United States v. Cleary 656 F.2d 1302

NELSON, Circuit Judge:

Lawrence Cleary appeals from his conviction for possession and concealment of counterfeit bills with intent to defraud, a violation of 18 U.S.C. § 472. Because we find that the bills on which the conviction was based were found pursuant to an unconstitutional search, we reverse.

I. Fact Summary

While on routine patrol at the San Diego Airport, Harbor Police Officer Reginald Schumacher approached a van with a bro*1303ken side mirror and tapped on the driver’s side window. When Cleary, the appellant, opened the window slightly, Schumacher smelled marijuana. Cleary’s hands appeared to be covering an object from which a trace of smoke was rising. The officer reached in and seized the object — a marijuana pipe — and asked Cleary and his passenger, Stephanie Feiler, for their driver’s licenses. As Cleary handed his license to Schumacher, he reached for the door and appeared to Schumacher to be attempting to get out. Schumacher pushed the door closed and called for assistance.

When the other officers arrived, Cleary and Feiler were allowed to exit the van. Cleary was handcuffed. Without giving Cleary his Miranda warnings, Schumacher asked Cleary if he had any more marijuana, to which Cleary responded that there was more inside. Schumacher then looked into the van and removed a canvas-type bag with a zipper (which was broken). When he seized the bag, which was partially wrapped in clothing, he noticed what appeared to be the butt of a gun partially visible. When Schumacher took the bag to a secure location, he removed from it a .44 magnum revolver. He then put the weapon back in the bag and arrested both Cleary and Feiler.

Subsequently, Cleary, Feiler and the bag were transported to the Harbor Police facility at the airport. There, Schumacher emptied the bag without securing a warrant and seized some marijuana debris and counterfeit currency. Secret Service agents later returned to the van and searched its entire contents without a warrant, discovering more counterfeit currency.

The trial court denied Cleary’s motion to suppress the counterfeit currency, and he was convicted in a stipulated facts trial.

II. Reasonable Expectation of Privacy

Because it is clear that the fruits of the warrantless search of the canvas bag must be suppressed if there was a reasonable expectation of privacy in its contents, United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538, 549 (1977), the only issue we need to face in this case is whether such an expectation attaches to a canvas bag with a broken zipper.1 We hold that it does.

Our starting points for analytical guidance are the Supreme Court’s two major decisions on the expectation of privacy in containers of personal effects: Chadwick, supra, and the more recent Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

In Chadwick, federal narcotics agents arrested three men and seized a double-locked two hundred pound footlocker as it was being placed in the trunk of a car after a narcotics dog signaled the presence of a controlled substance inside the footlocker. An hour and a half later, agents opened the footlocker without a warrant and discovered a large amount of marijuana. In affirming the suppression of the fruits of this warrantless search, the Supreme Court noted that the protections of the fourth amendment, including the warrant requirement, were not restricted to the context of the home. Here important 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 protections of the Fourth Amendment Warrant Clause.

433 U.S. at 11, 97 S.Ct. at 2483, 53 L.Ed.2d 548.

This language left Chadwick subject to differing interpretations. What were the *1304critical attributes imbuing this footlocker with its reasonable expectation of privacy? How important were the individualized steps cited by the Court as manifesting such an expectation, such as double-locking the trunk? Clearly, one could read Chadwick as requiring such subjective manifestations,. and were this the intended meaning of the Chadwick Court, it would argue against finding such an expectation in the canvas bag found in this case.

That such a reading of Chadwick is incorrect, however, was made clear by the Court in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). In Sanders, police stopped a taxi containing in its trunk a suitcase that had been described by an informant as containing marijuana. They opened the unlocked suitcase without consent or a warrant and discovered the marijuana in it. The holding in Sanders was that warrantless searches of personal luggage were unconstitutional even when the luggage was seized from an automobile. In including an unlocked suitcase within the protected ambit of personal luggage, it is clear that the Court did not rely on the types of precautions that indicate a subjective expectation of privacy (i. e., double-locking) found in Chadwick. Rather, the critical factor relied on was the objective nature of the suitcase as personal luggage, 1. e., the inherent nature of the container itself rather than the behavior of its owner. In order to understand how to make this now critical determination as to what constitutes personal luggage, we turn to the Sanders discussion.

In Sanders, as in Chadwick, the Court noted that “luggage is a common repository for one’s personal effects, and therefore is inevitably associated with the expectation of privacy.” 442 U.S. at 762, 99 S.Ct. at 2592, 61 L.Ed.2d at 244 (emphasis added).2 Further, in discussing the differences between the footlocker in Chadwick and the suitcase in Sanders, the Court said:

We do not view the differences in the sizes of the footlocker and suitcase as material here; nor did respondent’s failure to lock his suitcase alter its fundamental nature as a repository for personal, private effects.

Id. at 762-63 n.9, 99 S.Ct. at 2592 n.9, 61 L.Ed.2d 244.

Given these comments, and mindful of the desirability of drawing clear lines in fourth amendment adjudication, see id. at 768, 99 S.Ct. at 2595, 61 L.Ed.2d 248 (Black-mun, J., dissenting),3 we feel confident in holding, at a minimum,4 that the term “personal luggage” encompasses those items commonly perceived as being designed for carrying and storing personal effects or pa*1305pers and which have some sort of device to keep them closed.5

The canvas bag in the instant case would clearly meet this test and therefore qualify as personal luggage when new.6 Therefore we next need to consider whether the changed condition of this bag, which made it impossible to close, somehow “alters its fundamental character as a repository for personal, private effects.” We think it does not. Even a bag with a broken zipper retains its fundamental character as a private repository — it still gives notice to the outside world of its essentially private character.7 Further, the dramatic consequences of an alternative approach must be considered. Holding that there is no reasonable expectation of privacy in such a bag would remove it not just from the warrant requirement in a situation in which the police already have probable cause, but completely out of the realm of any fourth amendment protections. See, e. g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 401 (1978) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), for the proposition that capacity to claim the protection of the fourth amendment depends upon whether the individual claiming it has a legitimate expectation of privacy in the invaded place). To hold that a mechanical breakdown creates fundamental changes with such sweeping consequences would seem a bit extreme. Finally, the clarity of our approach is an obvious asset. The alternative would seem to plunge the police (and courts) into a morass of slippery and largely irrelevant considerations.8

Because we conclude that Cleary had a legitimate expectation of privacy in the canvas bag, the fruits of its warrantless search must be suppressed under Chadwick and Sanders.9

REVERSED.

*1306EUGENE A. WRIGHT, Circuit Judge,

dissenting:

With due respect for the views of my colleagues, I dissent.

The key issue remains whether Cleary had a reasonable expectation of privacy in the contents of an open canvas bag. I conclude he did not.

Fourth Amendment protection against warrantless searches applies only if Cleary had a subjective expectation of privacy that society is prepared to recognize as reasonable and legitimate. Rakas v. Illinois, 439 U.S. 128, 143-44 n.12, 99 S.Ct. 421, 430-31 n.12, 58 L.Ed.2d 387 (1978). In considering reasonableness, a court must examine

whether a person invoking the protection of the Fourth Amendment took normal precautions to maintain his privacy — that is, precautions customarily taken by those seeking privacy.

Id. at 152, 99 S.Ct. at 435 (Powell, J., concurring).

A container that does not demonstrate this expectation may be searched with probable cause when it is lawfully obtained by the police. United States v. Mannino, 635 F.2d 110, 113 (2d Cir. 1980). Otherwise, a warrantless search is permissible only if a recognized exception to the warrant requirement applies. Id.

Cleary’s container was an open canvas bag with a broken zipper. It was approximately 12 inches high, 8 to 10 inches wide, and 18 inches long.1 The butt of a handgun was protruding from the top.

In United States v, Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the Supreme Court held that Chadwick’s use of a double-locked footlocker “manifested an expectation that the contents would remain free from public examination.” Id. at 11, 97 S.Ct. at 2483. Absent exigency, search of it was unreasonable without a warrant.

In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the court found a manifestation of an expectation of privacy in an unlocked suitcase because it was traditionally a repository of personal items. The court recognized, however, that

some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to ‘plain view,’ thereby obviating the need for a warrant.

Id. at 764-65 n.13, 99 S.Ct. at 2593-94 n.13.

In Robbins v. California, - U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), the conscious manifestation of an expectation of privacy proposition received majority support. However, there was disagreement *1307about how such a “manifestation” is to be gauged. The plurality declared a “bright-line” rule that the use of a closed, opaque container indicates in every case a manifestation of an expectation of privacy. However, it recognized the two exceptions already described in Sanders. As a legal matter, an expectation of privacy would not be deemed manifested where (1) the closed opaque container is suggestive of its contents, and (2) the container is open. Generally, the court said, the two exceptions describe occasions when the contents of the container have been left in “plain view.” Id. at -, 101 S.Ct. at 2846.2

Justice Powell concurred in the result but disagreed with the “bright-line” rule. He suggested that the manifestation of an expectation of privacy should be judged on a case-by-case basis, taking into consideration the container’s size, shape, material and condition, the context of its discovery, and whether its possessor has taken some significant precaution, such as locking, sealing, or binding to indicate a desire to prevent its contents from being displayed upon simple mischance. - n.3, 101 S.Ct. at 2850 n.3 (Powell, J., concurring).

Applying Justice Powell’s test to this case I do not find that Cleary manifested an expectation of privacy. His bag was not closed, sealed, secured, or secreted so as to signal any “significant precaution ... to prevent the contents from being displayed upon simple mischance.” Id.3

Moreover, Cleary’s bag comes within both Sanders exceptions. I see no difference between a canvas bag with a protruding gun and a gun case. Both suggest the presence of one or more guns. If the war-rantless search of the gun case for guns is proper, so is the warrantless search of the canvas bag.

Because the bag was open, it also comes within the second Sanders exception. To read Robbins as saying that the second Sanders exception requires any more than that the container be open would be contrary to the overwhelming weight of precedent since Sanders. With one exception, I have found no federal or state cases decided after Sanders that hold a reasonable expectation of privacy attaches to an open container.

The vast majority of cases finding a reasonable expectation of privacy involve containers that are closed,4 zipped shut,5 taped shut,6 or otherwise sealed or secured.7

*1308By contrast, an open flight bag,8 open paper bags,9 closed but unsealed paper or plastic bags,10 and other containers not normally used to transport personal items,11 *1309are not found to be attended by a reasonable expectation of privacy.

Finally, whatever expectation of privacy Cleary may have had in his canvas bag, if incident to arrest, the search may have been reasonable. United States v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), announces a “bright-line” rule justified by the general confusion among courts and law enforcement officers regarding the scope of search incident to arrest in automobile cases.

The “workable definition” of that scope now is that the passenger compartment and any containers within, whether open or closed, may be searched without a warrant. The rule applies even where the defendant is not in the compartment or where the searched containers are not immediately accessible or beyond reach — i. e., the traditional Chimel rationale of officer protection does not necessarily underlie the new rule. Nor does the Court specify how long after arrest such a search remains valid.

In Cleary’s case, the bag was found between the two passenger seats of his van. Though the gun was withdrawn within the proximity of the van and just before Cleary’s formal arrest, the rest of the bag’s contents were not withdrawn until later. If we reached that issue, I would remand the case for a determination whether the subsequent search was incident to arrest in light of Belton. It is unnecessary to reach that issue, however, because Cleary had no expectation of privacy.

I would affirm Cleary’s conviction.