U.S. v. Schleis

• Decision Date: 15 August 1978
• Docket Number: No. 76-1256,76-1256
• Citation: U.S. v. Schleis, 582 F.2d 1166 (8th Cir. 1978)
• Parties: UNITED STATES of America, Appellee, v. Ronald SCHLEIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1166

582 F.2d 1166

UNITED STATES of America, Appellee, v. Ronald SCHLEIS, Appellant.

No. 76-1256.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1978.

Decided Aug. 15, 1978.

Jack S. Nordby of Thomson, Wylde & Nordby, argued and filed briefs, St. Paul, Minn., for appellant Schleis.

Joseph T. Walbran, Asst. U. S. Atty. (argued) Minneapolis, Minn., Andrew W. Danielson, U. S. Atty., Minneapolis, Minn., and William J. Zwart, Intern., on briefs for appellee U. S.

Before GIBSON, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, STEPHENSON and HENLEY, Circuit Judges, en banc.

HEANEY, Circuit Judge.

This case is presently before us for the second time. When the case was first considered, a panel of this Court held that the investigatory stop of the appellant, Ronald Schleis, was justified, and that the subsequent warrantless searches of his person and his briefcase at the station house were lawful. United States v. Schleis, 543 F.2d 59, 61-62 (8th Cir. 1976). The Supreme Court vacated the panel opinion and remanded the case "for further consideration in light of United States v. Chadwick," 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Schleis v. United States, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977).

We agreed to hear the case en banc because we felt that it was an appropriate one in which to explicate the effect of the Supreme Court's decision in Chadwick on searches and seizures of an arrestee's luggage and other personal property. We leave our earlier panel opinion untouched insofar as it holds that the investigatory stop and the search of Schleis's person were justified. However, after carefully considering the warrantless search of the briefcase in light of Chadwick, we are convinced that it cannot be justified as incident to the arrest or by any other exigency. Thus, the search was violative of Schleis's Fourth Amendment rights.

I.

The panel opinion's statement of facts, quoted below, furnishes the background needed for consideration of the effect of Chadwick on the search of Schleis's briefcase.

On November 17, 1974, Leon Cheney was leaving Jack's Restaurant in Burnsville, Minnesota, where he had eaten dinner with his family. He observed appellant walking toward the restaurant. Appellant was weaving and stumbled at the restaurant foyer. Cheney watched as appellant attempted to make a telephone call; he saw appellant make several unsuccessful attempts to dial and fumble coins as he attempted to place them in the slot. Cheney, a federal deputy marshal, reentered the foyer and approached appellant, who at that point was leaning against the telephone and clutching his briefcase, his head bobbing and weaving. At close vantage, Cheney observed that appellant's eyes were dilated and staring, but he detected no odor of alcohol on appellant's breath. Appellant's responses to Cheney's questions were inaudible; Cheney concluded that he was under the influence of something other than liquor.

Cheney's reaction to this situation was to request appellant to come outside with him. Before they left the foyer, Cheney attempted to identify himself to appellant as a deputy marshal and read appellant his Miranda rights from a card. Cheney asked his wife to call the local police department.

Cheney next placed appellant's hands on the hood of an automobile and patted him down for weapons. In the course of the pat-down, Cheney removed a large bulky wallet from appellant's hip pocket and threw it on the hood of the automobile, where it opened, revealing a small plastic bag of marijuana and a large amount of currency.

When the police officer arrived at the scene, Cheney showed him what he had discovered. The officer recalled that, approximately a year earlier, another police officer had pointed out appellant to him as a drug dealer. He placed appellant under arrest.

A crowd was gathering and the local police elected to take appellant to the station before completing the search. At the station a search of appellant's clothing revealed a plastic medicine bottle containing a white crystalline substance that appeared to Cheney to be cocaine. (This was confirmed in a subsequent test.) A police officer then forced open the briefcase and found inside over two pounds of cocaine in plastic bags.

United States v. Schleis, supra at 60-61 (footnote omitted).

The briefcase was locked by a combination lock. No warrant was sought or obtained authorizing the search of the briefcase, nor was Schleis's permission asked. An evidence locker was available at the station house but it was not used for the briefcase.

II.

The fact situation in Chadwick is similar to that of this case. United States v. Chadwick, supra. In Chadwick, the defendants were arrested outside a train station just as they were loading a double-locked, 200-pound footlocker into an automobile. ¹ After the defendants were searched, they and the unopened footlocker were taken to the federal building where the footlocker was opened and a large quantity of marijuana was discovered. ² As in this case, the defendants' consent was not obtained for the search, nor was a search warrant obtained. The government conceded that once the defendants had been arrested, the luggage remained under the exclusive control of the government agents and there was no risk that the defendants could destroy or remove any evidence contained in the footlocker. The agents had no reason to believe that the footlocker contained inherently dangerous items or evidence which would lose its value unless opened at once. There were, as in this case, facilities available in which the footlocker could have been securely stored.

In reaching its decision, the Supreme Court first rejected the government's argument that the Fourth Amendment protects only interests identified with the home. It stated that the Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations of privacy." United States v. Chadwick, supra 433 U.S. at 7, 97 S.Ct. at 2481. The Court then proceeded to determine that the search was an unreasonable one under the circumstances of the case. It held that

(i)n this case, important Fourth Amendment privacy interests were at stake. By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause. There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.

Id. at 11, 97 S.Ct. at 2483.

In so holding, the Court rejected the government's contention that luggage should be analogous to motor vehicles for Fourth Amendment purposes. It reasoned that "a person's expectations of privacy in personal luggage are substantially greater than in an automobile" and that the mobility of the luggage did not "justify dispensing with the added protections of the Warrant Clause." Id. at 13, 97 S.Ct. at 2484.

Finally, the Court rejected the government's contention "that the Constitution permits the 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." Id. at 14, 97 S.Ct. at 2485. The Court recognized that under the facts of the case, it was reasonably predictable that a search warrant would have been issued. Nonetheless, the Court concluded that "when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority." Id. at 15, 97 S.Ct. at 2486.

III.

We turn to the application of Chadwick to the facts of this case.

A.

The government first seeks to distinguish Chadwick on the ground that the briefcase is not "luggage" as defined by the context of the Supreme Court's decision. It contends that Chadwick should only be applied to fact situations involving searches and seizures of footlockers or other large items that are not easily movable. We cannot agree.

The contents of a briefcase are entitled to the same protection of the Fourth Amendment as the contents of a footlocker. United States v. Jackson, 576 F.2d 749 (8th Cir. 1978). ³ By placing his personal effects inside a combination locked briefcase, Schleis clearly, in the language of Chadwick, "manifested an expectation that the contents would remain free from public examination." United States v. Chadwick, supra, 433 U.S. at 11, 97 S.Ct. at 2483. Moreover, Schleis retained personal possession of the briefcase, thus, manifesting an even greater expectation of privacy than if he had relinquished possession to a common carrier for shipping as in Chadwick.

B.

The government next seeks to justify the search of Schleis's briefcase under the rationales of United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), which permitted a post-arrest seizure of the clothing of an arrestee, and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which permitted a search incident to arrest, of the area within an arrestee's immediate control. It further argues that to apply Chadwick to briefcases and small packages would, in effect, eliminate both the Edwards and the Chimel exceptions to the warrant requirement. We do not agree. The Fourth Amendment warrant clause has long been subject "to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). We do not read the Court's decision in Chadwick as representing a departure from such a longstanding approach. Indeed, the Court in Chadwick recognized and reaffirmed both the Edwards and the Chimel...