Justia Federal District Court Opinions

Opinion for the court filed by Circuit Judge GINSBURG, in which Chief Judge McGOWAN, and Circuit Judges WRIGHT, ROBINSON, WALD, MIKVA, and EDWARDS concur.

Separate opinion, dissenting in part, filed by Circuit Judge TAMM, in which Circuit Judge ROBB concurs.

Dissenting opinion filed by Circuit Judge MacKINNON.

Dissenting opinion filed by Circuit Judge ROBB.

Dissenting opinion filed by Circuit Judge WILKEY.

GINSBURG, Circuit Judge:

In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the Supreme Court settled the question whether police officers, in the absence of exigent circumstances, are required to obtain a warrant before opening and searching luggage, large or small, locked or unlocked, taken from an automobile properly stopped and searched for contraband. The Court held that absent a warrant, such searches violate the Fourth Amendment, even when the luggage has been lawfully seized. The case before us raises the question whether Sanders establishes only a "luggage rule" or whether the reasoning of that decision extends as well to other containers used to carry personal belongings and effects, containers smaller, less solid, or less durable than those on sale in a luggage shop.¹

The two items initially in contention in this case were a closed but untaped brown paper bag and, lying alongside it in the trunk of defendant Ross's car, a zippered red leather pouch. The Government successfully opposed a motion to suppress the evidence found in both containers, heroin in the paper bag, cash in the leather pouch. Although it earlier argued that both bag and pouch were subject to warrantless search,² the Government, despite its success in the trial court, now concedes that the pouch is covered by the rule in Sanders.³ It continues to urge, however, that a paper bag does not merit classification as a protected repository for personal effects.

We conclude that Sanders did not establish a "worthy container" rule encompassing bags of leather but not of paper. Rather, it appears to us that Sanders reaffirmed the Supreme Court's longstanding position regarding the centrality of the warrant requirement to Fourth Amendment administration: absent a "specifically established and well-delineated" exception, a warrantless search is per se impermissible. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973).

No specific, well-delineated exception called to our attention permits the police to dispense with a warrant to open and search "unworthy" containers. Moreover, we believe that a rule under which the validity of a warrantless search would turn on judgments about the durability of a container would impose an unreasonable and unmanageable burden on police and courts.⁴ For these reasons, and because the Fourth Amendment protects all persons, not just those with the resources or fastidiousness to place their effects in containers that decisionmakers would rank in the luggage line, we hold that the Fourth Amendment warrant requirement forbids the warrantless opening of a closed, opaque paper bag to the same extent that it forbids the warrantless opening of a small unlocked suitcase or a zippered leather pouch.

Part I of this opinion states the facts that give rise to this controversy; Part II deals with threshold issues the Government has raised belated challenges to the retroactivity of Sanders and to Ross's standing to seek suppression of the evidence found in the paper bag; Part III concerns the scope of Sanders and the application of its holding and reasoning to this case.

On November 27, 1978, Detective Charles Marcum of the Washington, D.C., Metropolitan Police Department received a telephone call from an informant who on prior occasions had provided reliable information about narcotics trafficking. The informant told Marcum that he had observed a man known as "Bandit" selling narcotics in front of 439 Ridge Street, N.W.; he furnished a detailed description of "Bandit" and reported that the drugs were in the trunk of Bandit's automobile, a maroon two-door Chevrolet Malibu with District of Columbia license plates.

Detective Marcum, Detective David Cassidy, and Sergeant Raymon Gonzales drove to Ridge Street where they observed a car matching the informant's description. A radio check revealed that the car was registered to an Albert Ross, Jr., whose nickname was "Bandit." The police officers passed through the area twice, then spotted Ross driving the car. After stopping the vehicle and identifying themselves, the police asked Ross to step out of his car. Ross matched the description the informant had given Marcum. As Marcum conducted a body search, Gonzales observed a round of ammunition on the car's front seat. Gonzales retrieved the round, searched the inside of the car for weapons, and found a pistol in the glove compartment. Marcum arrested Ross and handcuffed him; Detective Cassidy then unlocked and searched the car's trunk. He found in it side by side a closed but unsealed brown paper sack about the size of a lunch bag and a zippered red leather pouch. Cassidy immediately opened the paper bag and discovered inside a quantity of glassine envelopes containing a white powder. Leaving the bag and the pouch in the trunk, the officers drove Ross's car to police headquarters. At the station, Cassidy reopened the paper bag, determined that it contained thirty glassine envelopes, and sent the envelopes to the police laboratory for analysis; the laboratory later reported that the envelopes contained heroin. Cassidy also opened the leather pouch and found inside $3200 in currency. At no point in the episode did the officers seek a search warrant.

On December 19, 1978, a federal grand jury in the District of Columbia indicted Ross for possession of heroin, possession of heroin with intent to distribute, carrying a pistol without a license, and possessing a firearm after a felony conviction. Ross moved to suppress the evidence obtained from the search of the paper bag and the leather pouch. After a hearing, the district judge denied the motion. A jury trial followed and, on March 21, 1979, Ross was convicted of possession of narcotics with intent to distribute, in violation of 21 U.S.C. § 841(a).

(A)

Although the Government did not raise the point before the panel, it argues here that Arkansas v. Sanders should not apply retroactively. In United States v. Peltier, 422 U.S. 531, 535, 95 S.Ct. 2313, 2316, 45 L.Ed.2d 374 (1975), the Supreme Court reiterated that decisions expanding the scope of the exclusionary rule should have prospective effect only. A court should not apply a decision retroactively if the "law enforcement officials (who conducted the search) reasonably believed in good faith that their conduct was in accordance with the law" in effect at the time of the search. Id. at 538, 95 S.Ct. at 2317 (emphasis deleted). If, however, a decision does not expand the exclusionary rule, but merely restates and applies doctrine already in place, then law enforcement officers must be charged with knowledge of that doctrine before the explanative decision issues. The Supreme Court in Sanders indicated that no new constitutional principle was at stake. On the contrary, the Court styled its opinion as a recapitulation of the theme exposed in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Therefore we cannot seek refuge in Peltier to justify a declaration that Sanders commands only prospective adherence.

Justice Powell's opinion for the Court in Sanders signals that the decision, affirming the judgment of the Supreme Court of Arkansas, breaks no new ground. The opening paragraph announces a purpose to elaborate, not to alter, existing doctrine: "We took this case ... to resolve some apparent misunderstanding as to the application of our decision in United States v. Chadwick ...." 442 U.S. at 754, 99 S.Ct. at 2588. Summing up in Sanders, Justice Powell declared that the Court found "no justification for the extension of (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)) and its progeny to the warrantless search of one's personal luggage merely because it was located in an automobile lawfully stopped by the police." Id. at 765, 99 S.Ct. at 2594. Justice Powell, therefore, indicated that a majority of the Court believed that a decision contrary to the one reached in Sanders, rather than the one there made, would have altered prior law.⁵

Between Chadwick and Sanders, moreover, at least four courts held that Chadwick rendered unlawful the warrantless search of luggage seized from a car.⁶ These rulings contrast with pre-Chadwick decisions, which held consistently that no warrant was required to search luggage seized from a car.⁷ The shift in the trend of lower court decisions after Chadwick thus anticipated the Supreme Court's signification in Sanders that Chadwick, not Sanders, was the path-marking decision.

For these reasons we conclude that Arkansas v. Sanders did not augment, but simply explained and applied, doctrine welded in place since Chadwick doctrine that Detective Cassidy knew or should have known when he searched the containers found in the trunk of Ross's car. We therefore reject the Government's belated argument and join the numerous courts that have held Sanders retroactively applicable at least to searches conducted after Chadwick.⁸ United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), adhered to on petition for rehearing, 615 F.2d 10 (2d Cir. 1980); United States v. Medina-Verdugo, 637 F.2d 649 (9th Cir. 1980); United States v. MacKay, 606 F.2d 264 (9th Cir. 1979); State v. White, 94 N.M. 687, 615 P.2d 1004, 1006 (Ct.App.1980) (argument that Sanders does not apply retroactively is "spurious"); Abell v. Commonwealth, 221 Va. 607, 272 S.E.2d 204 (1980); cf. United States v. Bulgier, 618 F.2d 472 (7th Cir.) (assuming retroactive application of Sanders and upholding search), cert. denied, 449 U.S. 843, 101 S.Ct. 125, 66 L.Ed.2d 51 (1980). But cf. State v. Hatami, No. A-1567-77 (N.J.Super.Ct.App.Div. Nov. 21, 1979) (per curiam) (unpublished opinion) (refusing to apply Sanders retroactively to a pre-Chadwick search), certification denied, 85 N.J. 471, 427 A.2d 567 (1980), cert. denied, 449 U.S. 1035, 101 S.Ct. 610, 66 L.Ed.2d 496 (1980).

We note, finally, that doubt some courts and commentators expressed, in the wake of Chadwick, about whether the police needed a warrant to search closed containers seized from a car, cannot justify Detective Cassidy's failure to obtain a search warrant before opening the paper sack and leather pouch found in Ross's car. The Supreme Court has firmly held that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). That declaration indicates doubts police officers may entertain are to be resolved in favor of, not against, the main rule that a warrant precede a search. We cannot invert the Supreme Court's instructions by sanctioning police conduct of warrantless searches, subject only to the courts' prior express mandate that they obtain a warrant. Rather, we are required to adhere to the Court's command that the police obtain a warrant unless their search falls within one of the express and narrowly drawn exceptions to the warrant requirement. Read against this background, the Court's statement in Peltier, that a retroactivity ruling is impermissible when a police officer believes "in good faith" that his conduct is "in accordance with the law," 422 U.S. at 538, 95 S.Ct. at 2318, must mean that Detective Cassidy had to believe, in good faith, that his conduct fell within one of the few, jealously drawn exceptions to the warrant requirement. In sum, if Detective Cassidy had doubts about the meaning of Chadwick, he should have followed the presumption laid down in numerous Supreme Court decisions and obtained a warrant.⁹ His doubts, even after Peltier, should not have been resolved against the warrant requirement.¹⁰

(B)

A second preliminary issue not previously raised by the Government concerns Ross's "standing." In contrast to its position regarding Sanders, the Government here champions retroactivity, specifically, the retroactivity of the Supreme Court's decision in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

When Ross moved to suppress the evidence obtained from the search of the pouch and bag, and when his case was tried, the "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), governed lower courts. Under Jones, a defendant charged with a crime of possession was entitled to claim "automatic standing" to challenge the legality of a search that produced evidence against him. Ross therefore did not testify at the suppression hearing and the Government raised no objection to his silence.

The Government's evidence at trial was substantially the same as the evidence it presented at the hearing on the motion to suppress. The police described the circumstances surrounding the arrest of Ross, including the attendant searches of the pouch and bag. Having lost the suppression motion, Ross defended at trial by denying knowing anything about packets of narcotics in a paper bag in the trunk of his car.

After the initial hearing and decision of this appeal¹¹ the Supreme Court overruled Jones v. United States. In United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Court held that defendants charged with crimes of possession may claim the benefits of the exclusionary rule only if they first establish that their own Fourth Amendment rights have been violated. Relying on Salvucci, the Government now asserts for the first time that Ross, by his tactic at trial, coupled with his silence at the suppression hearing, forfeited any claim that his own Fourth Amendment rights were violated. Ross's professed ignorance of the narcotics-filled paper bag in his trial testimony, the Government argues, pinions him. He cannot now be heard to claim that he secreted the bag in the trunk, hence he cannot satisfy the Salvucci requirement.

But the Supreme Court in Salvucci did not rule that Jones was overruled retrospectively. In fact, the Court noted that Jones bound the lower courts until it said otherwise. 448 U.S. at 85, 100 S.Ct. at 2550. In contrast to Sanders, which was a confirming and clarifying decision, Salvucci was a forthright overruling of prior High Court precedent.¹²

In Salvucci itself the Government had challenged the defendant's "standing" from the start. No such challenge was raised in the case before us. We decline to transform this case into the "Catch-22" the Government proposes. Had the Government raised a standing question at the suppression hearing, Ross and his counsel would have been alerted to the risk of Ross's remaining silent and failing to assert that both pouch and bag were items under his exclusive possession and control until he encountered the police. More significant in view of the context in which the case comes to us, had the district court granted the suppression motion, as we believe it should have, there would have been no trial and no testimony from Ross denying knowledge of the bag found in his trunk.

The unfairness of now saddling Ross with the rule in Salvucci rather than the one in Jones is evident.¹³ Ross's positions, his silence at the suppression hearing and his testimony at trial, should not be judged by a rule that did not exist until after his hand had been fully played. We therefore hold that Jones, not Salvucci, provides the "standing" rule that governs this case.

Moreover, even if Ross's standing were now to be determined under the Salvucci test, we could not accept the Government's position that his trial tactic, denying knowledge of the bag, strips him of Fourth Amendment protection. The jury found Ross guilty beyond a reasonable doubt. To make that determination the jury necessarily concluded that the narcotics-filled bag belonged to Ross. To reach that conclusion, the jury had to reject Ross's attempt at trial to suggest that someone else might have placed the bag in the trunk of the car. The jury's verdict, we believe, resolves any issue whether the bag belonged to Ross it did. In view of the jury determination, the Government cannot argue sensibly that the bag was Ross's for purposes of the conviction, but someone else's for Fourth Amendment purposes.

It may be, however, that in emphasizing Ross's trial testimony, the Government does not seriously challenge Ross's exclusive control and possession of the narcotics-filled bag prior to his apprehension by the police. Rather, the Government may be asserting that standing requires an expectation of privacy, which Ross's trial testimony, "There wasn't supposed to be no paper bag in (the car trunk)," defeats. But given the jury verdict, we must take it to be fact that there was supposed to be a paper bag in the trunk and Ross put it there. The Government now concedes that Ross had an adequate expectation of privacy in the currency-filled pouch. We find it difficult to comprehend why that same expectation would not attend a contraband-filled closed container Ross secreted in the locked trunk alongside the pouch.¹⁴

Turning to the application of Supreme Court precedent in point, most immediately, Arkansas v. Sanders, we find only two arguable bases for the warrantless searches of Ross's pouch and bag. First, in Sanders, as in Chadwick, police suspicion related to the containers, not to the vehicles in which they were placed. In this case, the informant told the police that Ross had narcotics in the trunk of his car. No specific container was identified. Conceivably, we could distinguish those cases in which the police focus their suspicion on the container from those in which the vehicle or an integral part of it attracts police attention.¹⁵ Second, Chadwick and Sanders might be cubbyholed as luggage cases, decisions applying the Fourth Amendment warrant requirement to effects placed in durable containers, with no carryover to effects put in less stable packets.

As we explain further below, we believe the first of these two bases is precluded by the Court's statement of the "misunderstanding" it sought to resolve in Sanders. Moreover, we note that the Government does not urge that we distinguish searches based on police suspicion directed to a vehicle or an integral part of it, from those in which suspicion focuses on a particular container carried in the vehicle. For such a distinction, applied to this case, would render the pouch as vulnerable to warrantless search as the bag, and the Government now concedes that under the Sanders decision, a warrant is prerequisite to exposing the contents of the pouch.

The second basis is pressed by the Government and has attracted several courts.¹⁶ But just as the Supreme Court was unable to tie to the Fourth Amendment warrant requirement any "established, well-delineated" exception for luggage, we are unable to perceive such an exception for packets less resistant than luggage to hard wear and frequent use.

We discuss below in more detail each of the two possible bases for reading out of this case the Fourth Amendment warrant requirement.

(A)

In Sanders, local police received a tip that a passenger on a designated flight due in at the municipal airport would be carrying a small green suitcase containing marijuana. The police observed the passenger's departure from the terminal, green suitcase in tow, and the placement of the suitcase in the trunk of a taxicab. The taxi drove off and was stopped by pursuing officers several blocks from the terminal. At police request, the taxi driver opened the trunk. The police then seized the green suitcase, which was unlocked, opened it, and found inside ten marijuana packets. The Supreme Court affirmed the decision of the Supreme Court of Arkansas holding that the trial court should have suppressed the marijuana because it was obtained through an unlawful search of the suitcase.

The Court granted certiorari in Sanders to resolve "some apparent misunderstanding" among lower courts about the application of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).¹⁷ Chadwick held that a footlocker placed in the trunk of an automobile parked at a curb could lawfully be taken into police custody, because the police had probable cause to believe it contained contraband, but could not lawfully be searched without a warrant. To illustrate the post-Chadwick misunderstanding among lower courts, the Supreme Court cited United States v. Finnegan, 568 F.2d 637, 641-42 (9th Cir. 1977), and United States v. Stevie, 582 F.2d 1175, 1178-79 (8th Cir. 1978) (en banc), cert. denied, 443 U.S. 911, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979).

In Finnegan, the car, not a particular container in it, originally attracted police attention.¹⁸ In Stevie, the police suspicion related to baggage placed in a car, not to the vehicle in which the luggage was carried.¹⁹ The Ninth Circuit panel in Finnegan reasoned that Chadwick was inapplicable when car rather than container was the object of suspicion. Instead, the Finnegan court held, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), controlled. Chambers upheld the "automobile exception" to the warrant requirement; it sustained the constitutionality of a warrantless search of a vehicle on a street or highway when the police have probable cause to believe the vehicle contains contraband or evidence of crime. The Finnegan court pointed out that if Chadwick, not Chambers, applied, then police could search without a warrant for a brick of marijuana lying inside a car trunk, but not for one inside a suitcase in the trunk. 568 F.2d at 641. Stevie, on the other hand, held Chadwick dispositive; in so ruling, the Eighth Circuit stated explicitly that it disagreed with the reasoning of the Ninth Circuit panel in Finnegan. 582 F.2d at 1179.

The Supreme Court identified Finnegan and Stevie as inconsistent decisions and it sought in Sanders to resolve the inconsistency. It seems apparent, therefore, that the Sanders majority did not believe the compatibility of the search with the Fourth Amendment should turn on whether police suspicion related to the car (as in Finnegan ) or to the container (as in Stevie ). We cannot treat the Finnegan-Stevie citations in Sanders as idle or haphazard.²⁰ We must accept the clear implication of Sanders: Stevie was correctly decided; Finnegan incorrectly applied Chambers rather than Chadwick.

In Sanders, police suspicion related to the suitcase itself. In the case before us, the car trunk, not any identified container in it, was suspected of carrying contraband. But the Supreme Court's disapproval of Finnegan controls our analysis. Where a container legitimately seized from a car trunk is searched without a warrant, Sanders precludes different outcomes when the container is suspected of housing contraband, and when the car itself is the object of suspicion.²¹ We therefore conclude that, in this case, if a small suitcase had been removed from the trunk of Ross's car, and thereafter searched without obtaining a warrant, Sanders would mandate suppression of incriminating evidence found in the suitcase. The Government does not contest that conclusion, nor does it contest that it applies as well to the evidence seized in this case from the leather pouch. Supplemental Brief for Appellee at 7. Accordingly, the sole question we must determine is whether the Fourth Amendment protection cloaking an unlocked small suitcase and a zippered leather pouch stops short of a closed but unsealed paper bag.

(B)

Before addressing whether Sanders envisions and the Fourth Amendment tolerates a warrant rule covering small suitcases and pouches but not paper bags, we set out facets of this case the parties do not seriously dispute. Based on the tip the police received,²² Ross's car was properly stopped and searched, and the pouch and bag were properly seized. However, no "special exigencies"²³ justified opening the pouch or the bag without a warrant: both containers were securely removed from Ross's reach at the time of the seizure; the police entertained no belief that the containers or their contents endangered their personal safety; with the pouch and bag in police possession there was no risk that evidence would be lost or destroyed before a warrant could be obtained. Cf. People v. Belton, 50 N.Y.2d 447, 407 N.E.2d 420, 429 N.Y.S.2d 574 (1980) (warrantless search of jacket pockets may not be upheld as search incident to arrest once object is within the exclusive control of the police), cert. granted, 449 U.S. 1109, 101 S.Ct. 917, 66 L.Ed.2d 838 (1981).

Also beyond serious question is the coherent position the Supreme Court has elaborated with respect to the warrant requirement. The reasonableness of a search in light of the surrounding circumstances does not obviate the need for a warrant. Sanders, 442 U.S. at 758, 99 S.Ct. at 2590. On the contrary, the warrant requirement affords protection separate and distinct from the protection against unreasonable searches. See generally Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 358-60, 374, 395 (1974). Whether or not the search would be "reasonable," the warrant requirement operates "as a matter of course." Sanders, 442 U.S. at 758, 99 S.Ct. at 2590 (quoting from Coolidge v. New Hampshire, 403 U.S. at 481, 91 S.Ct. at 2046):

In the ordinary case ... a search of private property must be both reasonable and pursuant to a properly issued search warrant. The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment....

"The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow 'weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the 'well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement."

Sanders reiterated that exceptions to the warrant requirement are few in number, jealously guarded, and carefully delineated. 442 U.S. at 759-60, 99 S.Ct. at 2590-91. We discern no established, well-drawn exception covering the opening of pouch or bag in this case. True, precedent fully supports stopping Ross's vehicle and seizing the pouch and bag. But the "automobile exception"²⁴ invoked to justify stopping the car and placing items found in it under police control cannot be stretched to encompass the warrantless openings.²⁵ The automobile exception rests on the inherent mobility of motor vehicles and the "severe," sometimes "impossible" burdens police departments would encounter were they required to place at every officer's beck and call "the people and equipment necessary to transport impounded automobiles to some central location until warrants could be secured." Sanders, 442 U.S. at 761, 765-66 n.14, 99 S.Ct. at 2594-95 n.14. However, the pouch and bag with which we deal were immobilized by police seizure; it was hardly burdensome to carry them unopened to a magistrate. In short, with respect to inspecting the contents of pouch and bag, the police in this case were saddled with no burden other than the inconvenience obtaining a warrant imposes in any case.

Nor is it arguable that the search of pouch or bag was permissible as incident to an arrest. At no time after the car was stopped were the pouch and bag within Ross's immediate control. There was not the slightest danger that Ross or anyone other than the police would remove the contents of the containers before a warrant could be obtained. A delay in opening the pouch and bag pending appearance before a magistrate would not have jeopardized the safety of the police or the public. See Sanders, 442 U.S. at 763-64 n.11, 99 S.Ct. at 2593 n.11; cf. Amsterdam, supra, 58 Minn.L.Rev. at 412-14.²⁶

Since no exception to the warrant requirement thus far delineated by the Supreme Court covers this case, the prosecution asks, in essence, that we delineate a new one. On the facts before us, it appears certain that the police could have obtained a warrant had they applied to a magistrate before opening the seized items. But surely an exception to the warrant requirement cannot rest on a post hoc judgment that a warrant would have been granted if one had been requested. See Sanders, 442 U.S. at 764 n.12, 99 S.Ct. at 2593 n.12 (reasonableness of search, coupled with inconvenience of approaching a magistrate, does not justify dispensing with a warrant). Rather, the argument appears to be that some containers are fair game once they are seized because they are too small, too insecure, or too cheaply made to burden the time of a magistrate.

The fine distinctions into which the police and the courts would be drawn were we to adopt an "unworthy container" rule are apparent.²⁷ Size could not be the dividing line, nor does the Government contend otherwise given its concession that the leather pouch is encompassed by Sanders. A priceless bequest, great grandmother's diary, for example, could be carried in a sack far smaller than one accommodating jogging suit and sneakers. And if quality of material is what counts, on what side of the line would one place the variety of parcels people carry? Are police to distinguish cotton purse from silk; felt, vinyl, canvas, tinfoil, cardboard, or paper containers from leather; sacks closed by folding a flap from those closed with zippers, drawstrings, buttons, snaps, velcro fastenings, or strips of adhesive tape? Would a Tiffany shopping bag rank with one from the local supermarket?²⁸

The point need not be labored further. Not only would an "unworthy container" rule fail to supply an "easily understood and administered" guide for the police,²⁹ it would suffer from infirmities more critical than administrative infeasibility. It would snare those without the means or the sophistication to use worthy containers.³⁰ And, most importantly, it would destroy the coherence of a well-established, clear, eminently manageable rule that, absent special necessity, a search must rest upon a search warrant.

Sanders, it seems to us, did not leave the matter in large doubt. The Court there indicated when the nature of the container would justify immediate search: "(S)ome 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." 442 U.S. at 765 n.13, 99 S.Ct. at 2593 n.13. Those guides, we think, are comprehensible, administrable, and consistent with the Supreme Court's stress on the centrality of the warrant requirement to Fourth Amendment enforcement.

Ordinarily, one cannot infer from the density, shape, or size of a leather pouch or opaque paper bag what is inside,³¹ and this case presents no exception. The Government does not assert that the very appearance or feel of the paper bag seized from Ross's car trunk suggested its contents.³² Nor does the Government argue that the contents of the bag were in "plain view" or that Ross willingly displayed what his sacks carried.³³ The means that Ross employed to store the contents of pouch and bag, it seems to us, were calculated to secure the privacy of his possessions against intrusion by members of the public.³⁴

In summary, we cannot sanction the warrantless searches in this case without distorting the reasoning and diminishing the holding in Sanders. Nor can we distinguish between pouch and bag in a manner that makes theoretical or practical sense. We therefore conclude that "(w)here as in the present case the police, without endangering themselves or risking loss of the evidence," lawfully have stopped a car, detained any person in it suspected of criminal activity, and secured parcels found in the car, they must delay search of the parcels "until after judicial approval has been obtained. In this way, constitutional rights of suspects to prior judicial review of searches will be fully protected." Sanders, 442 U.S. at 766, 99 S.Ct. at 2594.

Because Ross's conviction rested on evidence the police obtained through unlawful searches of the leather pouch and paper bag seized from his car trunk, the conviction is reversed and the case remanded for proceedings consistent with this opinion.

Reversed and remanded.

TAMM, Circuit Judge, dissenting in part:

The opinion for the court suggests that my learned colleagues of the majority are sensitive to theory but insensitive to reality. It is a basic responsibility of appellate courts stating the principles of constitutionally guaranteed rights to give, as precisely as possible, practical guidance both to trial courts and law enforcement officers. I feel that my colleagues of the majority, with particular reference to their ruling on the paper bag, are descending from disarray to chaos.

With this case we must decide whether law enforcement officers must obtain a search warrant before opening a closed paper bag or a closed leather pouch lawfully seized from the trunk of an automobile that the officers have probable cause to believe contains narcotics. I conclude that under the circumstances of this case, the defendant did not have a reasonable expectation of privacy in the contents of the paper bag once the bag was in police hands; the warrantless search of the paper bag, therefore, was permissible. A pouch, however, is a form of luggage and the police must have a warrant to search such an item. Because the conviction of the defendant in this case rested on evidence obtained from both containers, I would reverse that conviction and remand for a new trial at which items taken from the paper bag, but not from the leather pouch, may be admitted.

* Ross's initial argument is that the police lacked probable cause to stop and search his car.1 I disagree. Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), probable cause may be based on the information supplied by an informant if the informant was credible and he obtained his information in a reliable way. See United States v. Davis, 617 F.2d 677, 693 (D.C.Cir.1979). One method of discovering an informant's credibility, that is, his truthfulness, is to examine his "track record" in providing police with accurate information. Id. See Aguilar v. Texas, 378 U.S. at 114 n.5, 84 S.Ct. at 1514. Here, undisputed testimony indicates the officers knew that this informant had supplied accurate information on prior occasions. Moreover, there is no challenge to the method in which the informant came upon his information: he was an eyewitness to actual sales of narcotics. Under these circumstances, I believe it clear that the police had probable cause to stop Ross and to search his car.

II

Not only did the police have the necessary probable cause, but under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the officers lawfully could search Ross's automobile, including its trunk, without a warrant. See United States v. Hawkins, 595 F.2d 751, 753 (D.C.Cir.1978) (per curiam), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979). But cf. United States v. Wilson, 636 F.2d 1161 (8th Cir. 1980) (inventory search of locked automobile trunk held unreasonable). My only concern, then, is with the permissibility of the warrantless search of the containers they found in the trunk.

The fourth amendment dictates that "normally searches of private property (must) be performed pursuant to a search warrant issued in compliance with the Warrant Clause." Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979). A search warrant represents more than a formality or technicality. "The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment." Id. See United States v. Chadwick, 433 U.S. 1, 8, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). Moreover, the Supreme Court has stated clearly and emphatically that exceptions to the warrant requirement are rare, and that the few recognized exceptions must be "jealously and carefully drawn ...." Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). See also United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951).

Analysis of fourth amendment protection begins with the person making claim to that protection. Fourth amendment rights are not intrinsic attributes of a container or any other object. Instead, "rights assured by the Fourth Amendment are personal rights ... (that) may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure." Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968), quoted in Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 427, 58 L.Ed.2d 387 (1978). Accord, Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). The defendant must establish that "the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). See id. at 130 n.1, 99 S.Ct. at 424 n.1.

To test whether the police officers' search of either the paper bag or the leather pouch invaded interests of Ross protected by the fourth amendment, I look to the expectation-of-privacy standard first enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), especially Justice Harlan's concurrence, id. at 360-62, 88 S.Ct. at 516-17. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Rakas v. Illinois, 439 U.S. at 143, 99 S.Ct. at 430. An interest is protected if two elements are present. First, as a subjective aspect, the defendant actually must have expected the preservation of his privacy. Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). Thus if the accused intentionally displayed the contents of his automobile to the police, he obviously did not expect the contents to remain hidden from police view. See id. at 351, 88 S.Ct. at 511 (majority opinion). Second, as an objective aspect, the defendant's expectation must be one that society is prepared to recognize as reasonable. That is, the defendant must have relied justifiably on a freedom from governmental intrusion. Id. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

In most cases, the extent of expectation that is reasonable will depend upon the circumstances at the time of the search. The Supreme Court has taken several factors into account: the precautions taken to preserve privacy, the manner in which the person claiming fourth amendment protection has used the place or item searched, the treatment accorded that place or item at the time the Framers adopted the fourth amendment, and finally, the applicable property rights. See Rakas v. Illinois, 439 U.S. at 152-53, 99 S.Ct. 421, 435, 58 L.Ed.2d 387 (Powell, J., concurring) (summarizing earlier cases). For example, a lower expectation may be justified when the defendant no longer possesses the searched item. Both the majority and the dissent in Rakas acknowledged that "perhaps the Constitution provides some degree less protection for the personal freedom from unreasonable governmental intrusion when one does not have a possessory interest in the invaded private place." Id. at 166, 99 S.Ct. at 442 (White, J., dissenting), quoted with approval in id. at 146-47, 99 S.Ct. at 432 (majority opinion). Similarly, the Supreme Court has held in automobile cases that the characteristics of cars, the manner of their use, and the degree of their regulation dilute the justifiable expectation of privacy. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Accord, Arkansas v. Sanders, 442 U.S. 753, 761, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979).

In this case, however, we are not dealing with the search of a car but with the search of two containers. Our inquiry must focus on the reasonable expectation of privacy Ross had in the paper bag and the leather pouch. The contents of some containers, those the Supreme Court refers to as "common repositor(ies) for personal effects," are entitled to an expectation of privacy regardless of their location or the right to possess them. Arkansas v. Sanders, 442 U.S. 753, 763-66, 99 S.Ct. 2586, 2593-94, 61 L.Ed.2d 235 (1979). Luggage, such as a footlocker or a suitcase, "is inevitably associated with the expectation of privacy." Id. at 762, 99 S.Ct. at 2594 (emphasis added). Because society recognizes luggage as a personal sanctuary, its presence within a car or its having fallen lawfully into public hands does not alter the reasonableness of an expectation that it will not be opened by the police. Id.; Rakas v. Illinois, 439 U.S. 128, 154 n.2, 99 S.Ct. 421, 436 n.2, 58 L.Ed.2d 387 (1978) (Powell, J., concurring). Professor Wayne LaFave has observed that "(i)n Chadwick, the Court was able to say that the 'substantial infringement with respondents' use and possession' of the footlocker, justified by exigent circumstances, 'did not diminish respondents' legitimate expectation that the footlocker's contents would remain private.' " 2 W. LaFave, Search and Seizure § 5.5, at 365 (1978) (quoting United States v. Chadwick, 433 U.S. 1, 13 n.8, 97 S.Ct. 2476, 2485 n.8, 53 L.Ed.2d 538 (1977)). Accord, id. § 5.5 (Supp.1980) (analysis unaffected by Sanders ). Cf. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (Court examines the legality of ordering the driver of a stopped vehicle out of his car by looking to the incremental invasion of privacy, given the stop).

The same circumstances that justified the search of Ross's automobile also justify a warrantless seizure of the paper bag and leather pouch, thereby depriving Ross of some of his possessory rights, at least temporarily. Our focus shifts to whether Ross reasonably could expect that after the bag and pouch were seized by the police, these containers nevertheless would remain unopened. In differentiating fourth amendment treatment of containers, parcels, and packages from that of personal luggage, the Sanders Court stated that although the need for a warrant to search nonluggage does not depend "upon whether they are seized from an automobile,"2 not all container types "deserve the full protection of the Fourth Amendment." Arkansas v. Sanders, 442 U.S. 753, 764 n.13, 99 S.Ct. 2586, 2593 n.13, 61 L.Ed.2d 235 (1979). The Court left us without detailed guidance concerning just what nonluggage containers require a warrant before being searched. We must therefore determine whether a paper bag or a leather pouch may be searched immediately after their proper seizure, or if, like luggage, they may only be impounded until the police officers can obtain a warrant to search them. See id. at 772, 99 S.Ct. at 2597 (Blackmun, J., dissenting).

III

I believe that absent unusual circumstances not present here, the fourth amendment does not forbid the police from opening a paper bag once it is properly in their hands. After analyzing the privacy expectation in a paper bag lawfully seized by police, I conclude that the fourth amendment does not protect any privacy interest in a closed but unsealed paper bag over and above the privacy justified by virtue of possession and control.

In traveling to this conclusion, I am fortunate that a portion of my path has been illuminated by the federal and the state courts that have already dealt with related situations. In general, invalidation of warrantless searches has been confined to the types of containers normally associated with personal luggage: a suitcase, a briefcase, a purse, a duffle bag, a backpack, a gym bag, a vinyl satchel, or a guitar case.3 On the other hand, courts generally have found warrantless searches permissible when confronted with containers dissimilar to luggage: an integral part of an automobile, an open knapsack, a taped electric razor case, a toolbox, a closed but unsealed department store box, or a closed but unsealed envelope.4

Several courts have looked at paper bags in particular, and have concluded a search is permissible after their seizure. In United States v. Mackey, 626 F.2d 684 (9th Cir. 1980), police discovered a paper bag beneath the front seat of an automobile on the passenger's side. Finding no reason to distinguish between the clearly justified seizure of the bag and the search of its contents, the court held that the defendant did not possess a sufficient privacy interest in the paper bag to justify imposing the warrant requirement of Chadwick and Sanders. In United States v. Goshorn, 628 F.2d 697 (1st Cir. 1980), police discovered two plastic bags inside three brown paper bags which were further inside two other plastic bags, all within the locked trunk of an automobile. The court held that the facts of record failed to establish that the defendant possessed a reasonable expectation of privacy in the bags found within the automobile trunk. The Second Circuit held that a warrantless search of a folded-over brown paper bag inside a folded-shut plastic bag located on the front seat of an automobile would not violate the fourth amendment. United States v. Mannino, 635 F.2d 110 (2d Cir. 1980). Furthermore, the Seventh Circuit held that a defendant had no reasonable expectation of privacy in a brown paper bag located within a locked automobile trunk. United States v. Jimenez, 626 F.2d 39 (7th Cir. 1980). In United States v. Brown, 635 F.2d 1207 (6th Cir. 1980), the Sixth Circuit upheld the warrantless search of a closed paper bag found in an automobile trunk. In yet a sixth ruling by a federal appellate court on this point, the Fifth Circuit upheld the warrantless search of a paper sack located on the front floorboard of an automobile. United States v. Sutton, 636 F.2d 96 (5th Cir. 1981).

In United States v. Andrews, No. 79 Cr. 374 (MJL) (S.D.N.Y. Nov. 2, 1979), an undercover agent had seen a brown paper bag and a vial of clear liquid, taken from the bag, which had been identified as the "juice." Later, after surveillance, police arrested the driver of a car. While searching the car's trunk, the arresting officer observed a brown paper bag. Searching the paper bag, the officer found the vial previously shown to the undercover agent. Although citing Arkansas v. Sanders, the court denied a motion to suppress without discussing the warrantless search of the bag. In Clark v. State, 574 P.2d 1261 (Alaska 1978), a search of defendant's rental car uncovered a paper bag in the glove compartment. Still without a warrant, the police officer opened the bag and discovered it contained narcotics. Affirming Clark's conviction, the Alaska Supreme Court compared this case with Chadwick and concluded that the expectation of privacy was much lower in a paper bag's contents than in a footlocker's. Reaching the same conclusion, the court in Webb v. State, 373 So.2d 400 (Fla.App.1979), noted that there are

arguable differences between the reasonable expectation of privacy one might attach to a paper bag as opposed to a briefcase or luggage of some type. Whereas "luggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy," Arkansas v. Sanders, supra, the same does not hold true to paper bags.

Id. at 403. Courts have also found the contents of opaque plastic bags, containers comparable to paper bags, to be entitled to a lesser expectation of privacy than personal luggage. See, e. g., United States v. Mannino, 635 F.2d 110 (2d Cir. 1980); United States v. Ficklin, 570 F.2d 352 (9th Cir. 1978) (memorandum), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 118 (1978), quoted in United States v. Stevie, 582 F.2d 1175, 1179 n.4 (8th Cir. 1978), cert. denied, 443 U.S. 911, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979); State v. Duers, 49 N.C.App. 282, 271 S.E.2d 118 (1980); Flynn v. State, 374 So.2d 1041 (Fla.App.1979) (contrasting Sanders).

Recitation of precedent does not by itself determine whether Ross continued to have a reasonable expectation of privacy after his paper bag was lawfully seized by police. I must also rely on my own analysis of when a legitimate expectation of privacy attaches to a given container, so that absent exigent circumstances, a search requires a warrant. As the Supreme Court declared in Rakas v. Illinois, "it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary rule issues in criminal cases." 439 U.S. at 143 n.12, 99 S.Ct. at 430 n.12. Instead, "(l)egitimation of expectation of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Id. See Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (society not prepared to recognize expectation of privacy in identity of telephone numbers called from another telephone). I therefore must decide what "sense of security" should exist in society, and I must do so at least in part by looking at "the customs and values of the past and present...." United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting), quoted in 1 W. LaFave, Search and Seizure § 2.1, at 231 (1978). Other important considerations include the precautions taken to preserve privacy, the manner in which the paper bag was used, and the property rights in the bag at the time of the search. See pages 4-5 supra. See also Note, From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection, 43 N.Y.U.L.Rev. 968, 983-84 (1968) ("The degree of privacy offered by structural characteristics, such as partitions or walls, is an important determinant of an area's character.").

If a paper bag were a form of luggage, my task would be a simple one: Sanders requires a warrant before searching any piece of luggage. Paper bags differ from personal luggage in two material respects, however. First, paper bags offer at best only minimal protection against accidental and deliberate intrusions. A paper bag can fall open or break very easily. It presents no real obstacles to invasions by the curious or the dishonest once it has left its owner's actual possession. Because it is neither so secure nor so permanent as typical forms of luggage, its contents are much more likely to become subject to public display than if the same items had been stored in luggage. Thus, it is doubtful that one realistically can expect a paper bag to remain closed or intact, its contents unrevealed, at least if it has left its owner's hands. See United States v. Mackey, 626 F.2d 684, 687 (9th Cir. 1980). Cf. United States v. Neumann, 585 F.2d 355 (8th Cir. 1978) (cardboard boxes not secure; inventory search justified).

Second, paper bags are not inevitably associated with the expectation of privacy. See Arkansas v. Sanders, 442 U.S. 752, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235 (1979). Although a paper bag may be pressed into service as a repository of personal effects, I do not believe a reasonable man would identify a paper bag as a normal place to entrust his intimate personal possessions. In contrast, luggage in general serves to carry clothes, toiletries, and other items associated with day-to-day living. Luggage typically functions as a portable closet and chest of drawers; it follows that a person could justifiably maintain a substantially higher expectation of privacy in his personal luggage than in a paper bag.5

We therefore must decide whether, under the circumstances of this case, Ross had a reasonable expectation of privacy in the paper bag that the police discovered during the lawful search of the trunk of his car. The officers had reason to believe that the trunk was the warehouse for Ross's narcotics sales. Thus it was serving as more than simply a luggage compartment. When the police in searching the trunk came upon a paper bag, there was no indication that it was being used to carry intimate, private items. See United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), adhered to on rehearing, 615 F.2d 10 (2d Cir. 1980). See generally United States ex rel. Cunningham v. Follette, 397 F.2d 143, 145 (2d Cir. 1968), cert. denied, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969); Walker v. United States, 327 F.2d 597, 600 (D.C.Cir.1963), cert. denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964); Liichow v. State, 288 Md. 502, 419 A.2d 1041 (Md.1980).6 No one disputes that the police had the right to seize the bag to prevent the destruction of its contents, that is, the destruction of possible evidence. See Arkansas v. Sanders, 442 U.S. at 762, 99 S.Ct. 2586, 61 L.Ed.2d 235; United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1978). Because a paper bag's general vulnerability suggests no reasonable expectation of privacy after its seizure, see page 1177 supra, and because the police justifiably believed that this paper bag was not being used to store personal items, the police lawfully could open it without violating Ross's fourth amendment rights.

In the final analysis, my determination of what "sense of security" should exist in society must be based upon general experience and judgment. The facts in this case lead me to conclude that Ross could not reasonably harbor an expectation of privacy in his paper bag beyond that existing due to actual possession, which is all that enables one to protect a paper bag's contents from public exposure. If, as the Sanders decision suggests, there are containers that the police, after a proper seizure,7 may open without a search warrant, Ross's bag must be among the best examples. Thus I agree with Professor LaFave that compared to the warrantless search of luggage, "when the (searched) effects are such things as coats and paper bags, the possessory interest and privacy interest are much less distinct, and it is thus far easier to conclude that the (privacy) interest is not protected by the Warrant Clause whenever exigent circumstances allow a warrantless intrusion upon the (possessory) interest." 2 W. LaFave, Search and Seizure § 5.5, at 365 (1978). Accord, id. § 5.5 (Supp.1980) (analysis unaffected by Sanders).

IV

With respect to Ross's red leather pouch, Sanders controls directly. See pages 1173, 1177 supra. As a type of personal luggage, the pouch, in the words of Sanders itself, is a "common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy." Arkansas v. Sanders, 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235 (1979). Absent a valid warrant or one of the few recognized exceptions, any evidence secured from the leather pouch should be excluded when determining Ross's criminal culpability.

The Government attempts to bring the warrantless search of the leather pouch within the exception for searches incident to a lawful arrest. The attempt fails. Ross does not challenge a police search of his person or of any object associated with his person at the time of his arrest. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). When Detective Cassidy seized the pouch and later opened it at police headquarters, it was far from Ross's reach and in the exclusive control of the police. There was no danger Ross might gain access to the pouch and retrieve a weapon or destroy evidence. The police officers had no reason to believe that the pouch contained explosives or any other item that might prove hazardous to themselves or to the public. Ross's arrest cannot excuse a search made a substantial time later and a substantial distance away. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). See generally United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977); Chimel v. California, 395 U.S. 752, 763-64, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).

I agree with the majority that none of the "specifically established and well-delineated exceptions," Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), to the warrant requirement applied and that the police failed to follow " 'the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment ....' " Osborn v. United States, 385 U.S. 323, 330, 87 S.Ct. 429, 433, 17 L.Ed.2d 394 (1966) (quoting Ohio ex rel. Eaton v. Price, 364 U.S. 263, 272, 80 S.Ct. 1463, 1468, 4 L.Ed.2d 1708 (1960) (opinion of Brennan, J.) (equally divided Court)). The currency found in the red leather pouch should have been suppressed as evidence.8

V

Although it is certainly noteworthy that every court confronted with the warrantless search of a paper bag, save for this court today, has upheld the search, see pages 1176 and note 4 supra, my analysis of searches based on the container involved should not be construed as offering any per se rules. Rather, as this court recently stated, each encounter between law enforcement officers and citizens "is unique, involving the weighing and measuring of contrary indicators." United States v. White, 648 F.2d 29, at 34 (D.C.Cir.1981). We must continue to examine the totality of the circumstances in each case. As I interpret current Supreme Court precedent, our duty is to search for objective indicia signalling an expectation of privacy that society is prepared to accept as reasonable. United States v. Markland, 635 F.2d 174 (2d Cir. 1980); United States v. Mannino, 635 F.2d 110 (2d Cir. 1980).

Because Ross's conviction rested in part on evidence that the police obtained through an unlawful search, I would reverse the conviction and remand the case for further proceedings not inconsistent with this opinion.

MacKINNON, Circuit Judge (dissenting).

I concur with Judge Tamm's opinion to the extent that it holds the examination of the inside of the paper bag was legal. I also concur in Judge Wilkey's opinion to the extent that it holds that Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) should not be applied retroactively.

I have examined the leather pouch. It is a small money pouch, 7 X 8 square, 2 wide at the bottom, made of soft, red leather with a zipper along the top. I would not place the paper bag or the small pouch in the category of "personal luggage". Cf., 442 U.S. at 765, 99 S.Ct. at 2594. In my opinion the luggage cases are not applicable. In fact, with respect to the paper bag, a prominent strip cartoonist, Reggie Smythe, had his character, Andy Capp, make a joke of such claim Andy Capp: "Where's your mother off to?" Flo: "She's stayin' with Auntie Ada for a few days." Andy: "There she goes now, down to the bus station with 'er matchin' luggage." Flo: "Matchin' luggage?" Andy: "Yeah, two carrier bags from the supermarket."1 The factual situation here is a far cry from the locked footlocker in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

The seizure of the bag and pouch was supported by probable cause and was reasonably related to the justification for the stop which was very strong probable cause. Cf., United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1980); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Despite what some decisions state, I have great difficulty in agreeing that subsequently looking into the bag and the pouch from the top should be determined to be "unreasonable" which is the constitutional standard. Amend. IV, U.S.Const. Having properly seized the paper bag and the small pouch the police would have acted unreasonably in my opinion if they had not merely looked inside.

ROBB, Circuit Judge, dissenting:

I concur in Judge Tamm's dissent with regard to the paper bag. As for the leather pouch I concur only because I think the result Judge Tamm reaches is compelled by recent decisions of the Supreme Court. With great respect however I must add that to me this result does not make sense. It follows from a rule which creates search-resistant cells or compartments in an area otherwise lawfully subject to search. In my opinion the right to search an automobile should include the right to open any container found within the automobile, just as the right to search a lawfully arrested prisoner carries with it the right to examine the contents of his wallet and any envelope found in his pocket, and the right to search a room includes authority to open and search all the drawers and containers found within the room. It is reasonable to extend a lawful search to the wallet and envelope, and to drawers and containers in a room, and I think it equally reasonable to extend a lawful automobile search to containers in the automobile.

Again with respect I find the "expectation of privacy" test impractical. It conditions an officer's right to search upon the subjective feeling of the man challenging the search or at least upon such feeling as a judge thinks he might reasonably entertain. This amorphous standard causes and will continue to cause doubt and confusion among law-enforcement officers and courts.

WILKEY, Circuit Judge, dissenting:

In her careful and well-reasoned opinion for the majority, Judge Ginsburg convincingly analyzes the current state of the Supreme Court precedent controlling our decision today. I concur with the majority in its conclusion that the Court's ruling in Arkansas v. Sanders1 compels us, a lower court, to hold that a warrant is now required before a police officer may open an opaque container whose shape does not disclose its probable contents, even if the container has been found during a lawful warrantless search of an automobile.

But no matter how correct this holding seems to be, pending further clarification by the Supreme Court, we should not be making this decision today.2 This case should have been decided without a major constitutional pronouncement from this court. To prevent unnecessary constitutional decisionmaking, the Supreme Court has directed the lower courts to decide potentially dispositive issues concerning the retroactive application of the exclusionary remedy before passing on to substantive questions of constitutional law.3 But the majority today dismisses in my view incorrectly the government's position that the benefits of the Sanders rule are not retroactively available to Ross.4

The majority has stumbled over the retroactivity hurdle. Under the standard enunciated by the Supreme Court in United States v. Peltier5 and binding on us, "evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment."6 It is no secret that at the time Detective Cassidy opened Ross's bag and pouch the nation's leading lower courts and commentators were admitting puzzlement regarding how the Supreme Court would ultimately resolve the issue finally addressed by it in Sanders.7 So we would have to impute to Detective Cassidy nearly supernatural powers to see the future before we could charge him with knowledge that his conduct was unconstitutional. The windfall benefit of the exclusionary remedy thus should not be extended to Ross and the evidence uncovered by Cassidy should not be the subject of ex post facto suppression.

In Part I of the opinion that follows I show why the majority plainly errs in gratuitously conferring on Ross the advantages of Sanders. Then, having been forced to address the merits by the majority's determination that Sanders applies retroactively, I set forth in Part II why I believe a judge sitting on a lower court must agree with the majority's conclusion that Sanders applies to paper bags. Finally, in Part III I take the opportunity this case presents to underscore once again the devastating impact the exclusionary remedy has had on the administration of the criminal justice system. The elimination of this ill-conceived anachronism is now long overdue.I. THE RETROACTIVE REACH OF SANDERS

While for the reasons set out in Part II of this opinion I agree with the majority that Sanders established that a suspect has a constitutional right to have the police obtain a warrant before they open a container found during a search of a car, I do not agree that the appellant before us is entitled to the benefits of the exclusionary remedy for violations of the Sanders rule that occurred before Sanders was decided. The exclusionary remedy is not a personal right to which Ross can lay claim;8 it is merely a judicial attempt to remove whatever incentive there might otherwise be to police misconduct.9 Because Sanders had not yet been decided on the evening when Detective Cassidy opened Ross's brown paper bag and red leather pouch,10 Cassidy could not possible have "had knowledge, or ... properly be(en) charged with knowledge"11 that opening containers found in a car without a warrant would later be held to violate the Constitution. A police official cannot be deterred from doing something he could not have known was unlawful. Under the controlling Supreme Court precedent,12 I accordingly would hold that the evidence Cassidy obtained was properly admitted at Ross's trial.

In Sanders the Supreme Court expanded the scope of the right to a warrant under the Fourth Amendment to cover containers found during a lawful search of the integral parts of an automobile. In the case before us, a majority of this court has felt it necessary to reach the question whether Ross's brown paper bag is a container of a type subject to the Sanders mandate, and to hold that it is.13 But before Ross himself can benefit from Sanders two other questions must be answered in his favor: it must be decided, first, that the right announced in Sanders applies retroactively to pre-Sanders searches, and if so, that the exclusionary remedy for violations of that right are also available retroactively.

Admittedly, the answers we give to these questions in the long run will be of lesser significance than the holding to which the court today directs most of its energy that Sanders applies to paper bags.14 It hardly needs to be said that the conclusion that Sanders applies retroactively will be dispositive of only the relatively few cases arising from events occurring during a limited stretch of time.

Nevertheless, were we to find that the exclusionary remedy for violations of the Sanders rule is not available retroactively, the outcome of Ross's case could be determined without reaching the broader constitutional question the majority today addresses, and on which I therefore have felt obliged to write. To prevent just this sort of unnecessary constitutional decisionmaking, the Supreme Court has explicitly directed us to follow the practice of deciding retroactivity issues first whenever possible.15 Were this court to do otherwise, it would not only disobey the mandate of the Supreme Court, but demonstrate that it misunderstands the proper constitutional role of the federal courts.16

The majority, of course, did address the retroactivity question first,17 but, its determination that Sanders applies retroactivity is plainly in error. Unfortunately, this error is compounded in that it provides the excuse necessary to permit the majority to reach a constitutional issue we could have left for another day.

B. The Controlling Precedent: United States v. Peltier

As the majority opinion admits, the Supreme Court held in United States v. Peltier18 that "decisions expanding the scope of the exclusionary rule should have prospective effect only."19 The Peltier opinion is the key to determining whether the exclusionary remedy should be applied retroactively to searches in violation of Sanders. It is thus worth recalling in some detail what the Peltier court decided.

Peltier announced useful guidelines for the retroactive application of the exclusionary rule remedy, but in doing so it did not create new doctrine. It merely codified what had previously been decided piecemeal. For prior to Peltier, as the Court noted:

(I)n every case in which the Court ha(d) addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court ... concluded that any such new constitutional principle would be accorded only prospective application.20

In Peltier the Court did little more than set forth in a single opinion the basis for this unbroken string of decisions.21

To show why the Court had repeatedly come to the same conclusion, Justice Rehnquist first recounted the two principal functional bases for the exclusionary remedy: (1) the "imperative of judicial integrity"22 demanding that courts not become "accomplices in the willful disobedience of a Constitution they are sworn to uphold"23 by permitting the use at trial of evidence unlawfully obtained; and (2) the "deterrent purpose served by the exclusionary rule"24 in removing an incentive to unlawful police behavior. Because the exclusion of otherwise reliable evidence obstructs the primary factfinding function of a trial, the Court concluded that the retroactive application of the exclusionary remedy should always be based on the outcome of a balancing test weighing the disruption of accurate factfinding against the probable benefits of the exclusion of evidence. In the Court's words: "Whether or not the exclusionary rule should be applied ... depends on whether considerations of either judicial integrity or deterrence of Fourth Amendment violations are sufficiently weighty to require that"25 evidence of unquestioned "reliability and relevancy"26 be excluded.

The Peltier Court not only set out the interests to be weighed by future courts, but itself undertook a threshold balancing of the competing considerations in order to identify those situations in which the functional purposes of the exclusionary rule are so little served that the balance always compels admission of otherwise reliable and relevant evidence. Examining in turn both functional pillars of the exclusionary rule, the Court first observed that "the introduction of evidence which had been seized by law enforcement officials in good-faith compliance with then-prevailing constitutional norms (does) not make the courts 'accomplices in the willful disobedience of a Constitution they are sworn to uphold.' "27 The Court then noted, with regard to the deterrent aims of the exclusionary remedy, that "(w)here the official action was pursued in complete good faith ... the deterrence rationale loses much of its force"28 because it "necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct."29 The Court therefore concluded that a balancing of interests always requires admission of evidence in retroactivity cases where the officer involved acted in reasonable reliance on prior legal pronouncements from authoritative sources. In short, the Peltier rule binding on this court is: "evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment."30

C. The Peltier Standard and Detective Cassidy's Search

The key question we must decide, then, is whether Detective Cassidy, when he opened Ross's brown paper bag and red leather pouch, could possibly have "had knowledge, or ... properly be(en) charged with knowledge" that his actions violated the Constitution. I conclude he could not have been so charged. To understand why, it is necessary to put the state of the law on 27 November 1978, when Cassidy searched Ross's trunk, into perspective.

Detective Cassidy opened Ross's trunk fifty-three years after the Supreme Court authorized warrantless searches of automobiles in Carroll v. United States31 and seventeen months after the Court decided United States v. Chadwick.32 While Chadwick merely held that a warrant is required before police can open personal luggage seized under circumstances in which existing exceptions to the warrant requirement, including the Carroll exception, cannot be invoked, and thus in no way directly involved the Carroll exception,33 it is nonetheless of some significance here because it evidently set some people, including some courts, to speculating that the Supreme Court might be prepared to cut back on the Carroll exception by removing from its ambit containers found during a lawful warrantless search of a car. Because Chadwick must be the pivotal point of any reasonable argument that Detective Cassidy should somehow have been sufficiently prescient to have predicted Sanders,34 it is necessary closely to consider just what Chadwick in fact accomplished.

The facts of Chadwick are simple.³⁵ Unknownst to him, Chadwick was in the company of government agents when he met the train on which two accomplices had travelled from San Diego to Boston with a double-locked footlocker containing contraband. As he and his two partners in crime began loading the footlocker into the trunk of his parked car, the agents, with ample probable cause, seized the footlocker and arrested all three. The footlocker, reduced to the agents' exclusive possession and control, was removed to the Federal Building, and, after one-and-one-half hours had passed, searched without a warrant. At a pretrial suppression hearing, Chadwick attacked the warrantless search on the basis that it had violated his rights under the Fourth Amendment.³⁶

When this litigation reached the Supreme Court, the government seized on the case as a chance to offer the Court three separate opportunities to expand the government's right to conduct searches without a warrant. First, the government argued the rather extreme position that the "Warrant Clause protects only interests traditionally identified with the home."³⁷ Had the Court accepted this view, the government's right to search without a warrant would have expanded to encompass almost all situations not closely linked to a dwelling. Second, the government argued that the exception to the warrant requirement for searches incident to an arrest includes the search of "any property in the possession of a person arrested in public, so long as there is probable cause to believe that the property contains contraband or evidence of crime."³⁸ Had the Court adopted this theory, the exception for searches incident to an arrest would have grown to include even searches "remote in time or place from the arrest."³⁹ Finally, the government argued by analogy to the Carroll, or automobile, exception to the warrant requirement that warrantless searches of other mobile objects do not offend the Fourth Amendment.⁴⁰ Had the Court been persuaded to accept this argument, the automobile search exception would have been replaced by a much broader "mobile personalty" exception.

The Court, however, rejected all three government attempts to expand its rights to search without a warrant, leaving search and seizure law where it stood before. Two points about Chadwick critical to our analysis of the state of the law at the time Ross's trunk was searched should be noted: (1) Chadwick in no way involved the Carroll exception to the warrant requirement. The car search exception simply was not in the case. Indeed, the government did not (and sensibly could not) invoke it;⁴¹ and (2) Chadwick did not cut back on any previously endorsed exception to the warrant requirement; rather, it represented a refusal by the Court to expand the government's rights to search without a warrant. In short, when Chadwick was decided it would have been quite reasonable to conclude that it had nothing to do with the automobile search exception at all.

Sophisticated observers of the Supreme Court, not unlike astute observers of the Kremlin, however, attempt to draw as much meaning as possible from whatever subtle nuances they think they might be able to detect in Supreme Court opinions. So it did not go unnoticed that Justice Blackmun had drawn a response from another Justice when he wrote in dissent in Chadwick that "if t