UNITED STATES of America, Appellee, v. Frederick M. MICHELI, Defendant-Appellant, 487 F.2d 429

COFFIN, Chief Judge. Appellant, convicted of possessing and concealing counterfeit United States Federal Reserve notes with intent to defraud, 18 U.S.C. § 472, claims that an otherwise valid warrant to search the premises of his office did not include within its scope a search of his briefcase. While appellant also contends that the search warrant did not permit government agents to forcibly detain him, and that the restraint thereby imposed upon him prior to his actual arrest invalidated the warrant, we find these latter claims clearly frivolous.

The only substantive issue presented on appeal is: to what extent do personal effects lie outside the scope of a warrant to search the premises? On June 12, 1972, after weeks of investigation and surveillance by the United States Secret Service, a search warrant was issued for the office of the Hillside Press, authorizing a search of “those rooms of the second floor of those premises known as 81 Canal Street, Boston, being used as the place of business of the Hillside Press . . . . ” At the same time an arrest warrant was issued for appellant’s brother who, with the appellant, was co-owner of the Press.

That evening, government agents surrounded the premises, and observed the appellant enter the building, carrying a brown leather briefcase. Approximately one half hour later, at 6:20 p. m., the agents entered the building, arrested appellant’s brother, and proceeded to search the premises. Appellant was frisked and led into a back room. In their search of the front room, the agents discovered what they knew to be appellant’s briefcase on the floor under a desk.

Inside the briefcase they found what proved to be forty-three counterfeit five dollar Federal Reserve notes, and papers identifying appellant as the owner of the briefcase. The appellant filed a motion to suppress as evidence the contents of the briefcase, in accordance with Rule 41(e), F.R.Cr.P., on grounds, inter alia, that the agents knew that the briefcase was the personal property of the appellant and therefore its search did not come within the scope of the warrant to search the premises of the Press.

The district court denied appellant’s motion, and the contents of the briefcase were subsequently entered into evidence against the appellant at his trial. We affirm the decision of the district court. In so doing, we do not mean to suggest that anything found on the premises would necessarily fall within the scope of a warrant to search premises. Nor would we imply that the result would be different if, when the officers entered, appellant was physically holding the briefcase.

To allow our decision to be interpreted as giving carte blanche to seize any objects reposing within premises covered by a warrant would be a disservice to law enforcement officials, individuals who may find their personal privacy invaded by a premises search warrant, and courts which must rule on suppression motions. Without attempting to write in black letters, we think some confusion may be spared by setting forth our rationale in deciding this case. Had appellant been a doctor on call at the Press and had the agents reason to know that the briefcase belonged to him, we would not reach the result we do here.

We are not helped, in distinguishing these two situations, by the general proposition that a warrant to search premises does not permit a personal search of one who merely happens to be present at the time. For the question is: what is a personal search? A search of clothing currently worn is plainly within the ambit of a personal search and outside the scope of a warrant to search the premises. But a personal effect such as a briefcase, carried on to the premises and then tucked under a desk, does not clearly fall either within the realm of a personal search or a search of the premises.

While the articulation of guilding principle may result in a line drawn with a stub of chalk rather than with a draftsman’s pen, we nevertheless think principle exists. ■ Some courts approach the quest for principle by immunizing from a search under sanction of a premises warrant any item within the physical possession of an individual on the premises. See United States v. Teller, 397 F.2d 494 (7th Cir. 1968), cert, denied, 393 U.S. 937, 89 S.Ct. 299, 21 L.Ed.2d 273 (1968). This has the virtue of precision but suffers from being at once too broad and too narrow.

It is too broad in that a search warrant could be frustrated to the extent that there are hands inside the premises to pick up objects before the door is opened by the police. This obvious loophole has led at least one court to bar such frustration by extending permissible search to objects held in hand, see Walker v. United States, 117 U.S.App.D.C. 151, 327 F.2d 597, 600 (1963), cert, denied, 377 U.S. 956, 84 S. Ct. 1635, 12 L.Ed.2d 500 (1964) — a rule which preserves the efficacy of a warrant by obliterating the distinction between a search of premises and a search of the person.

A focus on actual physical possession is too narrow, however, in that it would leave vulnerable many personal effects, such as wallets, purses, cases, or overcoats, which are often set down upon chairs or counters, hung on racks, or checked for convenient storage. The Fourth Amendment’s basic interest in protecting privacy, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and avoiding unreasonable governmental intrusions, Mancusi v. De-forte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.

Ed.2d 1154 (1968), is hardly furthered by making its applicability hinge upon whether the individual happens to be holding or wearing his personal belongings after he chances into a place where a search is underway. The rudest of governmental intrusions into someone’s private domain may occur by way of a search of a personal belonging which had been entrusted to a nearby hook or shelf.

The practical result of such a rule may be to encourage the government to obtain search warrants for places frequented by suspicious individuals, such as infamous bars, then lie in wait for those individuals to enter and make themselves confortable. In determining to what extent a recognizable personal effect not currently worn, but apparently temporarily put down, such as a briefcase, falls outside the scope of a warrant to search the premises, we would be better advised to examine the relationship between the person and the place.

The purpose of a search warrant is to assure that any governmental intrusion is justified by a careful prior determination of probable cause and necessity. Furthermore, any searches which are deemed necessary should be as limited as possible. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This further objective is achieved by requiring that the warrant contain a particular description of the things to be seized and give a clear idea of the scope of things to be searched.

It should not be assumed that whatever is found on the premises described in the warrant necessarily falls within the proper scope of the search; rather, it is necessary to examine why a person’s belongings happen to be on the premises. “[T]he Fourth Amendment protects people, not places”, Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and the protective boundary established by requiring a search warrant should encompass those extensions of a person which he reasonably seeks to preserve as private, regardless of where he may be. Polar cases easily come to mind.

A warrant to search a private home or office for specific objects might reasonably comprehend within its scope household items, containers, and personal accessories belonging to the owner of the premises. United States v. Teller, supra. But the same objects might not fall within the reasonable scope of a warrant to search a more public place, such as a meeting hall, a restaurant, or a barbershop, see Commonwealth v. Snow, Mass., 298 N.E.2d 804, 812 (1973) (Kaplan, J., dissenting in part), where the individual who owns the objects is a transient visitor or customer.

A visitor in a private home stands in a different position from an habitué of a “shooting gallery”, United States v. Johnson, 154 U.S.App.D.C. 393, 475 F.2d 977, 980 (1973) (Bazelon, C. J., dissenting in part). Between the extremities, no crisp formula can substitute for reasonable judgments. That the problem of distinguishing premises from person has yielded so few decided cases indicates that the problem we are discussing is a narrow one, falling between two primary rules, one permitting searches of premises, the other prohibiting searches of person.

In this interstitial area where the literal application of either primary rule would frustrate the legitimate interests of either the police or the individual, we think it more consistent with the Fourth Amendment that searches of .the personal effects of visitors to premises be appraised by reference to the reasonable expectations of privacy which visitors bring to premises rather than by attributing significance to a literal coup de main.

Our basic rationale for deciding that appellant’s briefcase fell within the scope of the warrant to search the premises does not, therefore, rest upon the fact that at the time of the search his briefcase was out of his physical possession. Rather, we base our decision on the fact that, as co-owner of the Hillside Press, appellant was not in the position of a mere visitor or passerby who suddenly found his belongings vulnerable to a search of the premises. He had a special relation to the place, which meant that it could reasonably be expected that some of his personal belongings would be there.

Thus, the showing of probable cause and necessity which was required prior to the initial intrusion into his office reasonably comprehended within its scope those personal articles, such as his briefcase, which might be lying about the office. The search of the briefcase, under these circumstances, was properly carried out within the seopé of the warrant. Affirmed. . See, e. g., United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948) ; United States v. Haywood, 284 F.Supp. 245 (E.D.La.1968) ; see also State v. Bradbury, 109 N.H. 105, 243 A.2d 302 (1968) ; cf. United States v.

Jennings, 468 F.2d 111 (9th Cir. 1972) ; United States v. Festa, 192 F. Supp. 160, 163 (D.Mass.1960). . A different situation exists when a personal effect is so secreted that police could reasonably assume that the visitor did not harbor a normal expectation of privacy but, indeed, took extraordinary measures to insure that the effect would be hidden from view.