U.S. v. Russell, 80-1139

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 670 F.2d 323,216 U.S.App.D.C. 165
• Docket Number: No. 80-1139,80-1139
• Parties: UNITED STATES of America v. Charles M. RUSSELL, Appellant.
• Decision Date: 22 January 1982

Page 323

670 F.2d 323 216 U.S.App.D.C. 165 UNITED STATES of America
v.
Charles M. RUSSELL, Appellant. No. 80-1139. United States Court of Appeals,
District of Columbia Circuit. Jan. 22, 1982.

Page 324

On Petition for Rehearing (Cr. No. 79-00479).

Before ROBINSON, Chief Judge, and WILKEY and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Separate statement concurring in the judgment filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.

GINSBURG, Circuit Judge:

INTRODUCTION

In this case, involving two paper bags seized from a car and opened without a warrant, we confront fluid, variously interpreted strands of Fourth Amendment law. The bags were uncovered in the course of a search the police conducted after they had probable cause to believe that drugs were in the car. As described by one of the police officers, the car was a "1979 Mustang, ... a hatchback type, in that the trunk area is accessible to the passengers from the rear seat, or if the driver wants to lean over." Suppression Hearing Tr. at 12. In the course of the search, Russell, driver of the car, and the other three occupants were ordered out of the vehicle. Russell was held in custody at the scene and subjected to a personal search by a back-up officer. One of the two paper bags in contention was found under the front seat; it contained a handgun. The other, a large grocery-type bag covered by clothing, was seized from the hatchback; it contained, inter alia, packets of heroin.

In our initial decision, issued May 15, 1981, ¹ in response to the government's plea for a "paper bag" or "unworthy container" exception to the warrant requirement, we cited our recent, en banc disposition in United States v. Ross, 655 F.2d 1159 (D.C.Cir.1981), cert. granted, --- U.S. ----, 102 S.Ct. 386, 70 L.Ed.2d 205 (1981) (No. 80-2209). Ross noted the Supreme Court's admonitions that the reasonableness of a search does not obviate the need for a warrant and that the exceptions to the warrant requirement are few in number and well-contained; ² the Ross decision held that the Fourth Amendment warrant requirement forbids the warrantless opening of a closed, opaque paper bag to the same extent that it forbids the warrantless opening of other closed, opaque containers, for example, a carryall of leather, nylon, or cotton, a silk purse, a plastic sack. We reasoned in Ross that paper bags or envelopes, whether marked Tiffany's or Five and Dime, could not be set apart from more sturdy or costly containers in a manner that makes either

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theoretical or practical sense. 655 F.2d at 1170. ³

Relying on Ross to rule out creation of an "unworthy container" exception in Russell, we proceeded to determine whether an established exception to the warrant requirement justified opening either bag. 655 F.2d at 1264. The bag with the handgun, we believed, fell securely within the well-established "plain view" exception. The officer who came upon that container indicated in his testimony that he felt the outline of the gun as he grasped the paper bag. "Plain view," we think it safe to say, encompasses "plain touch," and probably "plain smell" as well. The idea is, the incriminating contents (contraband or evidence of crime) are "immediately apparent." See 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.5 (1978); id. § 7.2(e), at --- & nn.102.29-.36 (Supp.1982); Y. Kamisar, The "Automobile Search" Cases: The Court Does Little to Clarify the "Labyrinth of Judicial Uncertainty," at 54-56 (to be published in J. Choper, Y. Kamisar & L. Tribe, The Supreme Court: Trends and Developments 1980-81 (1982)).

The bag in the hatchback, however, was another matter. Apparently, it was not transparent, torn, or partially opened. No evidence indicated that incriminating contents could be inferred from the bag's outward appearance-its configuration, feel, or smell. See Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13, 99 S.Ct. 2586, 2593 n.13, 61 L.Ed.2d 235 (1979); Robbins v. California, --- U.S. ----, ----, 101 S.Ct. 2841, 2846, 69 L.Ed.2d 744 (1981); Y. Kamisar, supra, at 55 ("main thrust of (Sanders ) footnote 13 is a distinction between containers that 'proclaim their contents' (... by their 'smell' or 'feel' or 'distinctive configuration') and those that do not") (emphasis in original). The "unworthy container" plea apart, the government suggested no exception to the warrant requirement that would justify the on-the-spot warrantless opening. Accordingly, we reversed the district court on this point, and held that the evidence found in the grocery bag seized from the hatchback should have been suppressed.

On July 1, 1981, some six weeks after our initial decision in this case, the Supreme Court decided New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768, and Robbins v. California, --- U.S. ----, 101 S.Ct. 2841, 69 L.Ed.2d 744. ⁴ Taken together, these decisions distinguish (1) items, whether exposed or contained, found in a car passenger compartment from (2) containers, whether solid or insecure, placed in a car trunk. The former, it is now clear from the Court's Belton decision, fall within the "search-incident-to-arrest" exception to the warrant requirement. The latter, it appears from Robbins, are currently governed by the "automobile exception" or Carroll Doctrine, ⁵ as narrowed in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and Robbins. ⁶ See Virgin Islands v. Rasool, 657 F.2d 582, 590 (3d Cir. 1981). Given the not fully anticipated elaborations provided by the Supreme Court, and in view of the government's pending petition for rehearing, we invited the parties to brief the question whether Belton requires modification of this court's May 15, 1981, judgment.

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In Belton, the Court supplied "a straightforward rule, easily applied" ⁷ in response to the question: "When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?" 101 S.Ct. at 2861. Roger Belton challenged police action occurring immediately after he was ordered out of a car stopped for speeding, and placed under arrest for unlawful possession of marihuana. The police officer searched the passenger compartment and found on the back seat a black leather jacket belonging to Belton. The officer unzipped one of the jacket pockets and discovered cocaine inside.

Noting the unsettled state of lower court decisions, 101 S.Ct. at 2863, the Court established a "workable rule" which it derived from prior cases "suggest(ing) the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not...