United States v. Lawrence William Cleary, Jr.

656 F.2d 1302 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence William CLEARY, Jr., Defendant-Appellant. No. 80-1557. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 5, 1981. Decided May 18, 1981. As Corrected Sept. 8, 1981. Rehearing Denied Sept. 8, 1981. Marc B. Geller, San Diego, Cal., for defendant-appellant. George D. Hardy, Asst. U. S. Atty., argued, M. James Lorenz, U. S. Atty., George D. Hardy, Asst. U. S. Atty., on brief, San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before WRIGHT and NELSON, Circuit Judges, and EAST * , District Judge. NELSON, Circuit Judge: 1 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 2 While on routine patrol at the San Diego Airport, Harbor Police Officer Reginald Schumacher approached a van with a broken side mirror and tapped on the driver's side window. When Cleary, the appellant,…

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 *1303 ken 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…

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…