concurring in part and dissenting in part:

I concur fully with the majority’s affirmance of the convictions of Michael and Theresa. I also agree that Lynette’s conviction for armed robbery must be reversed on grounds of faulty jury instructions. I disagree, however, with the majority’s conclusion that the evidence of the contents of Lynette’s purse discovered during the search at the police station was admissible at her trial.

*1053 The district court admitted the evidence seized from Lynette’s purse on the basis of its finding that Lynette had abandoned her privacy interest in her purse by stating to the arresting officer that she had “just found” it. The relevant question presented by Lynette’s appeal, therefore, was whether the district court had erred in finding that this conduct constituted abandonment. I agree with the majority that there was no abandonment of the purse, and that the evidence seized from it cannot be admitted on this basis.

The majority goes on, however, to find the evidence admissible on a totally different ground. As I understand the majority’s theory, it is that the police not only seized Lynette’s purse at the time of her arrest, but conducted such an extensive search of it that her expectations of privacy as to its contents were destroyed. Because she no longer had any privacy interest in the purse, the theory continues, the Fourth Amendment presented no bar to further warrantless searches of it, and the evidence discovered in it at the police station was therefore admissible at her trial.

I dissent on this point for two reasons. First, the majority’s decision is based on a theory that was not argued or litigated by the parties before the trial court and not raised by either Lynette or the government on appeal. Responding only to the district court’s finding of abandonment, the parties here did not address the question whether Lynette could have lost her expectation of privacy in any other way. Attempts to elicit supplemental briefs in accord with Ninth Circuit General Order 4.2 1 produced only confused responses, as the parties failed to grasp the question they were unexpectedly asked to address. The majority’s opinion, therefore, decides sua spoil te a question that has not been litigated: whether Lynette’s purse was searched at the time of her arrest, and, if so, whether the search was extensive enough to destroy her expectations of privacy in the purse before it was searched at the police station.

The majority seems to feel that it is deciding a novel issue of constitutional law. To make this assumption, however, misperceives the nature of the question before us. Certainly, I could not quarrel with the majority if what it intends to hold is that an extensive search of Lynette’s purse at the time of her arrest can be followed by subsequent warrantless searches designed solely to uncover items possibly overlooked or to further inventory evidence already discovered. It is no more than common sense to suppose that once the police have thoroughly searched a purse, they can search it again later without a warrant to discover any evidence they may earlier have missed. What the majority misunderstands, however, is that the issue is not a constitutional, but a factual one. The question is not whether a thorough search of Lynette’s purse would have destroyed her privacy interests, but whether a thorough search was in fact undertaken. Judge Ely seems to assume that at least a “brief” or “cursory” search was done at the time of Lynette’s arrest, see supra pp. 1048-1049. No record support for that conclusion is offered. In fact, a review of the reporter’s transcript of the suppression hearing and the trial not only makes clear that the parties did not litigate the issue whether the police searched Lynette’s purse at the time of her arrest, but provides no evidentiary basis for the majority’s conclusion that such a search was conducted.

Because the record is factually incomplete, it is inappropriate even to reach the question of the impact of the initial investigation on Lynette’s expectations of privacy. Based on the record in its present state, however, it can be said only that the officers seized Lynette’s purse. There is simply no evidence to indicate that they conducted any search of it at all until they examined it at the police station some hours later. Because there was no abandonment, and *1054 because the officers merely seized, but did not search, Lynette’s purse, the case is governed by United States v. Monclavo Cruz, 662 F.2d 1285 (9th Cir.1981), which holds that neither the arrest of a suspect nor the seizure of his belongings operates to deprive him of his Fourth Amendment privacy rights. Id. at 1290 (search invalidated when suspect’s purse was seized and kept exclusively within police custody, but was not searched until some time after her arrest) (“searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectations of privacy caused by the arrest [citations omitted]”); see also, United States v. Chadwick, 433 U.S. 1, 14 , 97 S.Ct. 2476, 2485 , 53 L.Ed.2d 538 (1977) (“Though surely a substantial infringement of respondents’ use and possession, the seizure [of their footlocker after they had been arrested] did not diminish respondents’ legitimate expectation that the footlocker’s contents would remain private”); United States v. Schleiss, 582 F.2d 1166 (8th Cir.1978) (arrestee did not relinquish expectation of privacy in briefcase despite police seizure of it).

What the record demonstrates is that the arresting officers saw money protruding from Lynette’s bag, but were more concerned about the wallet she pulled from it, and searched the contents of the purse only after they arrived at the stationhouse. The following citations are illustrative.

The officer who apprehended Lynette testified not that he searched the purse, but rather that he saw money coming out of the purse and then seized it.

R.T. at 144-45. Officer Williamson said nothing else about the purse on direct examination at the suppression hearing. Indeed, his responses to questions on cross and redirect examinations reveal his lack of knowledge about the contents of the purse. On cross, defense counsel focused on Lynette’s opportunity to have withdrawn identification from the purse, but did not ask Officer Williamson whether he knew what was in it:

R.T. at 157-58. Other testimony by Officer Williamson confirms that he did not himself *1055 conduct a more thorough examination of the purse.

R.T. at 158, 160. The record thus makes clear that Officer Strickland was the sole policeman who investigated the contents of the purse at the time of the arrest. Although Officer Strickland’s direct testimony at the suppression hearing confirmed that Officer Williamson had done no more than pass Lynette’s purse to him, it did nothing to suggest the extent of the search he himself conducted at that time.

R.T. at 167-68.

The government’s attorney asked no further questions about the evidence Officer Strickland had uncovered during that preliminary investigation. The suppression hearing was thus concluded without providing support for an assumption that anything more than a seizure of the purse had occurred. Testimony at the trial itself did not suggest otherwise. Officer Williamson again disclaimed any action save the seizure of the purse, both on direct and redirect examinations.

R.T. at 319. His only other relevant testimony revealed the following:

R.T. at 325-27.

These interchanges represent the sum total of record evidence on what occurred when the purse was seized immediately subsequent to Lynette’s arrest. This meager record and the parties’ inability to understand the issue even when explicitly asked to address it demonstrate the risks inherent in deciding this question sua sponte. In my view, the record in its present state simply does not support the majority’s treatment of the issue of the admissibility of the evidence of the contents of Lynette’s purse discovered during the search at the police station.

. Ninth Circuit General Order 4.2 provides that: If a panel determines to decide a case upon the basis of a significant point not raised by the parties in their briefs, it should give serious consideration to requesting additional briefing and oral argument before issuing a disposition predicated upon the particular point.