dissenting.
After carefully considering. Judge Heaney’s opinion and reconsidering the panel opinion in this case, published at 578 F.2d 204, I would affirm the convictions. As determined by the panel opinion, the search of the suitcase should be upheld as within the automobile exception to the warrant requirement. United States v. Finnegan, 568 F.2d 637, 641-2 (9th Cir. 1977).
I have little to add to the panel opinion but will correct the apparent misapprehension of the majority as to the distinction the panel drew between Chadwick and the present case. The majority view Chadwick as involving seizure of a footlocker outside an automobile while the present case involves a search and seizure inside an automobile. Actually, in both eases the luggage was inside an automobile when seized. However, in Chadwick, the Government conceded that no automobile search was involved because the seizure occurred immediately after the footlocker was placed in the automobile’s trunk and before the trunk had been closed or the engine started. This fleeting contact was not sufficient to bring the automobile search exception into play.
By contrast, the seizure in this case occurred on a four-lane express highway. The suitcases had been transported a considerable distance in the automobile by the defendants. The search was conducted immediately after the automobile was stopped. Thus the present ease is distinguishable from Chadwick by the significant contact the suitcases had with the automobile. United States v. Chadwick, 433 U.S. at 22-24, 97 S.Ct. 2476 (Blackmun, J., dissenting). The reasons justifying warrant-less automobile searches apply, in my opinion, to searches of containers found inside the automobile. See cases cited in United States v. Chadwick, 433 U.S. at 23 n.4, 97 S.Ct. 2476 (Blackmun, J., dissenting).
There is one other element of the majority’s decision that disturbs me. The majority opinion in this case and in United States v. Schleis, 582 F.2d 1166 (8th Cir. to be filed concurrently), seem carefully crafted to suggest that warrants will now be required for a search of most personal property that has been reduced to the exclusive control of law enforcement officers. The dictum in the panel opinion in United States v. Haley, 581 F.2d 723 (8th Cir. 1978) carries this suggestion one step further. It correctly upholds the warrantless opening of a zippered leather container found in plain view in a car, but only because of the exigent circumstance of an apparently injured man needing assistance. To assume *1181that the expectation of privacy in a zippered bag approaches the expectation of privacy in a locked footlocker is carrying the analogy beyond its reasonable limits. The entire opinion in Chadwick is premised on the obvious expectation of privacy enjoyed by a person who double-locks a footlocker.
As properly noted in Chadwick, the warrant clause of the Fourth Amendment “protects people from unreasonable government intrusions into their legitimate expectations of privacy” but how much “legitimate” expectation of privacy should a person be permitted to enjoy in the concealment and transportation of contraband? If Chadwick is viewed as applying to all closed pieces of luggage and containers that are subject to personal modes of transportation, then the enforcement of the criminal laws will be severely diminished by the inability of the law enforcement officers to discover and apprehend those who are in the pursuit of lawless activities. The additional time, energy, and cost in attempting to locate a magistrate and secure a warrant cannot help but impair and diminish the effective operation of law enforcement officers. This is not to say that the Fourth Amendment is not a prized personal constitutional right enjoyed by free people, but the Fourth Amendment proscription is “against unreasonable searches and seizures.” In this situation I do not think that the defendant had, should have had, or could have had any “legitimate” expectation of privacy in the concealment of marijuana in a closed piece of luggage being transported on a public highway of this country. I view this search as reasonable.
The application of Chadwick to personal property other than locked luggage remains to be decided in this circuit. I do not agree with the statement in United States v. Marchand, 564 F.2d 983, 991-92 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978), suggesting that police must now obtain a warrant before opening a wallet found in plain view and extracting a driver’s license therefrom. The language is particularly regrettable since it had no impact on the outcome of Marchand’s appeal and is therefore dictum.
In light of my conclusion that the instant case involves an automobile search not governed by Chadwick, I express no views on the retroactive application of that decision. I would affirm the convictions of Stevie and Reynolds.