U.S. v. Montgomery

Decision Date29 August 1977
Docket NumberNo. 76-3219,76-3219
Citation558 F.2d 311
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Paul L. MONTGOMERY, a/k/a Kenneth Selvestor Watson, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Appeal from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING

(Opinion June 24, 1977, 5 Cir., 1977, 554 F.2d 754).

Before TUTTLE, GOLDBERG, and CLARK, Circuit Judges.

PER CURIAM:

On petition for rehearing, Montgomery attacks the search that uncovered heroin in his luggage. Established Fifth Circuit precedent supports the legality of this search. In United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc), the search of luggage removed from a taxicab hired by the defendants was upheld on the basis of the general automobile search exception to the warrant requirement. See e. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Soriano court stated:

(T)hough it is true that the Court (in Chambers v. Maroney, supra ) spoke of an automobile while we treat of containers in or just removed from one, the principle is not different. The officers who arrested Soriano and his companions indisputably had probable cause to believe that the vehicle contained contraband, a circumstance justifying the initial incursion (that revealed luggage in) the trunk. Under established law in this circuit and elsewhere, this justification encompassed the search of containers in the vehicle which could reasonably be employed in the illicit carriage of the contraband.

497 F.2d at 149. The search of Montgomery's luggage that had been removed from the baggage compartment of the airplane is valid under Soriano. See also, United States v. Anderson, 500 F.2d 1311 (5th Cir. 1974). Cf., United States v. Lonabaugh, 494 F.2d 1257 (5th Cir. 1973); United States v. Garay, 477 F.2d 1306 (5th Cir. 1973). That the present case involved luggage removed from a private airplane rather than an automobile is not a relevant distinction. United States v. Brennan, 538 F.2d 711, 721 (5th Cir. 1976).

Though Montgomery's contest of the search must be rejected on the basis of established law, the recent Supreme Court decision of United States v. Chadwick, --- U.S. ----, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), might arguably render these precedents open to attack. In Chadwick, the Court struck down the search of a footlocker that prior to its seizure and search had been placed in the trunk of an automobile. Several distinctions are obvious. The search in Chadwick was delayed until the footlocker had been taken to the police station; the opinion specifically refers to the Government's failure to contend that the general automobile search reasoning should apply, apparently since the footlocker had been placed in the trunk of the car only just before its seizure. Certain language of the opinion could nonetheless conceivably affect this circuit's prior decisions in this area. However, we expressly pretermit a resolution...

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  • U.S. v. Ochs
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 13 March 1979
    ...denied, --- U.S. ---- 99 S.Ct. 350, 58 L.Ed.2d 344 (1978); United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977). But see United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978) (En banc ). 1 Since the Supreme Court has not as yet pass......
  • State v. Patino
    • United States
    • New Jersey Supreme Court
    • 19 May 1980
    ...States v. Reda, 563 F.2d 510, 511-512 (2 Cir. 1977), cert. den. 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978); United States v. Montgomery, 558 F.2d 311, 312 (5 Cir. 1977). Contra, United States v. Schleis, 582 F.2d 1166, 1173-1174 (8 Cir. 1978) (en banc ). But see United States v. Dien......
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    • U.S. Court of Appeals — Sixth Circuit
    • 31 August 1979
    ...563 F.2d 510 (2d Cir. 1977) (per curiam), Cert. denied, 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977) (per curiam); United States v. Berry, 571 F.2d 2 (7th Cir.), Cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978); ......
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    ...563 F.2d 510 (2d Cir. 1977) (per curiam), Cert. denied, 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977) (per curiam). The reason for de-emphasizing the new rule requirement in the exclusionary rule context seems plain enough. In a......
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