8th Cir. expresses doubt as to “single purpose container” rule

Eighth Circuit (2-1) expresses doubt as to the “single purpose container” rule in light of Arizona v. Hicks but doesn’t have to decide it. United States v. Banks, 514 F.3d 769 (8th Cir. 2008) (Loken, C.J. disagrees with the following, but, if you litigate in the Eighth Circuit, you can’t be surprised anytime he agrees with the government; he’s that predictable because he never saw a search he didn’t like):

Police may seize, without a warrant, an item that is 1) in plain view 2) when it is observed from a lawful vantage point, 3) where the incriminating character of the item is immediately apparent. Horton v. California, 496 U.S. 128, 136-37 (1990). The first requirement, that the objects be in plain view, “is often considered an exception to the general rule that warrantless searches are presumptively unreasonable. …” Id. at 133-34. The third requirement, that the incriminating character of an item be immediately apparent, is satisfied when police have “probable cause to associate the property with criminal activity.” United States v. Raines, 243 F.3d 419, 422 (8th Cir. 2001) (internal quotation marks omitted). Probable cause is required to justify the seizure of an item that police observe in plain view. Arizona v. Hicks, 480 U.S. 321, 326-27 (1987). Ultimately, the standard by which a warrantless search and seizure is reviewed under the Fourth Amendment is reasonableness. Id.

First, we consider whether police should have obtained a warrant before they opened the Phoenix Arms container. Observing objects in plain view violates no reasonable expectation of privacy, which obviates the need for a search warrant. Horton v. California, 496 U.S. 128, 133 (1990) (stating that no invasion of privacy occurs when an item is observed in plain view). Ordinarily, a warrant is necessary before police may open a closed container because by concealing the contents from plain view, the possessor creates a reasonable expectation of privacy. Robbins v. California, 453 U.S. 420, 427 (1981), overruled on other grounds by United States v. Ross, 456 U.S. 798 (1982). However, like objects that sit out in the open, the contents of some containers are treated similarly to objects in plain view. In Arkansas v. Sanders, the Court suggested that no warrant is required to open such containers: “some containers (for example … a gun case by their very nature cannot support a reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13 (1979) (emphasis added), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991). We previously followed the Sanders dictum when we affirmed a district court’s determination that no warrant was necessary to search a “bag [whose] size and shape suggested it contained a gun.” United States v. Miller, 929 F.2d 364, 364-65 (8th Cir. 1991). This exception is limited to those rare containers that are designed for a single purpose, Texas v. Brown, 460 U.S. 730, 750-51 (1983) (Stevens, J., concurring in the judgment), because the “distinctive configuration of [such] container[s] proclaims [their] contents; [consequently,] the contents cannot fairly be said to have been removed from a searching officer’s view,” Robbins, 453 U.S. at 427. Individuals, therefore, possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point.