-
545 F.2d 672
UNITED STATES of America, Plaintiff-Appellee,
v.
Henry Wayne FRIESEN, Defendant-Appellant.No. 75-1799.
United States Court of Appeals,
Ninth Circuit.Nov. 12, 1976.
1Thomas Schneiger (argued), Portland, Ore., for defendant-appellant.
2Bill Youngman, Asst. U. S. Atty. (argued), Portland, Ore., for plaintiff-appellee.
3Before HUFSTEDLER and CHOY, Circuit Judges, and REAL,* District Judge.
REAL, District Judge:
4Appellant was arrested by Oregon State Police upon an outstanding arrest warrant. After his arrest he was permitted to gather his belongings from his motel room into two suitcases. Appellant and his luggage were then transported to the police station where his personal property including the property in his suitcases was inventoried.1
5Appellant was tried and convicted of interstate transportation of a stolen aircraft. He complains of the failure of the trial court to suppress those items used as evidence which were obtained as a result of the inventory of his suitcases.
6The United States Supreme Court has not directly addressed the issue. Obliquely, the case of Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1966), upheld the search without a warrant of an auto being held pending a civil forfeiture action. In preserving its position in Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1914), the Court does say:
7We made it clear in Preston that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property.
8386 U.S. at 59, 87 S. Ct. at 790.
9What appears clear from reading Cooper (supra) and Preston (supra) is that searches are to be measured for their reasonableness on the factual context in which the trier of fact must apply Fourth Amendment protections.
10More recently the Supreme Court considered and approved inventory searches of seized automobiles. South Dakota v. Opperman, --- U.S. ----, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). Opperman (supra) is dispositive.
11Where property is validly held by law enforcement officers for which they may have responsibility, it seems a useless gesture, whether it be an automobile or a suitcase, to require a search warrant to effect an inventory of the property. See Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); United States v. Gravitt, 484 F.2d 375 (5th Cir. 1974); United States v. Mitchell, 458 F.2d 960 (9th Cir. 1972); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970); United States v. Robbins, 424 F.2d 57 (6th Cir. 1970); United States v. Blackburn, 389 F.2d 93 (6th Cir. 1968).
12Appellant's other contentions on this appeal are without merit.
13The judgment is affirmed.
14HUFSTEDLER, Circuit Judge (concurring specially).
15I concur in the result following the teaching of South Dakota v. Opperman (1976) --- U.S. ----, 96 S. Ct. 3092, 49 L. Ed. 2d 1000.
*Honorable Manuel L. Real, United States District Judge, Central District of California, sitting by designation
1The trial court found that the contents of the suitcases were inventoried at the police station pursuant to proper police procedures. This finding is supported by the evidence and will not be disturbed on this appeal
Document Info
Docket Number: 75-1799
Citation Numbers: 545 F.2d 672
Judges: Choy, Hufstedler, Real
Filed Date: 11/12/1976
Precedential Status: Precedential
Modified Date: 8/4/2023