U.S. v. McCormick

• Citation: 502 F.2d 281
• Decision Date: 17 July 1974
• Docket Number: No. 73-2252,73-2252
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert C. McCORMICK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 281

502 F.2d 281

UNITED STATES of America, Plaintiff-Appellee, v. Robert C. McCORMICK, Defendant-Appellant.

No. 73-2252.

United States Court of Appeals, Ninth Circuit.

July 17, 1974, Rehearing Denied Sept. 16, 1974.

Leonard N. Kesselman (argued), Los Gatos, Cal., for defendant-appellant.

James H. Daffer, Asst. U.S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.

Before DUNIWAY and WALLACE, Circuit Judges, and EAST, ^* District judge.

OPINION

DUNIWAY, Circuit Judge:

McCormick was convicted of conspiring to make, possess, sell and otherwise deal in counterfeit Federal Reserve notes, in violation of 18 U.S.C. 371, 471, 472 and 473.

On February 17, 1972, McCormick was arrested at his mountain View, California, home, pursuant to an arrest warrant. When Secret Service agents arrived to make the arrest, they parked in McCormick's driveway, blocking egress for his automobile, a blue Buick Riviera, which was in the driveway. Between fifteen minutes and one hour after McCormick's arrest, a Secret Service agent drove the Buick to the subbasement parking garage of the Federal Office Building in San Francisco. The next day another Secret Service agent searched the car and discovered an enlarged photographic negative of a treasury seal. No warrant was obtained either to seize the car on February 17 or to search it on February 18. McCormick's pre-trial motion to suppress this evidence found in his car was denied. On appeal, he argues, citing Collidge v. New Hamphshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, that the Secret Service agents should have obtained a search warrant before the seizure and search of his car. We agree and therefore reverse this conviction.

1. The question presented.

The government justifies its seizure and later search of McCormick's automobile solely on the basis of 49 U.S.C. 782, which provides, in pertinent part, that 'any . . . vehicle . . . which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of said section has taken or is taking place, shall be seized and forfeited . . ..'

49 U.S.C. 781 provides, in part:

(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft, or upon the person of anyone in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.

(b) As used in this section, the term 'contraband article' means--

(3) Any falsely made, forged, altered, or counterfeit coin or obligation or other security of the United States or of any foreign government; or any materal or apparatus, or paraphernalia fitted or intended to be used, or which shall have been used, in the making of any such falsely made, forged, altered, or counterfeit coin or obligation or other security.

We do not doubt that, if the seizure of the car on February 17, 1972, was valid, the later search on February 18, 1972, was also valid. Cooper v. California, 1967, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730. There, California police officers seized Cooper's car when they arrested him on a narcotics charge. The seizure of the car was pursuant to Cal. Health and Safety Code 11611, which provides that any officer making an arrest for a narcotics violation shall seize any vehicle used to store, conceal, transport, sell or facilitate the possession of the narcotics. The officers searched the car where it was stored one week after the seizure, and the evidence seized was introduced at Cooper's trial. The search was upheld. The rationale is as follows:

Here the officers seized petitioner's car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car-- whether the State had 'legal title' to it or not-- was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner's car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for 'the relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.' United States v. Rabinwitz, 339 U.S. 56, 66 (70 S.Ct. 430, 94 L.Ed. 653). Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding. Id. at 61-62, 87 S.Ct. at 791.

Assuming the validity of the initial seizure under 49 U.S.C. 782, we think that this rationale would be applicable to the later search.

However, as the Supreme Court has later made clear, the Court in Cooper did not pass upon the legality of the original seizure of Cooper's car. Apparently that question was not presented in the case. Coolidge v. New Hampshire, supra, points out that in Cooper the Court did not rule on the validity of the statute authorizing the seizure:

In Cooper, the seizure of the petitioner's car was mandated by California statute, and its legality was not questioned. The case stands for the proposition that, given an unquestionably legal seizure, there are special circumstances that may validate a subsequent warrantless search. 403 U.S. at 464, n.21, 91 S.Ct. at 2037.

We have several times upheld searches of vehicles seized under 49 U.S.C. 782. But none of our cases prevents our now considering the constitutional validity of the seizure in this case.

In United States v. Arias, 9 Cir., 1972, 453 F.2d 641, we upheld a subsequent search of a seized car where Arias' car was seized at the time of his arrest and the officers knew, at that time, that the car was being used to facilitate the consummation of a crime (453 F.2d at 643). The case falls within the automobile exception to Fourth Amendment requirements, discussed infra.

Our other decisions, Lockett v. United States, 9 Cir., 1968, 390 F.2d 168; Kaplan v. United States, 9 Cir., 1967, 375 F.2d 895; Browning v. United States 9 Cir., 1966, 366 F.2d 420, and Burge v. United States, 9 Cir., 1965, 342 F.2d 408, were all decided before the decisions of the Supreme Court in Coolidge v. New Hampshire, supra; Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; United States v. Robinson, 1973, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427; and Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. To the extent that any of our cases can be read as holding that, in every case, a car can be seized under 49 U.S.C. 782 without a warrant, so long as probable cause exists, they no longer state good law, for reasons considered hereafter.

For similar reasons, we consider it unnecessary to discuss cases from other circuits dealing with seizures and searches under 49 U.S.C. 782. ¹ Only one of them, United States v. Stout, supra, n.1, is a post Coolidge case, and it, like our arias case, can be supported under the automobile exception to Fourth Amendment requirements.

II. The Fourth Amendment applies.

We therefore turn to the validity of the seizure of McCormick's car. We start with the proposition that the Fourth Amendment applies equally to searches and to seizures. It provides that the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' This guarantee interposes between citizens and the police a magistrate whose objective evaluation must weigh the 'right of the people to be secure' against the need to enforce the law. 'When the right of privacy must reasonably yield to the right of search (and seizure) is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.' Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436.

A search and seizure question therefore begins with the proposition that 'the most basic constitutional rule in this area is that 'searches (and seizures) conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-- subject only to a few specifically established and well delineated exceptions." Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S.Ct. at 2032, quoting Katz v. United States, 1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. Unless a warrantless search or seizure meets one of these exceptions, the evidence thereby obtained is inadmissible at trial. Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.

The fact that the agents made the seizure and search pursuant to an act of Congress does not remove that seizure and search from the purview of the Katz per se rule. Unless the statute itself falls within one of the exceptions to the warrant requirement, it must yield to the right to be secure against searches and seizures. This is clear from the Supreme Court's decision in Almeida-Sanchez v. United States, supra, in which the government's sole justification for a warrantless search of an automobile was a federal statute authorizing the search....