specially concurring:
As the author of the panel opinion which is here reversed on rehearing, I add a few words. Two serious factual issues raised considerable doubt in my mind originally that the Supreme Court’s decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), controlled this case.
First, appellant was told specifically when he was taken into the interrogation room by the postal inspectors that he was not under arrest. Yet, the record indicates the likelihood that he was at that time deprived of the possession of the briefcase he had been carrying, which means he was deprived of the possession of the briefcase before he was arrested. It was not in his “immediate control”. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).
Second, just when an arrest took place in this case is quite unclear. It may well have taken place after the briefcase had been opened and searched by the postal inspectors. In the record their justification was that they believed the briefcase was government property, not that they were searching the briefcase as incident to a lawful arrest. Indeed, it is ironic that Johnson was acquitted of the charge of criminal conduct in connection with the evidence which was actually found on his person. It is not clear in the record that he, as a legal matter, was placed under arrest at the time the evidence found on his person was yielded to the possession of the inspectors.
Thus, it was my conclusion in writing the original panel opinion that Belton had to be stretched substantially beyond its own facts to justify the search of appellant’s briefcase. I have now concluded Belton constituted a virtual overruling of the rationale of Chimel v. California, supra. Belton overruled this rationale in spite of the fact that the opinion for the Court in Belton stated its limitation upon Chimel solely in terms of the search of the passenger compartment of an automobile after a lawful custodial arrest of the occupant of the automobile. The only limitation upon this conclusion was contained in a footnote to the effect that there was “no need” in the case to consider whether the search and seizure was permissible under the so-called “automobile exception”. 453 U.S. at 462 n. 6, 101 S.Ct. at 2865 n. 6.
The role of this Court is to apply the decisions of the Supreme Court to the facts of the case before us in the way that we would predict the Supreme Court would apply those decisions. I am now convinced that the Supreme Court, as other circuit courts have become convinced, would push Belton beyond its facts and treat the Chi-mel rationale as no longer accurately reflecting the law. I, therefore, concur in the decision upon rehearing, but not upon the ground that Chimel leads to this result. Rather, I concur on the ground that Belton leads to the result by limiting Chimel almost to the point of no longer being any substantial authority at all in restricting searches incident to arrest.