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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