United States v. Johnson

• Decision Date: 13 August 1970
• Docket Number: No. 27025.,27025.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Leland JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

431 F.2d 441 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. James Leland JOHNSON, Defendant-Appellant.

No. 27025.

United States Court of Appeals, Fifth Circuit.

August 13, 1970.

Jack W. Torbert, Gadsden, Ala., for appellant.

Wayman G. Sherrer, U. S. Atty., R. Macey Taylor, M. L. Alexander, Asst. U. S. Attys., Birmingham, Ala., for appellee.

Before JOHN R. BROWN, Chief Judge WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK and INGRAHAM, Circuit Judges.

PER CURIAM:

The Court en banc is of the opinion that the panel¹ correctly decided that inspections of motor vehicles performed by police officers, who were entitled to be on the property where the vehicles were located, which in no way damaged the vehicles and were limited to determining the correct identification numbers thereof were not searches within the meaning of the Fourth Amendment; and that alternatively, if either of such inspections constituted a Fourth Amendment search, then no search warrant was necessary because such inspections were reasonable and did not violate the right of the people to be secure in their persons, houses, papers or effects. To the extent that Glisson v. United States, 406 F.2d 423 (5th Cir. 1969) would find such a search or inspection constitutionally infirm, that decision is expressly overruled by this opinion.

THORNBERRY, Circuit Judge, joined by Chief Judge JOHN R. BROWN, and WISDOM, Circuit Judge, concurring specially:

We believe the inspection of serial numbers involved in this case were searches subject to the Fourth Amendment, but we concur in the result reached by the majority because we believe the searches were reasonable.

GODBOLD, Circuit Judge (dissenting):

I dissent from the conclusion that the "inspections" of the two vehicles were not searches within the meaning of the Fourth Amendment. In my view this conclusion is erroneous, and, in addition, was unnecessary to the decision because of the holding that if the "inspections" were searches they were reasonable. I pretermit discussion of reasonableness other than to say that I would remand for further development of the facts.

The original panel, and now the majority of the court en banc, seek to create a new doctrine under which the police are given access to the automobile of the citizen for the purpose of "inspecting" it in order to identify it. The means employed to create a right to "frisk" an automobile is that which the Supreme Court rejected in considering "stop and frisk" of the person, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which is to carve out and isolate particular conduct from the reach of the Fourth Amendment by the semantic device of describing it as less than a "search" or "seizure."¹

A search is no less a search because called an "inspection" or "checking." The mandate of the Constitution is not to be avoided by euphemisms.

Terry pointed the way by which in the encounter between police officer and citizen there can be achieved an appropriate balance giving due recognition to the governmental interest at stake and the citizen's interest in freedom from intrusion and in the security of his property. In Terry this was achieved by a narrowly drawn authority in the police officer to permit him to make a reasonable search sufficient to protect the governmental interest — in that case, a search for weapons to the extent necessary to protect the officer — regardless of whether the officer has probable cause to arrest for a crime. All was done within the standards of the Fourth Amendment. Thus police action of the character authorized remained subject to constitutional scrutiny. There was retained "the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation." 392 U.S. at 17, 88 S.Ct. at 1878, 20 L.Ed.2d at 903. Rather than follow Terry the majority have adopted the course which it rejected as inappropriate, the creation, by verbal characterization, of an enclave of police activity exempt from the Constitution.

1.

The per curiam decision of the court en banc tells us only that the decision of the panel was correct. As I understand the decision of the panel of three judges on the "inspection" issue, in the light of the facts, it is this: a police "inspection" of a motor vehicle to determine the doorpost identification number and the secret number (either or both) is not a search within the meaning of the Fourth Amendment, if — (1) the police officer is entitled to be on the premises where the vehicle is located; (2) the "inspection" does not damage the vehicle; (3) the inspecting officer has information sufficient in nature and reliability to give him a "legitimate reason * * * to check the serial number."²

Each inspection was made at the place where the vehicle was located. The pickup truck was in the yard of Johnson's home. The nature of the police custody of the Chevrolet Impala is not revealed by the panel or majority opinion. The briefs tell us that Johnson was arrested almost two weeks after the "inspection" of the pickup, that he brought the Impala to the jail and parked it in the county's impounded automobile lot, and that the FBI was notified of the arrest and an agent came to the jail and examined the car for the confidential number on the frame. Thus, as I understand it, the decision does not purport to allow an officer to seize a vehicle and remove it elsewhere in order to make his "inspection." Nor is there involved in this case the constitutional propriety of a "stop" of a vehicle for purposes of "inspecting" it. This kind of investigative detention or seizure of a vehicle by means of either physical force or police authority (the practical effect of which often will be a restraint of liberty, at least temporary, of those in the vehicle), raises independent constitutional issues that are not presented by the "inspection" of Johnson's two vehicles, in each instance carried out where the police found it, parked and with no one in it. See Terry, supra, 392 U.S. at 20, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d at 905.

On neither vehicle was there forced entry into a locked passenger compartment or motor compartment, by use of a key or otherwise. Thus I presume that the "damage" limitation allows entry only where entry is otherwise available — by opening an unlocked door or lifting an unlocked hood — and does not allow any forcing of entry by physical force, picking locks, use of skeleton keys or similar means even though the means neither dents the metal nor breaks the glass. Obviously the forced entry, whether by sledgehammer, skeleton key, or bent coat hanger, constitutes a much greater invasion of the citizen's privacy than the entry which consists only of opening an unlocked door or hood. If my understanding is wrong the majority have driven even a bigger hole in the Fourth Amendment than I think.

I assume that "legitimate reason * * * to check the serial number" means "legitimate reason to suspect that the car is stolen," which was the alleged "legitimate reason" in this instance, and not the whole world of police suspicion of people, places and events.

The majority decision does not rest upon the familiar power to search a vehicle incident to arrest of the occupants. It does not rest upon the warrantless search of a mobile instrumentality for contraband.³ It does not stand on the power to search for weapons and fruits of a crime where there is probable cause to do so. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 June 22, 1970. Since the decision is not limited to the Impala, it goes beyond the power of the police to identify an impounded vehicle to safeguard both owner and police.⁴

2.

I return to the Fourth Amendment itself: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

All that is necessary to constitute a search is an "actual intrusion" into what is constitutionally protected. The scope of what is protected is no longer analyzed in terms of common law property concepts or in physical or geographical terms, but in terms of the citizen's right to "the privacies of life" — his "right to be let alone." Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968).

* * * The landmark decision of Boyd v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, first articulated the doctrine that the essence of the fourth amendment was protection against arbitrary intrusions into the privacies of life. The Supreme Court recently reaffirmed this principle in Warden, Maryland Penitentiary v. Hayden, 1967, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, and went on to note that the Court has to an increasing extent discarded fictional property concepts in resolving the issues of privacy and public security.

Id.) at 147-148. In Boyd the Supreme Court phrased it thusly:

The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions, on the part of the Government and its employees, of the sanctity of a man\'s home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense; it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden\'s judgment. Initial emphasis added.)

116 U.S. at 630, 6 S.Ct. at 532, 29 L.Ed. at 751.

In his dissent in Olmstead v. United States, 277 U.S. 438 at 478, 48 S.Ct. 564, at 572, 72 L.Ed. 944 at 956 (1928), Justice Brandeis expressed it this way:

They

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