United States v. Dennis Michael Johnson, and Stephen Arthur Baldwin

JAMES C. HILL, Circuit Judge,

specially concurring.

I concur. I write briefly to highlight the considerations which have led me to conclude that this rather abrupt change in our Circuit’s law is required by an intervening decision of the Supreme Court.

We have dealt with warrantless searches of automobiles and other containers which have been upheld upon a finding of probable cause and exigency despite defense contentions that the exigency could have been overcome by the mere immobilization of the automobile or container, which would thus have provided the law enforcement officials ample time to have obtained a warrant. Our reading of Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), has brought this Court to the conclusion that the combination of probable cause and circumstances so exigent as to authorize a warrantless seizure is a fortiori authority for a warrantless search. United States v. Hand, 516 F.2d 472 (5th Cir. 1975) (en banc); United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc). See also United States v. Gaultney, 581 F.2d 1137 (5th Cir. 1978); United States v. Fontecha, 576 F.2d 601 (5th Cir. 1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977); United States v. De La Fuente, 548 F.2d 528 (5th Cir. 1977).

Just prior to the search and seizure in the instant case, the Supreme Court decided United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Chadwick, the Court dealt with a situation in which the law enforcement officers had proper custody and complete control of the container, a footlocker. The Court held that the warrantless search of the contents of the footlocker violated the Fourth Amendment. However, the Court did not address the constitutionality of any seizure of the footlocker which apparently preceded the search. Id. at 7 n. 3, 97 S.Ct. 2476. The Court did not find it necessary to reach the issue whether a constitutional warrantless seizure automatically removes the exigency basis for a subsequent warrantless search. See Arkansas v. Sanders, 262 Ark. 595, 559 S.W.2d 704 (1977), cert. granted, _ U.S. _, 99 S.Ct. 247, 58 L.Ed.2d 236 (1978).

Here, we are dealing with articles, personal luggage, which had to be seized in order to be searched. Thus we have analyzed the seizure against the standards of probable cause and exigency which, before Chadwick, have been applied in this Circuit to both the seizure and the subsequent search. Clearly, in this case, the law enforcement officers had proper grounds for the initial warrantless seizure. Had not *157Chadwick intervened, I should have concluded that these grounds also authorized the subsequent search. However, when the condition precedent of seizure had occurred, we find this luggage “properly in [the] possession” of the law enforcement officers. At that point, the instant case cannot be distinguished from Chadwick as presented to and decided by the Supreme Court. Articles of this sort may properly come into the custody of law enforcement officers in any number of ways which did not concern the Supreme Court in Chadwick and which need not concern us here.

When exigencies can be eliminated by the exercise of the authority to immobilize luggage through a warrantless seizure, the warrantless activity must end there, and a warrant is required to search the contents of the luggage, absent some other warrant excusing exigency. Here, the warrantless activity did not cease with the seizure. Therefore, the subsequent warrantless search was invalid.