U.S. v. Salazar, 85-5181

• Decision Date: 11 December 1986
• Docket Number: No. 85-5181,85-5181
• Citation: 805 F.2d 1394
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Edgar SALAZAR, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1394

805 F.2d 1394

UNITED STATES of America, Plaintiff/Appellee, v. Edgar SALAZAR, Defendant/Appellant.

No. 85-5181.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1986.

Decided Dec. 11, 1986.

Manuel A. Medrano, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff/appellee.

Joseph T. Vodney, Los Angeles, Cal., for defendant/appellant.

Appeal from the United States District Court for the Central District of California.

Before BOOCHEVER, NORRIS, and HALL, Circuit Judges.

BOOCHEVER, Circuit Judge:

Edgar Salazar appeals his conviction on a conditional guilty plea for possession with intent to distribute a controlled substance in violation of 21 U.S.C. Sec. 841(a)(1) (1982). The appeal involves one of the more technical distinctions that has evolved in enforcing the fourth amendment's guaranty against unreasonable searches and seizures. Salazar contends that the district court erred in denying his motion to suppress the evidence found in a paper bag after a warrantless search. We hold that the district court erred when it found the search reasonable under the automobile exception to the requirement of a search warrant. Although the search may be justified as incident to an arrest, we reverse and remand in accordance with the views expressed in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

FACTS

Los Angeles area police mounted an operation against a cocaine distribution ring headed by Guarin and Penagos. Undercover officers purchased ten kilograms of cocaine from them, maintained surveillance Salazar was indicted on two narcotics counts and pleaded not guilty. He filed a declaration asserting ownership of the bag and its contents and moved to suppress the evidence. After a hearing, the court, relying on the "automobile exception," denied the motion. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Salazar entered a conditional guilty plea pursuant to Fed.R.Crim.P. 11. He appealed the denial of his motion to suppress.

of their apartment, and followed them when they delivered suspicious looking packages to others. Police stopped several of these other individuals who had received deliveries from Guarin and Penagos and found cocaine in the packages. Other officers, aware of these discoveries, followed Guarin and Penagos to a restaurant. Officers observed Guarin and Penagos transfer a brown shopping bag to Salazar, who placed it in a Datsun and locked the car. Salazar reentered the restaurant, and after Guarin and Penagos left, Salazar and three other people entered the Datsun and drove off. Salazar was in the right rear seat. Officers stopped the Datsun and ordered the four occupants out of the vehicle. Acting without a search warrant, the officers opened the shopping bag, which was found on the floorboard where Salazar had been seated, and discovered two kilograms of cocaine. Salazar and the three other occupants were then arrested.

DISCUSSION

I. Standing

The court reviews de novo the question of standing where no facts are in dispute. United States v. Kuespert, 773 F.2d 1066, 1067 (9th Cir.1985). The Supreme Court has held that the question of "standing" cannot be considered distinct from the merits of a defendant's fourth amendment claim. Rakas v. Illinois, 439 U.S. 128, 138-39, 99 S.Ct. 421, 427-28, 58 L.Ed.2d 387 (1978). To assert and receive the protection of the fourth amendment, Salazar must demonstrate a justifiable expectation of privacy. See New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 741, 83 L.Ed.2d 720 (1985). That justifiable expectation consists of two aspects: Salazar must show a subjective expectation of privacy in the area searched and the expectation must be one that society is "prepared to recognize as legitimate." Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984).

In Rakas, the Supreme Court held Rakas had no standing as "merely" a car passenger to contest the search of "areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy." Rakas, 439 U.S. at 148-49, 99 S.Ct. at 432-33. In contrast, Salazar contests the search of a closed container, placed out of sight on the floorboard where he was sitting, and "abandoned" only when he was ordered out of the car by police. While the court in United States v. Portillo, 633 F.2d 1313 (9th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981), notes that when there is no reasonable expectation of privacy, an assertion of ownership does not change the outcome, id. at 1316 n. 1, here Salazar's assertion of an interest in the property seized adds to his argument for standing. Rakas emphasized, as a reason for denying standing, that the petitioner asserted no interest in the property seized. 439 U.S. at 148, 99 S.Ct. at 433. In Arkansas v. Sanders, 442 U.S. 753, 761 n. 8, 99 S.Ct. 2586, 2592 n. 8, 61 L.Ed.2d 235 (1979), the Court noted that the defendant conceded that the suitcase was his property, "and so there is no question of his standing to challenge the search." Our situation is similar and we find Salazar has standing.

II. Warrantless Search

A. Automobile Exception

The district court's finding of probable cause is reviewable de novo, United States v. Howard, 758 F.2d 1318, 1319 (9th Cir.1985), as are its legal interpretations of the warrant exception. United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Thus, we must determine whether the search came within an exception to the general But Ross applies only if the police had probable cause to search the entire vehicle, rather than the paper bag. The police officer believed that the paper bag given by Guarin and Penagos to Salazar and transferred by him to the Datsun contained cocaine. The officer did not focus upon the Datsun, but only on the container because it was furnished by the leaders of the distribution ring. While there is no specific finding by the district court, the transcript of the suppression hearing indicates that the basis for the district court's finding of probable cause related only to the contents of the paper bag, rather than to the general contents of the car. The court commented: "[I]f they heard from reliable informants that there is cocaine in the package ... [t]hey can open it up." ¹

                requirement for a warrant.  The government argues that it had probable cause to search the entire vehicle and therefore, under the automobile exception, see Ross, 456 U.S. at 825, 102 S.Ct. at 2173, no search warrant was needed to search any container in the vehicle.    Ross stated that if "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."    Id
                

Because in this case the probable cause focused on the paper bag itself, not on the entire vehicle, the warrant requirement applies to the paper bag. Sanders holds that there is "no greater need for warrantless searches of [containers] taken from automobiles than of [containers] taken from other places," and that containers located in automobiles are not "necessarily attended by any lesser expectation of privacy than is associated with [containers] taken from other locations." 442 U.S. at 764, 99 S.Ct. at 2593. The Supreme Court has distinguished between searches of containers found in a car based upon probable cause that a specific container placed in a car contains contraband, and searches based upon a generalized belief that a car contains contraband somewhere inside. In the latter case, the entire vehicle including closed containers found therein may be searched to the same extent as if a magistrate had issued a warrant based on the probable cause relied on by the officers. Ross, 456 U.S. at 823, 102 S.Ct. at 2172. Where, prior to a search, officers have probable cause to believe that a specific closed container holds contraband, however, they must obtain a search warrant before opening it, even though it is located in an automobile. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); see Ross, 456 U.S. at 813, 102 S.Ct. at 2166 (quoting Chief Justice Burger's concurrence in Sanders, 442 U.S. at 766-67, 99 S.Ct. at 2594). See also Castleberry v. State, 678 P.2d 720 (Okla.Crim.App.1984), aff'd by equally divided Court sub nom. Oklahoma v. Castleberry, 471 Here, as in Sanders, the police officers could have taken the container seized with probable cause, along with the suspect, to the police station and obtained a warrant for the search. See Sanders, 442 U.S. at 766, 99 S.Ct. at 2594. A closed paper bag shares the same degree of fourth amendment protection as the footlocker in Chadwick and the unlocked suitcase in Sanders. The Supreme Court in Ross declared that:

U.S. 146, 105 S.Ct. 1859, 85 L.Ed.2d 112 (1985).

a constitutional distinction between "worthy" and "unworthy" containers would be improper. Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case.

456 U.S. at 822, 102 S.Ct. at 2171 (footnote omitted).

Our decision in United States v. Wiecking, 757 F.2d 969, 971 (9th Cir.1983), may be viewed as holding that even though there was probable cause to believe that a specific plastic bag containing...