
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1175                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 PEDRO INFANTE-RUIZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Laura  Maldonado  Rodriguez, Assistant  Federal  Public  Defender,            ___________________________        with whom  Benicio Sanchez  Rivera,  Federal Public  Defender, was  on                   _______________________        brief for appellant.            Jose  A.  Quiles-Espinosa,  Senior Litigation  Counsel,  with whom            _________________________        Charles E. Fitzwilliam,  United States Attorney, was on  brief for the        ______________________        United States.                                 ____________________                                   January 25, 1994                                 ____________________                      CAMPBELL, Senior Circuit Judge.   Defendant-                                ____________________            appellant  Pedro  Infante  Ruiz was  indicted  in  the United            States  District Court  for the District  of Puerto  Rico for            having knowingly  received while  a fugitive  from justice  a            firearm transported  in interstate  commerce.   18 U.S.C.                922(g)(2)  and 924(a).   After  the district  court  denied a            motion in limine to suppress evidence, Infante entered a plea            of guilty, with his plea  being conditioned on the outcome of            an appeal of  the court's evidentiary  ruling.  Infante  duly            appealed, and we now reverse the district court's denial of a            motion to suppress and vacate appellant's conviction.                                          I.                      On October 8, 1991, Infante and two associates were            driving a rented 1991 Mazda  626 in the vicinity of Parguera,            Lajas,  Puerto Rico, when they stopped to buy food at a local            eatery.   Officers of  the Puerto Rico  police were following            the car, looking  for an opportunity to arrest  Infante on an            outstanding  warrant  from   Florida  on  federal   narcotics            charges.   After the car stopped, the officers surrounded the            vehicle  and placed Infante  under arrest.   Infante resisted            but  was eventually  restrained and  placed  inside a  nearby            unmarked squad car.                      One  of  the  arresting  officers,  Sergeant  David            Padilla Velez, asked the  driver of the car,  a Felipe de  la                                         -2-            Paz, for consent  to search the vehicle.   De la Paz verbally            gave his             consent, and Sgt. Padilla searched the passenger compartment.            Sgt. Padilla then  asked de la Paz  for the key to  the car's            trunk.  Although  Sgt. Padilla did not explicitly  ask for de            la  Paz's consent to search the  trunk, de la Paz handed over            the key to the trunk in response to the request and  stood by            without objection as the trunk was being searched.                      Two  briefcases,  one  brown  and one  black,  were            inside the trunk.  De la  Paz, upon inquiry by Sgt.  Padilla,            said that he  was the  owner of  the brown  briefcase.   Sgt.            Padilla opened and  searched the brown  briefcase, apparently            without objection by de la Paz.                      Sgt. Padilla  then asked de  la Paz  who owned  the            black  briefcase.   De la  Paz answered  that it  belonged to            Infante.  Without expressly asking  for de la Paz's  consent,            but without any express objection from him, Sgt. Padilla then            opened the unlocked  briefcase belonging to Infante.   Inside            were various documents belonging to Infante, as well as items            belonging to de  la Paz and others.  Also inside was a loaded            .22 caliber Derringer pistol.                      Infante was later  charged with knowingly receiving            while  a fugitive  from  justice  a  firearm  transported  in            interstate commerce.  De la  Paz and the other passenger were            not arrested.                                         -3-                      Infante  moved to suppress the gun, arguing that it            had been seized in  violation of the Fourth Amendment.  In an            oral   ruling,  the  district  court  denied  the  motion  to            suppress.  The defendant later  pleaded guilty to the charge,            reserving his right to appeal  from the court's denial of his            motion to suppress.  We now hold that the search of Infante's            briefcase was unlawful and that  the pistol should have  been            suppressed.                                         II.                      The district court upheld the warrantless search of            Infante's briefcase on  four grounds:  (1)  Infante's lack of            privacy interest  in the suitcase; (2) probable  cause; (3) a            finding   that  the   weapon  would   have   been  inevitably            discovered; and  (4) the drivers'  consent.   In reviewing  a            district  court's denial of  a suppression motion,  we uphold            its  findings  of  fact unless  they  are  clearly erroneous.            United States v. Sanchez, 943  F.2d 110, 112 (1st Cir. 1991);            _____________    _______            United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).            _____________    ____________            The court's  ultimate  conclusion,  however,  is  subject  to            plenary review,  Sanchez, 943 F.2d  at 112; United  States v.                             _______                    ______________            Curzi, 867  F.2d 36,  42 (1st Cir.  1989), as  "[f]indings of            _____            reasonableness . . . are respected only insofar as consistent            with federal constitutional guarantees."   Ker v. California,                                                       ___    __________            374 U.S. 23,  33 (1963).   We will,  "where necessary to  the            determination of  constitutional rights, make  an independent                                         -4-            examination of  the facts,  the findings, and  the record  so            that  [we] can  determine  for  [ourselves]  whether  in  the            decision  as  to  reasonableness  the  fundamental      i.e.,                                                                    ____            constitutional    criteria  . . . have been  respected."  Id.                                                                      ___            at 34.                      Applying these  principles, we discuss in turn each            of  the  grounds  for  upholding the  search  offered  by the            district court.                 A.   Infante's Privacy Interest in the Briefcase                      ___________________________________________                      The  district  court  found  that  Infante  had  no            privacy interest in the briefcase and concluded that the lack            of such an  interest provided a sufficient basis  to deny the            suppression  motion.  The  district court found  that Infante            had left the unlocked briefcase in the trunk of the Mazda for            a period of some days, even when  he was not a passenger, and            that he allowed de la Paz  and others to place possessions of            their  own inside  it.   The  district court  found that  the            briefcase "was not  under the control  of the defendant"  and            that  Infante had  no Fourth  Amendment  privacy rights  that            could have been violated by its search.                      While the  district court  cited no  authority, the            best analogy we could find for the district court's reasoning            is California v.  Greenwood, 486 U.S. 35 (1988).   There, the               __________     _________            police searched  without a  warrant the  contents of  garbage            bags  left at  the curb  outside the  defendants' home.   The                                         -5-            Court  held that the defendants "exposed their garbage to the            public sufficiently to defeat their claim to Fourth Amendment            protection."  Id. at 40.  It was "common knowledge," said the                          ___            Court,  that  garbage bags  left  for  pick up  are  "readily            accessible to  animals,  children,  scavengers,  snoops,  and            other members of the public."   Id. (footnotes omitted).  The                                            ___            defendants were considered to have  left their refuse "in  an            area particularly  suited for  public inspection  and  . .  .            consumption, for the express purpose of having strangers take            it."  Id. at 40-41 (internal quotation omitted).                  ___                      The  facts  in  this  case,  however,  are  clearly            distinguishable from  Greenwood.    Storing  items  inside  a                                  _________            closed briefcase inside  a locked car trunk did  not reveal a            willingness on the part of  Infante to "expose" such items to            the public.  Moreover, nothing in the circumstances indicated            that  Infante  had   abandoned  the  briefcase,  relinquished            authority over it, or left  it open to "public inspection and            consumption."  De la Paz's identification of the briefcase as            belonging to Infante  indicated that, among his  friends, the            case was still believed to belong to Infante.  While there is            evidence that  Infante's confederates felt entitled  to place            items of their own within it, he  did nothing to indicate its            availability  to the  public generally  nor  did his  actions            betray  an intention  to forego  an owner's  normal  right to            exclude those  he  wished to  exclude.   By the  time of  the                                         -6-            search, Infante  himself was once more a passenger in the car            carrying his briefcase.                      We think it  is clear, therefore, that  Infante did            not  repudiate his  privacy  interest  in  the  briefcase  by            placing it in the trunk of  the Mazda.  While he indicated  a            willingness to share access with a few friends, he  in no way            opened the  case to  public access.   We therefore  hold that            Infante had a privacy interest  in the briefcase and that the            district court's finding to the contrary was in error.                 B.   Probable Cause                      ______________                      The district  court also concluded  that the search            was justified by probable cause.   It is now established that            if the  police have probable  cause to believe that  either a            vehicle  or a container within a vehicle contains contraband,            evidence  of  crime, or  other  matter that  may  lawfully be            seized,  no Fourth Amendment violation occurs when the police            open and  search the  container without  a  warrant.   United                                                                   ______            States v. Ross, 456  U.S. 798 (1982); California  v. Acevedo,            ______    ____                        ______________________            111 S.  Ct. 1982 (1991).  The district court found  here that            because Infante  was a  federal fugitive  and that  the other            occupants were  allegedly under suspicion for  trafficking in            drugs,  the police  officers could  have reasonably  believed            that the  car's occupants  were "dangerous  people" and  that            contraband or  weapons  would  be in  the  automobile.    The                                         -7-            district  court  supported  its  finding  by  saying  it  was            "conventional wisdom" that "drug traffickers carry weapons."                      But in order for probable cause to search to exist,            the officer  must have reasonably  trustworthy information of            supporting facts and  circumstances such as would  persuade a            person  of  reasonable  caution  to  believe  the  search  is            justified.    3  Charles Alan  Wright,  Federal  Practice and            Procedure: Criminal 2d   662 at 579 (1982).  Certainty is not            required.   Id.  But in the  absence of supporting facts, the                        ___            officer's  suspicion or personal  belief that  probable cause            exists is not  enough.  Id. at  582.  Thus it  was not enough                                    ___            here  that  the  suspected  vehicle  contained  persons  with            serious drug trafficking records.  There had to be particular            facts indicating that, at the  time of search, the vehicle or            a  container within it carried contraband, evidence of crime,            or other seizable matter.  Id. at 2664.                                       ___                      The  government conceded at  oral argument that the            police  officers who  conducted the  search  had no  concrete            information  that Infante  and his friends  were transporting            drugs or weapons at the time of the stop.  The probable cause            standard  could  not  be satisfied  merely  by  dependence on            "conventional  wisdom" or  by the  "dangerous" reputation  of            Infante and  his associates.1   See United States  v. Harris,                                            ___ _____________     ______                                            ____________________            1.  A  related argument for  upholding the search,  which the            government did not press below and waived on appeal, was that            the  search was  justified as  incident  to Infante's  lawful                                         -8-            403  U.S. 573,  582  (1971)  (suspect's reputation,  standing            alone, is insufficient to support probable cause).                                            ____________________            arrest under the warrant.  New  York v. Belton, 453 U.S. 454,                                       _________    ______            457, 460 (1981).  Under Belton, when a police officer makes a                                    ______            lawful custodial arrest of the occupant of an automobile, the            officer  may, "as a contemporaneous incident of that arrest,"            search  the car's  passenger  compartment and  any containers            found  within it.    Id. at  460-61 &  n.4.   The  "passenger                                 ___            compartment"   has  been  interpreted  to  mean  those  areas            reachable without exiting the vehicle and without dismantling            door panels or other parts of the car.  See Wayne R. LaFave &                                                    ___            Jerold H.  Israel, Criminal  Procedure    3.7 at 277  (1984).                               ___________________            The  Belton  doctrine   has  thus  been  extended   to  allow                 ______            warrantless searches of the rear  section of a station  wagon            and  the trunk  area of  a  hatchback, when  these areas  are            accessible from inside the  vehicle.  United States v.  Pino,                                                  _____________     ____            855  F.2d 357,  364 (6th  Cir. 1988)  (station wagon),  cert.                                                                    _____            denied, 493 U.S. 1090  (1990); United States v.  Russell, 670            ______                         _____________     _______            F.2d 323, 327 (D.C. Cir.) (hatchback), cert. denied, 457 U.S.                                                   ____________            1108 (1982).                 The Supreme  Court in  Belton expressly  excluded trunks                                        ______            from its  holding, 453 U.S. at  460-61 n.4, as  the Court may            have assumed  that all  car designs were  such as  to prevent            passengers from  reaching into the  trunk from the  back seat            and seizing a weapon or evidence there.  In the instant case,            however,  the  vehicle  was a  1991  Mazda  626 sedan,  which            appears to  have had  a divided rear  seat permitting  one or            both  segments to be  lowered, allowing direct  access to the            trunk from the passenger compartment.  See Road Test: Sedans,                                                   ___ _________________            56  Consumer Reports  475 (1991).   If  this was  the design,            there  may have been  little difference  for purposes  of the            Belton doctrine  between a  trunk of the  Mazda and  the rear            ______            portion  of a  station wagon  or  the rear  compartment of  a            hatchback.    But  as  the government  failed  to  make  this            argument  either below  or on  appeal, and  as the  record is            entirely  without evidence as  to how accessible  the Mazda's            trunk may  have been to persons seated  within the car, we do            not  reach the  novel question  of whether  Belton  should be                                                        ______            extended in this way.                                         -9-                 C.   Inevitable Discovery                      ____________________                      As  a  third  ground  for denying  the  suppression            motion,  the district court  found that the  Derringer pistol            would have been inevitably found.   According to the district            court, because the Mazda was a rental car, the officers would            have taken custody of the car, and  the car would have had to            be  inspected  before  the  vehicle was  returned.    The gun            inevitably  would have  been found  in the inspection  of the            vehicle.  On  the present record,  however, this argument  is            unsupported and must be rejected.                      The inevitable discovery doctrine, an exception  to            the exclusionary rule, applies when "the government can prove            that the evidence would have  been admitted regardless of any            overreaching."  Nix v. Williams, 467 U.S. 431, 447-48 (1984).                            ___    ________            The  government bears the burden  of showing, by reference to            "demonstrated historical facts" and by a preponderance of the            evidence,  that the information or item would inevitably have            been discovered by lawful means.  Id. at 444-45 & n.5.                                                ___                      Furthermore,  to be  permissible  under the  Fourth            Amendment, warrantless  inventory searches must  be conducted            according  to  standardized  procedures.    South  Dakota  v.                                                        _____________            Opperman, 428 U.S.  364, 372-75 (1976); Colorado  v. Bertine,            ________                                ________     _______            479  U.S. 367, 374  n. 6, 375  (1987); Florida v.  Wells, 495                                                   _______     _____            U.S.  1, 4-5  (1990).   Any "discretion  [must  be] exercised            according to standard criteria and on the  basis of something                                         -10-            other than  suspicion of  criminal activity."   Bertine,  479                                                            _______            U.S. at 375.                      The  government  cites  United  States v.  Mancera-                                              ______________     ________            Londo o, 912 F.2d 373, 375-77  (9th Cir. 1990), in support of            _______            its argument  here.   In Mancera-Londo o,  the Ninth  Circuit                                     _______________            upheld  a warrantless search of  several suitcases found in a            rented  station wagon, after  the arrest of  two suspects who            had been  using the car to  transport drugs.  The  court held            that it was  "legitimate" for the DEA agents  involved in the            arrest to take custody of the vehicle after the arrest of the            two  suspects, as  apparently no  one else  was available  to            return the car to the rental company.  Id. at 376.                                                   ___                      The agents in  Mancera-Londo o testified that after                                     _______________            a rented vehicle is seized,  the DEA's standard policy was to            return  the  car to  the  rental  agency  after  "a  complete            inventory of  the car."   The policy, though oral  only, was,            according to  testimony, identical to the policy found in the            DEA   Manual  regarding  the   search  of  cars   seized  for            forfeiture.  Id. at 375-76.   Also, the agents testified that                         ___            DEA policy required searching of  all closed containers.  Id.                                                                      ___            at 376.  See also Wells, 495 U.S. at 4-5 (in order to justify                     ________ _____            searching  closed  containers  during  an  inventory  search,            officers  must  be  acting  pursuant  to  a  specific  policy            regarding closed containers).                                         -11-                      In  the present case, however, the record is barren            of evidence that  would support the district  court's finding            that the  discovery of  the gun was  inevitable.   First, the            government  has  not  met  its burden  of  showing  that  the            officers could have taken "legitimate custody" of the vehicle            but  for the  discovery  of  the gun,  see  United States  v.                                                   ___  _____________            Jenkins, 876  F.2d 1085,  1089 (2d Cir.  1989), and  that the            _______            officers  indeed would  have taken  such custody  inevitably.            See United States  v. Silvestri, 787 F.2d 736,  744 (1st Cir.            ___ _____________     _________            1986)  (noting that a "basic concern" in inevitable discovery            cases is  whether both the  discovery of the legal  means and            the use of  that means are  truly inevitable), cert.  denied,                                                           _____________            487  U.S.  1233  (1988).   In  Mancera-Londo o,  both persons                                           _______________            connected with  the vehicle  were arrested.   Here,  however,            only  Infante     a passenger     was  arrested.   Insofar as            appears, the police were not compelled by  the mere discovery            and arrest  of Infante to  seize the car within  which he was            riding  and return  it to the  rental company.   There was no            testimony, and no evidence otherwise, that the car would have            been impounded or  seized if the  gun had not been  found, or            that  without  impoundment  the   car  would  have  otherwise            remained on the side of a public highway or city street.  See                                                                      ___            United  States v. Ramos-Morales, 981 F.2d  625, 626 (1st Cir.            ______________    _____________            1992), cert. denied, 113 S. Ct. 2384 (1993).                   ____________                                         -12-                      Second,  the  government  failed to  introduce  any            evidence that their  actions were  controlled by  established            procedures  and   standardized  criteria,   as  required   by            Opperman,  Bertine, and Wells,  supra.  No  officer testified            ________   _______      _____   _____            that a  policy dictated that  they seize the car,  search its            contents  including closed containers,  and return it  to the            rental  agency.    The  government  did  not  introduce  into            evidence a written policy to that effect, nor did any officer            testify that an oral policy or established routine existed.                      Though  no   officer  testified   that  regulations            directed the making  of an inventory search,  one officer did            testify  that  certain  regulations  governed  how  inventory            searches  were  to  be  conducted  when  they  in  fact  were            performed.    The  officer  testified  that  the  regulations            required the  officers to  keep a  list of everything  seized            from  the  vehicle.   When  asked  if  he had  followed  such            regulations in this case, however, the officer testified that            he had  not.  The inventory list that was introduced at trial            did not list the gun.                      In the absence of specific evidence of standardized            procedures  making inevitable  the seizure  of  the car,  the            search of the trunk, and the opening of the closed briefcase,            and  in light  of the  fact  that the  officers on  the scene            failed  to comply with  the established regulations  that did            exist, we hold that the government failed to carry its burden                                         -13-            of   showing  that  the   gun  would  have   been  inevitably            discovered.                 D.   Consent                      _______                      The government  argues on appeal  that the evidence            and  the court's  findings  indicate that  the driver  of the            Mazda, de  la  Paz,  consented to  the  search  of  Infante's            briefcase.   While  there  was  no evidence  that  de la  Paz            consented to  a search  of Infante's  briefcase specifically,            the district court felt it "a reasonable conclusion that when            the  police searched the trunk or asked permission to Freddie            [de la Paz] to open the trunk . . . there was consent to open            the trunk .  . . ."   From this the government would  have us            infer   de  la  Paz's  consent  to  search  Infante's  closed            briefcase located  within the trunk.   While the  question is            close, we are unable to find that  de la Paz consented to the            briefcase search.                        The evidence shows that de la Paz had access to the            briefcase for several days and  that de la Paz's property was            co-mingled  with Infante's inside the briefcase.  It appears,            therefore, that de  la Paz had sufficient  authority over the            briefcase to consent to its search  if he in fact had  chosen            to do so.  See Frazier v. Cupp, 394 U.S. 731 (1969) (owner of                       ___ _______    ____            duffel  bag, in  allowing friend  to use  bag jointly  and in            leaving it at  friend's house, assumed risk that friend would            consent  to its search);  United States v.  Matlock, 415 U.S.                                      _____________     _______                                         -14-            164   (1974)  (search  of   diaper  bag  in   bedroom  closet            permissible   when  based  on  consent  of  one  with  common            authority over  bedroom); cf. United States v.  Welch, 4 F.3d                                      ___ _____________     _____            761, 764 (9th Cir.  1993) (one occupant of rental  car had no            authority  to consent to  search of another  occupant's purse            where  there was  no evidence  of joint  access to  or shared            control over the purse).                      It  was not  reasonable,  however,  for the  police            officers to have believed that de la Paz gave his  consent to            the  search of Infante's briefcase.  Under Florida v. Jimeno,                                                       _______    ______            500 U.S. 248,  ___, 111 S.  Ct. 1801,  1803 (1991), a  Fourth            Amendment  violation  occurs  when  it  is  not  "objectively            reasonable" under the  circumstances for a police  officer to            believe  that the scope of a  suspect's consent permitted the            officer  to open  a particular  container within  a car.   In            Jimeno,  the driver's general  consent to search  the vehicle            ______            was found sufficient  to authorize the search of  a paper bag            on the floorboard containing cocaine.  The Court held that it            was  objectively reasonable for  the officer to  believe that            the suspect's general consent to  search the car included his            consent  to search  containers  within  the  car  that  might            contain  drugs.   Id.  at  1804.   The Court  noted  that the                              ___            officer had informed the suspect that he was  under suspicion            for  carrying narcotics, and that  the suspect had not placed            any explicit limitation on the scope of the search.  Id.                                                                 ___                                         -15-                      The instant  case is  distinguishable on  its facts            from Jimeno.   Unlike Jimeno, Sgt. Padilla did  not notify de                 ______           ______            la Paz that he was looking for drugs, making it somewhat more            difficult  to impute  to de  la Paz  consent to  search every            container within the car that might contain drugs.  Moreover,            Infante's  briefcase was  secured  inside  the  locked  trunk            rather than lying on the floorboard.  Cf. id. at 1804 ("It is                                                  ___ ___            very   likely  unreasonable  to  think  that  a  suspect,  by            consenting  to the  search of  his trunk,  has agreed  to the            breaking open of a locked  briefcase within the trunk, but it            is otherwise with respect to a closed paper bag.").                      Still, were the above the sole distinctions, Jimeno                                                                   ______            would seem to  allow a finding of consent.   Infante's arrest            warrant related to drug-dealing and de la Paz'  furnishing of            the keys to  the trunk is consistent with granting permission            to search  within the trunk.  What leads  us to hold that the            scope of  de la  Paz's consent  did  not include  defendant's                                                 ___            briefcase, is that de  la Paz's general permission  to search            the car  and its trunk was  qualified by de la  Paz's further            statement  to the  officer,  before  the  latter  opened  and            searched  the  briefcase,  that  the  briefcase  belonged  to            Infante.  Even  though Infante was nearby,  handcuffed in the            squad car, the police officers never sought his permission to            search  his  briefcase.    We   do  not  think  that  it  was            "objectively  reasonable," in  these  circumstances, for  the                                         -16-            officer to believe  that de la Paz's prior  consent to search            the vehicle and its trunk encompassed opening that particular            briefcase, later clearly identified by de la Paz as belonging            solely   to  another   nearby  passenger.      De  la   Paz's            identification of  the  briefcase  as  belonging  to  another            nearby  passenger suggested  precisely  the  contrary.    See                                                                      ___            Jimeno, 111  S. Ct. at 1804 ("A suspect may of course delimit            ______            as  he  chooses   the  scope  of  the  search   to  which  he            consents.").  At very least, the scope of de la Paz's consent            was ambiguous     an ambiguity  that could have been  but was            not clarified  by further  inquiry of de  la Paz,  Infante or            both.                                         -17-                                         III.                      As none of the grounds offered to uphold the search            of the  briefcase  survives analysis,  appellant's motion  to            suppress the fruits  of the search should  have been granted.            The district court's denial of appellant's motion to suppress            is  reversed and  the judgment  vacated.   The  defendant may            withdraw his plea of guilty below.                      So ordered.                      __________                                         -18-
