U.S. v. Stevie, s. 77-1335

• Decision Date: 15 August 1978
• Docket Number: 77-1424,Nos. 77-1335,s. 77-1335
• Citation: 582 F.2d 1175
• Parties: UNITED STATES of America, Appellee, v. Robert Charles STEVIE, Appellant. UNITED STATES of America, Appellee, v. Raymond Lee REYNOLDS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1175

582 F.2d 1175

UNITED STATES of America, Appellee, v. Robert Charles STEVIE, Appellant.

UNITED STATES of America, Appellee, v. Raymond Lee REYNOLDS, Appellant.

Nos. 77-1335, 77-1424.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1978.

Decided Aug. 15, 1978.

Mark W. Peterson, Friedberg & Mauzy, argued and filed brief, Minneapolis, Minn., for appellants, Stevie and Reynolds.

Joseph T. Walbran, Asst. U. S. Atty. (argued), Minneapolis, Minn., Andrew W. Danielson, U. S. Atty., Minneapolis, Minn., on brief 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 before the Court pursuant to a petition for a rehearing en banc. In an opinion issued on November 17, 1977, a panel of this Court held that the initial stop of the appellants' rented station wagon was justified, that probable cause existed to search one of the suitcases located in the rear of the station wagon and that the warrantless search of the suitcase at the scene of the arrest was valid under United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). United States v. Stevie, 578 F.2d 204 (8th Cir. 1977). We leave the panel opinion untouched except insofar as it upholds the warrantless search of the appellants' suitcase.

I.

The background needed for the consideration of this case is furnished by the panel opinion's detailed recitation of the facts, which we quote below.

On February 9, 1976, in response to a tip from an informant who had provided reliable information in the past, Officer John Boulger and Agent Markus Kryger of the Drug Enforcement Administration Task Force were at the Minneapolis-St. Paul International Airport to conduct a surveillance of incoming passengers. Their intention was to observe one James Erickson, who, according to their information, had traveled to Phoenix, Arizona, to purchase a large quantity of marijuana and was to arrive by air from either Phoenix or Las Vegas, Nevada. As a result of prior occurrences, the agents knew of James Erickson and that he had connections with Theodore Luciow. They further were aware that Theodore Luciow's twin brother, Anthony, had been arrested in possession of approximately 300 pounds of marijuana contained in an Avis rental car rented in Arizona by Raymond Reynolds. At that time reliable informants told them that Anthony Luciow had gone to Arizona to purchase this marijuana from Reynolds.

Among passengers embarking from a Las Vegas incoming flight shortly before midnight, two young, white males caught the agents' attention because they were acting "(i)n a suspicious manner" and were "apprehensive of things around them." The two men, appellants Stevie and Reynolds, did not communicate with each other but maintained a distance of approximately fifty feet between themselves. In addition, it was noted that Stevie was walking faster than the other passengers.

When they reached the lower level of the airport, Stevie proceeded to the baggage claim area and Reynolds approached the Avis car rental counter, neither speaking to the other. Stevie removed two large suitcases from the baggage carousel. Agent Kryger observed that these appeared to be heavy. At that point, without pretense of secrecy, Agent Kryger walked up next to Stevie and observed the name "M. Roberts" and a Phoenix address on the bags' nametags. After looking warily at Agent Kryger, Stevie engaged a uniformed skycap to handle the luggage and returned for three more large, new suitcases. He gave directions to the skycap and then walked over to the Avis counter and spoke to Reynolds for the first time since the agents had commenced observing them. Their gestures indicated that the conversation pertained to the two agents, who continued to observe them until Officer Boulger went out to his car in the airport parking lot. Stevie then left the building and joined the luggage handler who had taken the bags directly to the Avis parking lot and loaded them into a rented Oldsmobile station wagon.

After Reynolds left the Avis counter area, Agent Kryger spoke to the person at the counter and learned from her that the automobile had been rented to an R. Reynolds of Phoenix, Arizona, who signed his name "Raymond L. Reynolds."

When Reynolds and Stevie left the airport parking lot they were followed by Agent Kryger and Officer Boulger in separate vehicles. The two agents were in radio contact with each other and with the DEA office. They exchanged information as to Reynolds' name and his connection with the Luciow brothers. In addition they learned from their office that the middle initial of the Ray Reynolds involved in the case of Anthony Luciow was "L." As they followed the rented automobile on a four-lane express highway, they observed that the passenger in the car was continually facing the rear and the driver was frequently looking into his rearview mirror. Although Agent Kryger testified their initial intention was to follow the appellants to their destination, the agents determined this would be impracticable and so stopped them on the highway.

Agent Kryger approached the driver's side and asked the driver for his identification. The driver produced a driver's license which revealed that he was Raymond L. Reynolds of Phoenix, Arizona. Officer Boulger established that the passenger's identity was Robert Stevie. Thus, neither of the identities matched the name "M. Roberts" on the suitcase nametags. As Agent Kryger was standing at the window of the car examining the driver's license he smelled the distinctive order of marijuana.

At this point the agents instructed Reynolds and Stevie to get out of the car and placed them under arrest. The agents opened one of the suitcases that had been placed on the floor of the rear area of the rental station wagon. Inside they found wrapped bricks of a vegetable substance later determined to be marijuana.

Id. at 206-207 (footnotes omitted).

II.

The panel opinion upheld the search of the suitcase under the automobile exception to the Fourth Amendment warrant clause. Id. at 1171-1172. In reaching its decision, it considered the application of the Supreme Court's decision in Chadwick which held that, absent exigent circumstances, a warrant must be obtained prior to a search of an arrestee's luggage once it comes under the exclusive control of the arresting officer. See United States v. Chadwick, supra, 433 U.S. at 15-16, 97 S.Ct. 2476; United States v. Schleis, 582 F.2d 1170 (8th Cir. 1978). The panel opinion distinguished Chadwick on the ground that, in Chadwick, the footlocker was Outside an automobile at the time it was seized and, in this case, the suitcase was Inside an automobile at the time of the search and seizure. It concluded that the right to conduct a warrantless automobile search was not circumscribed by Chadwick since the Court in Chadwick clearly recognized and reaffirmed the unique treatment given to automobiles in a Fourth Amendment context. Id. at 1171.

While we agree with the panel opinion's analysis that Chadwick does not circumscribe the automobile exception, we cannot agree that the automobile exception, and not Chadwick, applies to the facts of this case. We hold that an individual's expectation of privacy in the contents of luggage which was established by the Court in Chadwick ¹ is entitled to the protection of the Fourth Amendment whether the luggage is located Inside or Outside an automobile. ²

III.

The fact that the search of the suitcase occurred in an automobile at the time of the appellants' arrest does not automatically validate the search.

A.

The government first seeks to justify the search of the suitcase under the automobile exception to the Fourth Amendment warrant clause. The Supreme Court "has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts," because of both the inherent mobility, and the diminished expectation of privacy, in a motor vehicle. United States v. Chadwick, supra at 12, 97 S.Ct. at 2484. It is clear in this case that the law enforcement officers could legitimately immobilize the station wagon and seize the suitcases located in the rear pursuant to the automobile exception. It does not necessarily follow, however, that the contents of the suitcases located in the station wagon are subject to search under the automobile exception, anymore than they would be if the officers had seized them any other place. United States v. Chadwick, supra at 17 n.1, 97 S.Ct. 2476 (Brennan, J., concurring). As the Supreme Court has noted, "(t)he word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971).

In Chadwick, the Supreme Court rejected the government's contention that luggage should be analogous to automobiles for Fourth Amendment purposes. United States v. Chadwick, supra 433 U.S. at 12-13, 97 S.Ct. 2476; United States v. Schleis, supra, at 1170. In reaching its decision, the Court contrasted the privacy interests in luggage with those in an automobile.

The factors which diminish the privacy aspects of an automobile do not apply to respondents' footlocker. Luggage contents are not open to public view * * * nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person's expectations of privacy in personal luggage are substantially greater than in an automobile.

Id. at 13, 97 S.Ct. at 2484.

The Court concluded that an individual has a legitimate expectation that the contents ³ of luggage will remain free from public examination and, thus,...