
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1236                                    UNITED STATES,                                      Appellee,                                          v.                                JORGE M. NAVEDO-COLON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Juan R. Acevedo Cruz for appellant.            ____________________            Jose A. Quiles-Espinosa,  Senior Litigation Counsel, with  whom            _______________________          Daniel F.  Lopez-Romo, United States  Attorney, was on  brief for          _____________________          appellee.                                  ____________________                                    June 30, 1993                                 ____________________                       BREYER,  Chief  Judge.    Jorge  M.  Navedo  Col n                                ____________             appeals from  his conviction for unlawfully possessing drugs             with intent to distribute  them. 21 U.S.C.   841(a)(1).   He             argues that the district court should not have permitted the             government to  introduce as  evidence about 26  kilograms of             cocaine that government agents took from his suitcase at San             Juan's  airport.   He says  that the  agents' search  of his             suitcases was warrantless and without his consent.   He adds             that,  in any  event,  the  search  was  the  "fruit"  of  a             "poisonous  tree," namely  an earlier  illegal x-ray  of the             suitcases.   Wong Sun v. United States, 371 U.S. 471, 484-86                          ________    _____________             (1963).  We find neither argument convincing.                       The basic facts are the following:                       1.   On  March 20,  1991, a  trained drug-sniffing                            dog alerted  customs agents  at the  San Juan                            airport  to the  likely  presence of  illegal                            drugs  in  several  suitcases  tagged  for  a                            flight to New York.                       2.   The  agents  put  the  suitcases   through  a                            Department of Agriculture x-ray machine.  The                            x-ray revealed several  packages within  that                            appeared as if they could contain cocaine.                       3.   Using  the  suitcase's luggage  tags (bearing                            the name  "Luis  Garcia"), agents  found  the                            suitcases' owner, namely  the appellant,  who                            was sitting  in the New  York bound airplane,                            which  had not  yet  taken off.   The  agents                            asked  appellant  to accompany  them  off the                            airplane, and soon after arrested him.                                         -2-                                          2                       4.   One  of  the agents  brought  appellant to  a                            special customs room, about nine feet by nine                            feet  in   size.     He  handcuffed  one   of                            appellant's  hands to a  chair, and  left the                            door  open.     He  gave   appellant  Miranda                                                                  _______                            warnings, and then began to question him.                       5.   Appellant consented to  a search of  his hand                            luggage, in  which  the agent  found  luggage                            claim  checks that matched the suitcase tags.                            Appellant  also  emptied  his pockets,  which                            contained  identification  bearing  his  real                            name,  thereby revealing  that  the  name  of                            "Luis Garcia" written on  the luggage tag was                            a false name.                         6.   After  some time  had passed  (perhaps  a few                            minutes,  but certainly  less than  an hour),                            the  agent brought  the  suitcases  into  the                            room, told  appellant about "the  dog search,                            the dog  alert" and "the x-ray  machine," and                            asked if  he could  open the suitcases.   The                            appellant  (who,  according  to   the  agent,                            simply  said "yes") "shrugged  by lifting his                            shoulders  as  if  admitting  defeat,"  which                            action, the district court found, amounted to                            "consent."   The  agent opened  the suitcases                            and found the cocaine.                       Appellant does  not now deny that  he consented to             the  suitcase search;  rather, he  says that  the government             "coerced" this consent.   The district court, however, found             to the contrary, and  we must affirm this finding  unless it             is  clearly erroneous.    See, e.g.,  United States  v. Cruz                                       ___  ____   _____________     ____             Jim nez, 894 F.2d  1, 7 (1st Cir.  1990).  According to  the             _______             record, the appellant was simply questioned by one agent for             less   than  an   hour,  after   Miranda  warnings,   in  an                                              _______             approximately eighty square foot  room with an open  door --                                         -3-                                          3             albeit while appellant was  sitting with one hand handcuffed             to  a   chair.     Despite  the  handcuff,   however,  these             circumstances  fall within  the bounds  of what  courts have             deemed  valid and  "voluntary" consent.   See,  e.g., United                                                       ___   ____  ______             States v.  Watson, 423 U.S.  411, 424 (1976)  (custody alone             ______     ______             does not  demonstrate  coerced consent  to  search);  United                                                                   ______             States  v. Arango-Correa, 851 F.2d  54, 57-58 (2d Cir. 1988)             ______     _____________             (where   Miranda   warnings   given,  normal   tone-of-voice                      _______             questioning  by  several agents  over  five  hours does  not             demonstrate  coerced  consent   to  search,  despite   strip             search). Cf.  Shriner v. Wainwright, 715  F.2d 1452, 1455-56                      ___  _______    __________             (11th Cir. 1983), cert. denied,  465 U.S. 1051 (1984) (where                               ____________             Miranda   warnings  given,  handcuffs   and  ten   hours  of             _______             detention,  including five  hours of  intensive questioning,             does  not demonstrate that confession was coerced); Stawicki                                                                 ________             v. Israel, 778 F.2d  380 (7th Cir. 1985), cert.  denied, 479                ______                                 _____________             U.S.  842 (1986) (where  Miranda warnings given,  5 1/2 hour                                      _______             detention including 1 1/2  hour interrogation did not render             confession coerced).                        Appellant's  second argument --  the "fruit of the             poisonous tree"  -- presents  a somewhat closer  question of             fact, though not  of law.   As in the  very similar case  of             United States v. Maldonado-Espinosa,  968 F.2d 101, 103 (1st             _____________    __________________                                         -4-                                          4             Cir. 1992), cert.  denied, 113  S.Ct. 1579  (1993), we  will                         _____________             assume without deciding (as did the district court) that the             luggage x-ray was unlawful.  If  the cocaine proves to be  a             "fruit" of  that x-ray (i.e., if the  x-ray caused appellant                                     ____             to consent  to the  search), then,  given the  assumption we             have indulged, the law requires its suppression.   Wong Sun,                                                                ________             371 U.S. at 484-86.                       We  concede that the district court's opinion does             not explicitly  deny a  causal connection between  the x-ray                 __________             and appellant's consent.  Yet that  opinion does ask whether             this  consent   was  the   "fruit  of  a   poisonous  tree."             Furthermore, the  opinion found  the dog  sniffing to  be "a             lawful   act"  which  provided  "an  independent  legitimate             reason"  for seeking  consent.   Lastly, it  says that  "the             government cannot use  the x-ray evidence .  . . as a  basis             for obtaining . .  . consent," and that the  ("unlawful") x-             ray "results must be suppressed  . . . ."  Fairly  read, the             opinion indicates  that the  court asked, and  answered, the             correct  causal  question in  deciding  whether  to suppress             evidence of consent.                       We also  concede that  the factual question  was a             close one.  On one hand, the agent's telling appellant about             the x-ray suggests that the x-ray might have played a causal                                         -5-                                          5             role in producing consent.  On the other hand, the dog sniff             alone  provided  the  agents  with  sufficient  grounds  for             obtaining a search  warrant (had they found  it necessary to             do so), and for seeking appellant's consent.  United  States                                                           ______________             v. Sokolow, 490 U.S. 1, 5 (1989); United States v. Race, 529                _______                        _____________    ____             F.2d 12, 15  (1st Cir.  1976).  Given  this legal fact,  the             combined factors apart  from the x-ray search -- the agent's             description of the dog's  reaction, the baggage tags linking             appellant to the suitcases,  and the discovery of the  false             name --  might well  have convinced appellant  that refusing             consent  was  pointless,  for   the  bags  would  be  opened             eventually anyway.                         While the factual question on appeal is close, the             legal  question is  not.   Here again,  the law  directs the             district  court,   not   this   court,   to   make   factual             determinations.  How  appellant's mind worked at the time --             whether  or  not  the  x-ray  significantly  influenced  his             decision to  consent --  is one such  factual determination.             In light of the evidence presented to the district court, we             cannot  find  its  conclusion  to  be  "clearly  erroneous."             Fed.R.Civ.P. 52(a) ("Findings of fact . . . shall not be set             aside  unless clearly  erroneous,  and due  regard shall  be             given  to the opportunity of the district court to judge the                                         -6-                                          6             credibility of the witnesses").  We therefore reach the same             legal conclusion  we reached in Maldonado,  which affirmed a                                             _________             district court's determination that  an illegal x-ray search             did  not play  a significant  role in  obtaining appellant's             consent  to search his luggage.  There, as here, agents told             appellant  about a  dog  sniff, which  by itself  could have             induced appellant to accede to the search.  And, we affirmed             a district court's determination  that it did so. Maldonado,                                                               _________             968 F.2d at 103-04.  Cf. United States v. Race, 529 F.2d 12,                                  ___ _____________    ____             14-15  (1st Cir. 1976) (consent to search of air cargo found             to  contain marijuana was  not tainted by  agent's prior and             arguably illegal inspection of  cargo, where dog sniff alone             provided ample motive to seek consent of cargo's owner).  In             light of the findings  of fact and the legal  precedent, the             district court judgment is                       Affirmed.                        ________                                         -7-                                          7
