
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1096                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                      JOHN DOE, a/k/a GERONIMO PIZARRO-CALDERON,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                                                                      ____________________                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Rafael D. Castro Lang for appellant.             _____________________             Jos   A.  Quiles-Espinosa, Senior  Litigation Counsel,  with whom             _________________________        Guillermo Gil,  United States  Attorney, and Ernesto  Hern ndez-Mil n,        _____________                                ________________________        Assistant United States Attorney, were on brief for appellee.                                                                                      ____________________                                    August 4, 1995                                                                                      ____________________                    CYR, Circuit Judge.   Appellant Geronimo  Pizarro-Cald-                    CYR, Circuit Judge.                         _____________          eron  ("Pizarro")  contends  that  the district  court  erred  in          refusing  to  suppress six  block-like  articles     packaged  in          opaque  beige and  brown  tape     which  ultimately led  to  his          conviction for  possessing cocaine  with intent to  distribute in          violation of 21 U.S.C.   841(a)(1) (1993).  We reverse.                                            I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    The  district court adopted the findings recommended by          the magistrate judge who  conducted the suppression hearing.   On          January  8,  1993, Security  Officer  Gladys  Martinez del  Valle          ("Martinez") was screening passengers and monitoring their carry-          on luggage for weapons and explosives at a security checkpoint in          the Isla  Verde Airport terminal.  See  14 C.F.R.   107.20 (1995)                                             ___          (Federal Aeronautics Administration ("FAA")  regulation mandating          screening requirements for  carry-on luggage),    107.21 (banning          unauthorized possession  of any "explosive, incendiary, or deadly          or  dangerous weapons"  beyond airport  checkpoints).   Prominent          signs forewarned  passengers, in English and  Spanish, that their          persons and carry-on luggage were subject to screening and search          for weapons and  explosives.  Security screeners normally  use x-          ray machines  to scan all  carry-on luggage; metal  detectors and          hand scanners to screen passengers.                      While  tending the  x-ray monitor,  Martinez  noticed a          carry-on  bag containing an unidentifiable dark  object.  She had          been  trained  to regard  such  dense,  nonreflective objects  as                                          2          possible camouflage for weapons  or explosives.  Upon questioning          by  Martinez,  appellant Pizarro  stated  that  the carry-on  bag          belonged  to him, and the nonreflective  objects inside were gift          boxes  containing  "figurines."    Concerned  that the  figurines          reflected  no distinguishable  silhouette  on the  x-ray monitor,          Martinez  asked Pizarro to open  the carry-on bag.   When Pizarro          "sort  of  hesitated,"  United States  Department  of Agriculture          Inspector Jos  Mercado, working beside Martinez, directed Pizarro          to open the carry-on  bag, then summoned a local  law enforcement          officer, Juan Avil s, to the security checkpoint.1                      Pizarro  opened the  carry-on  bag in  the presence  of          Martinez, Officer Avil s, and  Inspector Mercado, revealing a box          wrapped  in Christmas paper.  The box  contained a layer of sani-          tary napkins, a layer of dark blue paper and, finally, six blocks          wrapped  in opaque beige and brown tape.  A nineteen-year veteran          of the  Puerto Rico Police, Officer  Avil s immediately suspected          that the concealed blocks contained cocaine.  Whereupon he seized          the carry-on bag  and its contents, then  arrested and handcuffed          Pizarro.2                                          ____________________               1Officer Avil s was  employed by the airport  administration          to  patrol the security checkpoint area  and respond to incidents          encountered by  screeners and inspectors, in  accordance with FAA          regulations  requiring the  presence of  a local  law enforcement          official.  See 14 C.F.R.   107.15.                       ___               2At about the same time, Martinez noticed another nonreflec-          tive object on the  x-ray monitor, similar to the one observed in          Pizarro's  carry-on bag.  The passenger in line behind Pizarro             Ariel Figueroa-Cruz    claimed ownership of the second bag, which          was found to contain two Christmas gift boxes similar to  the one          Pizarro had  been  carrying.   Without  opening the  gift  boxes,          Officer Avil s placed Figueroa under arrest, and transported both                                          3                    After  placing Pizarro  in  an  airport  police-station          cell, Avil s contacted the  United States Drug Enforcement Admin-          istration  ("DEA").   Shortly thereafter,  DEA agents  tested the          blocks by  piercing their  opaque wrappings; the  contents tested          positive  for cocaine.  In  due course, Pizarro  was indicted for          possessing six kilograms of cocaine with intent to distribute, in          violation of 21 U.S.C.   841(a)(1), (b)(1)(A).                    Pizarro  moved to  suppress  the test  results and  the          cocaine,  on the  ground  that the  warrantless  searches of  the          carry-on bag and  the containers inside  it (i.e., the  Christmas          box and the blocks enclosed  in intact, opaque wrapping) violated          the  Fourth Amendment  to  the United  States Constitution.   The          government successfully defended the  challenged DEA testing as a          mere continuation of the  administrative search aimed at ensuring          airline security.   See United States v. Pizarro-Calderon, 829 F.                              ___ _____________    ________________          Supp.  511, 515 (D.P.R. 1993).   Following a  jury trial, Pizarro          was convicted and sentenced.                                           II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    The  government must  demonstrate that  the warrantless          DEA  testing of  the enclosed  blocks  either entailed  no Fourth          Amendment search or came within  some recognized exception to the          warrant requirement.  See, e.g., United States v. Doward, 41 F.3d                                ___  ____  _____________    ______                                        ____________________          suspects to the  airport police  station.  See  United States  v.                                                     ___  _____________          Figueroa-Cruz, 822 F. Supp.  853 (D.P.R. 1993); infra note  9 and          _____________                                   _____          accompanying text.                                          4          789,  791 (1st  Cir. 1994).3   The  government contends  that the          carry-on bag  initially was  opened and  searched at  the airport          security checkpoint pursuant  to a  lawful administrative  search          for  weapons and explosives.   See, e.g., United  States v. Skip-                                         ___  ____  ______________    _____          with,  482  F.2d  1272,  1277-78 (5th  Cir.  1973)  (holding that          ____          inadvertent discovery of evidence  of criminal activity in course          of lawful security search for weapons  at airport checkpoint does          not  violate Fourth  Amendment).   Further,  it argues,  once Pi-          zarro's carry-on bag and the Christmas gift box lawfully had been          opened for security purposes, it was proper to seize and open the          packaged blocks  thereby exposed  to Avil s'  "plain view."   See                                                                        ___          Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971).          ________    _____________                    Pizarro  protests  on both  counts.    First, he  says,          carry-on  luggage screenings  must be  confined to  ferreting out          threats to airline security (i.e., weapons and explosives used in          air piracy), whereas the customary presence  of Officer Avil s at          the  security  checkpoint permitted  an  inference  that security          concerns  were  a  mere  subterfuge  for intercepting  contraband          posing no  threat to  airline  security.   Second, even  assuming          probable cause to  seize the suspicious blocks,  a search warrant          was required  before the  intact, opaque packaging  enclosing the          blocks could be pierced to test for cocaine.                                          ____________________               3The  Fourth  Amendment is  implicated  even though  airport          security  checkpoints are  manned  by nongovernmental  personnel,          since the  FAA  prescribes extensive  administrative  directives.          See United States v. Davis, 482 F.2d 893, 896-97 (9th Cir. 1973);          ___ _____________    _____          see also Air  Transportation Security  Act of 1974,  Pub. L.  No.          ___ ____          93-366,  88 Stat. 415 (1974) (codified as amended at 49 U.S.C.             1356, 1357, 1371, 1372, 1472, 1516); 14 C.F.R.   108.9.                                            5          A.   The Searches and Seizure at the Security Checkpoint4           A.   The Searches and Seizure at the Security Checkpoint               ___________________________________________________                    Pizarro  argues  that  the warrantless  search  of  the          carry-on  bag violated  his Fourth  Amendment rights,  ab initio,                                                                 __ ______          since the customary presence of Avil s at the checkpoint subvert-          ed an otherwise lawful airline security screening into a warrant-          less general  search for contraband (viz.,  cocaine) unrelated to          airline security.  The district court found that                        the search was conducted  by a security agent                    at  the airport,  and  that the  local police                    officer  was  summoned  to the  site  of  the                    search  only after the initial X-ray scan did                                 _____                    not rule out  the presence of either  weapons                    or explosives in defendant's luggage, requir-                    ing the presence of additional security.          Pizarro-Calderon, 829 F. Supp. at 514 (emphasis added).          ________________                    Routine security searches  at airport checkpoints  pass          constitutional muster because the  compelling public interest  in          curbing air  piracy generally outweighs their  limited intrusive-          ness.  See,  e.g., United  States v.  Pulido-Baquerizo, 800  F.2d                 ___   ____  ______________     ________________          899,  902 (9th Cir. 1986); cf.  United States v. Ferrer, 999 F.2d                                     ___  _____________    ______          7, 9  (1st Cir.  1993) (upholding  warrantless search  of checked          luggage  on  alternate  ground  of  "abandonment,"  but  faulting          government's  "falling-domino approach,  by which  each intrusion          diminishes  privacy  expectations  enough to  permit  further in-          fringements").   Consequently, all  carry-on luggage can  be sub-                                         ___          jected  to initial  x-ray  screening for  weapons and  explosives                                        ____________________               4The factual  findings underlying  a suppression ruling  are          reviewed for clear error.  United States v.  Lewis, 40 F.3d 1325,                                     _____________     _____          1332-33 (1st Cir. 1994).   Related rulings of law,  including the          "reasonableness" of a particular warrantless search, are accorded          plenary review.  Id.                            ___                                          6          without offending the Fourth Amendment.  In the event the initial          x-ray  screening is inconclusive as to the presence of weapons or          explosives,  the  luggage  may  be  hand-searched  as  reasonably          required to rule  out their presence.  Pulido-Baquerizo, 800 F.2d                                                 ________________          at 902.                      Other  contraband  inadvertently  discovered  during  a          routine  checkpoint  search for  weapons  and  explosives may  be          seized  and introduced in evidence at trial even though unrelated          to airline security.   See, e.g., Skipwith, 482 F.2d  at 1277-78.                                 ___  ____  ________          On the  other hand, lawful airline security  searches of carry-on          luggage may  not be enlarged  or tailored systemically  to detect          contraband (e.g., narcotics) unrelated to airline security.  See,                      ____                                             ___          e.g., United  States v.  $124,570 U.S.  Currency, 873 F.2d  1240,          ____  ______________     _______________________          1243-45  (9th  Cir.  1989) (upholding  suppression  of contraband          unrelated  to  airline  security where  screeners  were  rewarded          monetarily  by law  enforcement  authorities  for detecting  such          contraband in carry-on luggage).                      As  we conclude  that the  government failed  to demon-          strate  that the  subsequent warrantless  search of  the packaged                            __________          blocks by the DEA satisfied the Fourth Amendment warrant require-          ment,  see infra  Section  II.B, for  present purposes  we simply                 ___ _____          assume  arguendo that the carry-on bag and the Christmas box were                  ________          subjected to lawful airport administrative searches.           B.   The Subsequent DEA Searches of the Seized Blocks          B.   The Subsequent DEA Searches of the Seized Blocks               ________________________________________________                    The district court  upheld the warrantless  penetration          of the opaque packaging enclosing the seized blocks on the ground                                          7          that the DEA tests  were "not . . . search[es] per se" but merely                                                         ___ __          "more thorough  examination[s] of  the objects which  had already          been lawfully  seized."  Pizarro-Calderon,  829 F. Supp.  at 515.                                   ________________          We cannot agree.                    The uncontroverted evidence reveals that until the  DEA          agents conducted their field  tests, the opaque packaging enclos-          ing the six blocks  remained intact, precluding any  "plain view"          of  their contents such as  might permit a  warrantless search in          the absence of  exigent circumstances.  See,  e.g., United States                                                  ___   ____  _____________          v.  Miller,  769 F.2d  554, 558  (9th  Cir. 1985)  (poking finger              ______          through  plastic bag  containing  white powder,  or cutting  into          opaque  fiberglass  container  inside  plastic  bag,  constitutes          "search" requiring warrant, where both "containers were original-          ly  packed  inside  suitcase").   Thus,  regardless  whether  the          packaged blocks  could have been subjected  to lawful warrantless          search at the security checkpoint, the question with which we are                 __ ___ ________ __________          presented  is whether a warrant was required before the packaging          enclosing  the blocks could be  pierced once the  blocks had been          seized and removed from the security checkpoint.  The  government                     _______ ____ ___ ________ __________          neither cites, nor have  we found, any case upholding  a warrant-          less administrative  search for  contraband unrelated to  airline          security  concerns,  absent  exigent  circumstances,  consent,  a          finding of  "virtual certainty," or some  other recognized excep-          tion to the warrant requirement.5                                         ____________________               5The government  does not contend that  the packaged blocks,          once removed from  the checkpoint area, were subject  to warrant-          less  search  for explosives.   See  Skipwith,  482 F.2d  at 1277                                          ___  ________                                          8                    Although  probable cause,  as well  as exigent  circum-          stances,  may  support the  warrantless  seizure  of an  enclosed                                                   _______          opaque  container, see Texas v.  Brown, 460 U.S.  730, 743 (1983)                             ___ _____     _____          (involving  validity of warrantless  seizure of  tied-off balloon                                               _______          containing drugs), the same  probable-cause showing is not neces-                                 ____          sarily sufficient to  justify its subsequent  warrantless search.                                                                    ______          Id. at 749-51 (Stevens,  J., concurring); United States  v. Chad-          ___                                       _____________     _____          wick, 433  U.S. 1, 13-14 n.8 (1977); Miller, 769 F.2d at 558; cf.          ____                                 ______                   ___                                        ____________________          (noting  that  modern  technology  permits  hijacker  to  conceal          plastic  explosives  in container  no  larger  than a  toothpaste          tube).   Moreover, any exigency adequate to support a warrantless          search  for explosives lapsed at  or about the  time of Pizarro's          arrest,  since he obviously would  not be permitted  to remain at          large in  the airport  or to board  an aircraft.   Likewise,  any          finding  of  exigency is  totally  belied  by Aviles'  subjective          belief  that the blocks contained  cocaine and by their unhurried          removal to the police station for DEA field-testing.                 There is no evidence  or contention that screeners, pursuant          to practice or regulation, customarily open packages of this type          or size to check  for weapons or explosives, notwithstanding  the                                                       _______________  ___          prior  arrest of the passenger,  and the seizure  of the carry-on          _____  ______ __ ___ _________   ___ ___ _______  __ ___ ________          luggage and its contents,  based on conduct unrelated  to airline          _______ ___ ___ ________          security.  Cf. Nix v. Williams, 467  U.S. 431, 444 (1984) (noting                     ___ ___    ________          doctrine  of  "inevitable  discovery,"  whereby  "prosecution can          establish by a  preponderance of the evidence that the [evidence]          ultimately  or inevitably  would have  been discovered  by lawful          means" even if unlawful search  had not occurred); United  States                                                             ______________          v.  Hernandez-Cano, 808  F.2d 779, 783  (11th Cir.  1987) (noting              ______________          testimony  from  party  conducting  lawful search  that  but  for          intervention of unlawful search procedure, she would have contin-          ued search of luggage until she found suspicious package).                 Finally, the  evidence precluded  a contention that  the DEA          testing  was incident to Pizarro's arrest, see Chimel v. Califor-                                                     ___ ______    ________          nia, 395 U.S. 752 (1969), since the  blocks had been removed from          ___          the arrest  scene and from  the presence  of the  arrestee.   See                                                                        ___          United States v.  Chadwick, 433  U.S. 1, 15  (1977) (noting  that          _____________     ________          "[e]ven  though .  . . the  issuance of  a warrant  by a judicial          officer  was  reasonably  predictable,  a line  must  be  drawn";          invalidating  foot-locker search  remote in  time and  place from          arrest); United States v. $639,558, 955 F.2d 712 (D.C. Cir. 1992)                   _____________    ________          (same). But cf. United States v. Johns, 469 U.S. 478,  483 (1985)                  ___ ___ _____________    _____          (finding no comparable contemporaneity requirement  under automo-          bile exception to warrant requirement).                                          9          United States v.  Jacobsen, 466 U.S.  109, 114 (1984)  (upholding          _____________     ________          seizure to prevent loss or  destruction of contraband, but noting          that  "Fourth  Amendment  requires  that [the  police]  obtain  a          warrant before examining  contents of such  a package").6   These          discrete  treatments  stem  from  the  recognition  that  seizure          temporarily deprives the defendant of a possessory interest only,                                                  __________          whereas a search entails  an intrusion upon privacy  interests as                                                      _______          well.  See  generally Segura v. United States, 468  U.S. 796, 806                 ___  _________ ______    _____________          (1984).  Normally,  therefore, once  an exigency ends,  as by  an          arrest or the seizure  and custodial retention of a  container by          the police, a neutral judicial  officer must authorize any subse-                        _______ ________  _______          quent search on a  showing of probable  cause.  United States  v.                                                          _____________          Soule,  908 F.2d 1032, 1040  (1st Cir. 1990)  (citing Shadwick v.          _____                                                 ________          City of Tampa, 407 U.S. 345, 350 (1972)).          _____________                    Although the  government was required to  show that any          warrantless search was  valid under an  exception to the  warrant          requirement, see  Doward,  41  F.3d  at  791;  United  States  v.                       ___  ______                       ______________          Rutkowski, 877 F.2d 139, 141 (1st Cir. 1989), it has not attempt-          _________          ed to  demonstrate that the warrantless piercing  of the packaged          blocks  was either  an integral  part of  the security-checkpoint          search or came within any other exception to the warrant require-          ment.   The  government  instead simply  concludes,  as  did  the          district  court, see Pizarro-Calderon,  829 F. Supp.  at 515, and                           ___ ________________          without argumentation or citation to authority, that the warrant-                                        ____________________               6Chadwick has  been overruled  only as to  closed containers                ________          seized from inside an automobile.  See California v. Acevedo, 500                                __________   ___ __________    _______          U.S. 565 (1991).                                           10          less  piercing of the packaged  blocks at the  police station was          simply an  extension of the  hand-search initiated at  the check-          point.  But see supra note  5.  Moreover, the government does not                  ___ ___ _____          pretend that the DEA  agents pierced the packaged blocks  for any          purpose  other than to test  for illicit drugs.7   Thus, although                                        ____________________               7The  cases  cited  in  the  magistrate-judge's  report  and          recommendation are inapposite  to the DEA  search in the  present          case.  See Pizarro-Calderon,  829 F. Supp. at 616  (citing United                 ___ ________________                                ______          States  v. Herzbrun, 723 F.2d 773 (11th Cir. 1984); United States          ______     ________                                 _____________          v.  Wehrli, 637 F.2d  408 (5th Cir.  1981); United  States v. De-              ______                                  ______________    ___          Angelo,  584 F.2d  46  (4th Cir.),  cert.  denied, 440  U.S.  935          ______                              _____  ______          (1978);  United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976);                   _____________    _______          United States  v. Williams,  516 F.2d 11  (2d Cir. 1975)).   Even          _____________     ________          assuming that  airport security checkpoint searches are justified          on the ground that the passenger's "implied consent" is irrevoca-          ble,  but see Wayne R. Lafave,  Search and Seizure: A Treatise on                ___ ___                   _________________________________          the Fourth Amendment    10.6(c), 10.6(g), at 16-17, 31-33 (2d ed.          ____________________          1987), thus permitting screeners  to search throughout the carry-          on  bag  and all  closed  containers within  it,  the passenger's          implied  "consent"  nonetheless would  be  limited  to permitting                                                     _______          searches  for the purpose  of detecting weapons  and explosives.                     ___ ___ _______  __ _________ _______  ___ __________          See  Florida v.  Jimeno, 500  U.S. 248,  252 (1991)  (noting that          ___  _______     ______          warrantless "consent"-based searches are  limited in scope by the                                                               _____          terms of defendant's  consent); see also, e.g.,  Wehrli, 637 F.2d          _____                           ___ ____  ____   ______          at  409 (noting that screener's  "task [was] to  insure that Weh-          rli's  bag was devoid of skyjacking weapons," and the search "did          not  range  beyond  an  area reasonably  calculated  to  discover                                       __________  __________          dangers  to air safety") (emphasis  added); DeAngelo, 584 F.2d at                                                      ________          47-48 (holding  that passenger impliedly consents  to full search          of luggage, and if  it "should be considered necessary  to assure          the safety of  the travelling public,  [the passenger] should  be          required  to submit  to it  for that purpose")  (emphasis added);                                      ___ ____ _______          Williams,  516  F.2d at  12 (inquiring  into  "the bounds  of any          ________                                           ______          implied  consent,"  but noting  that bags  of cocaine  were found          alongside  a metal  canister, so  that screener  might reasonably          think white powder was  explosive, rather than cocaine) (emphasis          added).                By contrast, Avil s admitted that he delivered the blocks to          the DEA for the  very purpose of  detecting narcotics.  In  these          circumstances     once the focus  of the search  shifted from the          detection of weapons to  the detection of narcotics     a warrant          was required unless the ensuing search came within another recog-          nized exception to  the warrant requirement.   Cf. Jacobsen,  466                                                         ___ ________          U.S. at 118-22 (noting that DEA  did not need a search warrant to          open  a  closed container  to perform  a  field test  on contents          because the  contents  had  already been  disclosed  by  a  prior          _______                                          11          we may affirm the  denial of a  suppression motion on any  ground          supported by the record, see, e.g., Soule, 908 F.2d at 1036 n. 7,                                   ___  ____  _____          the  legal theories relied  on by  the government  have led  to a          dearth of record evidence     not to mention argumentation     to          support such an exercise of discretion.8                                           ____________________          "private party" search of that  container); Herzbrun, 723 F.2d at                                                      ________          775  (noting  that  law  enforcement  officials  obtained  search          warrant for  bag after  defendant withdrew from  checkpoint, even          though  their search  followed an  aborted checkpoint  search for                                             _______          weapons  which might  have  uncovered same  evidence (i.e.,  coc-          aine)).               8Avil s conceded at the  suppression hearing, and the magis-          trate  judge later found, that  the contents of  the blocks could          not have been "known" from their outward appearance.  Thus, given          the undisputed evidence that  the blocks were completely enclosed          in  opaque  packaging which  had to  be  pierced even  for field-                                                   _______          testing, the government's unexplicated statement that the cocaine          was in Avil s' "plain view" at the checkpoint must be premised on          something  more illuminating  than  its rose-colored  perception.          Nor  has  the  government  attempted to  argue  that  the outward          appearance  of  the blocks,  or the  context  in which  they were          seized,  so "clearly  announce[d]" the  nature of  their contents          that it  was a "virtual  certainty" that they  contained cocaine.          See  Arkansas v. Sanders, 442  U.S. 753, 764-65  n.13 (1979); see          ___  ________    _______                                      ___          also Texas,  460 U.S. at  761 (Stevens,  J., concurring);  United          ____ _____                                                 ______          States  v. Corral, 970 F.2d  719, 725 (10th  Cir. 1992) (contents          ______     ______          must be "foregone conclusion").  But see Miller, 769 F.2d at 560-                                           ___ ___ ______          61 (squarely  rejecting prosecution argument that  no warrant was          needed  to search  a  lawfully-seized plastic  bag containing  an          opaque  fiberglass vial  filled with cocaine,  both of  which had          been lawfully seized from defendant's suitcase); United States v.                                                           _____________          Donnes, 947  F.2d 1430,  1439 (10th  Cir. 1991)  (adopting Miller          ______                                                     ______          approach); accord United States v. Cardona-Rivera, 904 F.2d 1149,                     ______ _____________    ______________          1155 (7th  Cir. 1990); cf.  United States  v. Prandy-Binett,  995                                 ___  _____________     _____________          F.2d  1069 (D.C. Cir. 1993) (upholding seizure of package wrapped                                                 _______          in opaque duct tape  based on probable cause), cert.  denied, 114                                                         _____  ______          S. Ct. 1196 (1994); United States v. Barrios-Moriera, 872 F.2d 12                              _____________    _______________          (2d Cir.) (same), cert. denied, 493 U.S. 953 (1989).  We think it                            _____ ______          would be imprudent  in the  present vacuum either  to embrace  or          reject    for the  first time    a "virtual  certainty" exception          to the warrant requirement.               Nor has the government suggested that the DEA testing should          be  upheld under the "inventory search"  exception to the warrant          requirement.  Compare,  e.g., Colorado v. Bertine, 479  U.S. 367,                        _______   ____  ________    _______          371  (1987) (even  closed containers  may be  opened  pursuant to                                          12                    The litigation strategy adopted by the government seems          especially  remarkable considering the  portentous district court          opinion previously  entered in the companion  case, United States                                             _________        _____________          v.  Figueroa-Cruz, 822 F. Supp. 853 (D.P.R. 1993); see supra note              _____________                                  ___ _____          2, wherein the  government elected  not to appeal  from an  order          suppressing virtually identical  evidence seized from  the person          next in  line to  Pizarro at  the security checkpoint.9   In  the          companion  case, the  district court  suppressed the  cocaine Fi-          gueroa  was carrying     in  Christmas gift  packages inside  his                                       _________ ____  ________          luggage     because Avil s had  permitted the DEA  to conduct the          initial  search  at  the  airport police  station  without  first          _______          obtaining a warrant.  Avil s testified that he  arrested Figueroa          based on probable cause  to believe that the gift  boxes, exposed          to  view during  the security-checkpoint  search of  his carry-on          bag, were  so similar to  Pizarro's gift box  that it was  likely          that they too contained blocks of cocaine.                      The government's attempt  to distinguish the two  cases          misses the  mark.   The carry-on  bags, the gift  boxes, and  the          blocks enclosed  in opaque packaging    all  were discrete closed                                                  ___                                        ____________________          inventory search exception)  with United States v.  Infante-Ruiz,                                       ____ _____________     ____________          13 F.3d 498, 504  (1st Cir. 1994) (to justify  warrantless search          as  inventory  search,  government  must  introduce  evidence  of          "established procedures and standard criteria" governing invento-          ry process).  In  addition to the government's failure  to evince          an established inventory procedure or policy, such a rationale is          effectively  disavowed by Avil s' testimony expressly predicating          the DEA searches on  the need to field-test  the contents of  the          enclosed blocks for cocaine.               9The  government  apparently  decided to  try  Figueroa-Cruz          separately due  to insufficient  evidence that the  two men  were          traveling in tandem.                                           13          containers.   Even assuming  the warrantless  checkpoint searches          conducted  on the carry-on bags  and the gift  boxes were lawful,          the government  nevertheless failed to establish  that the subse-          quent warrantless  DEA  penetration of  the  previously  unopened          blocks enclosed  in opaque  packaging came within  any recognized          exception  to  the  warrant  requirement.    Consequently,  their          warrantless search at  the police station     after any  exigency          had ceased    violated the Fourth amendment.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    As  the government  failed to  shoulder its  burden, by          demonstrating either that its  warrantless searches of the opaque          packaged blocks  were permissible under the  Fourth Amendment, or          that  the admission of the tainted evidence was harmless beyond a          reasonable  doubt, see United States v. Modarressi, 886 F.2d 6, 8                             ___ _____________    __________          (1st Cir. 1989), appellant's conviction must be reversed.                     The district court judgment is reversed.                    The district court judgment is reversed.                    _______________________________________                                          14
