United States v. George Ochs

MESKILL, Circuit Judge

(concurring):

I concur in the result announced today and in parts II, III and IV of Judge Friendly’s opinion.

Justice Rehnquist observed in Cady v. Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), that the law governing warrantless searches and seizures, especially those involving vehicles, “is something less than a seamless web.” So serious is the confusion that six years after Cady it can fairly be said that the law in this area is developing without any predictability or even discernible direction. Warrantless vehicle search cases shed virtually no light on fact situations which, if one were to attempt to apply the usual methods of legal reasoning, would seem to be distinguishable only on the basis of trivialities. Thus the precedents cast shadows rather than light, making the resolution of each succeeding case less rather than more certain.

In the two years since the Supreme Court held unreasonable the warrantless search of a footlocker removed by federal agents from the trunk of an automobile, United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the lower federal courts have been unable to harmonize their approaches to searches of flight bags, suitcases, and other containers removed from automobiles. See, e. g., the following cases, all of which either involved a post-*1263Chadwick search or assumed or held Chadwick to apply retroactively: United States v. Neumann, 585 F.2d 355 (8th Cir. 1978) (post-Chadwick warrantless search, on the scene, of closed but unsecured Dayton’s Department Store box removed from vehicle after arrest of occupants, held reasonable as either investigative or inventory search, distinguishing Chadwick); United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978) (en banc, reversing panel decision reported at 578 F.2d 204 (1977)), petition for cert. filed, 582 F.2d 1175 (1978) (pre-Chadwick warrantless investigative search, on the scene, of suitcase removed from back of station wagon held unreasonable, citing Chadwick); United States v. Finnegan, 568 F.2d 637 (9th Cir. 1977) (pre-Chadwick warrantless investigative search, on the scene, of closed suitcase removed from hatchback of vehicle held reasonable, citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and distinguishing Chadwick); United States v. Hill, 458 F.Supp. 31 (D.D. C.1978) (post-Chadwick warrantless inventory search, at police station, of open flight bag removed from locked trunk of impounded vehicle held unreasonable, citing Chadwick). See also Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977), cert. granted, -U.S.-, 99 S.Ct. 247, 58 L.Ed.2d 236 (1978) (pre-Chadwick warrantless search, on the scene, of suitcase removed from trunk of taxicab held unreasonable, citing Chadwick). Clearly, when the precedents in such a crucial area of constitutional law offer so little guidance that it is difficult to choose between opposite results on the basis of superior reasoning, our ability to dispense justice is severely hampered. Nevertheless, we are obligated to decide the appeals that come before us.

I concur in today’s result but I take a different path from that followed by Judge Friendly. Given the state of the law, Judge Friendly’s analysis cannot be rejected as implausible, although I think it may underestimate the intended impact of Chadwick on Chambers. I prefer to leave exploration of the effect of Chadwick on vehicle searches, whether “inventory” or “investigative” for a case to which Chadwick is clearly applicable.

Shortly after Chadwick was handed down, this Court held that the decision was not to be given retroactive effect. United States v. Reda, 563 F.2d 510 (2d Cir. 1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978). See also United States v. Diaz, 577 F.2d 821, 824 (2d Cir. 1978). The Reda panel relied on United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), in which the Supreme Court addressed the question of the retroactive application of exclusionary rule decisions. The Peltier Court reasoned that neither the judicial integrity rationale nor the deterrence of police misconduct rationale would justify retroactive exclusion of evidence seized by law enforcement officers who reasonably believed in good faith that their search was in accordance with the law, even though decisions subsequent to the search have broadened the exclusionary rule to encompass evidence seized in that manner. To date, three courts of appeals besides our own have read Peltier to bar the retroactive application of Chadwick. United States v. Choate, 576 F.2d 165, 182 n.20 (9th Cir.), cert. denied, - U.S. - 99 S.Ct. 350, 58 L.Ed.2d 344 (1978); United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977). But see United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978) (en banc).1 Since the Supreme Court has not *1264as yet passed on the retroactivity of Chadwick, Reda is the law of this Circuit. Thus there is no need today to assess the impact of Chadwick on warrantless vehicle searches, either “investigative” or “inventory.”

Putting Chadwick aside and viewing the law as it stood at the time of the search, I see no reason why the itemizing of the contents of Ochs’ briefcase should not be regarded as having been performed pursuant to a legitimate inventory search. Three years ago, in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Supreme Court upheld as reasonable the inventory search of a vehicle properly taken into police custody, and the incriminating evidence found in the glove compartment was held admissible at trial. In the instant case, the trial court found that, as in Opperman, the “vouchering” or invoicing of property coming into police custody was standard departmental procedure at the time the search was made. There was simply no reason for the officers to suspect that the warrantless opening of Ochs’ briefcase stood on a different constitutional footing than the warrantless opening of the glove compartment or the trunk. In the years preceding Chadwick several courts of appeals writing both before and after Opperman failed to appreciate the distinction, between containers built into vehicles (e. g., trunks and glove compartments) and removable containers found within vehicles (e. g., footlockers), that was subsequently drawn by Chadwick. See, e. g., United States v. McCambridge, 551 F.2d 865 (1st Cir. 1977) (warrantless search at police station, of stolen suitcase taken from automobile, held reasonable under both Opperman and Chambers). See also United States v. Friesen, 545 F.2d 672, 673-74 (9th Cir. 1976) cert, denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977) (“Where property is validly held by law enforcement officers for which they may have responsibility, it seems a useless gesture, whether it be an automobile or a suitcase, to require a search warrant to effect an inventory of the property.”); United States v. Diggs, 544 F.2d 116, 125 (3d Cir. 1976) (Gibbons J., concurring) (“Since the agents were lawfully in possession of the box, it seems to me that they were authorized to make an inventory search. . . . No principled distinction . . . can be made for inventory search purposes between lawful possession of a ear and lawful possession of a box.”) (emphasis added; citation omitted) (reversed in United States v. Diggs, 569 F.2d 1264 (3d Cir. 1977) (Gibbons, J.), holding search unreasonable, on appeal after remand, because found to have been conducted for investigative rather than for inventory purposes); United States v. Giles, 536 F.2d 136, 140 (6th Cir. 1976) (warrant-less inventory search of luggage removed from automobile trunk after arrest of driver upheld); United States v. Zaicek, 519 F.2d 412 (2d Cir. 1975) (warrantless search at headquarters of attache case removed from stolen vehicle seized by police upheld); United States v. Soriano, 497 F.2d 147, 149 (5th Cir. 1974) (en banc) (upholding warrantless investigative search, on the highway, of suitcase taken from vehicle; “though it is true that the [Chambers] Court spoke of an automobile while we treat of containers in or just removed from one, the principle is not different”); United States v. Gravitt, 484 F.2d 375, 378 (5th Cir. 1973), cert, denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974) (“when the police take custody of any sort of container — be it an automobile, suitcase, or any other thing in which property may be stored — it is reasonable to search the container to itemize *1265the property to be held by the police”) (cited in Opperman, supra, 428 U.S. at 371, 96 S.Ct. at 3098).

Chadwick, by distinguishing for Fourth Amendment purposes the intrusiveness of a search from that of a seizure, and by distinguishing among types of containers, introduces new considerations that may in future cases affect our view of the proper scope of both warrantless inventory searches of vehicles in police custody and warrantless investigative searches of vehicles. However, to my mind, the search of Ochs’ briefcase was reasonable under the then-prevailing interpretation of the Fourth Amendment. I agree with Judge Friendly that having lawfully opened the briefcase, the officers were justified in seizing the clearly incriminating evidence that was in plain view. Under Peltier and Reda it would be inappropriate to exclude the evidence turned up in the course of this search.

. In June of 1977 the Supreme Court vacated a judgment of the Court of Appeals for the Eighth Circuit, involving a 1974 briefcase search, 543 F.2d 59 (1976), and remanded for further consideration in light of Chadwick. Schleis v. United States, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977). I do not read the Schleis remand as an indication that Chadwick is necessarily to be given retroactive effect. Four courts of appeals have held Chadwick not retroactive. United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977); United States v. Reda, 563 F.2d 510 (2d Cir. 1977), cert, denied, 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978); United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Choate, 576 F.2d 165, 182 n.20 (9th Cir. 1978). See also United States v. Powell, 449 F.Supp. 562 (E.D.Pa. 1978). Each of these cases was decided after the Supreme Court remanded the Schleis case *1264to the Eighth Circuit for consideration in light of Chadwick (which had been decided six days before the remand was ordered). But see United States v. Schleis, 582 F.2d 1166, 1173-74 & n.6 (8th Cir. 1978) (viewing remand as direction to apply Chadwick retroactively). Compare Winkle v. Bannan, 368 U.S. 34, 82 S.Ct. 146, 7 L.Ed.2d 91 (1961), remanding case for consideration in light of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Four years after Winkle, in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court, acting with the benefit of the previously expressed and conflicting views of six courts of appeals, held Mapp not to apply to state court convictions which, like the conviction in Winkle, had become final before Mapp was decided.