               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.

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          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 --

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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
                                   

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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

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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

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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. 
                  

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