United States v. Osborne MacKey

Mackey was convicted of aiding and abetting the commission of an armed bank robbery pursuant to 18 U.S.C. § 2113 . He asserts that the district court erred in refusing to suppress evidence obtained in the search of the automobile which Mackey drove away from the scene of the robbery. Specifically, he contends that (1) the warrantless search of the automobile at the scene of his apprehension was not justified by the “automobile exception” to the warrant requirement; and (2) even if the automobile search was justified, the warrantless search of the contents of a paper bag found within the car constituted an invasion of Mackey’s Fourth Amendment rights pursuant to the rule announced in Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 *685 L.Ed.2d 235 (1979). We reject his claims and affirm the conviction.

On April 26, 1979, Mackey’s codefendant, Tyson, entered a Los Angeles Security Pacific Bank and robbed a teller at gunpoint. He then fled on foot to a car in which Mackey was waiting. As Mackey drove away, he turned the wrong way onto a one-way street and was forced to turn around, thereby enabling a witness to write down the license number of the vehicle. Police broadcasts…

dissenting:

I dissent. In Part II of the majority opinion, Judge Wallace upholds the warrantless search of the paper bag on the ground that Mackey did not have a “reasonable expectation of privacy” in such a bag. The majority’s analysis in reaching that result inverts what is the correct analytic approach to this issue. Implicit in the majority’s analysis is the presumption that the burden is on Mackey to show a reasonable expectation of privacy entitling him to the Fourth Amendment’s protection of a search warrant, as though he had to show that the police needed a search warrant rather than the government’s having to show a warrant was not required. For further elucidation of the reasons for my dissent, see Judge Bazelon’s excellent dissenting opinion in United States v. Ross, No. 79-1624 (D.C. Cir. April 17, 1980).

Normally searches of private property must be performed pursuant to a search warrant. Arkansas v. Sanders, 442 U.S. 753, 758 , 99 S.Ct. 2586, 2590 , 61 L.Ed.2d 235 (1979). Searches conducted without a warrant “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States,…

626 F.2d 684 UNITED STATES of America, Plaintiff-Appellee, v. Osborne MACKEY, Defendant-Appellant. No. 79-1586. United States Court of Appeals, Ninth Circuit. Aug. 18, 1980. Robert L. Corbin, Los Angeles, Cal., for defendant-appellant. Frederick A. Jacobsen, Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WALLACE and TANG, Circuit Judges, and HANSON, * District Judge. WALLACE, Circuit Judge: 1 Mackey was convicted of aiding and abetting the commission of an armed bank robbery pursuant to 18 U.S.C. § 2113 . He asserts that the district court erred in refusing to suppress evidence obtained in the search of the automobile which Mackey drove away from the scene of the robbery. Specifically, he contends that (1) the warrantless search of the automobile at the scene of his apprehension was not justified by the "automobile exception" to the warrant requirement; and (2) even if the automobile search was justified, the warrantless search of the contents of a paper bag found within the car constituted an invasion of Mackey's Fourth Amendment rights pursuant to the rule announced in Arkansas v.…