United States v. Nunez

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2356

UNITED STATES OF AMERICA,

Appellee,

v.

EFRAIN NU EZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

Thomas R. Lincoln, with whom Law Offices of Thomas R. Lincoln was

on brief for appellant.
Esther Castro-Schmidt, Assistant United States Attorney, with

whom Charles E. Fitzwilliam, United States Attorney, and Jos A.

Quiles Espinosa, Senior Litigation Counsel, were on brief for

appellee.

March 24, 1994

CYR, Circuit Judge. After a two-day jury trial, Efrain
CYR, Circuit Judge.

Nu ez, a Dominican national, was convicted of possessing approxi-

mately two kilograms of cocaine, with intent to distribute, in

violation of 21 U.S.C. 841(a)(1). On appeal, Nu ez challenges

the district court's refusal to suppress the contraband obtained

during his detention by the United States Customs Service

(Customs) at Luis Marin International Airport in Carolina, Puerto

Rico, on Sunday, May 24, 1992.

I
I

BACKGROUND
BACKGROUND

A. Airport Detention
A. Airport Detention

The facts are unremarkable up until the point in time

approximately 3:55 p.m. when Nu ez was first observed by

two Customs agents, Olga Silva and Victor Ramos, who were "pro-

filing passengers" near the American Airlines ticket counter.

After Nu ez attracted their attention because he appeared to be

walking stiffly, the agents followed him toward the American

Airlines concourse, and observed as he cleared the security

checkpoint without incident.1 As Nu ez placed his carry-on bag

on the floor before presenting his passport at the Immigration

and Naturalization Service (INS) checkpoint, Customs Agents Ramos

and Silva noticed several bulges around his midsection and

1Nu ez walked through the metal detector and passed his
carry-on bag through the x-ray machine.

2

observed that he had difficulty bending. At this point, Silva

left to summon Senior Customs Investigator Isidro Rivera Sanchez

(Rivera).

At approximately 4:10 p.m., Rivera approached Nu ez at

the INS checkpoint, identified himself as a Customs agent, and

posed a series of perfunctory questions. At one point, when

Nu ez bent down to show Rivera his carry-on bag, Rivera observed

the "bulges" seen by Silva and Ramos minutes before, and decided

to question him further. Rivera escorted Nu ez to a room off the

main concourse. Seeking to ensure that the "bulges" were not

explosives that might have gone undetected at the security

checkpoint, Rivera conducted a "pat-down frisk" which revealed

that four packages had been "adapted" to fit around Nu ez's

midsection. Finding no wires, Rivera informed Nu ez that he

would be detained by Customs, then conducted him to a secure 8' x

8' holding room in the customs enclosure.

As the case wended its way through the Customs chain of

command, two more Customs agents became involved: Senior Super-

visory Agent Carlos Ruiz Hernandez (Ruiz) and his supervisor,

Senior Agent Ben Garcia (Garcia). When Garcia arrived on the

scene, he directed Ruiz to arrange for a drug-detection dog to be

brought to the customs enclosure. Later, Garcia and Ruiz went to

the holding room, where Garcia informed Nu ez that he was sus-

pected of smuggling contraband and that the Drug Enforcement

Administration (DEA) was being requested to secure a warrant to

search his person. At approximately 5:30 to 5:45 p.m, Garcia

3

administered Miranda warnings to Nu ez. At approximately 5:45 to

6:00 p.m., Ruiz attempted to arrange for a drug-detection dog.2

The situation inside the holding room changed drama-

tically as Ruiz was attending Nu ez while awaiting the arrival of

the drug-detection dog. Suddenly, Nu ez spontaneously informed

Ruiz that he had worked as an auto mechanic in New York but that

work was scarce and "times are tough you have to make a buck

any way you can." As Nu ez spoke, he slowly began unbuttoning

his shirt. Sensing that Nu ez was preparing to shed the "bulg-

es," Ruiz decided to "give him the opportunity," and turned away

while continuing to observe surreptitiously. Shortly thereafter,

Ruiz heard a rustling sound and glimpsed a series of movements.

When Ruiz turned toward Nu ez, four packages lay near him on the

floor; it was approximately 6:30 p.m.

Ruiz immediately performed a field test, which indicat-

ed that the packages contained cocaine. Nu ez was arrested. At

Ruiz's instruction, Nu ez removed his unbuttoned shirt, revealing

two girdles and the body imprints left by the packages he had

been carrying around his midsection. When the passive drug-

detection dog finally arrived at approximately 7:00 p.m., it

2The record is silent as to whether any previous attempt had
been made to obtain a drug-detection dog. The record does
disclose, however, that the only dog available at the airport
that Sunday afternoon, "Oby", was used for luggage screening and
was considered too dangerous for use on a human subject, as it
was trained to claw at the spot where it detected narcotics.
"Zulu," the nearest "passive" drug-detection dog, was kenneled
forty-five minutes from the airport. Zulu and her handler
arrived at the airport at approximately 7:00 p.m., about one-half
hour after Nu ez was formally arrested.

4

"alerted" in the area of Nu ez's midsection where the bulges had

been concealed.

B. District Court Proceedings
B. District Court Proceedings

At a pretrial conference on June 15, 1992, defense

counsel represented that he would move to suppress the contraband

recovered from the floor of the detention room. The district

court accordingly entered a pretrial order pursuant to Fed. R.

Crim. P. 12(c), setting June 22 as the deadline for pretrial

motions and July 29 as the trial date. No motion to suppress was

filed within the prescribed period. On July 23, however, six

days before trial, the government informed defense counsel that

it would introduce newly discovered evidence relating to the pre-

arrest admission by Nu ez, which Customs Agent Ruiz only recently

had brought to the prosecutor's attention. See supra at p.4.

The next day, five days before trial, defense counsel moved to

suppress both the Nu ez admission and the contraband. The motion

simply contended that the contraband was the inadmissible product

of a pretextual investigatory stop, but asserted no challenge

based on the duration of the detention.

On the morning of July 29, 1992, after jury empanel-

ment, the district court heard argument on the government's

objection based on the untimeliness of the motion to suppress the

contraband. The government argued that the relevant facts had

been known to the defense from the beginning and that any sup-

pression challenge to the contraband had been waived under Fed.

5

R. Crim. P. 12(f).3 Asked to explain the untimeliness of the

motion, defense counsel represented to the court that Nu ez,

against counsel's advice and perhaps without comprehending the

full implications, had instructed counsel not to move to suppress

the contraband but later changed his mind.

Without ruling on the government's waiver claim under

Federal Rule of Criminal Procedure 12(f), relating to the untime-

liness of the motion to suppress the contraband, the district

court proceeded to consider the contraband-suppression claim

based on the allegedly pretextual pat-down frisk.4 Near the end

of the suppression hearing itself, however, defense counsel

insinuated the new contention that the contraband should be

suppressed either on the basis of the pretextual pat-down frisk

or an unconstitutionally prolonged detention.5 The latter

3Given the timing of its disclosure, however, the government
conceded the timeliness of the motion to suppress the Nu ez
admission to Ruiz. Nu ez has not appealed from the district
court ruling denying the motion to suppress the admission.

4The district court thus tacitly allowed argument and
evidence on the contraband-suppression issue, which it had been
led to understand turned on the allegedly pretextual pat-down

frisk, the only claim raised in the motion to suppress the

contraband.

5During cross-examination of the Customs agents, defense
counsel elicited testimony relating to the frisk and the ensuing
detention. Then, in a staccato presentation near the end of the
suppression hearing, defense counsel for the first time
briefly injected the claim that the excessive duration of the
detention had tainted the voluntariness of Nu ez' surrender of
the contraband. With the empaneled jury waiting, the district
court simply noted the customs agents' testimony that Nu ez had
been detained pending the issuance of a warrant authorizing the
DEA to search his person. Defense counsel then countered that
the government had presented no evidence that the agents had even
attempted to obtain a warrant. Thereupon, the court's attention

6

theory had neither been raised in the motion to suppress nor at

the post-empanelment argument upon which the district court based

its tacit decision to permit hearing on the contraband-suppres-

sion claim based on the theory that the pat-down frisk was

unconstitutional. See supra notes 4 & 5. As a direct conse-

quence of the belated insinuation of the prolonged-detention

claim, the district court's attention was never fairly focused on

the principal contraband-suppression theory presently advanced on

appeal.6

II
II

DISCUSSION
DISCUSSION

A. Duration of Detention
A. Duration of Detention

We first consider whether the suppression theory

clearly asserted for the first time on appeal that the surren-

der of the contraband was the product of an unconstitutionally

prolonged detention was waived. Criminal Rule 12(f) provides:

"Failure by a party to raise defenses or objections or to make

requests which must be made prior to trial, at the time set by

the court pursuant to subdivision (c), or prior to any extension

was once again abruptly drawn back to the legality of the pat-
down frisk. Ultimately, the court denied the motion to suppress,
in its entirety, without stating any "essential findings" relat-
ing to the duration of the detention as contemplated by Fed. R.
Crim. P. 12(e).

6The principal by-products of these scattershot defense
tactics are the absence of factual findings on matters essential
to reliable appellate review of the district court's ruling that
the surrender of the contraband was voluntary, and the absence of
any ruling or finding whatever as to the reasonableness of the
detention itself. See Fed. R. Crim. P. 12(e).

7

thereof made by the court, shall constitute waiver thereof, but

the court for cause shown may grant relief from the waiver."

Fed. R. Crim. P. 12(f) (emphasis added).7 See United States v.

Gomez, 770 F.2d 251, 253 (1st Cir. 1985) (Rule 12 implements an

"important social policy"; waiver results absent compliance); see

also Brooks v. United States, 416 F.2d 1044, 1047-48 (5th Cir.

1969) (same), cert. denied, 400 U.S. 840 (1970). The record

reflects that the district court neither found "cause" nor

granted relief from waiver under Rule 12(f).8

7Rule 12(b)(3) mandates that all motions to suppress be
presented prior to trial; Rule 12(c) empowers the court, by rule
or order, to prescribe time limits for filing Rule 12 motions.
Fed. R. Crim. P. 12(b)(3), (c).

8At the hearing reluctantly convened by the trial judge
following jury empanelment, defense counsel obliquely raised
arguments altogether distinct from those presented in the motion
to suppress the contraband. See supra notes 4 & 5. We have made

it crystal clear that "[l]egal arguments cannot be interchanged
at will." United States v. Lilly, F.3d , (1st Cir.

1994) [No. 93-1577, slip op. at 5 (Jan. 4, 1994)]; United States

v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991) ("We repeatedly have

ruled . . . that arguments not seasonably addressed to the trial

court may not be raised for the first time in an appellate
venue.") (emphasis added). See also United States v. Bailey, 675

F.2d 1292, 1294 (D.C. Cir.) (similar), cert. denied sub nom.

Walker v. United States, 459 U.S. 853 (1982); accord, United

States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir. 1991) ("[W]aiver

provision applies not only to the failure to make a pretrial
motion, but also to the failure to include a particular argument

in the motion.") (emphasis added), cert. denied sub nom. Rison v.

United States, 112 S. Ct. 1233 (1992). The Trojan Horse tactic

employed by the defense below virtually ensured that its
suppression claim based on the duration of the detention would

escape serious focus from the government and the court at the
post-empanelment suppression hearing, see supra notes 4, 5 & 6,

thereby circumventing the time bar fixed in the pretrial order,
see supra note 7, the "cause" showing required for relief from

waiver under Fed. R. Crim. P. 12(f), and the government's right
to compel resolution of the contraband-suppression claim prior to
trial in order to preserve its right to pretrial review under 18
U.S.C. 3731. See note 9 infra; see also United States v.

8

Even though appellate courts on occasion have implied

relief from waiver under Rule 12(f) where the trial court pro-

ceeds to address the suppression issue on the merits, see, e.g.,

United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir. 1988),

cert. denied, 488 U.S. 1034 (1989); contra United States v.

Oldfield, 859 F.2d 392, 396-98 (6th Cir. 1988), we have not had

occasion, nor are we disposed, sua sponte, to conjure relief from

waiver under Rule 12(f) in circumstances where no cause for

relief appears and the district court record does not enable

reliable appellate review on the merits.

First, it would make Rules 12(b)(3) and (f) meaningless

were an unexplained change of mind on the part of the defendant

deemed "cause" for relief from waiver, following jury empanel-

ment, under a rule fundamental to orderly pretrial procedure. In

this vein, it is instructive to contrast the circumstances

surrounding the late requests to suppress the contraband and the

Nu ez admission. The government's failure to disclose the Nu ez

admission until shortly before trial provided a paradigmatic

example of "cause" for relief from waiver under Rule 12(f). See,

e.g., United States v. Lamela, 942 F.2d 100, 104 (1st Cir. 1991)

(holding that a Rule 12(b)(2) motion first asserted at trial was

not time-barred where the relevant information did not become

available until trial). On the other hand, no extrinsic justifi-

cation whatever is suggested for the belated request to suppress

the contraband due to the duration of the detention even though

Barletta, 644 F.2d 50, 54 (1st Cir. 1981).

9

all the relevant facts were known to the defense from the outset.

Instead, the untimeliness is attributed exclusively to Nu ez's

original decision not to challenge the contraband. In these

circumstances, we believe something more than an unexplained

change of mind must be shown to warrant relief from a Rule 12(f)

waiver brought on by the defendant's tactical decision. See

United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir. 1984)

(upholding denial of relief from waiver under Rule 12(f) after

defendant changed mind about whether to move to suppress).

Second, Rule 12 itself provides that the court shall

not defer a pretrial motion for determination at trial, even for

"good cause" shown, "if a party's right to appeal is adversely

affected." Fed. R. Crim. P. 12(e). "Once a jury has been sworn

and jeopardy attaches, the government loses its right to appeal

an adverse ruling on suppression." United States v. Taylor, 792

F.2d 1019, 1025 (11th Cir. 1986) (scope of discretion to grant

relief under Rule 12(f) narrows once jeopardy has attached),

citing 18 U.S.C. 3731,9 cert. denied sub nom. King v. United

States, 481 U.S. 1030 (1987). See United States v. Barletta, 644

F.2d 50, 54 (1st Cir. 1981) (Coffin, C.J.) ("[D]efendants'

motions to suppress, based on the exclusionary rule, are at the

9The relevant portion of 18 U.S.C. 3731 reads as follows:

An appeal by the United States shall lie to a
court of appeals from a decision or order of a district
courts [sic] suppressing or excluding evidence or
requiring the return of seized property in a criminal
proceeding, not made after the defendant has been put
in jeopardy and before the verdict or finding on an
indictment or information . . . . (footnote omitted).

10

heart of the legislative purpose in providing government appeal

rights."). On the other hand, the defense tactic employed below

would have insulated from pretrial review, pursuant to 18 U.S.C.

3731, any exclusionary ruling based on the duration of the

detention. As our court clearly explained in Barletta, 644 F.2d

at 54-55:

Were a defendant able to delay such a motion
until trial, he could prevent the government
from appealing, thus frustrating the central
purpose of 3731. It is for this reason
that motions to suppress motions based on
the exclusionary rule alone must be made
by a defendant prior to trial or not at all,
and for this reason as well that a district
court ordinarily may not defer a ruling on a
defendant's motion to suppress. We agree
with the district court that such rulings and
the government's ability to appeal them are
at the core of 12(e).

Under these circumstances, therefore, relief from waiver of the

Nu ez suppression claim based on the duration of the detention

will not be implied. See id. at 54; see also, e.g., United

States v. Gomez-Benabe, 985 F.2d 607, 611-12 (1st Cir. 1993)

(finding Rule 12(f) waiver and concluding that: "[i]t is unneces-

sary to address the substantive aspects of appellant's arguments

[that should have been raised in a pretrial motion to suppress]

since appellant has totallyfailed to put the matterin issue.").10

10Few courts have squarely considered whether a Rule 12(f)
waiver obviates "plain error" review under Rule 52(b). See,

e.g., United States v. Howard, 998 F.2d 42, 52 (2d Cir. 1993);

but see Gomez-Benabe, 985 F.2d at 611-12. A number of courts

have proceeded with "plain error" review, however, without dis-
cussing the impact of the Rule 12(f) waiver. See, e.g., United

States v. Gio, 7 F.3d 1279, 1285 (7th Cir. 1993) (severance claim

waived under Rule 12(f) reviewed for plain error); United States

v. Milian-Rodriguez, 828 F.2d 679, 684 (11th Cir. 1987) (same,

11

B. Pat-down Frisk
B. Pat-down Frisk

Lastly, Nu ez argues that the pat-down frisk conducted

by Customs was pretextual a search for contraband rather than

a security frisk for weapons and that the contraband subse-

quently recovered by Customs therefore should have been sup-

pressed under Wong Sun v. United States, 371 U.S. 471 (1963).

Nu ez insists that the Customs agents could not have apprehended

motion to suppress), cert. denied, 486 U.S. 1054 (1988). In a

different context, we have suggested that "plain error" review
may be required, notwithstanding waiver. See, e.g., United

States v. Cyr, 712 F.2d 729, 735 n.4 (1st Cir. 1983) (noting that

reversal on severance claim waived under Rule 12(f) would be

"mandated only if there is plain error.") (dicta). In any event,
our precedent does not require "plain error" review in circum-
stances where reliable review has been rendered impossible by
inadequate development at the district court level and the
exclusionary-rule suppression issue pressed on appeal was not
broached below until after jeopardy attached. See Barletta, 644

F.2d at 54-55. See also United States v. Davenport, 986 F.2d

1047, 1048 (7th Cir. 1993).
The record in this case would not enable a reliable appel-
late determination as to the reasonableness of the Custom's
agents' actions in light of all the relevant circumstances
prevailing at the time. See, e.g., United States v. Quinn, 815

F.2d 153, 157-58 (1st Cir. 1987). Although the record certainly
is susceptible to the interpretation that approximately two hours
elapsed before Nu ez was formally arrested, it is neither "obvi-
ous" nor "clear," see United States v. Olano, U.S. , ,

113 S. Ct. 1770, 1777 (1993), for instance, that the actual
circumstances confronting the officers did not render the deten-
tion reasonable; that the detention did not constitute a reason-
able border detention; or, indeed, that the officers did not have
probable cause at some point prior to the formal arrest. Thus,
Nu ez has not met the burden of proving plain error, even assum-
ing such review were appropriate in the wake of the deliberate
Rule 12(f) waiver. See United States v. Olivier-Diaz, F.3d

, (1st Cir. 1993) [No. 93-1306, slip op. at 11 (December
22, 1993)] ("[E]rror cannot be 'clear' or 'obvious' unless the
desired factual finding is the only one supported by the record
below."); United States v. Petrozziello, 548 F.2d 20, 22 (1st

Cir. 1977) ("Appellant's failure to raise the issue below means
that a critical factual dispute remains unsolved. We cannot find
plain error on this silent record.").

12

a genuine security risk warranting a pat-down frisk for weapons

at the INS checkpoint because he had just passed through the

security checkpoint without incident. See supra note 1. Fur-

thermore, he argues, the Customs agents would have searched his

carry-on bag as well were they genuinely concerned for their

personal security as the government asserts.11

The trial court is required to assess "the totality of

the circumstances" confronting the officers, rather than dissect-

ing the evidence and weighing the individual components. United

States v. Trullo, 809 F.2d 108, 111 (1st Cir.), cert. denied, 482

U.S. 916 (1987). We review its factual findings under the "clear

error" standard, United States v. Kiendra, 663 F.2d 349, 351 (1st

Cir. 1981); see also United States v. Walker, 924 F.2d 1, 3 (1st

Cir. 1991) (pat-down frisk), and will uphold the suppression

ruling if supported by "any reasonable view of the evidence,"

United States v. Young, 877 F.2d 1099, 1100 (1st Cir. 1989)

(citing cases).

The district court based its findings principally on

the agents' testimony concerning the reasons for the pat-down

frisk. Trial court credibility determinations are prime candi-

dates for appellate deference. See United States v. Brum, 948

F.2d 817, 819 (1st Cir. 1991); cf. Anderson v. Bessemer City, 470

11Agent Rivera testified that there was no need to search

the carry-on bag at the security checkpoint, because the officers
would have Nu ez within their direct physical control and, unlike
a weapon concealed on his person, he would not be able to remove
a gun from his carry-on bag before the officers could subdue him.
We believe Rivera's testimony was sufficient to dispel the
misgivings raised by Nu ez.

13

U.S. 564, 575 (1985). The suppression hearing transcript dis-

closes abundant support for the district court finding that the

pat-down frisk was based on a reasonable concern, on the part of

the agents, for their own security and for the safety of airline

passengers.12 As the record evidence supports the district

court's reasoned conclusion, there was no error.

Affirmed.
Affirmed.

12Nu ez's nervous behavior, the stiff manner in which he
walked, the difficulty in bending, and the bulges underneath his
clothing were sufficient to raise a reasonable suspicion in the
minds of experienced law enforcement officers that Nu ez was
carrying contraband. See United States v. Sokolow, 490 U.S. 1, 7

(1989) (totality of circumstances must be considered in deter-
mining whether there was "reasonable suspicion" for Terry stop,

which must be based on "articulable facts that criminal activity
'may be afoot,' even if the officer lacks probable cause.") In
addition, the district court specifically credited testimony that
certain explosive devices could have gone undetected when Nu ez
passed through the airport security checkpoint. Considering that
these events took place in the environs of an international
airport where drug trafficking has been a common occurrence in
recent years, see, e.g., United States v. Villanueva, F.3d

, (1st Cir. 1994) [No. 93-1502, slip op. at 5 (Feb. 3,
1994)] (noting history of area where defendants were stopped is
relevant factor in "reasonable suspicion" calculus), we believe
the district court supportably found that these agents reasonably
harbored a justifiable concern for their personal safety and/or
the safety of airline passengers, sufficient to warrant the pat-
down frisk for weapons and for any explosives which may have
passed undetected through the INS checkpoint.

14