decided: July 3, 1975; As Amended July 17, 1975.
Appeal from an order of the Southern District, Metzner, J., suppressing as evidence the contents of an attache case discovered in search of car validly seized as a stolen car by police pursuant to a state statute.
Lumbard, Oakes, and Timbers, Circuit Judges. Oakes, Circuit Judge, dissenting.
The United States appeals from an order entered on November 18, 1974, in the Southern District granting defendant Louis Zaicek's motion to suppress as evidence the contents of an attache case discovered in a stolen car and from an order entered December 10, 1974, which denied the government's motion for rehearing. We reverse.
Zaicek was charged with two counts of possession of stolen mail in violation of 18 U.S.C. § 1708 and with one count of transporting a stolen automobile across a state boundary in violation of 18 U.S.C. § 2312. The contents of the attache case which Zaicek moved to suppress as evidence included several bonds allegedly stolen from the mails.
On the motion to suppress Investigator Johansen of the New York State Police was the principal witness. He testified that he had received two reports in December 1972 concerning a 1972 Cadillac El Dorado automobile with Florida license plates. First, he was notified by Martin Upmal of the Vermont Motor Vehicle Department that a man named Louis Zaicek had attempted to register the automobile with them as a 1971 vehicle. When Zaicek was told additional proof of title would be needed to complete the registration, he left Upmal's office and did not return. Second, Johansen contacted the Florida Motor Vehicle Department and received a report that the car was registered to an automobile leasing company in Pompano Beach, Florida.
On December 27, 1972, Johansen and his partner noticed the Cadillac parked in a driveway in Valhalla, New York. When two men got into the car and prepared to drive away, Johansen blocked the driveway with his car. Johansen told the driver, who identified himself as Louis Zaicek, that the car had been reported as stolen. In response, Zaicek claimed that the car was rented and suggested that a call to the leasing company would verify his claim. Johansen called the company, and its vice president informed him that the check written by Zaicek to lease the car had bounced and that he had been informed that Zaicek had tried to register the car in his own name. He requested Johansen to arrest Zaicek and recover the car.
Johansen thereupon arrested Zaicek and drove Zaicek and his companion, Armenio Baddia, to the police station. The Cadillac was seized at the same time and driven to the police station by Johansen's partner, after which the car was locked and the keys were retained by Johansen.
While Zaicek was being booked, Baddia, who had not been arrested, stated that he had certain items of clothing in the car and asked if they could be returned to him. Johansen gave the car keys to two other officers so that they could retrieve Baddia's belongings. The officers returned a short time later with a pistol they had found in the glove compartment and an attache case with seven bond certificates in it which they had found in the trunk. The bonds were later determined to have been stolen from the mail. Johansen later conducted an inventory search of the car.
The government's second witness was Martin Upmal of the Vermont Motor Vehicle Office who corroborated Johansen's testimony about their conversation.
On these facts the district court suppressed the evidence because it felt that the search did not fall within any recognized exception to the warrant requirement of the Fourth Amendment. Judge Metzner held that the search was not incident to Zaicek's arrest and that it was not an inventory search because its purpose was to return Baddia's clothing to him and not to take an inventory. He also rejected the government's argument that a car can be searched without a warrant if it was validly seized by the police because "once the car is in police custody, there is no threat of removal of evidence therein. There is ample time to obtain a search warrant based on probable cause." For support of his decision he cited Cady v. Dombrowski, 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971); and Cooper v. California, 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788 (1967).
We disagree with the trial court's last stated holding*fn1 and feel that the cited cases, if anything, support the opposite result. The district court's suggestion that a search warrant is required once a car is firmly in police custody because there is time to secure such a warrant without risking the loss of evidence is an inaccurate statement of the law. As the Supreme Court noted in Cady, it has sustained "warrantless searches of vehicles by state officers . . . in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent." Cady v. Dombrowski, 413 U.S. at 441-42, citing Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968) (permissible to conduct inventory search of car in police custody without a warrant), and Cooper v. California, 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788 (1967) (permissible to search forfeited car without a warrant).
From these decisions and the decisions of this court, the law is well settled that when a car is seized by the federal agents pursuant to 49 U.S.C. § 782, on the grounds that it was used to transport contraband, the agents may search the car without a warrant. "If agents have probable cause to believe that a car is or has been used for carrying contraband, they may summarily seize it pursuant to the federal forfeiture statute and search it." United States v. Capra, 501 F.2d 267, 280 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S. Ct. 1424, 43 L. Ed. 2d 670 (1975). See also United States v. Francolino, 367 F.2d 1013, 1018-23 (2d Cir. 1966), cert. denied, 386 U.S. 960, 18 L. Ed. 2d 110, 87 S. Ct. 1020 (1967); United States v. LaVecchia, 513 F.2d 1210, slip op. at 2741, 2749-51 (2d Cir. 1975). The rationale underlying these decisions is that where the car is properly seized by the police pursuant to a forfeiture statute, they have a greater possessory interest in the car than the owner. The same principles should apply when a statute authorizes the police to seize a car that they have probable cause to believe is stolen. Indeed, in Francolino, where we first discussed this rule, we relied heavily on Boyd v. United States, 116 U.S. 616, 623, 29 L. Ed. 746, 6 S. Ct. 524 (1886) where Justice Bradley wrote:
"The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession ...