ERVIN, Circuit Judge:
Buel Lee Shepherd was convicted of possessing thirty-eight gallons of moonshine whiskey on which the tax had not been paid, and of removing it from its place of manufacture and concealing it, in violation of 26 U.S.C. §§ 5205(a)(1), 5604(a)(1) and 5601(a)(12). On appeal, Shepherd contends
Late in the fall of 1980, Lester Russell, an investigator for the North Carolina liquor control board in Winston-Salem, received information from a reliable confidential informant that the defendant was engaged in an illegal whiskey enterprise at his residence in North Wilkesboro, North Carolina, located fifty miles away. According to Agent Russell, on approximately thirty earlier occasions the informant had provided information that had led to over twenty-five convictions. After receiving the informant's report, Russell, together with North Carolina Alcohol and Beverage Control (ABC) Agent Robert Cobb and Agent Aubrey Huffman from the federal Bureau of Alcohol, Tobacco and Firearms, set up surveillance of the defendant's residence on the morning of December 3, 1980. Russell remained in the police vehicle some distance away while Cobb and Huffman positioned themselves in woods approximately one hundred yards to the rear of Shepherd's residence.
At about 8:15 a.m., Huffman observed Shepherd leave his residence and walk to a 1971 Mercury Cougar parked approximately seventy-five yards to the rear of the house. After opening the trunk of the automobile, Shepherd made three trips into a wooded area near the vehicle and returned carrying translucent one gallon white plastic jugs which he placed in the open trunk.
We find no merit in Shepherd's contention that the agents lacked probable cause to arrest him. The agents had been supplied a tip from a highly reliable informant whose aid in earlier cases netted over twenty-five convictions on approximately thirty tips. Upon taking up surveillance at the location advised by the informant, the agents witnessed behavior consistent with the tip and with an illegal moonshine operation. The combination of a reliable tip and first-hand corroborative observation of suspicious activity provided ample cause to suspect Shepherd was engaged in criminal activity justifying arrest. See United States v. Branch, 565 F.2d 274 (4th Cir.1977) (arrest supported by probable cause when police, acting on informant's tip that one Branch, carrying drugs, would alight from certain air flight, arrested man matching informant's description getting into car registered in Branch's name).
We turn now to the more difficult issue of whether the warrantless search of Shepherd's automobile violated the fourth amendment to the United States Constitution. The fourth amendment states:
The search in this case was, of course, carried out without a warrant. The specific exception to the warrant requirement which the government urges upon us is the so-called "automobile exception," first announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
The automobile exception took on new aspects in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
Id. at 50-52, 90 S.Ct. at 1980-1981 (footnote omitted) (emphasis supplied). See also Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (per curiam), discussed below.
While Shepherd acknowledges the relevance of these precedents, he argues that two factors block the application of the automobile exception in his case: the car's location on private property, as opposed to the public highway,
In response to these contentions we first point out that the Supreme Court has never held that a vehicle's location on private property forecloses application of the automobile exception under all circumstances. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion), the Court did note the enhanced privacy interest residing in a vehicle parked in a driveway. But in invalidating a warrantless vehicle search by police following a lengthy murder investigation, the Coolidge plurality chiefly relied on the authorities' failure to obtain a warrant despite ample advance opportunity to do so and despite knowledge that the car was not about to disappear. The vehicle, which authorities knew to contain incriminating evidence, had been under surveillance for days. At the time the car was seized in Coolidge's driveway, there was no indication that the vehicle was about to be driven away.
These circumstances contrast sharply with the facts before us. Prior to taking up surveillance on the morning of December 3, the agents had no knowledge that a specific vehicle was involved in Shepherd's moonshining operation. The informant had merely reported that Shepherd was making illegal liquor. There was no advance opportunity to obtain a search warrant for Shepherd's car before observing the defendant loading jugs into the vehicle on his property. Indeed, even had the informant specifically related that Shepherd would be transporting whiskey on the morning of December 3, no warrant could have issued, absent information about the vehicle to be used, which would have met the specificity requirements prescribed under the law. See United States v. Vento, 533 F.2d 838, 866-67 (3d Cir.1976). Furthermore, the agents moved in only when it became obvious that Shepherd had finished loading the vehicle and was about to drive off. At that moment, exigent circumstances compelled the agents to act or else risk losing both quarry and contraband. It makes no difference that the car was seized on private property rather than stopped on the public highway. Cases such as Coolidge which draw this distinction involve stationary vehicles whose owners are absent from the scene. Here, the car was one brief moment away from being driven off by its owner. The courts have recognized that a car traveling on the public highway affords less privacy than the home, but that one's expectation of privacy in a vehicle is enhanced when the car is nestled in the driveway. See Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974); United States v. Bradshaw, 490 F.2d 1097, 1103 (4th Cir.1974), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974). Still, the
We illustrate our position by postulating different facts.
As a second example, suppose Shepherd was seen storing jugs in a nearby wood shed and then padlocking the door. There too we would require a warrant, for a building within the curtilage of the home enjoys the same high expectation of privacy that the dwelling does. See Taylor v. United States, 286 U.S. 1, 5, 52 S.Ct. 466, 467, 76 L.Ed. 951 (1932); Martin v. United States, 183 F.2d 436, 439 (4th Cir.1950). Cf. United States v. Hayden, 140 F.Supp. 429, 435 (D.Md.1956) ("shed ... is protected against unreasonable searches without regard to whether or not it is within the curtilage of a private dwelling"). See also Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967) (any intrusion upon "the privacy upon which [one] justifiably relied" constitutes a search within the meaning of the fourth amendment).
What if Shepherd had carelessly stacked the jugs beside his house and then driven off on an errand? By leaving the jugs in the open Shepherd would have indicated no expectation of privacy that his liquor would not be spotted, and authorities could act without a warrant. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967); United States v. Ramapuram, 632 F.2d 1149, 1153 (4th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981).
Finally, what if Shepherd had loaded the jugs into the trunk of his Mercury, but then gotten into his pickup truck and driven off? Here too we would expect the authorities to recognize the absence of exigent circumstances which would justify a warrantless seizure, and to dispatch one of their number to obtain a warrant. Of course, surveillance could continue, and if Shepherd's neighbor were to appear on the scene with a set of car keys and the obvious intention of leaving in the Mercury, the danger of losing the evidence would justify an immediate seizure of the car.
The reasonableness of the government's search in this case arose out of both the genuine exigency of the situation and the unreasonableness of alternatives. To have required the agents simply to confiscate the jugs and hold them and Shepherd on the scene while one of the agents drove fifty miles to Winston-Salem in search of a federal magistrate to certify an inspection would have been a pointless exercise in the presence of clear probable cause. Such a procedure would have been a far greater intrusion into Shepherd's privacy than the course of action actually taken. If the liquid inside the jugs had turned out to be spring water, Shepherd would have been on his way in a few minutes.
We are not moved by the argument that exigent circumstances fall away, and a warrant is therefore required, as soon as the driver of the suspect vehicle is arrested,
The Fifth Circuit has interpreted Texas v. White, Chambers v. Maroney, and other Supreme Court authority as recognizing that "exigence is to be determined as of the time of seizure of an auto, not as of the time of its search." United States v. Mitchell, 538 F.2d 1230, 1232 (5th Cir.1976) (en banc), cert. denied, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d 792 (1977). This we perceive to be an accurate statement of the law and one which makes clear the constitutionality of the search in this case. The authorities had ample cause to believe Shepherd's Mercury was about to be used to transport contraband.
We believe that the result in this case can be harmonized with United States v. Bradshaw, 490 F.2d 1097 (4th Cir.1974), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974). In Bradshaw, alcohol control agents were in the process of searching for a still which they had probable cause to believe was in operation on defendant's property. While walking around the defendant's house, the agents detected the odor of moonshine emanating from a wood paneled pickup truck parked nearby. Peering through cracks in the paneling, the agents spied several plastic jugs filled with liquid. They entered the truck, opened the jugs, and found moonshine. We held that the warrantless search was unconstitutional on two grounds. First, since the truck was parked beside the defendant's house, a heightened expectation of privacy obtained which the agents invaded without a warrant. Second, we held that a more reasonable course would have been for two of the agents to stand guard over the vehicle while the third sought a search warrant. Furthermore, since Bradshaw was absent from the scene, no individual liberty interest would have been implicated merely by seizing and holding the car.
Absent from Bradshaw and present in this case is the compelling circumstance
We also think this case is distinguishable from United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). In Chadwick, federal officials suspicious of a footlocker leaking talcum powder watched as the defendant carried the trunk from a train station to his waiting automobile. After the defendant loaded the footlocker into the trunk of his car, agents moved in, arrested the suspect, and opened the footlocker without a search warrant, disclosing a large quantity of marijuana.
The Supreme Court invalidated the search, rejecting the argument that the warrant requirement of the fourth amendment protects only interests associated with the home. As a repository for the personal effects of an individual, a footlocker holds a greater expectation of privacy than an automobile, the Court reasoned, and it makes no difference that, like the automobile, a footlocker is highly mobile. The government should not enter the zone of privacy associated with a footlocker without a search warrant.
Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), involved very similar facts, except that the defendant had already departed the airport in a taxi along with his suspicious suitcase when police stopped the cab. The Court rejected the argument that the automobile exception applied. Writing in concurrence, Chief Justice Burger stated the essential position of the Court:
Id. at 767, 99 S.Ct. at 2594.
United States v. Chadwick and Arkansas v. Sanders were considered at length in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Ross, District of Columbia police officers acting on information that the defendant was peddling narcotics out of his car located the suspect vehicle traveling on the city streets. The car was pulled over, and Ross was ordered to get out. When a pistol was found in the glove compartment, Ross was arrested and handcuffed. One of the officers took Ross' keys and opened the trunk, where he discovered a closed brown paper bag. He opened the bag and found a number of glassine bags containing white powder. The officer closed the paper bag and placed it back in the trunk. The car was driven to headquarters where a search, also warrantless, disclosed a zippered leather pouch. The pouch was opened and found to contain $3,200 in cash. A sample of the white powder in the paper bag was also taken and upon analysis determined to be heroin.
Prior to his trial for possession of heroin with intent to distribute, Ross moved to suppress the fruits of the warrantless searches of the paper bag and leather pouch. The motion was denied and Ross was eventually convicted.
On appeal the Supreme Court upheld the search, holding that under the automobile exception, officers "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a search warrant `particularly describing the place to be searched.'" Ross, 456 U.S. at 800, 102 S.Ct. at 2159, 72 L.Ed.2d at 578, quoting U.S. Const. amend. 4. The scope of such a search warrant could include the compartments and containers within the vehicle whose contents were not in plain view. The
We believe that the case before us is more akin to Ross than to Chadwick and Sanders.
We hold that the arrest of Buel Lee Shepherd was supported by probable cause and that the warrantless search of his vehicle was justified under the automobile exception.
MURNAGHAN, Circuit Judge, dissenting:
It is with no joy that I write to announce dissent. Nevertheless, the facts as to whether an exigency existed, justifying the jettisoning of Fourth Amendment safeguards, are the facts. Buel Lee Shepherd was not free to drive his vehicle away. His car keys had been impounded even before the trunk of the car had been opened.
Consequently, there simply was no exigency, and, absent it, no justification for disregard of the Fourth Amendment requirement that a warrant be obtained. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1948) (citations omitted).