
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -12-
