U.S. v. Johns

• Decision Date: 10 June 1983
• Docket Number: No. 82-1080,82-1080
• Citation: 707 F.2d 1093
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Lyle Gerald JOHNS, Dennis Eugene Hearron, Manuel Jesus Duarte, Carlos Torres Leon, Jose Oros Soto, Roberto Leon Gomez, and John Lizaraga Redmond, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1093

707 F.2d 1093

UNITED STATES of America, Plaintiff-Appellant, v. Lyle Gerald JOHNS, Dennis Eugene Hearron, Manuel Jesus Duarte, Carlos Torres Leon, Jose Oros Soto Roberto Leon Gomez, and John Lizaraga Redmond, Defendants-Appellees.

No. 82-1080.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 12, 1982.

Decided June 10, 1983.

L. Anthony Fines, William Walker, Tucson, Ariz., for defendants-appellees.

Eugene R. Bracamonte, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellant.

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

Before TRASK, ANDERSON, and CANBY, Circuit Judges.

CANBY, Circuit Judge.

United States Customs Officers seized securely wrapped packages of marijuana from two covered pickup trucks and, three days later, opened the packages without a warrant. The trial court granted the defendants'

motion to suppress the evidence. The government appeals, raising several possible exceptions to the warrant requirement. We conclude that this warrantless search violated the Fourth Amendment and accordingly, we affirm.

FACTS

After midnight on Tuesday, August 4, 1981, customs officers, suspecting that a drug transaction might occur, began ground and air surveillance of two trucks. Shortly after the trucks stopped near a remote private airstrip southeast of Bowie, Arizona, two small airplanes landed in sequence. After both planes left, the officers approached the two trucks and smelled the odor of marijuana in the general area of the trucks. An officer looked inside the trucks and discovered several sealed boxes and plastic bags. Officers then arrested the five defendants present at the two trucks; later, other officers arrested the two airplane pilots. The agents seized the boxes and bags and took them to the Drug Enforcement Administration warehouse in Tucson, Arizona. Three days later, without obtaining a search warrant, federal agents opened some of the bales and took core samples, which laboratory analysis proved were marijuana.

After a hearing, the district court granted a motion to suppress the evidence seized. Initially, the court suppressed the evidence only against the five defendants arrested at the trucks, but later the court amended its order to include the two pilots as well.

DISCUSSION

The government contends that the trial court erroneously suppressed the packages of marijuana seized from the trucks. The government asserts that two exceptions to the warrant requirement potentially apply here. Under the government's first theory, the marijuana in the wrapped bales was in plain view. Alternatively, the government proposes that the agents had authority to search the bales under the automobile exception. In addition, the government argues that, even if the search here fits within neither exception, Johns and Hearron, the airplane pilots, lacked an expectation of privacy that would permit them to challenge the search. We take each issue in turn.

I. Plain View

The government argues that because of the surrounding circumstances and the odor of marijuana coming from the trucks, no warrant was required to open the packages because the contents were in plain view. ¹ When officers are legitimately in a location where they observe an unconcealed object, the discovery does not constitute a search. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 1634-35, 10 L.Ed.2d 726 (1963).

The government relies on the experience of the officers, the extent of the investigation, and the circumstances of the seizure as the basis for its contention that the contents of the packages were in plain view. The government draws some support from the recently decided case of Texas v. Brown, --- U.S. ----, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), in which the plain view doctrine was applied to uphold the warrantless seizure of an opaque, knotted party balloon containing heroin. As we read the plurality and concurring opinions in Brown, however, they establish only that the seizure of the container in plain view was justified when there was probable cause to believe that it contained contraband. We have no difficulty in agreeing that in the present case, the officers acted lawfully and justifiably in seizing the packages. It is a different question, however, whether an opaque container that is properly seized may be searched.

If a movable container is in plain view, seizure does not implicate any privacy interests. Therefore, if there is probable cause to believe it contains contraband, the owner's possessory interest in the container must yield to society's interest in making sure that the contraband does not vanish during the time it would take to obtain a warrant. The item may be seized temporarily. It does not follow, however, that the container may be opened on the spot. Once the container is in custody, there is no risk that evidence will be destroyed. Some inconvenience to the officer is entailed by requiring him to obtain a warrant before opening the container, but that alone does not excuse the duty to go before a neutral magistrate.

Id. --- U.S. at ----, 103 S.Ct. at 1547 (Stevens, J., joined by Brennan, Marshall, JJ., concurring). We conclude, therefore, that Brown does not support the warrantless search here. ²

The government contends that the odor detected by the agents, emanating from the marijuana, brought that contraband into plain view. The Fourth Circuit does consider a package which gives off a distinctive odor to be like a package wrapped in transparent material, making the contents objectively obvious. United States v. Haley, 669 F.2d 201, 203-04 & n. 3 (4th Cir.), cert. denied, 457 U.S. 1117, 102 S.Ct. 2928, 73 L.Ed.2d 1329 (1982). Our precedent, however, directs that while the odor of marijuana smelled by the agents would contribute to probable cause to believe that the container held contraband, a recognized exception to the warrant requirement was necessary to justify a warrantless search. United States v. Ogden, 485 F.2d 536, 539-40 (9th Cir.1973), cert. denied, 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974). ³ The odor and circumstances of the seizure supplied the probable cause for a search warrant. They did not eliminate the need for one.

II. Automobile Exception

The government next contends that the warrantless search was justified under the automobile exception to the warrant requirement. For that contention to succeed, three conditions must be met. First, the Supreme Court's decision in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), must have retroactive effect. Second, Ross must apply to the facts of this case. Finally, the three-day

delay must not invalidate the warrantless automobile search.

A. The Retroactivity of Ross

In United States v. Ross, --- U.S. ----, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982), the Supreme Court rejected the rule of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), relied on by the district court when it granted the defendants' suppression motion. In Robbins, the Court considered whether police officers entitled to conduct a warrantless search of an automobile stopped on a public roadway may open a container found within the vehicle. The Court reversed Robbins' conviction on the ground that a closed opaque container "may not be opened without a warrant, even if it is found during the course of the lawful search of an automobile." Id. at 428, 101 S.Ct. at 2847.

The following year, in Ross, the Court reexamined the automobile exception and concluded that "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." 102 S.Ct. at 2172. The government argues that the decision in Ross must control here, requiring reversal, while the appellees contend that the decision should not be given retroactive effect.

This court already has applied Ross retroactively, although without discussion of the issue. United States v. Cleary, 683 F.2d 313 (9th Cir.1982). See also United States v. Rivera, 684 F.2d 308 (5th Cir.1982). The opinion in Ross indicates that the Supreme Court intended the rule to apply retroactively. See 102 S.Ct. at 2172 ("[I]t is clear that no legitimate reliance interest can be frustrated by our decision today"). No other result makes sense. The purpose of refusing to apply retroactively a new decision enforcing the exclusionary rule is to avoid penalizing police conduct when the police reasonably relied on existing judicial precedent. United States v. Peltier, 422 U.S. 531, 537-39, 95 S.Ct. 2313, 2317-18, 45 L.Ed.2d 374 (1975); see, e.g., United States v. Stewart, 595 F.2d 500, 504 (9th Cir.1979). When a court determines that a particular police practice does not violate the Constitution, there is no reason not to apply that decision retroactively. "Because the Supreme Court has declared searches such as those involved here to be constitutional, no police misconduct has in fact occurred. Hence, there is no misbehavior to be deterred, and the interest in maintaining judicial integrity is not implicated, especially in light of the previously unsettled state of the law in this area." United States v. Burns, 684 F.2d 1066, 1074 (2d Cir.1982) (applying Ross retroactively).

B. The Applicability of Ross

The appellees argue that even if Ross is given retroactive effect, it does not apply here. They argue that the customs agents must have known that the packages contained all the contraband, so that their suspicion should have focused exclusively on the packages and not on the trucks. As a consequence, the automobile search was unauthorized and a warrant was required to search the containers under the rule of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Ross did not purport to overrule...