United States of America v. Willie Robinson, Jr., Appellant, 447 F.2d 1215 (D.C. Cir. 1971)

This appeal from a jury conviction for federal narcotics offenses (26 U.S.C. § 4704(a) and 21 U.S.C. § 174) raises questions under the Fourth Amendment, as difficult as they are important, of the permissible scope of the search of the person incident to a lawful arrest. Heard and decided initially by a division of this court on a ground not raised in the trial court, the case was reheard en banc. Hampered by the fact that the taking of evidence in the District Court was not focused upon the scope issue first raised here, we have concluded that the resolution of that issue must abide a remand in which that can be done. We address ourselves initially, however, to two questions, raised in both the District Court and here, which were pretermitted by the division. Finding against appellant on the merits of both, the remand we make is in order.

* A pretrial motion to suppress evidence, in the form of narcotics taken from the possession of appellant at the time of his arrest, was the subject of an evidentiary hearing out of the presence of the jury. In that hearing Officer Jenks of the Metropolitan Police Department testified that at 12:45 A.M. on April 19, 1968, he stopped a 1965 Cadillac at 9th and U Streets, N. W., for what he described as a "routine spot check." Appellant, the driver of the Cadillac, was asked to exhibit his driver's permit and the vehicle registration. Appellant, according to Jenks, handed over a temporary driver's permit, the registration, and a selective service classification card. Officer Jenks made notes of the first and third of these items, remarking in the process a discrepancy in the birth dates on each, that on the driver's permit being 1938 and, on the draft card, 1927. Appellant was then permitted to go on his way. Officer Jenks later checked traffic records and discovered that appellant's driver's license had been revoked, and that the temporary permit had been issued in response to an application which represented the date of birth to be 1938.

Four days later, on April 23, Officer Jenks again encountered appellant, operating the same Cadillac. Officer Jenks stopped him with, as he put it, "the intention of arresting [appellant] for operating after revocation and obtaining a permit by misrepresentation." When appellant produced the same temporary permit as before, he was told that "he was under arrest for operating after revocation." Officer Jenks then testified:

"I advised him of his rights, and searched him immediately in front of me. I noticed in his left coat pocket — breast pocket of his coat, a wadded up package — cigarette package. I opened it. Inside was found 14 gelatin capsules."

After first identifying the cigarette package with the 14 capsules in it as the property taken by him from appellant, Officer Jenks concluded his direct testimony with an account of what he did with the capsules after their seizure. He placed his initials on the package, together with the date and time. The next morning he turned it over to Officer Gorney of the Narcotics Squad, having kept it in his locker in the interim, to which locker he had the only key. Officer Gorney made a field test in his presence, and then placed the cigarette package in a cream-colored envelope which he sealed with scotch tape, placing his initials and the date and time on that envelope, as did also Officer Jenks. Officer Jenks then observed Officer Gorney proceeding with his paper work, which included writing on what is known as a locked sealed envelope.

Officer Jenks was cross-examined briefly on (1) the turning over of the draft card by appellant during the original stop, and (2) Jenks' subsequent examination of the traffic records. Mrs. Ewing, an enforcement clerk in the Department of Motor Vehicles, then testified, without cross-examination, as to what the records of the Department showed. The third witness was Mr. Steele, a Government chemist. He testified that he received a locked sealed envelope from Officer Gorney on April 29, 1968. He put his initials and Gorney's name on the outside, and also a laboratory control number. The envelope was sealed and intact upon its receipt by him, and there was no indication that it had been tampered with. Upon opening in the laboratory, a smaller envelope sealed with scotch tape was found inside; and inside that was a cigarette package containing 14 capsules. Gorney's and Jenks' initials were in the places testified to by them. The capsules, on being chemically analyzed, were found to contain heroin. They remained in the laboratory vault until brought by Steele to the courtroom. Steele's brief cross-examination was largely confined to signs of tampering, but his answers were as on direct.

Appellant took the stand and testified on direct examination only that, during the original stop, Jenks had asked to see his draft card after he had produced his driver's permit and the vehicle registration. He admitted on cross-examination that he had misrepresented his age in seeking the second driver's permit.

With the taking of evidence so completed on the motion to suppress, appellant's trial counsel asserted two reasons why the motion should be granted. One was that the purposes of the routine spot check had been exhausted when appellant exhibited to Officer Jenks his driver's permit and registration, and that Jenks had no right to require appellant to exhibit his draft card. It was urged that, since it was the age discrepancy revealed by the draft card which aroused Jenks' suspicions, everything that followed, including the discovery of the narcotics on the occasion of the later arrest, was the forbidden fruit of this initial illegal action. The second point advanced in support of the motion was that the evidence revealed no unbroken chain of custody of the seized narcotics reasonably assuring that the capsules introduced into evidence were the same as those which Jenks said he took from the possession of appellant. At the conclusion of arguments by counsel on the merits of these two claims, the court, without elaboration, denied the motion.

At the succeeding trial before the jury, it was stipulated that (1) the capsules in evidence allegedly taken from appellant did in fact contain heroin, and (2) their chain of custody was from Officer Jenks to Officer Gorney to Mr. Steele to the courtroom. Officer Jenks was the only witness for the prosecution and testified on direct essentially as he had on the motion to suppress.¹  He was cross-examined only briefly, and there were no questions relating to the search except one which asked whether appellant had his coat on when he got one of the car, to which the answer was in the affirmative.

The first witness for the defense was one Smallwood, who testified that he was in the car with appellant when the latter was stopped the second time. When appellant got out of the car and walked back to meet Officer Jenks, said Smallwood, appellant did not have his coat on; it was, instead, lying in the back seat of the car. Smallwood had left the immediate vicinity of the car when the narcotics were discovered, although he later observed the police searching the car. The police did not search him or the third occupant of the car when it was stopped.

Appellant testified that, after he got out of the car and was told that he was under arrest for misrepresentation, Officer Jenks went over to the car to get the keys. He picked up appellant's coat in the car and searched it. Finding the narcotics, he announced to appellant that he was under arrest for a narcotics violation. Appellant said that he had allowed his coat to be worn by someone else that day, and that he himself had never placed narcotics in it. On rebuttal, Officer Jenks testified as follows:

"Q. Officer Jenks, where did you get the jacket from or where did you find the narcotics?

"A. In his left breast pocket like my jacket right here — like the jacket I have on.

"Q. Where was the jacket when you recovered the narcotics?

"A. He was wearing it."

In a colloquy with the court pertaining to the instructions to be given, the theory of the defense made before the jury appears clearly in this exchange:

"THE COURT: As I understand, you do not deny the narcotics drug was found by the arresting officer that night or that it was found in a coat, but your position being that the coat was out of the possession of the defendant for a period of hours on the 23 of April, and when it was returned, it was thrown by this friend, Shorty, in the back seat of the car, and not worn by the defendant, and the Officer found the drug in the coat that had been lent to Shorty. Is that your position?

 " [DEFENSE COUNSEL] Yes, your Honor."

II

On appeal to this court, three points were raised by appointed counsel, who had not represented appellant in the District Court. One was a claim that the District Court erred in denying appellant's pretrial motion, made pro se, to dismiss the indictment for want of the speedy trial required by the Sixth Amendment. The other two related to the motion to suppress, and consisted of (1) the chain of custody argument made unsuccessfully in the District Court, and (2) a contention that the narcotics were seized in a search which exceeded the proper scope of one incidental to a traffic arrest.²  The latter is, of course, in sharp contrast to the argument, pressed upon the District Court but not here, that suppression should flow from the circumstance of the initial examination of the draft card four days before the arrest itself. We do not turn in the first instance to the scope issue, since a ruling for appellant on the merits of either the speedy trial or the chain of custody questions would result in the dismissal of the charges against appellant and render unnecessary our reaching an important constitutional question on a record not compiled by reference to it.

Although appellant was continuously represented in the trial court by appointed counsel, he appears to have filed on June 26, 1969, a pro se motion to dismiss for lack of a speedy trial. In this motion appellant complained only of the fact that he had been in jail for 13 months unable to make bond. This motion was referred to the judge before whom the case was set for trial and was denied by him.

The period of time from appellant's arrest on April 23, 1968, to his trial on August 21-22, 1969, was just short of 16 months. It appears, however, that the principal reason for the delay was that Officer Gorney, who was an essential witness with respect to the narcotics proposed to be introduced in evidence, suffered a severe heart attack in the winter of 1968-69, and the Government was obliged to seek continuances until he could testify. The record shows one such continuance from March 26, 1969, to April 21. On April 18, the Government reported that it would be at least another month before Officer Gorney's health would permit him to appear, and that, since appellant was unwilling to stipulate as to what Gorney's testimony would be, a further continuance was necessary, to which appellant's counsel did not object. In this connection, it appeared that appellant's counsel was willing to stipulate as requested, but appellant would not consent. In the event, Gorney was never able to testify, and the Government had to go to trial without him. As reported above, however, at trial a stipulation was forthcoming from the defense which could have made trial possible many months earlier.

Although 16 months are certainly more than enough in the way of delay to invite the closest scrutiny, our examination of the record does not convince us that justice to appellant requires dismissal of his indictment. This is not a case where the Government was either purposefully or inadvertently neglectful. It was prepared to go to trial well within the normal course, but, through no fault of its own, was put under the necessity of seeking delay until Officer Gorney's health improved. Appellant's counsel did not object to this, and appellant himself registered no dissatisfaction until only a few weeks before the trial began.

Moreover, there was no allegation before the District Court of reasonable possibility of significant prejudice to appellant in the preparation of his defense. See, e. g., Coleman v. United States, 142 U.S.App.D.C. 402, at 405, 408-410, 442 F.2d 150, at 153, 156-158 (1971); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). His complaint was that his pretrial detention in jail was so long as to violate his Sixth Amendment right. While length of pretrial incarceration is an important consideration, it is only one of several factors to be taken into account, and may be overridden by a showing, like that before us, of a reason for the delay. See United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1965), and Note, The United States Court of Appeals for the District of Columbia Circuit, 1968-1969 Term, 58 Geo. L.J. 80, 140-141 (1969). It differs in kind from an allegation of specific instances of adverse impact upon trial preparation and defense. At the trial, appellant produced one witness who as at the scene of the arrest and who supported the theory presented by the defense to the jury. No other witness was identified who might have done better.

We have said that there is "no touchstone of time which sets a fixed maximum period that automatically requires application of the Sixth Amendment." Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). Although the delay in this case is regrettable, neither in its causes nor its consequences does it require the public interest in the prosecution of one charged with serious crime to yield to appellant's interest in an expeditious determination of the merits of the charge against him.

Appellant insists that the narcotics should not have been admitted into evidence for the reason that the prosecution failed to establish a chain of continuous custody from the time of their seizure until their appearance in court. The break occurred, so it is said, with the intervention of Officer Gorney. Although Officer Jenks testified that he saw a locked sealed envelope in Gorney's possession, he did not say that he actually saw the cream-colored envelope placed in it nor did he see Gorney actually seal the larger envelope. Since Mr. Steele, the chemist, did not receive the locked sealed envelope until five days later, the continuity of the chain is not, argues appellant, accounted for in such fashion as to guarantee that the capsules offered in evidence were those taken from appellant's coat.

We have in the past, as appellant points out, been alert to the necessity of high standards in maintaining the security of criminal evidence. See Novak v. District of Columbia, 82 U.S.App.D.C. 95, 160 F.2d 588 (1947). Our most recent formulation of this principle, however, appears in Gass v. United States, 135 U.S.App.D.C. 11, 14, 416 F.2d 767, 770 (1969), where we said that "the possibilities of misidentification and adulteration [must] be eliminated, not absolutely, but as a matter of reasonable probability."

At trial appellant was willing to stipulate that the capsules went from Jenks to Gorney to Steele, before being produced by the last-named in the courtroom. We are not prepared to say on this record that there is such a probability of the capsules having been tampered with while in Gorney's possession as to render them inadmissible in evidence. It is, of course, true that Gorney was, for reasons beyond his own and the Government's control, unable to testify himself, but we do know from Mr. Steele that he received a locked sealed envelope from Gorney, and that he found inside the cream-colored envelope sealed with scotch tape and bearing Jenks' and Gorney's initials — all as testified to by Jenks.³ 

In the light of this and other corroborative circumstances contained in the record, we are not impressed with the likelihood that chicanery or carelessness characterized the handling of the capsules at some point in their journey from Jenks to the courtroom. If appellant is in fact innocent, it is hardly because the capsules found in the coat are not the capsules offered in evidence. We find no error in the District Court's rejection of this ground of the motion to suppress.

III

Neither before the division nor en banc has the Government relied upon the normal unavailability on appeal of issues not raised in the trial court. Indeed, in its suggestion for rehearing en banc it has strongly pressed this court to declare that there is an unqualified right to search the person as an incident of a lawful arrest, irrespective of the nature of the crime for which the arrest is made, in the interest of the protection of the arresting officers, the arrestee, and those with whom he may come into contact while in custody.⁴  To clear away obstacles to this end, it has made representations of fact which go beyond those ascertainable from the record. These are said to be derived from consultations between Government counsel handling the appeal and the prosecutor who tried the case, and consist of reported assertions by the latter that Officer Jenks told him that he [Jenks] "did in fact conduct a search of appellant by examining the left breast pocket of his outer coat and did not limit himself to a mere patdown." In the light of these concessions, the Government asserts that there is no need for a remand because it disclaims any reliance upon the doctrine of plain view.

The Government does argue to us, however, that the overriding justification for a right on the part of the arresting officer to conduct an unlimited search of the person is the protection of the officer's safety and the safety of all persons with whom the arrestee would come into contact while in custody. It asserts that a lawful arrest, unlike an investigatory stop, creates a continuing relationship between the officer and his prisoner which warrants a protective search going beyond the mere frisk — a search indeed that is protective not only of the officer but of the arrestee in the sense that the latter will not be able to use suicidally against himself lethal articles not likely to be disclosed by a mere patdown.

If a purpose of this character is to provide the legal basis for the search of appellant's person in this case, it would presumably be of interest to know such things as whether Officer Jenks' search in this case began and ended with the left breast pocket of appellant's coat, and whether departmental practice or regulations require the arresting officer in every case to search the person of the arrestee thoroughly and completely at the point of arrest in order to assure the safety of both. Such an objective is hardly realized by a search which terminates the moment incriminating evidence is found, even though the search itself is far from finished. The record before us is silent on this score, and remains so even after the Government's volunteered and double hearsay supplementation.

Moreover, there are inevitably difficulties with this kind of supplementation, as compared with testimony under oath on the record elicited by examiner and cross-examiner alike by reference to a precise articulation of what is claimed to be the governing law. A witness with no purpose to evade or distort will not infrequently tell quite a different story when examined under these more rigorous conditions. The rule of law we are urged to declare is too important to admit of confident delineation in the absence of the traditional and tested method of getting at the truth in an adversary context. Our appellate function is best performed when there is before us a record made under circumstances where trial counsel and trial court alike are, in the taking of evidence, fixing their attention upon what is claimed to be the applicable principle of law.

On the record as it came to us, the District Court is surely not to be faulted for ruling as it did. How it may rule after remand is something we leave to the event. We need not decide whether we might have let the conviction stand in light of the record's silence with respect to plain view or other circumstances bringing the search within established doctrines of permissible scope. A new element has been added by the Government's extra-record representations, which we are hardly warranted in ignoring. They leave us little or no room for disposing of this case by affirmance without further inquiry, although, as indicated above, neither do they go so far as to provide a reliable factual base upon which to promulgate the rule of law for which the Government contends.

Since a remand is to be made, we do not pursue at length the legal issue of the permissible scope of the search of the person incident to a lawful arrest. This has been done in the comprehensive opinion issued by a majority of the division,⁵  and in the petition for rehearing and suggestion for rehearing en banc filed by the Government.⁶  They identify and discuss the relevant authorities, and they set forth the theoretical foundations variously advanced in support of the conflicting claims as to what the law is or ought to be. Familiarity with them by both court and counsel participating in the remand would illuminate the matters to be explored and decided, and generally contribute to the realization of the purposes for which the remand is being made.

Assuming only for the moment that the Government's disclaimer in this court of plain view is borne out by the testimony on remand, this case may well provide an appropriate vehicle for rational definition of the scope of personal searches incident to lawful arrest — an objective which is urgently important to the administration of justice in this circuit. A central condition of its achievement is an authentic version of what actually happened in this case, including such information as may prove relevant with respect to the operational problems and practices of the police in this field. Only then, and aided by the District Court's application of the law as conceived by it to the facts as found by it, can we meaningfully determine the reach of the Fourth Amendment in the light of existing Supreme Court decisions.

The record in this case is remanded to the District Court for a supplementary evidentiary inquiry on the motion to suppress.

It is so ordered.

J. SKELLY WRIGHT, Circuit Judge (dissenting).

The principal issue in this case concerns the admissibility of narcotics evidence seized during a search incident to an arrest for violation of a District of Columbia motor vehicle regulation. On the basis of this evidence, appellant was convicted by a jury in the District Court of possession of narcotics.

The events leading up to the search were as follows:¹  On April 19, 1968, Officer Richard Jenks of the Metropolitan Police Department stopped a 1965 Cadillac at the intersection of Ninth and U Streets, N. W., for a "routine spot check." At the time of this stop, Officer Jenks examined not only appellant's (temporary) operator's permit and automobile registration card, but also his selective service classification card. Officer Jenks permitted appellant to continue about his business, but only after making notes of the three items. His note-taking alerted him to a discrepancy between the "1938" date of birth listed on the temporary operator's permit and the "1927" date of birth listed on the selective service classification card. Officer Jenks then went to police traffic records and discovered that the operator's permit issued to "Willie Robinson, Jr.," born in 1927, had been revoked, and that a temporary permit had been issued to a "Willie Robinson," born in 1938. The pictures on the revoked permit and on the application for the temporary permit were of the same person; both were likenesses of the man he had stopped for the routine check on April 19.

On April 23, 1968, while on duty, Officer Jenks observed appellant operating the same vehicle. He stopped appellant, asked him for his permit and registration, and, upon being shown the same permit appellant had exhibited four days earlier, placed appellant under arrest for operating a motor vehicle after revocation of his operator's permit and for obtaining a permit by misrepresentation.²  According to his testimony, Officer Jenks "advised [appellant] of his rights, and searched him immediately in front of me. I noticed in his left coat pocket — breast pocket of his coat, a wadded up package — cigarette package. I opened it. Inside was [sic] found 14 gelatin capsules."³  Appellant was then placed under arrest for possession of narcotics.⁴ 

On October 16, 1968, appellant was indicted by the grand jury for possession of narcotic drugs under 26 U.S.C. § 4704 (a) (1964) and for receipt and concealment of narcotic drugs under 21 U.S.C. § 174 (1964). On August 22, 1969, he was found guilty by a jury on both counts as charged in the indictment, and he subsequently filed the appeal which is now before us.

I would hold the search of Willie Robinson to be unconstitutional on the basis of the fundamental Fourth Amendment principle which has been given renewed emphasis in the housing inspection⁵  and stop-and-frisk⁶  cases: a search will comply with the Fourth Amendment's protective requirements only if its scope is no broader than necessary to accomplish legitimate governmental objectives. This principle is stated most clearly in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), in which the Supreme Court upheld an on-the-street detention and search for weapons of three suspects. The Court found that the police officer in Terry had "adequate constitutional ground," but not probable cause, to believe that the men he detained and searched were going to commit a crime. In its opinion the Court stressed that the Fourth Amendment governs all intrusions by agents of the public upon personal security, 392 U.S. at 18 n. 15, 88 S. Ct. at 1878, and that the manner in which the search and seizure are conducted is as much the test of their reasonableness as whether they were warranted at all. Id. at 28, 88 S. Ct. at 1883. Citing a number of earlier cases, many of which were initiated upon probable cause, the Court in Terry stated that " [t]his Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope," and that " [t]he scope of the search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Id. at 17-19, 88 S. Ct. at 1878.

Ordinarily, a warrant must be obtained by a police officer before he may make a search.⁷  Searches of both person and place incident to lawful arrest, however, have traditionally been exceptions to this rule and have been held constitutional even though they have been made without prior approval by a neutral magistrate. Because a warrant will not be available to insure that arrest-based searches are reasonable both at their inception and in their execution, courts must review the constitutionality of such searches with special care. See, e. g., United States v. Ventresca, 380 U.S. 102, 106, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); Schmerber v. California, 384 U.S. 757, 766-772, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).

It was just this kind of extra-careful review which the Supreme Court recently undertook in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). In Chimel, the Court used its scope limitation principle to measure the constitutionality of a warrantless, far-ranging search of a house incident to a lawful arrest for larceny. Terry was specifically referred to, and the Chimel search, in which police discovered coins appellant was accused of stealing, was found to be unconstitutional because it was not "`strictly tied to and justified by' the circumstances which rendered its initiation permissible." 395 U.S. at 762, 89 S. Ct. at 2039. Chimel holds that incident to a lawful arrest for a crime such as theft, which requires instruments and bears fruits, there is ample justification for a warrantless search of "the arrestee's person and the area `within his immediate control' — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Id. at 763, 89 S. Ct. at 2040.

In Chimel the Supreme Court had occaion to analyze and define the proper scope limitations for search of a house incident to a lawful arrest. Here the limits for arrest-based searches of the person are at issue. Although I am reassured to find that my position is consistent with and supported by the rationale and the holding in Chimel, I make no claim for its retroactive applicability to this case. A year before Chimel the Supreme Court had made it absolutely clear that the underlying rationale of Terry was a restatement of, rather than a departure from, existing case law, and that, although the Terry case itself involved a search upon less than probable cause, the scope limitation principle was to apply to all searches no matter what the evidentiary basis for their initiation. 392 U.S. at 17-19, 88 S. Ct. 1868.

What then are the legitimate objectives of an arrest-based search of the person? What is it that renders such searches permissible at their inception, and to which the scope of such searches must be tied, if their reasonableness is to be maintained? Though they receive slightly different formulation in various cases, the legitimate objectives of warrantless searches of the person incident to arrest seem to be (1) seizure of fruits, instrumentalities and other evidence of the crime for which the arrest is made, in order to prevent its destruction or concealment; and (2) removal of any weapons that the arrestee might seek to use to resist arrest or effect his escape.⁸  Does either of these legitimate objectives, under the specific circumstances of this case, justify a search such as the one which was actually made and which is now challenged by appellant as unconstitutionally intrusive?

II

Since fruits, instruments or other evidence of crime concealed on the person of the arrestee may be easily disposed of or destroyed, the arresting officer will often be justified in searching for such evidence without delay. But the scope limitation principle requires that when police search a person incident to arrest, the search must be directed to finding evidence which the arresting officer has probable cause to believe will be found on the person, and that the search be no more intrusive than necessary to recover such evidence. For some crimes — and more particularly for most traffic crimes⁹  — no search of the person for evidence may be allowed at all because no evidence exists to be found. Admittedly, appellant's crime in this case — driving after his operator's permit had been revoked — is a relatively serious one on the continuum of violations set forth in the District of Columbia Motor Vehicles Code. Nonetheless, upon stopping Willie Robinson for the second time and upon receiving for the second time Robinson's fraudulently obtained temporary operator's permit, Officer Jenks had secured the only evidence of the crime for which the arrest was made which he could possibly have had probable cause to believe was in the arrestee's possession. No further arrest-based search for evidence was therefore reasonable or constitutional.

There is, of course, a second, very important justification for searches incident to arrest — the interest of government in the safety of its police officers. But in the case of Willie Robinson, arrested for a traffic code violation, this legitimate goal could have been accomplished by a protective frisk, and no greater intrusion upon individual privacy is constitutionally permissible. In Terry v. Ohio, supra, the Supreme Court approved a pat-down or "frisk" of the appellant's outer clothing for weapons, with a further intrusion only after finding a weapon, precisely because this intrusion was reasonable at its inception and was confined "strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons." 392 U.S. at 30, 88 S. Ct. at 1884. It has been suggested that Terry is distinguishable from this case because the search for weapons in Terry was based only upon "reasonable suspicion" whereas here appellant was arrested on probable cause. But in focusing on the different quanta of evidence required to justify different degrees of search of the person, one can easily lose sight of the even more telling distinction between the evidentiary purpose and the protective purpose of searches. It is this latter distinction upon which our case hinges.

Because the arrest-based searches reviewed and validated by the courts have usually had both evidentiary and protective functions, the casual reader may be given the false impression that these cases stand for the proposition that a lawful arrest will always support a full search of the person. Obviously, when the arrest is made for a crime for which evidence exists, a warrantless intrusion into the pockets of the arrestee to discover such evidence is reasonable under the "search incident" exception. The officer may also use this reasonable intrusion to look simultaneously for weapons. But in a fact situation such as ours, where the search can have no evidentiary function, a more careful analysis of proper scope limitations is called for. When the crime is one for which no evidentiary search can be justified, then with regard to the scope of the intrusion on personal privacy which the Constitution will allow for the accomplishment of the single legitimate goal of protecting the arresting officer it is of no moment whether the protective search for weapons is incident to an "arrest" based on probable cause or incident to a "stop" based on reasonable suspicion.

III

That the scope limitation principle is intended by the Supreme Court to apply to arrest-based searches is expressly established by the last of the cases in the Terry-Sibron-Peters trilogy. In Peters v. New York, which is consolidated with Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968), Officer Lasky of the New York City Police Department was off duty at his apartment when he heard a noise at the door. Looking through the peephole into the hall, he saw two men he did not believe to be fellow tenants tiptoeing out of the alcove toward the stairway. Officer Lasky called police headquarters, put on civilian clothes, and armed himself with his service revolver. Believing he had happened upon the two men in the course of an attempted burglary, Officer Lasky opened his door, entered the hallway, and slammed the door loudly behind him. When the door slammed, the two men fled down the stairs, and Officer Lasky gave chase. When he caught up with Peters on the stairs and questioned him, Peters explained his presence in the building to Officer Lasky by saying he was visiting a girl friend whose name he chivalrously declined to reveal on the ground that she was a married woman. Officer Lasky then patted Peters down for weapons and discovered a hard object in his pocket. The object did not feel like a gun, but he thought it might be a knife. Officer Lasky removed this object from Peters' pocket and found it was an opaque envelope containing burglar's tools.

Given this fact situation, the Supreme Court held that Officer Lasky legally arrested Peters when he collared him on the stairway and curtailed his freedom of movement. This arrest was found to be valid because made on the basis of probable cause to believe Peters was engaged in criminal activity. At this point, according to the Supreme Court,

" [Officer Lasky] had the authority to search Peters, and the incident search was obviously justified `by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.' * * * Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects. * * *"

392 U.S. at 67, 88 S. Ct. at 1905. (Emphasis added.)

In Peters, then, the Supreme Court examines very closely a particular arrest-based search having both evidentiary and protective functions and finds that this search — which took the form of a frisk followed by a further intrusion into the arrestee's pockets only after an object possibly a weapon had been felt — was not too "unrestrained and thoroughgoing." Surely when the legitimate goals of the search are more limited, as in this case, to a search with only a protective goal, we should make the same kind of careful inquiry as to the scope of the search as was made by the Supreme Court in Peters, i. e., whether the search was reasonably limited in scope to its legitimate purposes.

A rereading of Terry and Sibron, in conjunction with Peters, makes clear what the proper limits for a protective search should be. In Sibron, a direct intrusion into the pockets of a narcotics suspect was held by the Supreme Court to have been unreasonable at its inception because the mere association of the suspect with other known narcotics offenders was held not to have given the investigating officer justification for any search whatever. But the Sibron Court went further and held that, assuming arguendo the arresting officer had reason to suspect Sibron was armed, the actual search — a direct intrusion into the suspect's pockets rather than frisk — would still have been constitutionally invalid because not "reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer * * *." 392 U.S. at 65, 88 S. Ct. at 1904.

Terry, Sibron and Peters, when read together, stand for the proposition that, whether the detention is based upon probable cause or not, if the crime is one for which no evidence exists, so that the sole legitimate objective of the search is to protect the arresting officer, then any intrusion greater than a frisk will be unconstitutional. A comparison of factual settings leaves no doubt that the likelihood of harm to the arresting officer was far greater in Terry than in the case which is now before us.¹⁰  A properly conducted frisk here would have provided appropriate protection for the arresting officer.¹¹  The greater intrusion which actually occurred was therefore too "unrestrained and thoroughgoing" to meet the protective requirements of the Fourth Amendment.¹² 

My position is completely consistent with the many federal cases — some of them our own — in which search of an automobile subsequent to an arrest for a traffic violation has been validated, not as incident to the traffic arrest, but as reasonably necessary because of the presence of evidence of another crime. Writing for a unanimous panel in Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976 (1966), Judge (now Chief Justice) Burger upheld a warrantless search of an automobile subsequent to an arrest of the driver for driving without a tag light and with an expired inspection sticker. The court, however, was careful not to justify the search as an incident to the traffic arrest. After reviewing the evidence which became available to the officers by radio during the arrest but before the search, the court stated:

"The questions presented on these facts are whether the police had probable cause for arresting Appellant on the robbery charge, whether they did in fact arrest him, and whether the search was therefore permissible as one incident to arrest."

125 U.S.App.D.C. at 45, 365 F.2d at 978. Judge Burger then grounds his opinion on the finding that, while one police officer was questioning the driver as to his traffic violations, a second officer heard over the squad car radio that a robbery had been committed by a person answering the defendant's general description and driving an automobile similar to the one they had just stopped. The court held that these circumstances gave the officers probable cause to arrest the driver for robbery, and it was then, of course, completely reasonable to search the automobile incident to this robbery arrest.

Other federal courts¹³  which have considered the "pure" traffic arrest problem specifically hold that, absent "special circumstances" not present in this case,¹⁴  a search of the person or automobile not related to the nature of the offense for which the arrest is made is impermissible.¹⁵  See, e. g., United States v. One 1963 Cadillac Hardtop, E.D. Wis., 224 F. Supp. 210, 212 (1963): " [A] minor traffic violation will not generally justify a search of the vehicle and its passengers." See also United States v. Tate, D. Del., 209 F. Supp. 762 (1962); United States ex rel. Krogness v. Gladden, D. Or., 242 F. Supp. 499 (1965). Noting that the only legitimate objective of most searches incident to arrests for traffic offenses will be the protection of the arresting officer, one lower federal court recently found that " [t]o permit all searches incidental to an arrest to be justified on the theory that the officer is searching for weapons would be to allow wholesale fishing expeditions whenever a legal arrest is made." Grundstrom v. Beto, N.D. Tex., 273 F. Supp. 912, 916 (1967).¹⁶ 

Perhaps the most forceful statement of the principle applicable here comes from a recent decision of the United States Court of Appeals for the Tenth Circuit. In United States v. Humphrey, 409 F.2d 1055, 1057-1058 (1969), then Chief Judge Murrah¹⁷  wrote for a unanimous panel:

"By its own terms the Fourth Amendment protects people `against unreasonable searches and seizures.' Thus not all searches run afoul of the constitutional sanction but only those unreasonable in origin or scope. While the evolution of this constitutional standard of reasonableness has varied with our sense of justice, it is certain today that warrantless searches on probable cause are reasonable only when it is unfeasible to obtain a search warrant on proper affidavit * * *. Unless, of course, it is reasonably `incident' to a legal arrest * * *, or can be said to be a mere `stop and frisk' as in Terry v. Ohio, supra and Sibron v. New York, * * *. Notably, these exceptions are not based on anything inherent in the exception itself but result from the inductive case by case application of the constitutional standard of reasonableness. Thus these exceptions are traditionally justified by the need to protect the arresting officers, prevent escape, collect instrumentalities or fruits of the crime (and now evidence, Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967)), and prevent delay which might otherwise permit the criminal to escape or commit his crime. * * * From this rationale it is clear that the scope of a search contemporaneous with a legal arrest must have a reasonable relationship to the protection of the officer or the crime for which the accused was arrested. As stated in Terry v. Ohio, supra 392 U.S. at p. 19, 88 S. Ct. at 1878, ` [T]he scope of the search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible', i. e. the detention or arrest. * * * If not, the search is unreasonable and violates Fourth Amendment protected interests. * * * We are in complete agreement with the prevailing federal and state authority which condemns the search of persons and automobiles following routine traffic violations. * * *"¹⁸ 

(Citations omitted.)

My conclusion as to the meaning of the constitutional safeguard, and its implementation set forth in case of arrest for violations of the traffic code, is supported, as I have shown, by the analysis of the Supreme Court opinions and the decisions of other federal courts. It is also appropriate to note that similar analyses and conclusions have been reached by scholars who have given careful study to the issues.¹⁹  Wayne LaFave, author of the American Bar Foundation volume Arrest (1965), whose long-term study of arrest problems led to his being selected by the American Bar Association as reporter to the Committee on the Criminal Trial, noted over 10 years ago that " [a] search of the vehicle and driver incident to an arrest for a traffic violation is a police practice apparently not uncommon throughout the country," and urged that the courts undertake an exacting and detailed consideration of the problem of "defining the proper scope" of such searches. Note, Search and Seizure — Search Incident to Arrest for Traffic Violation, 1959 Wis. L. Rev. 347, 358. Very recently, a writer in the Columbia Law Review found:

"* * * The historical development of incidental personal searches furnishes no support for the validation of searches based solely on the fact of lawful arrest. This point had been overlooked by the early courts, most likely because the fact situations of these early cases were such that under either a categorical or examination-of the-facts approach, an incidental personal search could be justified. Later courts' failure to analyze the historical underpinnings of the rule led to a hardening of the categorical approach which only recently has begun to be questioned.

"The need for this reexamination is clear. * * *"

Note, Searches of the Person Incident to Lawful Arrest, 69 Colum. L. Rev. 867, 869 (1969). (Footnotes omitted.)²⁰ 

This Columbia note and a 1969 note in the Yale Law Journal refer to searches incident to traffic arrests as being especially abusive — because the offense is often very trifling, and the search very full-blown — but both also urge that the rule I have outlined should be applied more broadly to searches incident to arrest for all crimes for which no further evidence can exist.²¹ 

Not only was the search of Willie Robinson bad in theory; the practical effect of a rule permitting warrantless "full" searches incident to most traffic arrests (or for that matter, incident to arrests for status crimes) is fearsome to imagine. As Judge Wisdom has written, the danger is "that the lowly offense of a traffic violation — of which all of us have been guilty at one time or another — may be established as the basis for searches circumventing the rights guaranteed by the Fourth Amendment." Amador-Gonzalez v. United States, 5 Cir., 391 F.2d 308, 318 (1968). The rule that a full search without a warrant will be supported by any lawful arrest gives dangerously broad discretion to the police officers who must apply it. Logically and consistently applied, such a rule endangers the rights of the physician hurrying to a night call who runs a stop sign, or of the young woman with her bags packed and on her way back to college, or of the corporate executive arrested for criminal conspiracy under the antitrust laws, or of the civil servant accused of tax fraud, or of any one of us a police officer — for whatever secret motive or for no reason at all — wishes to search without the hindrance of normal Fourth Amendment protections.

IV

Neither the dissenting opinion at the division level nor the majority of the court en banc challenges the principles of law recognized in this opinion. Instead they argue that the facts surrounding the search of Willie Robinson were insufficiently developed in the District Court to permit a reliable judgment on the legality of the seizure of the narcotics. Judge Wilkey's dissent to the panel opinion suggested that the narcotics may have been in plain view and, consequently, were legally seized without a search. Thus the crucial factual issue in this case in its present posture is whether the narcotics taken from appellant by the police were in plain view or were discovered in a search incident to his arrest. Noting Judge Wilkey's plain view suggestion, the Government, in its petition for rehearing en banc, commendably and candidly foreclosed further speculation on this score. Its petition, at page 4 n. 2, states:

"* * * Our consultation disclosed that Officer Jenks did in fact conduct a search of appellant by examining the left breast pocket of his outer coat and did not limit himself to a mere patdown. Since any hearing on remand would of course have disclosed this fact, appellee felt it to be in furtherance of the expeditious and efficient disposition of the case to concede the point for the purpose of arguing this appeal. Specifically, we concluded that it would not be appropriate even to suggest that the package containing the narcotics might have come within the officer's plain view when we knew the facts to be otherwise."

If the Government has plain view evidence, I doubt seriously it would concede that Officer Jenks did in fact conduct a search of appellant. In the interest of efficient and effective administration of justice, I submit, we should accept the Government's concession and hold, for the reasons stated in this opinion, that the seizure of the narcotics from appellant resulted from an illegal search requiring reversal of his conviction.

I respectfully dissent.

MacKINNON, Circuit Judge (dissenting):

I see no necessity for a remand and would affirm on the basis of the record below which supports a finding that the narcotics turned up in the process of a lawful search of the person pursuant to a lawful arrest on the highway of Robinson for operating a motor vehicle during the period his operator's permit was revoked, D.C.Code § 40-302.¹  It is also obvious from the record that the arresting officer had probable cause to believe that the Robinson operating the automobile was not the Robinson described in the motor vehicle operator's permit which he tendered to the officer and he was therefore authorized to search him for identification evidence such as I.D. cards, credit cards, draft card, handwriting, etc., that might tend to prove his proper identity and that he was the same Robinson whose permit had been revoked. Such evidence is probative on such issues. Vauss v. United States, 125 U.S.App.D.C. 228, 370 F.2d 250 (1966). Such evidence might also be probative as to possible forgery of his operator's permit under D.C.Code § 22-1401. Cf. Morgan v. United States, 114 U.S.App.D.C. 13, 309 F.2d 234, 236 (1962). Thus I have no difficulty in finding that it was reasonable to make a full search of Robinson for such evidence of identification. Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 301-310, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967).

It is also a violation of the motor vehicle statutes of the District of Columbia for any person, while under the influence of a narcotic drug, to operate any motor vehicle in the District of Columbia, D.C. Code § 40-609. Likewise, it is "unlawful * * * to transport * * * any contraband article [narcotic drug possessed with intent, etc.], in, upon, or by means of any * * * vehicle" for which act the motor vehicle may be "seized and forfeited." 49 U.S.C. §§ 781, 782; One 1960 Oldsmobile Convertible Coupe v. United States, 125 U.S.App.D.C. 305, 371 F.2d 958 (1966); see also, Cooper v. California, 386 U.S. 58, 60, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967). An arrest for operating a motor vehicle under a revoked permit does not require the officer to close his eyes to these other offenses which involve motor vehicles and it would be hard to imagine how any thorough search of Robinson for identification evidence, which was plainly authorized, could have failed to turn up the narcotics which were discovered. I respectfully dissent.