655 F.2d 1159 (D.C. Cir. 1981), 79-1624, United States v. Ross

Docket Nº:79-1624.
Citation:655 F.2d 1159
Party Name:UNITED STATES of America, v. Albert ROSS, Jr., Appellant.
Case Date:March 31, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 1159

655 F.2d 1159 (D.C. Cir. 1981)

UNITED STATES of America,

v.

Albert ROSS, Jr., Appellant.

No. 79-1624.

United States Court of Appeals, District of Columbia Circuit

March 31, 1981

Argued en banc Oct. 23, 1980.

Certiorari Granted Oct. 13, 1981.

See 102 S.Ct. 386.

Page 1160

William J. Garber, Washington, D. C. (appointed by this court) for appellant.

John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee. Bobara E. Liles, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.

Michael E. Geltner, Washington, D. C., and Larry J. Ritchie, Washington, D. C., filed a brief as amicus curiae on behalf of the Appellate Litigation Clinic of Georgetown University.

Before McGOWAN, Chief Judge, and WRIGHT, TAMM, ROBINSON, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS, and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge GINSBURG, in which Chief Judge McGOWAN, and Circuit Judges WRIGHT, ROBINSON, WALD, MIKVA, and EDWARDS concur.

Separate opinion, dissenting in part, filed by Circuit Judge TAMM, in which Circuit Judge ROBB concurs.

Dissenting opinion filed by Circuit Judge MacKINNON.

Dissenting opinion filed by Circuit Judge ROBB.

Dissenting opinion filed by Circuit Judge WILKEY.

GINSBURG, Circuit Judge:

In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the Supreme Court settled the question whether police officers, in the absence of exigent circumstances, are required to obtain a warrant before opening and searching luggage, large or small, locked or unlocked, taken from an automobile properly stopped and searched for contraband. The Court held that absent a warrant, such searches violate the Fourth Amendment, even when the luggage has been lawfully seized. The case before us raises the question whether Sanders establishes only a "luggage rule" or whether the reasoning of that decision extends as well to other containers used to carry personal belongings and effects, containers smaller, less solid, or less durable than those on sale in a luggage shop. 1

Page 1161

The two items initially in contention in this case were a closed but untaped brown paper bag and, lying alongside it in the trunk of defendant Ross's car, a zippered red leather pouch. The Government successfully opposed a motion to suppress the evidence found in both containers, heroin in the paper bag, cash in the leather pouch. Although it earlier argued that both bag and pouch were subject to warrantless search, 2 the Government, despite its success in the trial court, now concedes that the pouch is covered by the rule in Sanders. 3 It continues to urge, however, that a paper bag does not merit classification as a protected repository for personal effects.

We conclude that Sanders did not establish a "worthy container" rule encompassing bags of leather but not of paper. Rather, it appears to us that Sanders reaffirmed the Supreme Court's longstanding position regarding the centrality of the warrant requirement to Fourth Amendment administration: absent a "specifically established and well-delineated" exception, a warrantless search is per se impermissible. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973).

No specific, well-delineated exception called to our attention permits the police to dispense with a warrant to open and search "unworthy" containers. Moreover, we believe that a rule under which the validity of a warrantless search would turn on judgments about the durability of a container would impose an unreasonable and unmanageable burden on police and courts. 4 For these reasons, and because the Fourth Amendment protects all persons, not just those with the resources or fastidiousness to place their effects in containers that decisionmakers would rank in the luggage line, we hold that the Fourth Amendment warrant requirement forbids the warrantless opening of a closed, opaque paper bag to the same extent that it forbids the warrantless opening of a small unlocked suitcase or a zippered leather pouch.

Part I of this opinion states the facts that give rise to this controversy; Part II deals with threshold issues the Government has raised belated challenges to the retroactivity of Sanders and to Ross's standing to seek suppression of the evidence found in the paper bag; Part III concerns the scope of Sanders and the application of its holding and reasoning to this case.

I.

On November 27, 1978, Detective Charles Marcum of the Washington, D.C., Metropolitan

Page 1162

Police Department received a telephone call from an informant who on prior occasions had provided reliable information about narcotics trafficking. The informant told Marcum that he had observed a man known as "Bandit" selling narcotics in front of 439 Ridge Street, N.W.; he furnished a detailed description of "Bandit" and reported that the drugs were in the trunk of Bandit's automobile, a maroon two-door Chevrolet Malibu with District of Columbia license plates.

Detective Marcum, Detective David Cassidy, and Sergeant Raymon Gonzales drove to Ridge Street where they observed a car matching the informant's description. A radio check revealed that the car was registered to an Albert Ross, Jr., whose nickname was "Bandit." The police officers passed through the area twice, then spotted Ross driving the car. After stopping the vehicle and identifying themselves, the police asked Ross to step out of his car. Ross matched the description the informant had given Marcum. As Marcum conducted a body search, Gonzales observed a round of ammunition on the car's front seat. Gonzales retrieved the round, searched the inside of the car for weapons, and found a pistol in the glove compartment. Marcum arrested Ross and handcuffed him; Detective Cassidy then unlocked and searched the car's trunk. He found in it side by side a closed but unsealed brown paper sack about the size of a lunch bag and a zippered red leather pouch. Cassidy immediately opened the paper bag and discovered inside a quantity of glassine envelopes containing a white powder. Leaving the bag and the pouch in the trunk, the officers drove Ross's car to police headquarters. At the station, Cassidy reopened the paper bag, determined that it contained thirty glassine envelopes, and sent the envelopes to the police laboratory for analysis; the laboratory later reported that the envelopes contained heroin. Cassidy also opened the leather pouch and found inside $3200 in currency. At no point in the episode did the officers seek a search warrant.

On December 19, 1978, a federal grand jury in the District of Columbia indicted Ross for possession of heroin, possession of heroin with intent to distribute, carrying a pistol without a license, and possessing a firearm after a felony conviction. Ross moved to suppress the evidence obtained from the search of the paper bag and the leather pouch. After a hearing, the district judge denied the motion. A jury trial followed and, on March 21, 1979, Ross was convicted of possession of narcotics with intent to distribute, in violation of 21 U.S.C. § 841(a).

II.

(A)

Although the Government did not raise the point before the panel, it argues here that Arkansas v. Sanders should not apply retroactively. In United States v. Peltier, 422 U.S. 531, 535, 95 S.Ct. 2313, 2316, 45 L.Ed.2d 374 (1975), the Supreme Court reiterated that decisions expanding the scope of the exclusionary rule should have prospective effect only. A court should not apply a decision retroactively if the "law enforcement officials (who conducted the search) reasonably believed in good faith that their conduct was in accordance with the law" in effect at the time of the search. Id. at 538, 95 S.Ct. at 2317 (emphasis deleted). If, however, a decision does not expand the exclusionary rule, but merely restates and applies doctrine already in place, then law enforcement officers must be charged with knowledge of that doctrine before the explanative decision issues. The Supreme Court in Sanders indicated that no new constitutional principle was at stake. On the contrary, the Court styled its opinion as a recapitulation of the theme exposed in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Therefore we cannot seek refuge in Peltier to justify a declaration that Sanders commands only prospective adherence.

Justice Powell's opinion for the Court in Sanders signals that the decision, affirming the judgment of the Supreme Court of Arkansas, breaks no new ground. The opening

Page 1163

paragraph announces a purpose to elaborate, not to alter, existing doctrine: "We took this case ... to resolve some apparent misunderstanding as to the application of our decision in United States v. Chadwick ...." 442 U.S. at 754, 99 S.Ct. at 2588. Summing up in Sanders, Justice Powell declared that the Court found "no justification for the extension of (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)) and its progeny to the warrantless search of one's personal luggage merely because it was located in an automobile lawfully stopped by the police." Id. at 765, 99 S.Ct. at 2594. Justice Powell, therefore, indicated that a majority of the Court believed that a decision contrary to the one reached in Sanders, rather than the one there made, would have altered prior law. 5

Between Chadwick and Sanders, moreover, at least four courts held that...

To continue reading

FREE SIGN UP