572 F.2d 227
UNITED STATES of America, Appellee,
Kenneth Paul JOHNSON, Appellant.
United States Court of Appeals,
March 15, 1978.
Tom O'Toole, Phoenix, Ariz., for appellant.
John G. Hawkins, Asst. U. S. Atty., Tucson, Ariz., for appellee.
Appeal from the United States District Court for the District of Arizona.
Before WRIGHT and HUG, Circuit Judges, and INGRAM, District Judge.
EUGENE A. WRIGHT, Circuit Judge:
A jury found appellant guilty of conspiring to import heroin and conspiring to possess it with intent to distribute. He argues on appeal that the trial judge erred in admitting in evidence a quantity of heroin and an altered automobile gasoline tank, both of which were seized in warrantless searches. We affirm.
On December 15, 1975, agents of the Drug Enforcement Administration (DEA) arrested appellant and a co-conspirator, Bowen, as they sat in a 1975 Cadillac in a parking lot in Arizona. Bowen had been driving the Cadillac and Johnson had been driving a 1969 Chevrolet, parked nearby.
After the two were arrested, DEA agents searched both cars and found approximately five kilograms of heroin in a tennis bag and suitcase in the Cadillac's trunk. Appellant's driver's license was in a pair of trousers in the suitcase. An initial inventory search of the Chevrolet produced no drugs.
The vehicles were seized for forfeiture, 21 U.S.C. § 881 and 49 U.S.C. §§ 781 and 782, and removed to a government facility for safekeeping.
Bowen and Johnson were convicted of possession of heroin with intent to distribute and this court upheld the legality of their arrests and the initial searches and seizures. United States v. Bowen and Johnson, Nos. 76-2369 & 76-2484, unpub. memorandum (9th Cir. Feb. 8, 1977), cert. denied, 431 U.S. 957, 97 S.Ct. 2680, 53 L.Ed.2d 274 (1977).
In the two weeks following the vehicle seizures, DEA agents received numerous inquiries about the Chevrolet from Johnson and his attorney. At a hearing on December 29, 1975, DEA Agent Murphy was asked repeatedly whether drugs had been found in the Chevrolet. Being curious that so much interest was displayed in that vehicle, Murphy ordered the DEA's evidence technician, Walquist, to make a second, more exhaustive search of it.
On December 29 and 30, Walquist performed a search, without a warrant, to see if contraband had been hidden in the vehicle. The search was exceptionally thorough and resulted in the discovery of an altered gasoline tank containing a package with five more kilograms of heroin.
After photographing the car, the tank, and the heroin, the agents replaced the drugs with dummy packages filled with a non-narcotic substance. They replaced the fuel tank and, with a magistrate's approval, affixed an electronic tracking device to the underside of the vehicle.
Rather than proceeding with a forfeiture action, the government released the car to Johnson on January 13, 1976, and agents followed him and the radio beacon as he drove from Arizona to Los Angeles. They lost contact in heavy traffic, but eventually located the Chevrolet in a locked, "tenants only" garage beneath an apartment house. The agents could see the front of the parked car from the street through the garage gate.
A lock on the gate to which only building tenants had keys, limited access to the garage from outside the building. There also was access to the garage from the building lobby through an unlocked door, but the entry door from the street to the lobby was equipped with locks. Television surveillance equipment monitored the lobby.
Without a warrant, one agent found the door to the lobby unlocked and walked through to the garage. Other agents waited until a tenant activated the garage gate and then followed his car inside. The agents found the altered fuel tank against a wall behind the car. The dummy drug packets were gone.
At trial, the government introduced ten kilograms of heroin, the photographs of the car and its contents, and the altered fuel tank. Johnson's motions to suppress the evidence obtained in the course of the warrantless searches of December 29 and 30, and January 13 were denied.
THE DECEMBER 29 SEARCH:
In Cooper the Court considered a search of a car impounded under state forfeiture statutes analogous to the federal statutes in this case. Cooper held admissible the evidence seized from an automobile glove compartment during a warrantless search one week after the defendant's arrest and the car's seizure.
The rationale of Cooper is unclear. The search was not incident to arrest, nor was it undertaken in light of exigencies giving rise to the traditional "automobile exception" to the Fourth Amendment's general search warrant requirement. It is debatable whether the Cooper search was validated because it was a noninvestigatory inventory or because agents of the government, with lawful possession of the vehicle pending forfeiture, had the right to search it at will. Compare Chambers v. Maroney, 399 U.S. 42, 49 n.7, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), with South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). See also Cady v. Dombrowski, 413 U.S. 433, 452-53, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (Brennan, J., dissenting).
The language in Cooper leaves room for disagreement. Cognizant of the fact that "lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it," 386 U.S. at 61, 87 S.Ct. at 791, the Court explained that
(h)ere the officers seized the petitioner's car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car whether the State had "legal title" to it or not was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner's car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for "(t)he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950).
386 U.S. at 61-62, 87 S.Ct. at 791.
Appellant contends that Cooper approved a noninvestigatory inventory search aimed at protecting police during the period in which a seized vehicle must be held, and that it is untenable in light of subsequent Supreme Court opinions to argue that Cooper created a general exception to the search warrant requirement for vehicles seized for forfeiture. His position is supported by language in Cooper stating that it would be unreasonable to deny police the right to search the vehicle "even for their own protection," and it is reinforced by the Supreme Court's own subsequent characterization of Cooper as an inventory search case.
In Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), the Court approved a warrantless search of a car removed from a highway accident scene and parked at a private garage. The Court reasoned that, because the driver's pistol may have remained within the vehicle and because the driver was himself unable to secure the car, the police search was justified. "(T)he safety of the general public . . . might be endangered if an intruder removed a revolver from the trunk of the vehicle." 413 U.S. at 447, 93 S.Ct. at 2531. In relying on Cooper, the Cady majority described it as a case involving an inventory search conducted "to guarantee the safety of the (vehicle's) custodians." 413 U.S. at 447, 93 S.Ct. at 2531.
Similarly, in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Supreme Court approved an inventory search of a locked car, impounded for overtime parking, in which valuable items of personalty were visible. In the course of the inventory, officers discovered drugs in the glove compartment. The Court upheld their admission because it considered police inventory searches reasonable when conducted pursuant to standard procedures in furtherance of "community caretaking functions." 428 U.S. at 368, 96 S.Ct. 3092.
The Opperman opinion supported its holding with three reasons: protection of the owner's property while in police custody, protection of police from disputes over lost or stolen property, and protection of police from potential danger. 428 U.S. at 369, 96 S.Ct. 3092. Describing Cooper as "the first" inventory search case, it understood that search to have been based on notions of police safety.
The court in Opperman thought automobiles distinguishable from places given more substantial Fourth Amendment protection because of the considerable noncriminal contact police have with automobiles, because automobiles are subject to extensive regulation, and because one's expectation of privacy as to his automobile is generally not high. 428 U.S. at 367-68, 96 S.Ct. 3092. However, the Court did note that, while local police often inventory cars as part of their everyday caretaking functions, "(t)he contact with vehicles by federal law enforcement officers, usually, if not always, involves the detection or investigation of crimes unrelated to the operation of a vehicle." 428 U.S. at 369 n.4, 96 S.Ct. at 3097.
Hence, the Supreme Court's post-Cooper decisions do support appellant's characterization of Cooper's holding as limited to inventory searches. Both the Cady and Opperman Courts emphasized that, on the facts before them, there was "no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive." South Dakota v. Opperman, 428 U.S. at 376, 96 S.Ct. at 3100, citing Cady v. Dombrowski, supra.
Cases in this circuit also characterize Cooper as an inventory search case. See, e. g., United States v. Jamerson, 549 F.2d 1263 (9th Cir. 1977). Jamerson involved an inventory search of a stolen car prior to its release to the owner. While acknowledging that Cooper referred to the authorities' lawful possession of the car, the panel termed that search an inventory and emphasized the police safety rationale supporting it. 549 F.2d at 1270.
The Jamerson panel expressly reserved the question "whether a warrantless search of the vehicle for evidence of the suspected crime after the car had been impounded would have been valid." 549 F.2d at 1265 n.1 (citing Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, supra; and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)). Because Jamerson was an inventory search case and because of the cases cited by the panel we are led to conclude that the court did not concern itself with the searches of cars seized for forfeiture, but was instead commenting only on inventory and exigent circumstances justifications for warrantless automobile searches.
Nevertheless, panels in this circuit have adopted an expansive view of the Cooper holding when considering searches of cars seized for forfeiture. They have held that, once a vehicle is validly seized for forfeiture, a subsequent search of it is lawful. See, e. g., United States v. Karp, 508 F.2d 1122, 1124 (9th Cir. 1974), cert. denied, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975) (dictum); United States v. McCormick, 502 F.2d 281, 284 (9th Cir. 1974) ("We do not doubt that if the seizure of the car . . . was valid, the later search . . . was also valid."); United States v. Arias, 453 F.2d 641, 643 (9th Cir. 1972).
This interpretation of Cooper rests on the premise that government agents, having obtained possession by a lawful seizure under forfeiture statutes, may search a vehicle at will. The interpretation springs from extraneous language in Cooper which seems to have approved the search because it was "closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained." 386 U.S. at 61, 87 S.Ct. at 791.
This interpretation is well illustrated by United States v. Arias, supra. In Arias government agents lawfully seized a station wagon which they believed was used to facilitate the consummation of a crime involving contraband. After an initial search yielded nothing, the authorities subjected the vehicle to a "more thorough probe, pursuant to (forfeiture statutes) conducted at a federal facility." 453 F.2d at 642-43.
As in this case, the second search in Arias was intrusive, warrantless, and investigatory. Drugs were discovered in the car's rear quarter panel. With little discussion, the court approved the search after establishing that the vehicle had been properly seized for forfeiture under 49 U.S.C. §§ 781 and 782.
In United States v. McCormick, supra, this court limited earlier Ninth Circuit cases which upheld warrantless vehicle seizures pursuant to forfeiture statutes. It did not, however, tamper with the rule that a lawful seizure validates a post-seizure investigatory search.
This circuit is not alone in its interpretation of the law governing searches of lawfully seized vehicles. See, e. g., United States v. Panebianco, 543 F.2d 447, 456 (2d Cir. 1976); United States v. Zaicek, 519 F.2d 412, 414 (2d Cir. 1975); United States v. La Vecchia, 513 F.2d 1210, 1215-16 (2d Cir. 1975); United States v. Capra, 501 F.2d 267, 280 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975); United States v. Shye, 473 F.2d 1061, 1065-66 (6th Cir. 1973); United States v. Edge, 444 F.2d 1372, 1375 (7th Cir. 1971); United States v. Stout, 434 F.2d 1264, 1267 (10th Cir. 1970); United States v. Ortega, 471 F.2d 1350, 1360 (2d Cir. 1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973).
Although we apply it, we recognize the rule's shortcomings. In effect, it allows a vehicle search to proceed once a valid seizure, with or without a warrant, has been accomplished.
The standard of probable cause to support a seizure for forfeiture is less precise and rigorous than that required to obtain a search warrant in ordinary circumstances.
If agents have probable cause to believe that a car is or has been used for carrying contraband, they may summarily seize it pursuant to the federal forfeiture statutes . . . .
United States v. Capra, 501 F.2d at 280. See also United States v. Arias, 453 F.2d at 643.
Indeed, a vehicle may be seized even in the absence of probable cause to believe it contains contraband if there is nonetheless probable cause to believe that it was used "to facilitate the transfer of contraband." United States v. La Vecchia, 513 F.2d at 1216.
In this case the circumstances of the seizure, coupled with appellant's post-seizure inquiries, would provide probable cause for the subsequent search, but there were no exigent circumstances justifying the search without a warrant. The car was in the custody of government agents with little danger of its being moved or tampered with during the time required to obtain a warrant. However, the propriety of the seizure of the Chevrolet has been established. Under our rule that a seizure for forfeiture makes subsequent searches reasonable, the search can be upheld.
It is of no consequence that the government released the car to Johnson rather than proceeding with forfeiture for, when the vehicle was searched, it was in the custody of federal agents under the authority of forfeiture statutes. Lockett v. United States, 390 F.2d 168, 172 (9th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 175, 21 L.Ed.2d 149 (1968), limited on other grounds, United States v. McCormick, 502 F.2d at 284. See also United States v. La Vecchia, 513 F.2d at 1216.
The Supreme Court's reasoning in Cady v. Dombrowski, supra, and South Dakota v. Opperman, supra, lends some support to the argument that the rule goes too far. But, because the law on this point is unclear, we choose to follow Ninth Circuit precedent and that of several other circuits. The search of the Chevrolet on December 29 and 30, 1975 was proper.
THE JANUARY 13 GARAGE SEARCH:
Because the search of the seized Chevrolet was lawful, we need not consider the propriety of the apartment garage search. While that may have been improper, see United States v. Hufford, 539 F.2d 32, 34 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976) (dictum), the evidence obtained clearly was cumulative.
If there was error on that point, it was harmless beyond a reasonable doubt in light of the other, overwhelming evidence of guilt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Lopez (slip op. 210) (9th Cir. January 23, 1978).
The judgment of the district court is affirmed.