United States v. Posado

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 94-20285

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIRIAM HENAO POSADO,
PABLO RAMIREZ and
IRMA CLEMENCIO HURTADO,

Defendants-Appellants.

Appeals from the United States District Court
For the Southern District of Texas
(June 20, 1995)
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit
Judges.
DeMOSS, Circuit Judge:

This appeal concerns the admissibility of polygraph evidence

in a pretrial hearing to suppress forty-four kilograms of cocaine
recovered after an airport interdiction and search of the

defendants' luggage. The district court refused to consider

polygraph evidence offered by the defendants to corroborate their

version of events preceding the arrest. Our precedent, with few

variations, has unequivocally held that polygraph evidence is

inadmissible in a federal court for any purpose. See, Barrel of

Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028, 1031 (5th
Cir. 1984)(collecting cases). However, we now conclude that the

rationale underlying this circuit's per se rule against admitting

polygraph evidence did not survive Daubert v. Merrill Dow

Pharmaceutical, Inc., 113 S. Ct. 2786 (1993). Therefore, it will

be necessary to reverse and remand to the district court for

determination of the admissibility of the proffered evidence in

light of the principles embodied in the federal rules of evidence

and the Supreme Court's decision in Daubert. Given the sparsity of

the record, however, we express no opinion about whether, based on

that analysis, the evidence possesses sufficient evidentiary

reliability and relevance to be admissible in the suppression

hearing on remand.

BACKGROUND

Defendants Miriam Henao Posado, Pablo Ramirez and Irma

Clemencio Hurtado were each indicted and subsequently convicted of

one count of conspiracy to possess and one count of possession with

intent to distribute in excess of five kilograms of cocaine in

violation of 21 U.S.C. §§ 841 (a)(1), 841(b)(a)(A) and 846. Prior

to trial the defendants moved to suppress the cocaine found in

their luggage and certain post-arrest statements. At issue was

whether the defendants validly consented to a search of their

luggage. The prosecution sought to justify the search solely on

the basis of consent, offering a Spanish-language consent form

executed by all three defendants.1 The three defendants, by way of

1
As counsel for the government stated in oral argument, this
case was treated "only as a consent case." It would be
inappropriate, on the basis of the present record, to determine

2
affidavit, claimed (1) that they were not asked to consent and did

not consent, either orally or in writing, to the search of their

luggage until after the bags had been opened, (2) that they were

told they were under arrest before their bags were searched, and

(3) that they were not given Miranda warnings before the bags were

opened. Defendants contended that the consent was invalid either

(1) because it was given after the bags were opened, or (2) because

it followed and was tainted by an illegal arrest without probable

cause.

Events Leading up to the Search

On September 17, 1993, Miriam Henao Posado, Pablo Ramirez and

Irma Clemencio Hurtado arrived at Houston Intercontinental Airport

in a maroon car driven by an unidentified third party. As they

unloaded their baggage, they were observed by Houston Police

Department (HPD) Officers Rodriguez and Furstenfeld and an agent

with the Drug Enforcement Agency (DEA). The officers became

suspicious that the defendants might be carrying narcotics based on

certain characteristics of the defendants' baggage and behavior.

Based on those suspicions and prior to confronting the defendants,

the officers retrieved from the airline the three suitcases checked

by the defendants and "prepped" one of the bags. "Prepping"

involves squeezing the sides of a bag, which causes the odor of

whether independent probable cause existed for the search. We
note, however, that that issue may well be appropriate for
consideration on remand.

3
whatever is contained inside to be emitted. In this case, the

officers detected fabric softener, which is often used by narcotics

traffickers to mask the odor of narcotics in transport.

Shortly thereafter, the two HPD officers approached the

defendants in the snack bar area, identified themselves as police

officers and asked the defendants for their tickets and

identification. When it became apparent that none of the

defendants spoke English, Officer Rodriguez conversed with them in

Spanish. Neither Posado nor Hurtado were carrying any

identification, and the name on the identification produced by

Ramirez did not match either his ticket or the name placed on the

baggage tag. Ramirez' identification was examined and then

returned to him.

When asked about luggage, the defendants responded by

indicating three carry-on bags. When Officer Rodriguez pointed to

the baggage tags stapled inside the defendants' ticket folders, one

of the defendants conceded that they had checked three suitcases.

Here the stories diverge. Officer Rodriguez testified that, after

expressing some concern about missing their flight, the defendants

agreed to accompany him downstairs so that he could inspect the

luggage. He also testified that he advised the defendants at that

time that they were free to leave. The defendants testified that

Officer Rodriguez never informed them that they were free to leave

and that they were under the impression that they were not free to

leave. See Florida v. Bostick, 111 S. Ct. 2382, 2389 (1991)

(seizure occurs when police conduct would communicate to a

4
reasonable person that they are not free to leave). The defendants

also testified that Officer Rodriguez insisted they accompany him

despite protests from defendant Ramirez that the delay would cause

them to miss their scheduled flight. Defendant Ramirez testified

that the officers took and maintained possession of two of their

carry-on bags at that time. Once downstairs, the two HPD officers

and the three defendants were joined by the DEA agent who had

possession of the three larger suitcases checked by the defendants.

The defendants were asked for keys to the padlocks, which they did

not have.

The officers testified that immediately after asking for keys,

Officer Rodriguez secured the defendants' consent to search, both

orally and in writing. Officer Rodriguez also testified that he

advised the defendants in Spanish that they were not required to

consent. Next, Officer Furstenfeld unsuccessfully attempted to

open the suitcases using a master set of luggage keys. Only then,

according to the officers, were the padlocks pried open and the

bags searched.

The defendants testified that immediately after they were

asked for keys, Officer Furstenfeld began trying to open the

suitcases with the master set of keys. When he could not, Officer

Furstenfeld pried open the padlock and opened the zipper slightly.

At that point, the defendants claim, Officer Furstenfeld stopped

suddenly and ran upstairs. In his absence, the DEA agent continued

opening the suitcase with a pen knife, looked inside and announced

that it contained drugs. At that point, the defendants testified,

5
Officer Furstenfeld returned with the consent form and it was

executed by the defendants. Afterwards, the other two suitcases

were opened.

The Polygraph Examinations

Perceiving that the suppression hearing would amount to a

"swearing match" between the three officers and the three

defendants (that the defendants would be likely to lose), the

defendants arranged to submit to polygraphs to establish the truth

of the assertions in their affidavits. Well before the tests were

given, counsel for the defendants contacted the prosecution and

extended the opportunity to participate in the tests. The

defendants also offered to stipulate that the results would be

admissible in any way the government wanted to use them, at trial

or otherwise. The prosecution declined this opportunity.

Subsequently, the defendants were examined by polygraph

experts Paul K. Minor and Ernie Hulsey. In separate examinations

each defendant was asked the following questions and each gave the

following answers:

A. Before opening that first bag, did any police
official ever ask for permission to search any
of those bags? No.

B. Before searching your luggage, were you told
that you were under arrest? Yes.

C. At the airport, were you ever told that you
were free to leave? No.

D. Did you deliberately lie in your affidavit?
No.

E. Before opening your bags, did the police
officials advise you of your Miranda rights?
No.

6
Both Minor and Hulsey concluded that in each case "deception was

not indicated." Thereafter, the defendants moved for an order

allowing Minor and Hulsey to testify regarding the results of the

three tests at the pretrial suppression hearing or, in the

alternative, for a hearing on the admissibility of polygraph

results as expert evidence under the Federal Rules of Evidence and

the standards enunciated by the Supreme Court in Daubert v. Merrill

Dow Pharmaceutical, 113 S. Ct. 2786 (1993). Defendants' proffer

included the reports on the polygraph examinations as well as the

curriculum vitae for both Minor and Hulsey. In support of their

request for a Daubert hearing on the issue, defendants submitted

the affidavit of another polygraph expert, Dr. Stan Abrams, Ph.D.,

to establish that polygraph technique possesses sufficient

scientific validity to be admissible.

At the beginning of the subsequent suppression hearing, the

district court summarily refused to consider the polygraph

testimony and also refused to consider whether the testimony was

reliable and relevant under the Federal Rules of Evidence, stating:

I am a great believer in polygraph, that polygraph
technique, I think it's extremely effective as a law
enforcement tool. I do not believe, however, that it
belongs in the courtroom, either before the Court or
before the jury, for several reasons, one of which is
that it will lead to an impossible situation where we
will have to hear polygraph experts on both sides, and
we'll get into the same battle of experts that we get
into in so many areas of the law.
I am very concerned that it does have some valid use
in determining whether people are likely to be truthful
or likely not to be truthful, however, I think it opens
up some policy questions that belong either to Congress
or to the appellate courts to resolve before we get into
it here in the courtroom.

7
At the conclusion of the suppression hearing, the district court

denied the defendants' motion to suppress, holding that the

defendants knowingly and voluntarily consented to a search of their

luggage before any of the bags were opened, and that the defendants

were not arrested until after the bags were searched. Shortly

after the hearing, the defendants and the government entered into

a stipulation that the defendants would be tried by the court on

the evidence presented at the suppression hearing. All three

defendants were convicted on both the conspiracy to possess and

possession counts, and this appeal followed.

APPLICABLE LAW

On appeal, the defendants contend that Daubert required the

district court to conduct a hearing on the admissibility of the

polygraph evidence as expert testimony under Federal Rule of

Evidence 702. Defendants also argue that the district court erred

in refusing to consider polygraph evidence where it was offered

solely for use in a pretrial suppression hearing, relying on

Bennett v. City of Grand Prairie, Texas, 883 F.2d 400 (5th Cir.

1989). Finally, the defendants maintain that the district court

erroneously found that consent was knowing and voluntary, and

therefore valid. The government concedes that a per se rule

against admitting polygraph evidence, without further inquiry, is

not viable after Daubert, but argues that the proffered evidence in

this case was properly excluded under rule 403.

We reject the defendants' argument that Bennett controls.

Bennett held that it was not error for a magistrate to consider an

8
affidavit referring to polygraph results, along with other

evidence, to determine whether there was probable cause to issue an

arrest warrant. 883 F.2d at 405-06. That case does not extend so

far as to control the admissibility of polygraph testimony in all

pretrial proceedings. Daubert, along with the Federal Rules of

Evidence, provide the guiding principles.

We also reject the government's invitation to short-circuit

the Daubert analysis by finding that the district court implicitly

relied on Rule 403 to exclude the evidence. We conclude that the

district court applied a per se rule against admitting polygraph

evidence. Even the government concedes that that rule is no longer

viable after Daubert. Therefore, the case must be remanded.

From Frye to Daubert - Rule 702

Before Daubert, the standard for determining the admissibility

of scientific or technical evidence in our circuit was the Frye

"general acceptance" test, which required the proponent to

demonstrate that the science or technology relied upon enjoyed

general acceptance in the relevant scientific or technical field

from which it arose. The Frye test originated in a short and

citation-free case in which a criminal defendant attempted to

introduce what Daubert called a "crude predecessor" of the

polygraph to demonstrate his innocence in a murder trial. Daubert,

113 S. Ct. at 2793; Frye v. United States, 293 F. 1013 (D.C. Cir.

1923). Frye thus became the seminal polygraph case, and many of

our precedents discussing polygraph or similar evidence either cite

Frye or conclude that such evidence is unreliable because the

9
polygraph does not enjoy general acceptance and use. See e.g.,

Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028,

1031 (5th Cir. 1984); United States v. Martino, 648 F.2d 367, 390

(5th Cir. 1981); United States v. Cochran, 499 F.2d 380, 393 (5th

Cir. 1974), cert. denied, 419 U.S. 1124 (1975); United States v.

Gloria, 494 F.2d 477, 483 (5th Cir.), cert. denied, 419 U.S. 995

(1974); United States v. Frogge, 476 F.2d 969, 970 (5th Cir.),

cert. denied, 414 U.S. 849 (1973).

Daubert expressly rejected the "austere" Frye standard,

holding that the Frye approach was superseded by adoption of the

Federal Rules of Evidence. 113 S. Ct. at 2794. In its stead the

Supreme Court outlined a "flexible" inquiry driven primarily by

Federal Rules of Evidence 401, 402, 403, and 702. After discussing

the "liberal thrust" of the federal rules, as reflected in Rules

401 and 402, the Court noted that nothing in Rule 702, which

governs the admissibility of expert testimony, makes "general

acceptance" an absolute prerequisite to admissibility.2 What that

rule does require, the Court held, is that the trial judge make

initial determinations under Rule 104(a)3 that the proffered

2
Rule 702 governing expert testimony provides:
If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise.
3
Rule 104(a) provides:
Preliminary questions concerning the qualification of a
person to be a witness, the existence of a privilege, or
the admissibility of evidence shall be determined by the
court, subject to the provisions (b) [pertaining to

10
evidence possesses sufficient evidentiary reliability to be

admissible as "scientific, technical, or other specialized

knowledge" and that the proffered evidence is relevant in the sense

that it will "assist the trier of fact to understand the evidence

or to determine a fact in issue." Daubert, 113 S. Ct. at 2796.

Whether evidence assists the trier of fact is essentially a

relevance inquiry. Daubert, 113 S. Ct. at 2795-96. To be

"helpful" under Rule 702, the evidence must possess validity when

applied to the pertinent factual inquiry.4 If polygraph technique

is a valid (even if not certain) measure of truthfulness, then

there is no issue of relevance. The defendants' polygraph answers,

which are consistent with their testimony, tend to prove that they

did not consent to a search of their bags until after the bags were

searched. That fact is clearly relevant, because it tends to prove

that the search was not valid.

Evidentiary reliability, or trustworthiness, is demonstrated

by a showing that the knowledge offered is "more than speculative

conditional admissions]. In making its determination it
is not bound by the rules of evidence except those with
respect to privileges."
4
The example given by the Supreme Court demonstrates that
particular evidence may have validity for some purposes and not for
others:
The study of the phases of the moon, for example, may
provide valid scientific "knowledge" about whether a
certain night was dark, and if darkness is a fact in
issue, the knowledge will assist the trier of fact.
However (absent credible grounds supporting such a link),
evidence that the moon was full on a certain night will
not assist the trier of fact in determining whether an
individual was unusually likely to have behaved
irrationally on that night.
113 S. Ct. at 2796.

11
belief or unsupported speculation." Daubert, 113 S. Ct. at 2795.

Certainty is not required, but the knowledge asserted must be based

on "good grounds." Id. For scientific knowledge, there should be

proof that the principle supports what it purports to show, i.e.

that it is valid. Id. Validity can be measured by several

factors, including whether the theory or technique can be tested

and whether it has been subjected to peer review or publication.

Id. at 2796-97. For particular techniques, such as polygraph or

voice identification, the known or potential rate of error may be

helpful in making the validity determination. Id. at 2797.

Finally, although it is not dispositive, the extent to which a

particular theory or technique has received general acceptance may

be relevant to whether it is scientifically valid. Id.

What remains is the issue of whether polygraph technique can

be said to have made sufficient technological advance in the

seventy years since Frye to constitute the type of "scientific,

technical, or other specialized knowledge" envisioned by Rule 702

and Daubert. We cannot say without a fully developed record that

it has not.

Even before Daubert, this court's view of polygraph evidence

had expanded somewhat. See Bennett, 883 F.2d at 405-06

(magistrates may consider polygraph evidence when determining

whether probable cause to issue an arrest warrant exists); United

States v. Lindell, 881 F.2d 1313, 1326 (5th Cir. 1989)

("[i]mpeachment evidence includes the results of a polygraph test"

for purposes of the Brady rule), cert. denied sub nom. Kinnear v.

12
United States, 493 U.S. 1087 (1993). In 1980, twelve judges of

this court agreed that whether polygraph was generally accepted

would be subject to reconsideration given a proffer tending to show

that polygraph technique had improved in the years since Frye.

United States v. Clark, 622 F.2d 917, 917 (5th Cir. 1980) (en banc)

(Gee, J., concurring), cert. denied, 449 U.S. 1128 (1981).5 In

1984, we recognized the considerable controversy surrounding our

circuit's continued adherence to a per se rule against polygraph

evidence, but concluded that en banc consideration would be

required to change our existing precedent. Barrel of Fun, Inc. v.

State Farm Fire & Cas. Co., 739 F.2d 1028, 1031 n.8 (5th Cir.

1984). After Daubert, a per se rule is not viable. Because no

panel has squarely addressed the issue of polygraph admissibility

since Daubert, en banc consideration is not required for this

decision.

There can be no doubt that tremendous advances have been made

in polygraph instrumentation and technique in the years since Frye.

The test at issue in Frye measured only changes in the subject's

systolic blood pressure in response to test questions. Frye v.

United States, 293 F. at 1013. Modern instrumentation detects

5
Several other circuits went further by granting the district
court limited discretion to consider polygraph evidence in certain
circumstances. E.g., United States v. Johnson, 816 F.2d 918, 923
(3d Cir. 1987); United States v. Flores, 540 F.2d 432, 436-37 (9th
Cir. 1976); United States v. Mayes, 512 F.2d 637, 648 n.6 (6th
Cir.), cert. denied, 422 U.S. 1008 (1975); United States v.
Infelice, 506 F.2d 1358, 1365 (7th Cir. 1974), cert. denied sub
nom., Garelli v. United States, 419 U.S. 1107 (1975); see also
United States v. Piccinonna, 885 F.2d 1529, 1532-35 (11th Cir.
1989)(summarizing various circuit approaches to polygraph
admissibility).

13
changes in the subject's blood pressure, pulse, thoracic and

abdominal respiration, and galvanic skin response.6 Current

research indicates that, when given under controlled conditions,

the polygraph technique accurately predicts truth or deception

between seventy and ninety percent of the time.7 Remaining

controversy about test accuracy is almost unanimously attributed to

variations in the integrity of the testing environment and the

qualifications of the examiner.8 Such variation also exists in

6
See 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND
PROCEDURE § 5169 at 95 n.7 (1978); Ronald J. Simon, Adopting a
Military Approach to Polygraph Evidence Admissibility: Why Federal
Evidentiary Protections Will Suffice, 25 TEX. TECH L. REV. 1055, 1059
(1994).
7
Bennett, 883 F.2d at 405 ("[p]olygraph exams, by most
accounts, correctly detect truth or deception 80 to 90 percent of
the time"). Even the most ardent polygraph detractors cite
accuracy rates of 70 percent. See Brown v. Darcy, 783 F.2d 1389,
1395 n.12 (9th Cir. 1986) (collecting studies). In 1983 the Office
of Technology Assessment (OTA) conducted a comprehensive inquiry
for the United States Congress. That inquiry found that accuracy
ranged anywhere from 58 to 98 percent. However, only ten of the
thirty studies reviewed met even minimal standards for scientific
validity in terms of the examiners and techniques used. Simon,
supra note 6, 25 TEX. TECH L. REV. at 1062-63. A more recent
comprehensive review of the OTA data reported that accuracy rates
were much higher for studies which most resembled realistic
polygraph practice, a factor which could explain as much as 65% of
the observed variation in detection rates. See John E. Kircher, et
al., Meta-Analysis of Mock Crime Studies of the Control Question
Polygraph Technique, 12 LAW & HUMAN BEHAVIOR 79 (1988); see also David
C. Raskin, The Polygraph in 1986: Scientific, Professional and
Legal Issues Surrounding Application and Acceptance of Polygraph
Evidence, 1986 UTAH L. REV. 29, 72 (1986) ("existing literature
suggests an accuracy of 90% or higher when examinations are
conducted to assess the credibility of suspects in criminal
investigations."); 1 MCCORMICK ON EVIDENCE § 206 at 909-11 (John
William Strong ed., 4th ed. 1992) and sources cited therein.
8
See United States v. Piccinonna,885 F.2d 1529, 1540-41 (11th
Cir. 1989) (Johnson, J., concurring in part and dissenting in part)
(citing research indicating that examiner expertise and test
procedure affects accuracy); Simon, supra note 6, 25 Tex. Tech L.

14
many of the disciplines and for much of the scientific evidence we

routinely find admissible under Rule 702. See 1 MCCORMICK ON EVIDENCE

§ 206 at 915 & n. 57. Further, there is good indication that

polygraph technique and the requirements for professional

polygraphists are becoming progressively more standardized.9 In

addition, polygraph technique has been and continues to be

subjected to extensive study and publication.10 Finally, polygraph

is now so widely used by employers and government agencies alike.

To iterate, we do not now hold that polygraph examinations are

scientifically valid or that they will always assist the trier of

fact, in this or any other individual case. We merely remove the

obstacle of the per se rule against admissibility, which was based

on antiquated concepts about the technical ability of the polygraph

Rev. at 1063-66 (discussing the affect of test integrity,
countermeasures, and examiner competence on polygraph accuracy).
9
See Piccinonna, 885 F.2d at 1533 & n. 13. At least 30 states
require licenses or regulate polygraphists. Raskin, supra note 7,
1986 UTAH L. REV. at 68. Dr. Abrams reports that the American
Polygraph Association (APA), which has about 2,500 members,
accredits schools of polygraphy, screens its members and
administers written and oral tests to graduates to assure an
established level of competency. Standard test protocol calls for
pre-test collection of data, a pre-test interview, administration
of the test questions (usually in a control question format) and a
post-test interview. In addition, the APA sanctions members who do
not follow enumerated testing procedures. See Charles M. Sevilla,
Polygraph 1984: Behind the Closed Door of Admissibility, 16 U. WEST
L.A. L. REV. 5, 18-20 (1984); Raskin, supra note 7, 1986 UTAH L. REV.
at 66-69 (both discussing the need for additional measures to
professionalize polygraph practice, which would have the effect of
increasing overall accuracy rates). In this case, counsel for the
defendants conceded at oral argument that the defendants' proffer
sufficiently established reliability.
10
See 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE &
PROCEDURE § 5169 at 92 n. 2 (collecting an impressive bibliography).

15
and legal precepts that have been expressly overruled by the

Supreme Court.

Rule 403 as Gatekeeper

Assuming that polygraph evidence satisfies the requirements of

Rule 702 does not end the inquiry. Other evidentiary rules, such

as Rule 403, may still operate to exclude the evidence. Daubert,

113 S. Ct. at 2797-98. While not discussed at length in Daubert,

the presumption in favor of admissibility established by Rules 401

and 402, together with Daubert's "flexible" approach, may well

mandate an enhanced role for Rule 403 in the context of the Daubert

analysis, particularly when the scientific or technical knowledge

proffered is novel or controversial. See Conti v. Comm'r of

Internal Revenue, 39 F.3d 658 (6th Cir. 1994) (excluding polygraph

evidence on the basis of Rule 403), cert. denied, 115 S. Ct. 1793

(1995).

Aside from Frye, the traditional objection to polygraph

evidence is that the testimony will have an unusually prejudicial

effect which is not justified by its probative value, precisely the

inquiry required of the district court by Rule 403. See Bennett,

883 F.2d at 404; Brown v. Darcy, 783 F.2d 1389, 1396 (9th Cir.

1986). In the context of this case and on the present record,

there are several factors that may operate to counterbalance the

potential prejudicial effect of this testimony. First, the

prosecution was contacted before the tests were conducted and

offered the opportunity to participate in the exams, including

stipulating as to any limited use for the evidence. In such a

16
case, both parties have a risk in the outcome of the polygraph

examination, simultaneously reducing the possibility of unfair

prejudice and increasing reliability. Second, the evidence was not

offered at trial before a jury, but in a pretrial hearing before

the district court judge. A district court judge is much less

likely than a lay jury to be intimidated by claims of scientific

validity into assigning an inappropriate evidentiary value to

polygraph evidence. Bennett, 883 F.2d at 405. We have consistently

held that the rules of evidence are relaxed in pretrial suppression

hearings. See FED. R. CIV. P. 104(a); United States v. DeLaFuente,

548 F.2d 528 (5th Cir.), cert. denied sub nom. Stewart v. United

States, 431 U.S. 932 (1977); United States v. Lee, 541 F.2d 1145

(5th Cir. 1976).

We note also that there are factors in this record which

substantially boost the probative value of this evidence. The

evidence at the suppression hearing essentially required the

district court to decide between the story told by the officers and

that told by the defendants, a not unusual situation, and perhaps

not sufficient alone to justify admission of "tie-breaker" evidence

carrying a high potential for prejudicial effect. In this case,

however, there was more. Because Officer Rodriguez was the only

Spanish-speaking officer on the scene, he alone could testify as to

what the defendants were told and as to their understanding of

whether they were under arrest or whether they were consenting to

a search of their baggage. Although Officer Rodriguez testified

that he explained the consent form to the defendants, he was unable

17
to read the consent form (printed in Spanish) to the court at both

the probable cause hearing and the suppression hearing. There was

also evidence calling the officers' recollection of events into

question. For example, Officer Rodriguez testified incorrectly at

the probable cause hearing that the defendants were travelling with

one-way tickets, a fact which he said contributed to his reasonable

suspicion that the defendants were carrying drugs. The defendants

were in fact holding round-trip tickets. In addition, the

defendants offered the testimony of a disinterested witness, an

airline employee, who contradicted the officers' version of the

events surrounding their retrieval of the defendants' bags from the

airline prior to the search. Finally, the defendants introduced at

the suppression hearing an order from a similar case in another

district court in the Southern District involving Officer

Rodriguez. In that case, the district court judge found that

Officer Rodriguez' version of the events leading up to the search

in that case was "untruthful" and therefore suppressed evidence

obtained after the defendants allegedly consented to the search.

Taken individually, each one of these inconsistencies can be

explained and may seem inconsequential. Taken together, however,

we believe that they can be said to enhance the need for evidence,

and therefore its probative value, for clarifying which of the

competing versions of what happened that day is true.

CONCLUSION

The district court essentially applied the per se rule

against admitting polygraph evidence established by our earlier

18
precedent. Because the district court's assessment of the

proffered polygraph evidence under the Daubert standard may well

affect the other issues raised by this appeal, it is inappropriate

at this time to address the district court's decision to exclude

the polygraph evidence from its consideration on the motion to

suppress or its fact finding that the search was supported by valid

consent. Those issues can be adequately addressed on subsequent

appeal, if necessary.

It is with a high degree of caution that we have today opened

the door to the possibility of polygraph evidence in certain

circumstances. We may indeed be opening a legal Pandora's box.

However, that the task is full of uncertainty and risk does not

excuse us from our mandate to follow the Supreme Court's lead.

Rather, "[m]indful of our position in the hierarchy of the federal

judiciary, we take a deep breath and proceed with this heady task."

Daubert v. Merrell Dow Pharmaceutical, Inc., 43 F.3d 1311, 1316

(9th Cir. 1995) (on remand from the Supreme Court).

Nor are we unaware that our opinion today may raise as many

questions as it answers. We leave much unsaid precisely because we

believe that the wisdom and experience of our federal district

judges will be required to fashion the principles that will

ultimately control the admissibility of polygraph evidence under

Daubert.

For the foregoing reasons, the district court's ruling on the

motion to suppress is REVERSED, the defendants' convictions are

VACATED and the case is REMANDED to the district court for

19
consideration of the evidentiary reliability and relevance of the

polygraph evidence proffered by the defendants under the principles

embodied in the Federal Rules of Evidence and the Supreme Court's

decision in Daubert.

wjl\opin\94-20285.opn
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