U.S. v. Johnson

• Decision Date: 24 May 1988
• Docket Number: No. 86-3763,86-3763
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 279

846 F.2d 279

UNITED STATES of America, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant.

No. 86-3763.

United States Court of Appeals, Fifth Circuit.

May 24, 1988.

Rehearing and Rehearing En Banc Denied July 7, 1988.

Kyle Schonekas, Marc D. Winsberg, New Orleans, La. (court appointed), for defendant-appellant.

John P. Volz, U.S. Atty., Peter G. Strasser, Asst. U.S. Atty., New Orleans, La., Mervyn Hamburg, Atty., Appellate Section, Criminal Div., Justice Dept., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

ON PETITION FOR REHEARING

(Opinion Dec. 17, 1987, 5th Cir.1987, 834 F.2d 1191)

PER CURIAM:

Treating the government's motion for rehearing en banc as a petition for panel rehearing, the motion is granted. We withdraw our previous opinion, United States v. Johnson, 834 F.2d 1191 (5th Cir.1987), and substitute the following:

Richard Johnson appeals his conviction for embezzlement of mail. He contends that the search of his zipper-like briefcase, which produced the incriminating evidence, was in violation of the Fourth Amendment. Finding that the uncontroverted evidence shows that the search was permissible as incident to a valid arrest, we affirm.

I.

Johnson, a mail carrier, was being investigated for embezzlement of mail. When a decoy letter, addressed to "Rare Coins, Inc.," failed to turn up in Johnson's collection box, Postal Inspector Michael Mackert stopped Johnson as he was entering his car to leave work for the day. Johnson voluntarily agreed to accompany Mackert back into the post office for questioning. Johnson was carrying a small zipper-like briefcase.

Mackert brought Johnson into the branch manager's office where they met Postal Inspector William Kuhn, who was conducting the investigation with Mackert. Johnson asked if he was under arrest and was told that he was not. Kuhn read Johnson his rights and Johnson signed the waiver of rights form. ¹ There was a pat down search of Johnson at about that time. Johnson was asked some preliminary questions. He was then asked if he had any mail on him. When Johnson replied that he did not, he was asked to empty his pockets. As he was doing so, he removed the Rare Coins letter from his back pocket.

The questioning then took a decidedly hostile turn. Johnson said he had dropped the Rare Coins letter while on his route, then put it in his back pocket and had forgotten about it. Kuhn told Johnson that he did not believe him. Attention was then focused on the briefcase. The briefcase had been originally placed on the floor. According to Mackert and Kuhn, the briefcase had, at some point, been placed on the desk between the three men. After finding the Rare Coins letter, Mackert reached for the briefcase. At that point, Johnson moved toward the case and objected to Mackert and Kuhn looking into it. After a brief hesitation, Mackert began to go through the case as Kuhn left the room to make a telephone call. Mackert discovered a bulky letter addressed to Anita Self inside the briefcase.

Johnson's version of what happened is slightly different. He testified at the suppression hearing that the briefcase was to the side of his chair with some booklets. He went for the briefcase to get a cigarette. He asked if he could smoke and Mackert told him no. Mackert then demanded the briefcase which Johnson turned over to him. The search of the briefcase turned up the Anita Self letter.

After the discovery of the Anita Self letter, Johnson was eventually taken to the Post Office in New Orleans where he was photographed, fingerprinted, and released. He was indicted on a two-count indictment for embezzlement of mail. 18 U.S.C. Sec. 1709. He was acquitted of the first count involving the Rare Coins letter but convicted of the second count involving the Anita Self letter. He now appeals claiming that the Anita Self letter should have been suppressed because it was seized in violation of the Fourth Amendment.

II.

A.

The Fourth Amendment to the United States constitution prohibits searches and seizures that are "unreasonable." A search incident to an arrest is a reasonable search and, hence, permitted by the Fourth Amendment, even if the police do not have a search warrant. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Under the search incident to arrest scenario, police may search the arrestee's person and "the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Id. at 763, 89 S.Ct. at 2040.

One troubling application of Chimel has been in the search of closed containers seized from the arrestee's person or immediate control. In United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973), the Supreme Court made clear that, regardless of the reason for the search, the police may thoroughly search the person, including opening and inspecting a crumpled cigarette package seized from the arrestee's person, pursuant to a lawful arrest. However, in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the Court suggested that a different rule might apply to searches of closed containers within a person's immediate control, as compared to on his person, at the time of arrest. Chadwick concerned a double-locked footlocker that was seized at the time of arrest. Id. at 4, 97 S.Ct. at 2480. However, instead of immediately searching the footlocker, it was separated from the arrestees and transported to the downtown federal building. Id. There, an hour and a half after the arrests and without other exigencies or a warrant or consent, the federal agents opened and searched the footlocker. Id. The Court held that the search could not be viewed as incident to an arrest because "the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody." Id. at 15, 97 S.Ct. at 2485-86. The Court drew the line of when a warrant was needed to search property "at the point where the property ... comes under the exclusive dominion of police authority." Id. at 15, 97 S.Ct. at 2486. In drawing that line, the Court distinguished searches of possessions within the person's immediate control and searches of the person. Id. at 16 n. 10, 97 S.Ct. at 2486 n. 10.

Although the Court in Chadwick seemed to have drawn a distinction between searches of persons and searches of possessions in the arrestee's immediate control, the Court discarded that distinction a few years later in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Belton concerned the search of a zippered pocket of a jacket found in the passenger section of a car after the four men in the car had been arrested and taken out of the car. Id. at 456, 101 S.Ct. at 2862. After holding that the passenger section of the car was within the arrestee's reach within the meaning of Chimel, the Court concluded that any container ² found in a search of that area may also be searched. Id. at 460, 101 S.Ct. at 2864. The Court reasoned, "[s]uch a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have." Id. at 461, 101 S.Ct. at 2864. The Court specifically distinguished Chadwick, stating that Chadwick did not involve "an arguably valid search incident to a lawful custodial arrest" because of the time lapse between the arrest and the search. Belton, 453 U.S. at 461-62, 101 S.Ct. at 2864-65. The Court also rejected the argument that by seizing the jacket, it was in the police officer's exclusive control: "under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid." Id. at 461 n. 5, 101 S.Ct. at 2865 n. 5.

We conclude that Belton eradicates any differences between searches of the person and searches within the arrestee's immediate control. Law enforcement officers may, pursuant to a valid arrest, search any container on the person or within his reach. Accord United States v. Anderson, 813 F.2d 1450, 1455-56 (9th Cir.1987); United States v. Herrera, 810 F.2d 989, 990-91 (10th Cir.1987); United States v. Rosenthal, 793 F.2d 1214, 1232 (11th Cir.), modified on other grounds, 801 F.2d 378 (1986), cert. denied, --- U.S. ----, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987); United States v. Litman, 739 F.2d 137, 138-39 (4th Cir.1984) (en banc). Of course, that search must be contemporaneous with the arrest. Cf. Chadwick, 433 U.S. at 15, 97 S.Ct. at 2485.

B.

In order to determine whether the search of the briefcase was incident to a lawful arrest, we must determine if Johnson was arrested. The district court's brief order denying the motion to suppress the Anita Self letter stated that "probable cause existed for the arrest of the Defendant and the search of the briefcase was permissible as a search for weapons or as a search to preserve further evidence." Although the court's holding implies that the search was valid as pursuant to an arrest, the court did not make findings as to when Johnson was arrested and when his briefcase was seized. Those issues are important and we would normally remand for factual findings if the evidence was disputed. However, as we will show, the result we reach is the same no matter whose scenario is believed.

Prior to the discovery of the Rare Coins letter, Johnson was expressly told by the inspectors that he was not under arrest. Thereafter, inquiries became demands, and the inspectors rejected his explanations with hostility. A reasonable person in Johnson's position would have understood that he was...