U.S. v. Monclavo-Cruz, MONCLAVO-CRU

Decision Date02 November 1981
Docket NumberMONCLAVO-CRU,No. 80-1776,D,80-1776
Citation662 F.2d 1285
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rafaelaefendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Louis A. Araneta, Asst. Federal Public Defender, Phoenix, Ariz., for defendants-appellants.

Roger W. Dokken, Asst. U. S. Atty., Phoenix, Ariz., argued for the U. S.; Arthur G. Garcia, Asst. U. S. Atty., Phoenix, Ariz., on brief.

Appeal from the United States District Court for the District of Arizona.

AS AMENDED ON DENIAL OF REHEARING

Before SKOPIL, SCHROEDER and FARRIS, Circuit Judges.

SKOPIL, Circuit Judge:

Rafaela Monclavo-Cruz appeals her conviction for use of a false alien registration receipt in violation of 18 U.S.C. § 1426(b). We conclude that the evidence used to convict her was derived from an illegal warrantless search of her purse. Therefore we reverse.

FACTS AND PROCEEDINGS BELOW

In May and early July 1980, two informers told Immigration Investigator Cluff that Monclavo-Cruz was selling counterfeit immigration documents. Cluff watched Monclavo-Cruz' home early one morning and followed her and her male companion, Napoleon Mejia, as they drove off in a car. Cluff stopped the car and asked Mejia for his license in English and in Spanish. When Mejia admitted to being in this country illegally, Cluff arrested him and placed him in his car. Cluff then approached Monclavo-Cruz on the passenger's side of the car and asked her in Spanish where she was from. She admitted to being in this country illegally and said that she had no license, identification, or papers. Cluff arrested her and seized her purse from the car. The purse was either in her hand, on her lap, or on the seat of the car at the time of arrest. Cluff took her and the purse to his vehicle and drove to the Immigration Office. Cluff testified that he did not search her purse immediately because he believed to do so would be a security risk.

About an hour after the arrest and without obtaining a warrant, Cluff searched the purse in his office in Monclavo-Cruz' presence. Cluff testified that he discovered Monclavo-Cruz' temporary driver's permit inside a small closed purse found inside the larger zipped purse. On it, Cluff discovered an alien registration number that allowed him to learn that Monclavo-Cruz had used a false alien registration card at the time she applied for a driver's license. Confronted with this information, Monclavo-Cruz confessed.

The trial court denied Monclavo-Cruz' motion to suppress the evidence derived from the warrantless search of her purse, and she was convicted in a trial on stipulated facts.

ANALYSIS
I. Reasonable Expectation of Privacy.

The government's contention that the warrantless search of Monclavo-Cruz' purse at the station house was lawful because she had no reasonable expectation of privacy in it has been foreclosed by this court's decision in United States v. Cleary, 656 F.2d 1302 (9th Cir. 1981) (unzipped canvas bag has fourth amendment protection). Moreover, in Robbins v. California, --- U.S. ----, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), a plurality, if not a majority, of the Court rejected the proposition that "the nature of a container may diminish the constitutional protection to which it otherwise would be entitled ...." 1 Id. --- U.S. at ----, 101 S.Ct. at 2845 (emphasis in original). The Court explained that such a distinction "has no basis in the language or meaning of the Fourth Amendment" because that "Amendment protects people and their effects, and it protects those effects whether they are 'personal' or 'impersonal.' " Secondly, the Court recognized that no one "can sensibly be asked to distinguish the relative 'privacy interests' in a closed suitcase, briefcase, portfolio, duffle bag or box." Id. --- U.S. at ----, 101 S.Ct. at 2846. In sum, it is beyond doubt that society recognizes that an expectation of privacy in purses is reasonable.

II. Search Incident to Arrest.

The government contends that the search incident to arrest exception to the warrant requirement recognized in New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and United States v. Moreno, 569 F.2d 1049, 1052 (9th Cir.), cert. denied, 435 U.S. 972, 98 S.Ct. 1615, 56 L.Ed.2d 64 (1978), justifies the warrantless search of the purse conducted more than an hour after police gained exclusive control of it. We reject this interpretation of the exception for the same reason that the Supreme Court rejected it in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977):

(W)arrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the "search is remote in time or place from the arrest," Preston v. United States, 376 U.S. (364) at 367 (84 S.Ct. 881 at 883, 11 L.Ed.2d 777) or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.

Chadwick, 433 U.S. at 15, 97 S.Ct. at 2485.

Investigator Cluff testified that he was unable to search the purse at the scene because doing so would have created a security risk. This testimony is not relevant, even assuming that an immediate search of the purse would have been lawful under Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768. In Belton, the Court held that a search of the passenger compartment of a car incident to a lawful, custodial arrest of an occupant of the car is reasonable, because articles within this part of a car are "generally, if not inevitably, within 'the The fact that an officer is prevented from conducting a Chimel/Belton search, however, is not a sufficient reason to justify a search an hour later at the station. The protective rationale for the search no longer applies. Furthermore, the Court in Belton distinguished Chadwick on the basis that the Chadwick search was not conducted contemporaneously with the arrest of the suspect, but more than an hour later at the station house. Belton, --- U.S. at ----, 101 S.Ct. at 2865. In this case, the search of Monclavo-Cruz' purse was also conducted more than an hour after her arrest at the station house, and thus Chadwick, not Belton, determines its validity.

area into which an arrestee might reach in order to grab a weapon or evidentiary item." Belton, --- U.S. at ----, 101 S.Ct. at 2864.

III. Inventory Search.

The government also contends that the warrantless search was valid as an inventory search under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 100 (1976). Again we look to Chadwick for guidance, and conclude that the rationale of Opperman cannot justify the warrantless search of Monclavo-Cruz' purse.

In Opperman, the Supreme Court found that the routine inventory search of Opperman's car without a warrant was reasonable under the fourth amendment. The Court noted that the police had followed standard police procedures in inventorying the contents of a lawfully impounded car when the owner was "not present to make other arrangements for the safekeeping of his belongings" and there was no suggestion that the inventory procedure was a "pretext concealing an investigatory police motive." Opperman, 428 U.S. at 375-76, 96 S.Ct. at 3100. In justifying this exception to the warrant requirement, the Court relied on the reduced expectation of privacy in cars, the need to protect the owner's property, the need to protect the police against suits over lost or stolen property, and the need to protect the police and society from danger. Id. 428 U.S. at 367-69, 374, 96 S.Ct. at 3096-97, 3099. Justice Powell, who provided the fifth and deciding vote in Opperman, noted in his concurring opinion that the Opperman rule "provides no general license for the police to examine all the contents" of a lawfully impounded vehicle, and that there was no evidence in the record that the police did anything more "than search for and remove for storage (personal) property without examining its contents." Id. 428 U.S. at 380 & n.7, 96 S.Ct. at 3102 & n.7.

In Chadwick the Court clarified the reach of the Opperman inventory exception. The Court ruled that no exceptions to the warrant requirement of the fourth amendment justified the warrantless search of Chadwick's locked footlocker an hour and a half after the suspects were arrested and the footlocker was taken from their car to the Federal Building in Boston. Chadwick, 433 U.S. at 4, 6, 97 S.Ct. at 2479, 2480. The Court carefully noted that there were no special circumstances that might otherwise justify an inventory search:

The agents had no reason to believe that the footlocker contained explosives or other inherently dangerous items, or that it contained evidence which would lose its value unless the footlocker were opened at once. Facilities were readily available in which the footlocker could have been stored securely; it is not contended that there was any exigency calling for an immediate search.

Id. 433 U.S. at 4, 97 S.Ct. at 2479 (emphasis added).

Although there is some ambiguity in Chadwick, the Court apparently found that the Opperman inventory search exception did not apply primarily for two reasons. First, "a person's expectations of privacy in personal luggage are substantially greater than in an automobile." Chadwick, 433 U.S. at 13, 97 S.Ct. at 2484. Second, it was possible to move the footlocker to the secure Boston Federal Building where "there was not the slightest danger that the footlocker or its contents could have been removed before a valid search warrant...

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