U.S. v. Berry, s. 76-2014

• Decision Date: 24 August 1977
• Docket Number: Nos. 76-2014,76-2038,76-2037,s. 76-2014
• Citation: 560 F.2d 861
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Michael BERRY, Robert Hugh Wilson, and Donald Gene Richardson, Defendants-Appellants. Seventh Circuit
• Court: U.S. Court of Appeals — Seventh Circuit

Page 861

560 F.2d 861

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Michael BERRY, Robert Hugh Wilson, and Donald Gene

Richardson, Defendants-Appellants.

Nos. 76-2014, 76-2037, 76-2038.

United States Court of Appeals,Seventh Circuit.

Argued June 13, 1977.

Decided Aug. 24, 1977.

Michael L. Shakman, William T. Huyck, Richard S. Jalovec, Stephen M. Komie, Chicago, Ill., for defendants-appellants.

Thomas P. Sullivan, U. S. Atty., John L. Sullivan, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, BAUER, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

BAUER, Circuit Judge.

Defendants appeal their convictions for interstate transportation of stolen property in violation of 18 U.S.C. § 2314. Among several grounds for reversal, they argue that certain evidence and the fruits thereof obtained through a warrantless search of an attache case belonging to defendant Robert Wilson should have been suppressed. Based on United States v. Chadwick, --- U.S. ----, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), decided subsequent to the argument in this case, we agree with the defendants that, under the facts adduced at the suppression hearing, the search seems unconstitutional. We remand for additional hearings.

The facts presented at the suppression hearing are as follows: Several FBI agents followed defendants Stephen Berry and Robert Wilson, suspected bank robbers, to an apartment building in Schiller Park, Illinois. Berry and Wilson entered the building about 3:45 p. m. and at about 5:00 p. m. left the building and walked to two parked cars in the building lot. Berry entered one car while Wilson opened the trunk of the other and removed an attache case. As Wilson walked toward the car where Berry sat, the two were arrested by FBI agents. Each was spread-eagled against the car, searched and handcuffed. They were then shunted to a gangway about ten to twelve feet from the parking lot where they remained for a few minutes while other agents searched Wilson's apartment in the building for a third suspected bank robber, Donald Richardson, who was suspected of being an accomplice of Wilson and Berry.

The attache case was taken from Wilson at the time of his arrest and placed on the ground next to him. The agent in charge of the operation then moved it to a corner of the building where he watched it while he instructed the other agents over a loudspeaker. After Wilson and Berry were taken upstairs, the agent in charge opened the case. This occurred in the presence of other agents about eight minutes after the arrest. There were approximately twenty-three FBI agents and local policemen involved in the entire operation.

In Chadwick, federal narcotics agents arrested the defendants outside a Boston train station as the defendants were loading a large footlocker into an automobile. The defendants were searched, and both they and the unopened footlocker were taken to the federal building. There the agents opened the footlocker without a search warrant and found marijuana. The Supreme Court held the warrantless search violated the Fourth Amendment, rejecting the Government's argument that the warrantless search was constitutional because (1) the Fourth Amendment's warrant clause applies only to searches of private dwellings; (2) the automobile exception to the warrant clause applies to other moveable chattels such as luggage; and (3) the Constitution permits warrantless search of any property in the possession of a person arrested in public, so long as there is probable cause to believe that the property contains contraband or evidence of crime.

In reaching its decision, the Court clarified when a warrant is required to search property of an arrestee seized at the time of arrest:

"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." Id. at ----, 97 S.Ct. at 2485.

In the instant case, the FBI agent in charge of the operation testified that he had possession of the case after the arrest and before the search, and that he searched the case after the arrestees were taken upstairs to the apartment. Thus, at the time of the search the attache case was in the officer's exclusive control, and there was no longer any danger that the arrestee might gain access to it to seize a weapon or destroy evidence.

The more difficult issue presented here is whether the attache case was "immediately associated with the person of the arrestee." If it was, the later search could be justified as a search of the arrestee's person, which need not be undertaken contemporaneous with the arrest. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Footnote 10 of the Chadwick opinion speaks to this matter:

"Unlike searches of the person, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), searches of possessions within an arrestee's immediate control cannot be justified by any reduced expectations of privacy caused by the arrest. Respondents' privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest." --- U.S. at ----, 97 S.Ct. at 2486 n. 10.

At footnote 8, ...