                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2171

                        UNITED STATES,

                    Plaintiff, Appellant,

                              v.

                MARIA E. DE LOS SANTOS FERRER,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Raymond L. Acosta, U.S. District Judge]
                                                    

                                         

                            Before

                     Selya, Circuit Judge,
                                         
                Coffin, Senior Circuit Judge,
                                            
                  and Boudin, Circuit Judge.
                                           

                                         

Vicki Marani, Attorney, United States Department of Justice,  with
            
whom  Daniel  F. Lopez-Romo,  United States  Attorney, and  Antonio R.
                                                                  
Bazan, Assistant United States Attorney, were on brief for appellant.
 
Frank D. Inserni, by appointment of the Court, for appellee.
                

                                         

                        July 15, 1993
                                         

     BOUDIN,  Circuit  Judge.    Based on  evidence  obtained
                            

through a warrantless search of airport luggage, Maria De Los

Santos  Ferrer was  indicted  for possession  with intent  to

distribute   twenty  kilograms   of  cocaine,  21   U.S.C.   

841(a)(1), and its possession  on board an aircraft departing

from  the  United States,  21 U.S.C.    955.   De  Los Santos

Ferrer  filed a  motion to  suppress the  evidence  which the

district  court  granted.     The   government  appeals   the

suppression order.  We reverse.

     On  March  26, 1991,  Customs agents  at the  Luis Munoz

Marin International Airport in  Puerto Rico were conducting a

training exercise  with a certified drug-sniffing canine when

the  dog alerted on three checked suitcases that had not been

planted by the agents.   The suitcases were intermingled with

domestic  and  international   luggage  in  a  baggage   area

underneath  the  American  Airlines  terminal.   The  Customs

agents  removed the suitcases  from the baggage  area and ran

them through an airport  x-ray machine.  In the  meantime the

suitcases were  identified as registered to  a "Maria Torres"

seated on board  an American Airlines flight about  to depart

for Miami.  

     Customs  Agent  Marilyn  Garcia  boarded the  plane  and

proceeded to the seat assigned to Maria Torres.  The seat was

occupied by  a man and sitting next to him was the defendant,

Maria De Los  Santos Ferrer.   Garcia approached the  couple,

                             -2-

identified herself as  a Customs  officer, and  asked to  see

their airline tickets.   The couple explained that  they were

married and  produced airline tickets  registered to  "Anibal

Torres" and "Maria Torres."   De Los Santos Ferrer identified

herself  as Maria Torres.  Affixed to her airline ticket were

three  baggage claim  checks that  corresponded to  the claim

checks on the suitcases picked out by the drug-detecting dog.

The defendant and her  husband were led off the  airplane and

taken to the Customs  enclosure area, where they were  put in

separate rooms.

     After  the defendant  was  read her  Miranda rights  and
                                                 

patted down for weapons,  Customs supervisor Benjamin  Garcia

asked  De  Los  Santos  Ferrer  about  the  suitcases.    The

defendant replied that the luggage did not belong to her.  An

hour  or more elapsed before Agent Enrique Nieves of the Drug

Enforcement   Administration  arrived.     He   informed  the

defendant that a Customs dog  had alerted authorities to  the

suitcases checked under her  name, that the luggage had  been

X-rayed  and that  the X-ray  revealed packages  which Nieves

believed contained narcotics.

     Agent Nieves  then asked  for defendant's  permission to

open  the suitcases,  stating that he  would obtain  a search

warrant  if she did not consent.   De Los Santos Ferrer again

denied  ownership, telling  Agent Nieves  that she  could not

consent to a search because the luggage was not hers.  Nieves

                             -3-

continued  to  seek  the  defendant's  consent.    This  time

(according to Nieves)  she nodded her head in  an affirmative

manner.  The  luggage was  then opened and  found to  contain

cocaine, and the defendant was formally arrested.

     De  Los Santos  Ferrer was  indicted and  thereafter she

moved to  suppress  as  evidence  the cocaine  found  in  the

luggage.   At  a hearing  on the  motion before  a magistrate

judge,  De Los Santos  Ferrer admitted in  her testimony that

the suitcases belonged to her.  She also  agreed that she had

disclaimed ownership of the  luggage when questioned by Agent

Benjamin  Garcia  and then  again  when  questioned by  Agent

Nieves.   But she denied that  she ever consented to a search

of  the luggage.   She  testified that  when the  luggage was

opened, Nieves did so using a tool.  

     The magistrate judge credited Agent Nieves' testimony on

the  issue of consent.   The magistrate judge  found that the

defendant  had  voluntarily  agreed  to the  opening  of  the

suitcases,  and he  issued a  written report to  the district

court  recommending that  the motion  to suppress  be denied.

The defendant  then sought  review of the  magistrate judge's

recommended  report.   Based  on the  record  of the  earlier

hearing, the district court reversed  and ordered suppression

of  the cocaine  seized  from the  luggage  on two  principal

grounds.

                             -4-

     First,  the  district   court  ruled   that  the   x-ray

examination,  conducted  for criminal  investigation purposes

without a warrant, violated the Fourth Amendment, and its use

to secure consent  vitiated the consent.   Second, the  court

found that  the disclaimer  and the consent  were involuntary

because  they  were  secured in  a  custodial  "stationhouse"

atmosphere  in which the defendant  was "detained for over an

hour, not free to leave at will and subjected to a frisk" and

to  repeated interrogation.   The  court also  criticized the

agents  for  a  pattern  of abusive  behavior  in  conducting

warrantless  airport  searches  based  on  x-ray  checks  and

alleged consent.

     In this appeal, the government primarily argues that the

x-ray  scan  was   not  a  search  subject   to  the  warrant

requirement.  It concedes that this x-ray examination was not

a  valid  airport  administrative  search,  United States  v.
                                                         

$124,570 U.S. Currency, 873 F.2d  1240, 1244 (9th Cir.  1989)
                      

(airport   administrative   search   exception   to   warrant

requirement   is  limited   to  searches   for   weapons  and

explosives),  but it  maintains that  there is  no reasonable

expectation of privacy  in luggage checked at  an airport, at

least as to  x-ray searches.  See Katz v.  United States, 389
                                                        

U.S.  347,   361  (1967)  (Harlan,  J.,   concurring).    The

government  notes that luggage on the flight at issue in this

                             -5-

case  was  also subject  to an  administrative search  by the

Agriculture Department.

     We think that the Fourth  Amendment issue is a difficult

one.  To  be sure, a  traveler who has  any experience  knows

that  luggage at airports is now commonly x-rayed for guns or

explosives and  that requests at  the checkpoint to  open the

luggage  are not  uncommon.   At  the  same time,  these  are

administrative searches conducted  for a limited purpose  and

this limited--and  exigent--purpose  has been  the basis  for

allowing the searches en masse, without a warrant and without

probable cause.   There is  at least some  basis for  concern

about the government's falling-domino approach, by which each

intrusion diminishes privacy expectations  enough to permit a

further infringement.   See Smith v. Maryland,  442 U.S. 735,
                                             

740 n.5 (1979).

     In  this  case, the  second  search  was  by  x-ray  and

probable  cause to secure a warrant happened to exist; but it

is not clear whether the government's diminished expectations

theory would be limited to probable  cause cases or, perhaps,

even  to x-ray searches.  The government itself ought to give

some thought  to the  fact that indiscriminate  extensions of

warrantless  search  authority may  eventually  undermine the

case for legitimate  exceptions.   In all events,  we see  no

reason  to  hurry  to  embrace  the  position  urged  by  the

government in this case, for we  think that the search may be

                             -6-

sustained   on   a  quite   different  ground,   namely,  the

defendant's  own admitted  disclaimer of  an interest  in the

luggage.   See United States v.  Maldonado-Espinosa, 968 F.2d
                                                   

101,  103-04 (1st  Cir. 1992), cert.  denied, 113  S.Ct. 1579
                                            

(1993).

     It  is  well  established   that  one  who  abandons  or

disclaims ownership of  an item forfeits any claim of privacy

in its contents, and  that as to that  person the police  may

search  the item without a  warrant.  E.g.,  United States v.
                                                          

Miller, 589 F.2d  1117, 1131 (1st  Cir. 1978), cert.  denied,
                                                            

440 U.S. 958 (1979);  United States v. Torres, 949  F.2d 606,
                                             

608  (2d  Cir.  1991)  (collecting cases).    In  this  case,

defendant's own testimony  at the hearing  was that from  the

outset, and  repeatedly, she told  the agents that  she could

not  give them authority to  open the luggage  because it was

not  hers.   It  would  be  hard  to  find  a  more  explicit

disclaimer or one more certain to have occurred.

     The district  court noted that Agent Nieves did not rely

on  the   disclaimer  but   rather  continued  to   seek  the

defendant's consent to  open the  luggage.  But  there is  no

suggestion  in the  case law  that law  enforcement officials

must actually  believe a defendant who  denies ownership, and

indeed  it  is   often  the  case  that   the  disclaimer  is

immediately suspect.  E.g., United States v. Roman,  849 F.2d
                                                  

920 (5th  Cir. 1988)  (agent saw  defendant in possession  of

                             -7-

luggage  prior  to  defendant's  disclaimer of  knowledge  of

bags);  United  States v.  Tolbert, 692 F.2d  1041 (6th  Cir.
                                  

1982) (same), cert.  denied, 464 U.S. 933  (1983).  Obviously
                           

the  agent would  prefer to have  "consent" since  it carries

with  it an admission of  control or ownership  that could be

useful  at trial; but the agent's attempt to secure this more

useful ground for the search (consent) does not seem to us to

preclude  reliance  upon  an  equally  well  established  one

(disclaimer) made out by the facts.

     Nor do we think that the disclaimer is undermined by the

"nod"  that defendant is alleged to have given--she denied it

but the magistrate  judge found that it  had occurred--at the

end of  the interview.  It  may well be that,  if a defendant

disclaims ownership of a bag but then clearly reverses ground

and asserts ownership, it is too late for the officer then to

search the bag in reliance on the earlier, but now withdrawn,

disclaimer of ownership.   But in this  case we do not  think

the simple nod, even if it occurred, was sufficiently at odds

with  the  repeated disclaimer  to require  us to  ignore the

disclaimer.

     Given the original disclaimer,  it is unnecessary for us

to rule  on the government's argument that  the later consent

was voluntary, although we  note that district court findings

on  such issues  are  not lightly  set  aside.   The  initial

disclaimer is another matter:   It occurred at the  outset of

                             -8-

the  questioning well  before Agent  Nieves even  arrived and

before  much time had  passed.  Assuming  that the atmosphere

became coercively  oppressive, we  see no evidence  that this

was so  at the very outset.   If the district  court did mean

that this disclaimer was secured by undue pressure, we cannot

sustain that ruling.

     Similarly,  the allegedly  unlawful x-ray  had not  been

mentioned when the disclaimer  was first made so there  is no

argument   that  it  prompted,   and  thereby  infected,  the

disclaimer.  Nor is there any basis for believing that the x-

ray  was  a  but-for cause  of  the  detention  and that  the

detention would  not have occurred without  the x-ray search.

The  dog sniff,  which is  not itself  a search,  was lawful,

United States v.  Place, 462  U.S. 696, 707  (1983), and  the
                       

"alert"--by  a  certified, narcotics-detecting  dog--provided

probable cause to  detain and ample incentive to question the

holder of the  claim checks for the  luggage.  E.g.,   United
                                                             

States v. Race, 529 F.2d 12, 15 (1st Cir. 1976).
              

     We have  considered sua sponte whether  Murray v. United
                                                             

States, 487  U.S.  533  (1988),  warrants  a  remand  for  an
      

evidentiary hearing on  the causation issue.   In Murray, the
                                                        

Supreme Court required such a hearing because the known facts

left  it  in  doubt  whether  a  warrant-based  search  of  a

warehouse would have occurred without a prior unlawful search

of  the same facility by the same  agents.  In this case, the

                             -9-

officer  who  made  the  decision  to  detain  the  defendant

testified that she did not even know that an x-ray search had

been performed  when she took  the defendant from  the plane.

That detention, the officer testified, was based upon the dog

alert and match-up of claim check numbers.

     Even without  that testimony, we think  that defendant's

detention here was, beyond any reasonable dispute, inevitable

regardless of the x-ray.   The evidence was that the dog, who

had worked  with its handler  for several years,  "was biting

and  scratching  on  these  suitcases"  associated  with  the

defendant.   This,  the handling  officer testified,  was the

expected response when narcotics  were present.  According to

the magistrate's report,  the agents were  in the process  of

determining the  identity and  location of  the owner  of the

luggage at the same time the luggage was being x-rayed.   The

defendant,  they learned, was on  an airplane ready to depart

from  Puerto Rico.   Without immediate action  to detain her,

the  agents could fairly assume  that she would  be gone from

the  jurisdiction.   If  the x-ray  machine  had been  out of

order, the outcome would have been identical.    

     Finally, we  note that the district  court was disturbed

at a pattern  it perceived of Customs and DEA  conduct at the

airport:   of  dog sniffs,  followed by  x-rays, followed  by

alleged  consents to  search.   See,  e.g., United  States v.
                                                          

Maldonado-Espinosa, 767 F.  Supp. 1176 (D.P.R.  1991), aff'd,
                                                            

                             -10-

968 F.2d 101 (1st Cir. 1992).  The district court underscored

its unhappiness  with this pattern of  conduct, discussing it

both at the beginning  and the end of the opinion.  So far as

concerns   the  warrantless   x-ray   search   for   criminal

enforcement  purposes,  we  have  expressed  our  doubts  and

declined in this case to adopt the government's position.  

     The  pattern  of  alleged   consents  presents  a  quite

different issue.  While we appreciate the value of a probable

cause decision by an  independent magistrate, true consent is

a well- founded basis for a search without a warrant, and the

government is entitled to request consent from a suspect as a

legitimate short cut.   At the same time, it  is one thing to

request  consent and another to  seek it over  and over again

while--as occurred  here--holding  a defendant  in  temporary

detention  for well over an  hour, with no  indication of how

long detention will  continue, and with the DEA agent raising

his voice to  the detainee  to tell her  to be  "respectful."

When the consent is conveyed by a "nod," its worth is further

diminished.  

     If  this  is the  pattern  of  consent  searches at  the

airport, we do  not applaud it.  More to  the point, we think

that the government should  appreciate that claims of consent

derived  in this fashion are likely  to be looked upon with a

jaundiced eye by reviewing courts.  If the  government exerts

undue pressure  or improper means to  secure consent, instead

                             -11-

of obtaining  a warrant as it  can easily do, it  is going to

lose cases.

     The suppression order is  reversed and the case remanded
                                                             

for further proceedings.

                             -12-
