United States v. Jeffrey Joseph Benson

HEANEY, Circuit Judge.

Jeffrey Benson appeals from his conviction of possession with intent to distribute and conspiracy to distribute cocaine. We reverse the conviction because the warrant-less search of Benson’s luggage in the absence of exigent circumstances was unreasonable and in violation of the Fourth Amendment.

I

Benson was arrested on August 27, 1979, while sitting in a car parked at the Little Rock Municipal Airport. Sandy Sandefer, who was sitting in the driver’s seat of the vehicle, had previously given police information that a “Jeff” would arrive at the airport carrying a quantity of cocaine, and police had undertaken an investigation. Sandefer had told the police that Benson would be carrying a brown leather or vinyl tote-type bag and that the bag had been used on previous occasions to transport cocaine from “Jeff” to Sandefer. Benson was indeed carrying a brown leather tote bag when Sandefer met him at the airport. Sandefer took Benson to Sandefer’s car, a four-door compact station wagon. Benson placed his bag on the passenger side of the back seat of the vehicle and sat down in the front seat on the same side. Sandefer sat down in the driver’s seat. He then communicated to the waiting police, by a prearranged signal, his belief that Benson possessed the cocaine.¹

At that point, four police officers came to the car. They had neither applied for nor received arrest or search warrants. State police narcotics investigator Sanders opened the door alongside Benson and told him that he was under arrest and should get out of the car. Benson made no movement; Sanders repeated the order; Benson still made no movement. As Sanders leaned into the car to remove Benson, Benson turned slightly sideways and moved his arm to the top of the front seat. Sanders physically took Benson out of the vehicle and placed him in a search position with his hands on top of the vehicle. Simultaneously, police detective Hutchinson opened the back door of the vehicle on the passenger side and seized the tote bag. While Sanders was beginning to search Benson, Benson turned around; Sanders immediately put Benson back in the search position and completed searching Benson’s person. Detective Hutchinson, meanwhile, had opened Benson’s tote bag. In it, he found shaving articles, small cologne bottles, some papers and a small blue drawstring bag bearing the words “Rich Lights.” Hutchinson felt the small, blue bag and determined that it contained a soft, powdery substance. He looked in the end of the bag, which was not tightly drawn, and saw a plastic bag containing a white powder that, on subsequent analysis, proved to be cocaine.

Our concern is whether the warrantless search of Benson’s tote bag was constitutionally permissible.

II

The Fourth Amendment requires that “normally searches of private property be performed pursuant to a search warrant issued in compliance with the warrant clause.” Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235, 241 (1979). This requirement is not a technicality; it “reflects the ‘basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.’ ” Id. (quoting United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972)). By requiring that determinations of probable cause and the scope of a search “be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948), we “minimize the risk of unreasonable assertions of executive authority.” Arkansas v. Sanders, supra, 442 U.S. at 759, 99 S.Ct. at 2950, 61 L.Ed.2d at 241.

Some exceptions to the warrant requirement exist; however, they are “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), and “the burden is on those seeking the exemption to show the need for it.” United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951). Further, the Court has “limited the reach of each exception to that which is necessary to accommodate the identified needs of society.” Arkansas v. Sanders, supra, 442 U.S. at 760, 99 S.Ct. at 2591, 61 L.Ed.2d at 242; see Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290 (1978); United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977). One exception that has been sustained is the so-called “automobile exception,” which authorizes police to stop an automobile on the street or highway if they have probable cause to believe it contains contraband or evidence of a crime. See United States v. Martinez-Fuerte, 428 U.S. 543, 561-562, 96 S.Ct. 3074, 3084-3085, 49 L.Ed.2d 1116 (1976); Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This exception has, in certain instances, been extended to searches of “some integral part of the automobile.” Arkansas v. Sanders, supra, 442 U.S. at 763, 99 S.Ct. at 2592, 61 L.Ed.2d at 244. See, e. g., South Dakota v. Opperman, 428 U.S. 364, 366, 96 S.Ct. 3092, 3095, 49 L.Ed.2d 1000 (1976) (glove compartment). It does not, however, extend to the search of luggage seized from automobiles in the absence of some other exigency. Arkansas v. Sanders, supra; United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978), cert. denied, 443 U.S. 911, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979). Luggage because of its nature as a “common repository for one’s personal effects, * * * is inevitably associated with the expectation of privacy.” Arkansas v. Sanders, supra, 442 U.S. at 762, 99 S.Ct. at 2592, 61 L.Ed.2d at 244; see id., n.9; United States v. Chadwick, supra, 433 U.S. at 13, 97 S.Ct. at 2484.

United States v. Chadwick, supra, and Arkansas v. Sanders, supra, held the war-rantless searches of a footlocker and a suitcase, respectively, to be constitutionally impermissible. Relying on. one or both of those cases, the courts have held illegal the warrantless searches of a variety of “types of containers normally associated with personal luggage,” United States v. Boss, No. 79-1624 (D.C.Cir., Apr. 17,1980), including a suitcase,² a briefcase,³ a duffle bag,⁴ a backpack,⁵ a leather pouch,⁶ and a portfolio.⁷

We feel that Benson had a justifiable expectation of privacy in the contents of his brown leather tote bag. Although the bag was fairly small and unlocked, its “fundamental character as a repository for personal, private effects”⁸ is unchanged. In the absence of exigent circumstances, the search of the bag without a warrant violated the Fourth Amendment.

Ill

The government contends, nevertheless, that the search of Benson’s luggage was proper because it was incident to his arrest, see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and because the bag may have contained contraband that the defendant could destroy or weapons that he could use against the police. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

In United States v. Stevie, supra, we held that the warrantless search of a suitcase in the rear of the station wagon in which defendants were riding was not justified as incident to their arrest, because the suitcase had come under the officers’ control and no exigent circumstances required a search at the scene of the arrest. 582 F.2d at 1180. In United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978), we invalidated the warrant-less search of Schleis’ briefcase at the station house after his arrest “because the search * * * came after the briefcase had come under the exclusive control of the police * * *.” Id. at 1172. We stated:

Chadwick establishes * * * that the justification for a search under Chimel evaporates once the officers seize the luggage or other personal property and reduce it to their exclusive control. United States v. Jackson, [576 F.2d 749 (8th Cir. 1978)]. As the Court held in Chadwick,

warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the “search is remote in time or place from the arrest,” * * * or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.

United States v. Chadwick, supra, 433 U.S. at 15, 97 S.Ct. at 2485.

Chadwick establishes that the critical factor is the extent to which the property is within the control of the law enforcement officers, rather than the amount of time or space between the arrest and the search. United States v. Ester, 442 F.Supp. 736, 739 (S.D.N.Y.1978). Once the officers obtain exclusive control, the requirement for a warrant under Chadwick is triggered. Ordinarily, the initial seizure at the time of arrest would be sufficient to place the property within the officers’ exclusive control. To otherwise interpret Chadwick “would enable police and federal agents to circumvent the Chadwick holding by encouraging them to conduct a search of luggage at the time and location of the seizure in conjunction with a lawful arrest.” Note, Criminal Procedure-Search and Seizure-Persons Lawfully Arrested for Alleged Possession of Narcotics have a Privacy Interest in a Footlocker in Their Possession at the Time of Their Arrest which is Protected by the Warrant Clause of the Fourth Amendment. United States v. Chadwick, 6 Am.J.Crim.Law 81, 94 (1978)

United States v. Schleis, supra, 582 F.2d at 1171-1172 (emphasis added).

In Arkansas v. Sanders, supra, the Court reiterated this proposition. It determined that no exigency of mobility was present where the defendant was in custody and the luggage was in the officers’ control, saying, “the exigency * * * must be assessed at the point immediately before the search-after the police have seized the object to be searched and have it securely within their control.” 442 U.S. at 763, 99 S.Ct. at 2593, 61 L.Ed.2d at 244-245.

At the outset, we must distinguish the seizure of the tote bag, which is constitutionally unobjectionable, from the search of the bag itself. The Court in Sanders also noted that distinction, saying, “Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase they suspected contained the contraband. * * * The only question, therefore, is whether the police, rather than immediately searching the suitcase without a warrant, should have taken it, along with respondent, to the police station and there obtained a warrant for the search.” Id., 442 U.S. at 761-62, 99 S.Ct. at 2592, 61 L.Ed.2d at 243-244.

We have carefully examined the record, including the testimony of the officers who seized Benson and searched his luggage, and conclude that the officers should have obtained a warrant before searching the tote bag. The bag was not “immediately associated with the person of the arrestee,” United States v. Chadwick, supra, 433 U.S. at 15, 97 S.Ct. at 2485, either at the time the luggage was seized or at the time it was searched. At the time the tote bag was seized, Benson was seated in the front seat of the vehicle and the bag was in the back seat.⁹ At the time the tote bag was searched, Officer Sanders had removed Benson from the car and had placed him in a search position outside the car. Officer Hutchinson had seized the bag from the back seat of the vehicle. The bag was clearly under Officer Hutchinson’s exclusive control at the time he opened and searched it, and there was no longer any danger that Benson might gain access to the bag to destroy evidence or grab a weapon. Benson had no accomplices who might have opened the bag to remove weapons or contraband,¹⁰ and there is no allegation that the bag held “instrumentalities which could be dangerous even when sitting idly in the police locker.” United States v. Bloomfield, 594 F.2d 1200, 1203 (8th Cir. 1979). Once the police officers seized the bag and exercised exclusive control over it, they should have delayed searching it until judicial approval had been obtained.

Accordingly, Benson’s convictions are reversed.

1 . We assume that the informant was reliable and that Benson was properly arrested upon probable cause.

2 . E. g., United States v. Montano, 613 F.2d 147 (6th Cir. 1980) (per curiam); United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978).

3 . United States v. Presler, 610 F.2d 1206 (4th Cir. 1979); United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978); cf. United States v. Haley, 581 F.2d 723 (8th Cir.), cert. denied, 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 681 (1978) (exigent circumstances; defendant was unconscious and police sought identification or medical alert cards).

4 . United States v. Johnson, 588 F.2d 147 (5th Cir. 1979).

5 . United States v. Meier, 602 F.2d 253 (10th Cir. 1979).

6 . United States v. Ross, No. 79-1624 (D.C.Cir., Apr. 17,1980).

7 . United States v. Miller, 608 F.2d 1089 (5th Cir. 1979).

8 . In the present case, respondent’s comparatively small unlocked suitcase also had been placed in the trunk of an automobile and was searched without a warrant by police acting upon probable cause. We do not view the difference in the sizes of the footlocker and suitcase as material here; nor did respondent’s failure to lock his suitcase alter its fundamental character as a repository for personal, private effects.

Arkansas v. Sanders, 442 U.S. 753, 762 n.9, 99 S.Ct. at 2592, 61 L.Ed.2d 235, 244 n.9 (1979).

9 . In United States v. Garcia, 605 F.2d 349 (7th Cir. 1979), the Seventh Circuit upheld, as incident to arrest, a warrantless search of defendant’s suitcases. At the time she was stopped by the police, she was carrying the suitcases. At the time of the search, she was standing one foot from them. As noted in United States v. Presier, 610 F.2d 1206, 1213 n.8 (4th Cir. 1979), it is doubtful whether Garcia can be reconciled with Sanders.

10 . In United States v. Matlock, 558 F.2d 1328, 1330-1331 (8th Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 218, 54 L.Ed.2d 152 (1977), we approved the warrantless search of an open briefcase that was in the immediate control of the arrestee’s wife and daughter. Two guns had already been found and the arrest and search took place in a van at night.