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July 10, 1978

Clinton HILL

The opinion of the court was delivered by: CORCORAN


On November 2, 1977 defendant was operating in the District of Columbia a rented vehicle bearing a temporary Pennsylvania license tag. Two Metropolitan Police Officers, observing that the expiration date of the tag was illegible, made a traffic stop of the vehicle and asked defendant to produce his license and registration.

 While defendant was in the process of procuring the car registration from the glove compartment, one of the officers observed a pistol therein. The defendant was then advised of his rights against self-incrimination and was thereafter arrested for carrying a pistol without a license.

 Because the temporary tags were illegible and therefore invalid they were removed from the vehicle. Without the tag the vehicle could not be left standing on the public way *fn1" and accordingly was taken to the Third District Station and impounded.

 Subsequently, the car rental company (which apparently had been contacted by defendant's wife) called the police and obtained permission to pick up the vehicle.

 In anticipation of the vehicle's being returned to the car rental company, and in accordance with standard Metropolitan Police Department procedures, the police conducted an inventory search of the automobile. It included a search of its locked trunk. Inside the trunk, the police discovered an open blue zippered flight bag which, when searched, revealed: (1) a closed knapsack which in turn contained a loaded weapon and a quantity of heroin, and (2) a second loaded weapon found lying on the bottom of the flight bag. When defendant was made aware of these discoveries, he made a number of incriminating statements with respect to both the weapons and the heroin.

 II. The Arrest of the Person

 Defendant does not, and indeed under the circumstances could not, dispute the propriety of the initial stopping of his vehicle and the request for his license and registration. *fn2"

 However, defendant asserts that, having produced his license and registration, the subsequent search of the glove compartment resulting in the discovery of the unregistered pistol contained therein was improper. In view of the chronology of events leading to this discovery, we find this argument without merit. For it is the undisputed testimony of the arresting officers that the weapon was first noticed in the glove compartment when it was opened by defendant to secure the registration. Accordingly, their subsequent request that defendant again open the glove compartment, the seizure of the weapon, and defendant's arrest resulting therefrom were all clearly proper.

 III. Impoundment of the Vehicle

 The Government cites the following facts as justifying the impounding of defendant's vehicle: (1) The illegible temporary tags which formed the basis for the initial stop were removed and seized as evidence in support of the stop and because they were invalid. (2) Without tags the vehicle could not lawfully be left standing on the public way. D.C.Code ยง 40-104(a)(1). We find these facts properly supported impoundment of the vehicle.

 IV. Inventory Search

 The legality of the inventory search conducted here requires a discussion of two issues: (1) the propriety of the search Vel non and (2) assuming its propriety, was the search of the flight bag properly within the scope of such search.

 A. Propriety of the Inventory Search

 We have little difficulty in disposing of the first issue. Given our holding Supra that defendant's vehicle was properly impounded, it is now well established that the inventory search of the vehicle conducted by the police subsequent to removing it to the station was proper. See e.g. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); United States v. Reese, 183 U.S.App.D.C. 1, 561 F.2d 894, 903 n. 17 (1977).

 B. The Scope of the Inventory Search

 However, whether the scope of the inventory search properly included a search of the flight bag containing various items of contraband is an issue of a considerably more complex nature, for it requires a somewhat speculative *fn3" application and synthesis of the holdings in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976) and United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977).

 In Opperman the Court, in a 5-4 decision, approved an inventory search of a locked car impounded for overtime parking. During the search the police discovered drugs in a closed, but unlocked glove compartment. The Court justified inventory searches as incident to the caretaking function of local police to protect the community's safety. Specifically the Court noted the searches provide: (1) protection of the owner's property while in police custody, (2) protection of police from disputes over lost or stolen property, and (3) protection of police from possible danger. Opperman, supra, 428 U.S. at 369, 96 S. Ct. 3092. In accommodating the reasonableness requirement of the Fourth Amendment to such warrantless searches of impounded vehicles, the Court pointed to the public's reduced "expectation of privacy with respect to one's automobile." Id. at 367, 96 S. Ct. at 3096. Factors listed as contributing to this reduced expectation included: (1) Pervasive and continuing governmental regulation and controls which frequently result in examination of vehicles by the police and (2) the public nature of automobile travel in which both its occupants and contents are in plain view. Id. at 368, 96 S. Ct. 3092.

 As further support for the validity of inventory searches, the Court cited to numerous state and federal court decisions which have sustained such procedures. Id. at 371, 96 S. Ct. 3092. It is significant for purposes of this case that the Court chose to quote specifically from United States v. Gravitt, 484 F.2d 375, 378 (5th Cir. 1973) Cert. denied 414 U.S. 1135, 94 S. Ct. 879, 38 L. Ed. 2d 761 (1974) which stated that:


(W)hen the police take custody of Any sort of container be it an automobile, suitcase, or any other thing in which property may be stored it is reasonable to search the container to itemize the property to be held by the police. (emphasis supplied). *fn4"


Accordingly, it is not surprising that the Government relies heavily on Opperman to support the legitimacy of the search at issue here. However, for reasons discussed Infra, it is not at all clear that the facts of this case compel the result which the Government suggests.


First, the Court in Opperman did not consider whether the police might search a locked trunk *fn5" of a car nor did it authorize the inspection of containers found therein which might themselves be sealed, removed and secured without further intrusion. *fn6" Moreover, we view Justice Powell's concurring opinion in Opperman as suggesting a result contrary to that suggested by the Government. *fn7"


As noted Supra our primary area of concern here is not the validity Vel non of an inventory search, but the proper scope of such a search. On this score, Justice Powell expressed the following view:


Against (the interest of the owner and the police in the protection of the owner's property) must be weighed the citizen's interest in the privacy of the contents of his automobile. Although the expectation of privacy in an automobile is significantly less than the traditional expectation of privacy associated with the home (cites omitted), the unrestrained search of an automobile and its contents would constitute a serious intrusion upon the privacy of the individual in many circumstances. But such a search is not at issue in this case. As the Court's opinion emphasizes, the search here was limited to an inventory of the unoccupied automobile and was conducted strictly in accord with the regulations of the Vermillion Police Department. 6 (Footnote 6 sets out the scope of the Vermillion Police Department regulations. Justice Powell specifically notes that these regulations do not provide for searching a locked trunk as was done here). Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles. 7 (In footnote 7, Justice Powell notes: "There is, however, no evidence in the record that in carrying out their established inventory duties the Vermillion Police do other than search for and remove for storage such property Without examining its contents ) (Emphasis Supplied) Opperman, supra 428 U.S. at 379-380, 96 S. Ct. at 3102. *fn8"


In United States v. Chadwick, supra the Court in articulating the scope of the search incident to arrest exception to the Fourth Amendment's warrant requirement, refused to uphold the warrantless search, following a lawful arrest, of a locked footlocker which police had probable cause to suspect contained marijuana when such search was not conducted until the footlocker was secured at police headquarters.


The Court distinguished the search conducted in Opperman from that initiated in Chadwick in several respects. First, it noted that Opperman involved a noncriminal inventory search in which the "probable cause to search is irrelevant" and accordingly that "the salutary functions of a warrant simply have no application . . . (and) the constitutional reasonableness of inventory search must be determined on other bases." 433 U.S. at 10 n. 5, 97 S. Ct. at 2483. *fn9"


The second factor that distinguished the Opperman search was "the diminished expectation of privacy which surrounds the automobile." Id. at 12, 97 S. Ct. at 2484. Hence it was noted that:


Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person's expectations of privacy in personal luggage are substantially greater than in an automobile. Id. at 13, 97 S. Ct. at 2484.


Further explaining the nature of an individual's greater privacy interest in luggage, the Court said:


Respondents' principal privacy interest in the footlocker was, of course, not in the container itself, which was exposed to public view, but in its contents. A search of the interior was therefore a far greater intrusion into Fourth Amendment values than the impoundment of the footlocker. Though surely a substantial infringement with respondents' use and possession, the seizure did not diminish respondents' legitimate expectation that the footlocker's contents would remain private. (Emphasis supplied) Id. at 13-14 n. 8, 97 S. Ct. at 2485.


In applying to the instant case the two factors by which the court distinguished the legal search conducted in Opperman from the illegal search conducted in Chadwick, it is first apparent that to the extent that the search of defendant's flight bag was an inventory search it, too, is distinguishable from Chadwick.


However, it is equally apparent from the Court's discussion in both Opperman and Chadwick of the varying levels of expectation of privacy in one's possessions, that the level of privacy expectation is a key factor in determining the reasonableness of a given search, be it inventory or investigatory. *fn10" Accordingly, notwithstanding the investigatory nature of the search in Chadwick, we view its holding that one has a considerably higher privacy interest in his luggage extremely relevant in determining if the search of defendant's flight bag was reasonable under the Fourth Amendment. *fn11" With this in mind, we move to consider the merits of the reasonableness of the search of defendant's flight bag. *fn12"


Notwithstanding Justice Powell's view that the scope of a warrantless search does not provide a general license for police to examine all of a vehicle's contents, the Government argues that the standard procedures employed here *fn13" which prompted the search of defendant's flight bag are consistent with the purposes of inventory searches and are therefore in compliance with the reasonableness requirement of the Fourth Amendment. Specifically, the Government asserts that: "Here the sole purpose in opening the trunk and examining the contents was to protect them from loss and to protect the police against a claim that they caused the loss of personal property." *fn14" While the legitimacy of these concerns cannot be disputed, they must be weighed against defendant's expectation discussed Supra that the contents of his flight bag not be disturbed. In weighing these countervailing interests, we think several factors detract from the force of the Government's argument.


First, insofar as the Government justifies the search as a protection against false claims, we note Justice Powell's observation that:


"It is not clear, however, that inventories are a completely effective means of discouraging false claims since there remains the possibility of accompanying such claims with an assertion that an item was stolen prior to the inventory or was intentionally omitted from the police records. *fn15" 428 U.S. at 378, 379, 96 S. Ct. at 3102.


Second, with respect to the Government's concern for loss of property, to the extent that the existing police procedure requires the removal and storage of defendant's flight bag we fail to perceive how the inventory conducted of its contents in any way adds to their protection. And further, it is not at all clear that the police could have been held responsible for the loss of items contained in the locked trunk of defendant's car. *fn16"


Finally, in determining the reasonableness of the search conducted here, we think it appropriate to apply the principle that:


(E)ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of . . . abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. *fn17"


Applying this principle to the search of defendant's flight bag, it strikes us that the various countervailing interests discussed Supra could just as well, if not better, have been served if defendant's flight bag had merely been sealed, removed, and secured without further intrusion, *fn18" the unbroken seal ultimately testifying to the lack of tampering. This procedure would impose no further burden or expense than that currently incurred by the Police Department, in that it already routinely removes and stores such personalty. The suggested procedure would in no way affect the protection afforded to defendant's property under existing procedures, but it would enhance the protection afforded police against false claims by removing the possibility of allegations of impropriety during the inventorying process. Finally, such procedure would serve to accommodate the considerable interest of an individual in safeguarding his possessions from unreasonable police intrusions. See Chadwick supra.


V. Conclusion


In view of the foregoing we find that the search of defendant's flight bag was unreasonable under the Fourth Amendment and, that the items seized and subsequent statements made regarding them must be suppressed.


Accordingly, it is this 7th day of July, 1978 hereby


ORDERED that Defendant's Motion to Suppress Tangible Evidence and Statements is denied with respect to suppression of the weapon found in the glove compartment of defendant's car, and it is further


ORDERED that Defendant's Motion to Suppress Tangible Evidence and Statements is granted with respect to items contained in his flight bag and all subsequent statements made which pertained to such items.

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