The opinion of the court was delivered by: NEALON
In this matter, this Court granted a defense motion to suppress certain evidence and, on appeal, the Third Circuit Court of Appeals remanded for further findings in light of South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000, 44 U.S.L.W. 5294 (1976), and "any further additional findings which it may deem relevant to a just determination in the light of the opinions filed in the case."
United States v. Diggs, 544 F.2d 116, 123 (3d Cir. 1976). An evidentiary hearing was held October 22, 1976, and a transcript subsequently prepared. Pursuant to a briefing schedule, defendant's brief and requests for findings of fact were filed November 18, 1976, and the Government's brief was filed December 22, 1976. On January 10, 1977, defense counsel advised the Court that they did not intend to file a reply brief. The factual background, except as hereinafter amplified, is set out fully in United States v. Diggs, 544 F.2d 116 (3d Cir. 1976) and United States v. Diggs, 396 F. Supp. 610 (M.D. Pa. 1975), and need not be repeated here.
Addressing first the questions raised by Judge Gibbons, it is apparent that a majority of the Court concluded that Reverend Bradley had the authority, as gratuitous bailee, to surrender the possession of the locked box, which he suspected contained contraband, to the agents of the F.B.I. Judge Gibbons, nevertheless, distinguished the property and privacy interests protected by the Fourth Amendment and concluded that Reverend Bradley's possessory interest over the exterior of the locked box did not authorize him to surrender defendant's expectation of privacy with respect to the contents of the box and consent to a search. Since the bailee did not have authority to consent to a search, Judge Gibbons reasoned, the authority of the agents to conduct a search must be examined. Such authority he believed might be found in the exception of an inventory search which is allowed in cases where the police are in lawful possession of a vehicle or box provided ". . . not only that an inventory search could properly have been made, but also that the search in question was conducted for inventory purposes." 544 F.2d at 125-126. Referring to South Dakota v. Opperman, supra, Judge Gibbons emphasized that "the inventory search exception applies only where the court finds that an inventory search, not an investigatory search, was in fact intended . . .." Id. at 127. In furtherance of this, Judge Gibbons believed the trial court should make findings with respect to the agents' purpose in searching the inside of the box, e.g., were they acting pursuant to standard F.B.I. procedures designed to safeguard the property coming into their possession as well as to protect the Bureau from any claims arising out of this caretaking function?
First, as to the agents' purpose in searching the box, from an evaluation of the testimony of the agents, and the inferences that I believed should logically be drawn therefrom, I make the following findings of fact:
(1) When the agents proceeded to the Bradley house during the early morning hours of January 24, 1975, they were participating in a federal investigation of a bank robbery to determine whether a metal box in Reverend Bradley's possession had anything to do with the bank robbery. (N.T. 95, 96, 105, 119)
(2) The agents did not suspect that Rev. Bradley had been involved in a criminal offense. (N.T. 87, 89)
(3) In responding to Rev. Bradley's urgent call to come to his home for the purpose of opening the metal box, the agents did not believe they were engaged in a search that required the obtaining of a search warrant. (N.T. 88, 89)
(4) If the agents believed a search warrant was necessary, either one of them or all of them, including Rev. Bradley, would have proceeded to a Magistrate either with or without the box as the agents did not believe that the box would have been tampered with in their absence. (N.T. 40, 50, 73, 74, 90, 91, 94, 95)
(5) Prior to unlocking the box and turning it over to Rev. Bradley to lift the lid, Agent Shields
shook it and heard no metallic sound, thereby concluding that it did not contain a handgun or silver coins but may have contained currency. (N.T. 114, 115, 120)
(6) Agent Shields testified, and I so find, that the purpose in searching the box was to see if there was anything in it connected with the bank robbery and not to prepare an inventory because there may have been non-bank-related items which he would not inventory because he would not take possession of them. (N.T. 121, 122)
(7) There are no standard F.B.I. procedures designed either to safeguard property coming into an agent's possession or to protect the Bureau from any claim arising out of any caretaking functions. (N.T. 103, 104, 112, 116)
(8) The only standard F.B.I. procedure pertaining to inventories and receipts is for property coming into an agent's possession as a result of a search and seizure or by voluntary consent conducted in the investigation of a crime. F.B.I. Manual, p. 429. (N.T. 93, 112)
(9) A type of receipt is given where requested for property received by an agent, such as school records obtained during an "applicant type background investigation" or when a City Directory is delivered to a Field Office, but this is considered to be an administrative function. (N.T. 100, 111, 116)
(10) In this case, the agents were following the normal search and seizure procedure when they searched the inside of the metal box and, in fact, gave the Bradleys the same form receipt that would be given to anyone upon ...