United States v. Joseph Charles Milhollan, A/K/A Alec Leroy Foltz

GIBBONS, Circuit Judge,

dissenting:

On September 22, 1977, a man later identified as Joseph Charles Milhollan entered the Girard Branch of the People’s Trust Company and cashed two money orders, each in the amount of two hundred dollars. He produced identification in the name of the payee, John J. Leehy, Jr., and received payment on the money orders. On the following day, Milhollan entered the Warren National Bank, Warren, Pennsylvania, and attempted once again to cash two money orders payable to John Leehy, Jr. On this occasion, bank officials became suspicious, and alerted the police. Officer Norman Shattuck arrived at the bank, approached Milhollan, and asked him for some identification. Milhollan claimed that he had left his identification in his car. Suddenly he *529fled, initially running north, then retracing his steps southward. After a short pursuit, Officer Shattuck apprehended Milhollan, whose wig had fallen off during the chase. He was immediately arrested and transported to the police station by James Leichtenberger, an officer who had arrived on the scene.

A station house search of Milhollan revealed a wallet containing identification in the name of John Leehy, Jr. In addition, the police uncovered a car key on a tag marked “Gold Capri.” Officer Leichtenber-ger took the car key, and went off in search of a gold Capri which he hoped to find parked somewhere in the vicinity of Milhol-lan’s arrest. The officer finally found a gold Capri in a municipal parking lot approximately one hundred yards from where Milhollan was arrested. Inside the car, Leichtenberger noticed a police scanner, a book of police call numbers, a map of Pennsylvania and a blue satchel. Leichtenber-ger radioed another officer, and, while awaiting his arrival, tried the key taken from Milhollan and discovered that it opened the two locked doors of the Capri.

On the instructions of Sergeant Uruy— the officer summoned to the scene — Leicht-enberger drove the car to the police station, impounded it, and effected a warrantless search of its contents. That search uncovered a temporary registration card for the car, a wallet wrapped in a rag and containing identification of an Alec L. Foltz, an automatic pistol, and a blue satchel. The police then opened the satchel and discovered $2400 in cash as well as twenty-two money orders, each in the amount of $200 and made payable to John Leehy, Jr.

Milhollan was charged under a two count indictment for causing forged and falsely made money orders to travel in interstate commerce in violation of 18 U.S.C. § 2314. At trial, he sought to suppress the evidence seized during the warrantless search of his car, claiming that the search violated his rights under the fourth amendment. The trial court rejected his contentions, and Mil-hollan was duly convicted on both counts.

On appeal Milhollan contends that the warrantless search and seizure of the contents of the blue satchel violated his fourth amendment rights defined in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Moreover, he argues that the initial warrantless search of the automobile transgressed the Supreme Court’s holdings in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) , and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) . In a perfunctory opinion, the majority rejects both contentions. It does so, in large part, by construing the Supreme Court’s decisions metaphorically, rather than recognizing in them a consistent effort to preserve, where possible, the safeguards inherent in the Warrant Clause of the fourth amendment. Because I do not share the majority’s apparent discomfort with the constitutional protections offered by the fourth amendment, I respectfully dissent.

I. THE SEARCH OF THE SATCHEL

Milhollan contends that the police search of the blue satchel, which was closed and placed inside the automobile, violated his constitutionally protected expectation of privacy. Accordingly, he reasons, the trial court should not have permitted the $2400 and twenty-two money orders to be introduced as evidence. The majority rejects this argument, reasoning that any justification for searching Milhollan’s car must, in the absence of pretext, also apply to the search of any of the contents of the car. Since, in the majority’s estimation, the initial automotive search was justifiable,1 and, moreover, since “the satchel’s contact with the automobile was more than incidental and . . the intrusion into the automobile . . not a pretext for a search of the satchel,” Opinion, post at 527, the search of the satchel was permissible.

I confess at the outset that there is some support for the majority’s position. Justice Blackmun, in United States v. Chadwick, supra, 433 U.S. at 23 n.4, 97 S.Ct. at 2489, *530n.4, argued that “[t]he scope of the ‘automobile search’ exception to the warrant requirement extends to the contents of locked compartments, including glove compartments and trunks. . . . The Courts of Appeals have construed this doctrine to include briefcases, suitcases, and footlockers inside automobiles.” Justice Blaekmun’s opinion embraced a “transfer theory” for evaluating intrusions into closed luggage. That theory, which is indistinguishable from the majority’s, essentially asserts that any justification to search a car is necessarily transferred even to closed items within it.

The catch, of course, is that Justice Blackmun’s opinion in Chadwick was a dissent. The Chadwick majority, on the other hand, resoundingly rejected the broad exception to the Warrant Clause urged by Justice Blackmun. In Chadwick, itself, the defendants were arrested outside a Boston train station after having loaded a locked footlocker into an automobile trunk. The defendants and the unopened footlocker were transported to the federal building where federal officers effected a warrant-less search of the footlocker. In so doing, they uncovered a large quantity of marijuana. The court of appeals sustained defendants’ suppression motion and the Supreme Court affirmed, holding that the search violated defendants’ rights under the Warrant Clause of the fourth amendment.

Writing for the majority, Chief Justice Burger observed, first, that

this Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts.

433 U.S. at 12, 97 S.Ct. at 2484. Specifically, he noted, automobiles have an “inherent mobility, which often makes obtaining a judicial warrant impracticable.” Id. Moreover, a “diminished expectation of privacy surrounds the automobile.” Id. A car “ ‘travels public thoroughfares where both its occupants and its contents are in plain view.’ ” Id. (quoting Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinión)). “Luggage contents,” on the other hand,

are not open to public view, nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects.

Id. at 13, 97 S.Ct. at 2484. In addition, the Court reasoned, the footlocker’s mobility does not justify “dispensing with the added protections of the Warrant Clause.” Id.

Once the federal agents had seized it at the railroad station and had safely transferred it to the Boston Federal Building under their exclusive control, there was not the slightest danger that the footlocker or its contents could have been removed before a valid search warrant could be obtained. The initial seizure and detention of the footlocker, the validity of which respondents do not contest, were sufficient to guard against any risk that evidence might be lost. With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.

Id. (footnotes omitted). Thus, the Court concluded, there were no “exigent circumstances” sufficient to override the defendants’ privacy interest in the contents of the footlocker.

In the instant case, as in Chadwick, the contents of the blue satchel possessed all of the features of privacy elaborated by the Chief Justice. Moreover, with Milhollan safely in custody, the only known key to the Capri in police possession, and no known confederates at large, there was not the slightest risk of the satchel’s removal. Thus the essential features in Chadwick —a greater privacy interest and a lower mobility, or lack of exigency — were firmly established.

Yet the majority purports to distinguish Chadwick by pointing to the merely “brief contact” that the footlocker in Chadwick had with the defendants’ car. It urges *531that, because of this “incidental” contact, the search in Chadwick cannot be construed as an automotive search, but rather must be seen as a separate search of luggage, a search which the government tried to justify by relying on a novel exception to the Warrant Clause derived, by analogy, from the “automobile exception.” Insofar as Chadwick simply refused to extend the automobile exception in that fashion, the majority surmises that it did not affect the legality of searches of items which are more than incidentally related to an automobile. Hence, the majority concludes, the instant search of the blue satchel, which transpired as part of an actual automotive search, is not governed by the ostensibly limited decision of the Court in Chadwick. But surely this is a distinction without a difference. The broad policies of privacy and immobility, in terms of which the Chadwick Court generally distinguished luggage from automobiles, apply to luggage of any sort, not simply that which has an “incidental” relationship to an automobile. The distinction, for constitutional purposes, between the contents of two satchels, one which was just placed in a car and the other which was already there, is one I find altogether chimerical. The Chadwick Court, I suggest, would be no less mystified.2 The same holds true for most of the courts of appeals which have expressly considered this issue.3

The majority is apparently uncomfortable with the distinctions drawn by the Supreme Court between automobiles and luggage. Thus, it chooses, despite the Court’s explicit direction to the contrary, to import the rationale for automobile searches into a domain where it simply does not fit. This effort at legal gymnastics is attempted so that, in the majority’s words, “[permission to search an automobile” is not rendered “hollow indeed. . . . ” Opinion, ante at 527. But regardless of the majority’s desire to assist in law enforcement, it efforts to square a doctrinal circle — particularly given the doubtful validity of the “permission” to effect the initial search of the car4 — is unjustifiable.

II. THE SEARCH OF THE AUTOMOBILE

As noted above, the majority’s purported justification for the search of the satchel derives from its view that the initial search of the car was proper. That initial search, besides turning up the critical evidence found in the satchel, also uncovered other items subsequently introduced in evidence against Milhollan. The majority upholds this search, relying on the Supreme Court’s decision in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and the decision of this court in United States v. Vento, 533 F.2d 838 (3d Cir. 1976). It misreads those decisions.

In Chambers, petitioner was arrested after an automobile in which he was riding was stopped by the police. The automobile was driven to the police station where a thorough search of the car revealed certain incriminating evidence. Petitioner challenged this search on fourth amendment grounds and the Supreme Court upheld its constitutionality. Writing for the majority, Justice White indicated, first, that “probable cause” is “a minimum requirement for a reasonable search permitted by the Constitution.” 399 U.S. at 51, 90 S.Ct. at 1981. Moreover, he noted, the fourth amendment has “[a]s a general rule, . . also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made.” Id. *532That warrant requirement, White continued, may only be suspended “in exigent circumstances.” Id.

In the instant case, the majority fails to establish that either one of these two prerequisites for a warrantless search has been satisfied. As evidence of probable cause, the majority cites: the bank’s suspicions of Milhollan; appellant’s response to Officer Shattuck, claiming to have left his identification in the car; appellant’s flight, ostensibly in the direction of his car; and appellant’s use of a wig. Plainly, the bank’s suspicions have little, if anything, to do with the issue; indeed, they would hardly suffice as probable cause for Milhollan’s arrest, let alone for a search of his car. Similarly, appellant’s use of a wig at best supports the validity of his arrest. It says nothing at all about what might or might not be in his car.5 The same is true of Milhollan’s claim to have left his identification in the car. Indeed by the time the car was searched, the police knew that the identification as John Leehy, the name used at the bank, was in Milhollan’s personal possession, not in the car. Finally, the majority’s reliance on Milhollan’s flight as evidence of probable cause for the search is also misplaced. The evidence adduced at the suppression hearing indicates that Mil-hollan ran in at least two directions and, when apprehended, was approximately one hundred yards from his car and about as close to the bank as he was to the parking lot. N.T., Vol. 2, 169-70 (testimony of Officer Shattuck); 153-54 (testimony of Officer Leichtenberger). From this rather ambiguous data, the trial court found that Milhol-lan was “running towards the car. . . ” Id. at 180. Significantly, the court added that this evidence “leads to the inference he was trying to get away through the use of his car. . . .’’Id. From this inference, however, the trial court’s conclusion that there was therefore probable cause to search the car does not follow. Unquestionably, the first instinct of virtually any pursued suspect would be to escape, preferably by means of an automobile if one is available. The trial court so found. That instinct toward escape, however, implies nothing at all about the contents of the car, except, perhaps, that there is gasoline in the tank.6

If the majority’s attempt to establish the basis for probable cause emerges as inadequate, so too does its labored effort to find the exigent circumstances necessary to justify the circumvention of the warrant requirement. Neither Chambers, nor Vento supports that circumvention. In Chambers, Justice White held simply that where a suspect is arrested under circumstances which render his automobile a “fleeting target,” 399 U.S. at 52, 90 S.Ct. 1975, the Constitution does not forbid the police from effecting a search of the car, even after it has been brought down to the station house. Similarly, in Vento, this court observed that there were specific exigent circumstances that required the warrantless search: the car was stopped on a public street and was *533“easily accessible to confederates.” 533 F.2d at 866-67. Indeed, the Vento court pointed to specific co-conspirators who might have otherwise been able to tamper with the contents of the automobile in question. Id. at 867. In the instant case, however, none of these exigencies exists. Mil-hollan was never within one hundred yards of his car during the entire time of the police’s intervention. Indeed, at the moment of the search, appellant was safely tucked away in police custody. Moreover, the government has never alleged that there were any co-conspirators who might have had access to the Capri.

This case, insofar as the search of the car is involved, falls within the ambit of the Supreme Court’s decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There, petitioner was arrested, and his car impounded and taken to the police station. Two days later, a warrantless search 7 was effected and incriminating evidence uncovered. Petitioner objected to the search and the Supreme Court, in a plurality opinion, reversed. Exceptions to the Warrant Clause, Justice Stewart observed, must be “ ‘jealously and carefully drawn,’ [quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958)] and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative’ ” (quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948)). 403 U.S. at 455, 91 S.Ct. at 2032. The burden to establish the need for an exception is placed on those who seek its favor. Id. Stewart distinguished Chambers, emphasizing that in that case the automobile was “stopped on the highway,” id. at 460, 91 S.Ct. at 2035 (emphasis in the original), and thus there were exigent circumstances that justified the subsequent station-house search. In Coolidge, on the other hand, neither the defendant nor his family “could conceivably have gained access to the automobile after the police arrived . . .” Id. The merely hypothetical possibility that “[a] person who had the keys . . . could slip by the guard . . . [and] drive it away” was regarded as of “no constitutional significance. . . . ” Id. at 461 n.18, 91 S.Ct. at 2035 n.18.

Like the petitioner in Coolidge, Milhollan was in no position to tamper with the contents of the automobile. The police had him in custody and had possession of the automobile key. The majority reasons, however, that where the probable cause to search “arises suddenly,” no warrant need be obtained. Once again, however, this reasoning misconstrues the case law. The Vento court, from which the majority borrows the phrase “arises suddenly,” used those words simply to contrast the facts before it with those in Coolidge. 533 F.2d at 866. It held that since the police in Vento could not be said to have delayed the search until such time as no longer to have a justification of exigency, the Coolidge situation was not presented. Significantly, however, the Vento court specifically insisted that exigent circumstances be present. Thus, as I have noted, the exigency requirement was satisfied in Vento by the potential accessibility of the car to the defendant’s known confederates. Id. at 866-67. By effectively abandoning the exigency requirement, the majority today dilutes whatever vitality the Warrant Clause may otherwise have had.

* * * * * *

Eight years ago, in Coolidge v. New Hampshire, supra, Justice Stewart reminded us that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” 403 U.S. at 461-62, 91 S.Ct. at 2052. Today, the majority brings us an important step closer to the renunciation of that reminder. *534It substantially exaggerates the basis for probable cause, assumes, ex nihilo, the exigent circumstances necessary to circumvent the Warrant Clause and, finally, transfers those fanciful justifications to the search of a closed satchel located within the car. Because I cannot indulge such fictions, I would order a new trial.

. But see infra at 531-533.

. Thus, for example, in his concurrence in Chadwick, Justice Brennan expressiy rejected the “transfer theory” endorsed by Justice Blackmun in his Chadwick dissent and by the majority today.

While the contents of the car could have been searched pursuant to the automobile exception, it is by no means clear that the contents of locked containers found inside a car are subject to search under this exception, any more than they would be if the police found them in any other place.

433 U.S. at 17 n.1, 97 S.Ct. at 2486 n.1.

. See, e. g., United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978) (en banc); United States v. Fontecha, 576 F.2d 601 (5th Cir. 1978) (dicta). But see United States v. Finnegan, 568 F.2d 637 (9th Cir. 1977).

. See infra at 531-533.

. See Dyke v. Taylor Implement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538 (1968) (“The cases . . . have always insisted that the officers conducting the search have ‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search”).

. The majority implies in passing that Milhol-lan’s possession of a police scanner and a book of police call numbers somehow adds a further basis for the search of the car. Opinion, ante at 526. I need only note that the testimony of Officer Leichtenberger effectively disposes of this contention.

Q. And when you looked into the automobile while it was in the lot, you saw the scanner?
A. Yes.
Q. Now is there anything illegal in having a scanner?
A. No.
Q. Is this, from your familiarity with scanners, kind of like the CB radios, where a lot of people like to listen to police cars and therefore you have scanners?
A. Yes.
Q. And in order to operate a scanner, isn’t it standard operating procedure to have the book that shows how to find the police calls?
A. When you buy one, they usually supply one.

N.T., Vol. 2, 155 (testimony of Officer Leichten-berger). The scanner and book of call numbers are, in short, common hobbyist’s items.

. The search of petitioner’s car in Coolidge was actually effected pursuant to a warrant issued by the State Attorney General who was acting, pursuant to a New Hampshire statute, as a justice of the peace. The Supreme Court found that the Attorney General is not a “neutral and detached magistrate required by the Constitution. . ” 403 U.S. at 453, 91 S.Ct. at 2031. Thus, it held, “the search stands on no firmer ground than if there had been no warrant at all.” Id.