrantless search is per se unreasonable. Coolidge v. New Hampshire, supra, 403 U.S. at 454-55, 91 S.Ct. 2022; Katz v. United States, 1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. I respectfully submit that Anderson, Lonabaugh and Garay are correct expressions of this heretofore unchallenged principle. These cases are now overruled by the majority’s transparent attempt to distinguish the indistinguishable. I dissent.

. “I don’t know what you mean by ‘glory,’ ” Alice said. Humpty Dumpty smiled contemptuously. “Of course you don’t — till 1 tell you. I meant ‘there’s a nice knock-down argument for you! ’ ” “But ‘glory’ doesn’t mean ‘a nice knock-down argument,’ ” Alice objected. “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you can make words mean different things.” “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”