U.S. v. Mazzone

• Decision Date: 30 January 1986
• Docket Number: 85-1117,Nos. 85-1116,85-1139 and 85-1537,s. 85-1116
• Citation: 782 F.2d 757
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aldo MAZZONE, Robert Quagliato, Steven Kandis, and Tony Slutsky, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 757

782 F.2d 757

54 USLW 2421

UNITED STATES of America, Plaintiff-Appellee, v. Aldo MAZZONE, Robert Quagliato, Steven Kandis, and Tony

Slutsky, Defendants-Appellants.

Nos. 85-1116, 85-1117, 85-1139 and 85-1537.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 19, 1985.

Decided Jan. 30, 1986.

Kenneth L. Cunniff, Kenneth L. Cunniff, Ltd., Thomas J. Royce, Ltd., Michael Green, Jay & Assoc., Maren J. Dougherty, Levenfeld, Eisenberg, Janger, Glassberg, Genson & Lippitz, Chicago, Ill., for defendants-appellants.

Michelle Smith, Asst. U.S. Atty., and Anton J. Valukus, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.

POSNER, Circuit Judge.

The four appellants were convicted of drug crimes, received sentences ranging from probation and a fine, for Mazzone, to ten years in prison and a fine, for Kandis, and appeal on two grounds--illegally seized evidence and improper argument to the jury by the prosecutor.

The first relates to the seizure, without a warrant, of drugs from two vehicles, a van driven by Mazzone and a car driven by Slutsky. Although all four appellants complain about the seizure, only Mazzone and Slutsky have standing to do so; no rights of Kandis and Quagliato were violated by searches of vehicles in which they had no proprietary interest.

The pertinent facts are few and simple. Pallone (a defendant, but not an appellant) was seen to hand Mazzone, through an open window in Mazzone's van, a box wrapped in tape. The observing agents had sufficient reasons, unnecessary to dilate on here, to think that the box contained illegal drugs. Mazzone drove off in the van, followed by the agents. They stopped the van, arrested Mazzone, opened the box, and removed the drugs, which were used as evidence in the trial. Later the same day another group of agents saw Pallone driving a car in which Slutsky was a passenger. Pallone got out of the car, removed a white bag from the trunk, and handed it to Slutsky, who took it to a car parked nearby, put it in the trunk, and then drove off, followed by agents. The agents had every reason to believe that the bag contained illegal drugs. The agents flagged down Slutsky, arrested him, took the car keys out of the ignition, and opened the trunk. In it they found and opened the bag, in which was a box which they also opened. The box contained drugs, and the drugs were used in evidence in the trial.

Although the agents had probable cause to believe that the two vehicles contained contraband, this does not conclude the case, since, as interpreted, the Fourth Amendment creates a presumption that a search not made pursuant to a warrant is unreasonable. See, e.g., Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978). The most commonly stated rationale is that the interposition of a judicial officer between law enforcement agents and their quarry is a more effective protection against unreasonable searches than ex post remedies such as a motion to suppress illegally seized evidence or a tort suit for a violation of the Fourth Amendment. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948) (Jackson, J.). Although the framers of the Fourth Amendment were more fearful that the warrant would protect the police from the citizen's tort suit through operation of the doctrine of official immunity than hopeful that the warrant would protect the citizen against the police, see Taylor, Two Studies in Constitutional Interpretation 23-43 (1969), and although the effective neutrality and independence of magistrates in ex parte proceedings for the issuance of search warrants may be doubted, there is a practical reason for requiring warrants where feasible: it forces the police to make a record before the search, rather than allowing them to conduct the search without prior investigation in the expectation that if the search is fruitful a rationalization for it will not be difficult to construct, working backwards. See, e.g., United States v. Martinez-Fuerte 28 U.S. 543, 565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116 (1976).

But in the qualifying words "where feasible," we approach the crux of the present case. If the police stop a car that they have probable cause to believe contains contraband, they cannot be made to let the car go on its way while they go get a search warrant; by the time they get it any contraband in the car will have been removed. It might seem that they could impound the car without searching it, while they seek a warrant. But to make sure that any valuable property in the car is secured against theft or charges of theft, they must conduct an inventory search when they seize a car; and since the privacy of the car's interior is thereby compromised, it has not seemed worthwhile to require that a warrant be obtained. Moreover, all this assumes that the vehicle has been impounded, but impounding may be impractical in particular circumstances, as well as unnecessary if all that the police want to do is search the vehicle. See Arkansas v. Sanders, 442 U.S. 753, 765 n. 14, 99 S.Ct. 2586, 2594 n. 14, 61 L.Ed.2d 235 (1979).

But when the search of a vehicle reveals a sealed container, it can be argued that the police should be forbidden to open it till they get a warrant. The inventory search can go forward but sealed containers found in that search should be left sealed until the magistrate decides that there is probable cause to believe that they contain contraband, or evidence of crime, or leads to such evidence. The police can take the sealed container to the police station if they want, and thus avoid the bother of impounding the car. See United States v. Esle, 743 F.2d 1465, 1468 (11th Cir.1984).

Whatever its force, this argument has been rejected by the Supreme Court, whose present view is that if the police have probable cause to believe that there is contraband or other lawfully seizable material anywhere in the car they can search for it even if it is in a sealed container, or in a closed or even locked compartment such as the glove compartment or the trunk. See United States v. Ross, 456 U.S. 798, 821, 825, 102 S.Ct. 2157, 2171, 2173, 72 L.Ed.2d 572 (1982); United States v. Johns, --- U.S. ----, 105 S.Ct. 881, 885-86, 83 L.Ed.2d 890 (1985). If the Court held this view without qualification, the present case would be very easy to decide. But for the Court to have adopted the position in its full sweep it would have had to overrule United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, supra, which thus far it has been unwilling to do. In Chadwick federal agents followed a footlocker that they suspected contained contraband, and when the footlocker was put in the trunk of the defendant's car they stepped in and seized the footlocker and searched it. The Court viewed the site of the seizure--the trunk of the car--as a matter of happenstance. The purpose of having a vehicle exception to the requirement of a search warrant is to make searches of vehicles possible, but the agents didn't want to search Chadwick's car. Their focus was not on Chadwick at all; they didn't even know whether he was a drug trafficker and knew what was in the footlocker. See 393 F.Supp. 763, 768 (D.Mass.1975). He might have been a complete dupe, in which event there would be no reason at all to think that his car contained contraband elsewhere than in the footlocker. And when the agents discovered the footlocker in the car they could easily have taken it to the police station and held it there until they could get a warrant to search inside it. They would not have had to impound the car. Sanders is the same case, only it involved a suitcase rather than a footlocker and a cab rather than a private car.

In Johns, where the Supreme Court tried to reconcile Chadwick with the principle of Ross that allows the police to search anywhere inside a vehicle if they have probable cause to believe that it contains contraband (Johns makes no mention of Sanders, but Sanders is the same case as Chadwick, as we have said), the Court suggested that it matters whether the police are interested in a specific container or in the contents of the vehicle generally. If the latter they can (provided of course that they have probable cause) conduct a thorough search and open anything inside the vehicle that might contain what they are looking for. But if they are just interested in a specific container, they have got to get a warrant to open it. See 105 S.Ct. at 884. After all, if police had stopped Mazzone and Slutsky on the sidewalk, each with a container in his hand which the police reasonably believed contained illegal drugs, the police could not have opened the containers on the spot and searched them (assuming that such a search would not be a permissible incident to the arrests, a possible theory in this case, too, with regard to Mazzone, see New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), but not one that we shall have to consider). They would have had to arrest Mazzone and Slutsky and take the containers down to the station and apply for a warrant to open them. If the fact that the containers are found in a vehicle is incidental, the police cannot use the fortuity of finding the containers there to justify dispensing with a search warrant. To put the same thought in slightly different words, if (as the facts of Chadwick and Sanders suggest) the police have probable cause only to believe that the container contains contraband they cannot, by waiting until the container happens to be placed in a vehicle, dispense with the usual requirement (strikingly illustrated by Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)) that a sealed container may not be opened without its owner's permission or a search warrant.

This is a fine distinction--perhaps ...