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,
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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
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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.
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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
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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
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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
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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
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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
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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,
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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
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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.
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