UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1175
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO INFANTE-RUIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Stahl, Circuit Judge,
Aldrich and Campbell, Senior Circuit Judges.
Laura Maldonado Rodriguez, Assistant Federal Public Defender,
with whom Benicio Sanchez Rivera, Federal Public Defender, was on
brief for appellant.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom
Charles E. Fitzwilliam, United States Attorney, was on brief for the
United States.
January 25, 1994
CAMPBELL, Senior Circuit Judge. Defendant-
appellant Pedro Infante Ruiz was indicted in the United
States District Court for the District of Puerto Rico for
having knowingly received while a fugitive from justice a
firearm transported in interstate commerce. 18 U.S.C.
922(g)(2) and 924(a). After the district court denied a
motion in limine to suppress evidence, Infante entered a plea
of guilty, with his plea being conditioned on the outcome of
an appeal of the court's evidentiary ruling. Infante duly
appealed, and we now reverse the district court's denial of a
motion to suppress and vacate appellant's conviction.
I.
On October 8, 1991, Infante and two associates were
driving a rented 1991 Mazda 626 in the vicinity of Parguera,
Lajas, Puerto Rico, when they stopped to buy food at a local
eatery. Officers of the Puerto Rico police were following
the car, looking for an opportunity to arrest Infante on an
outstanding warrant from Florida on federal narcotics
charges. After the car stopped, the officers surrounded the
vehicle and placed Infante under arrest. Infante resisted
but was eventually restrained and placed inside a nearby
unmarked squad car.
One of the arresting officers, Sergeant David
Padilla Velez, asked the driver of the car, a Felipe de la
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Paz, for consent to search the vehicle. De la Paz verbally
gave his
consent, and Sgt. Padilla searched the passenger compartment.
Sgt. Padilla then asked de la Paz for the key to the car's
trunk. Although Sgt. Padilla did not explicitly ask for de
la Paz's consent to search the trunk, de la Paz handed over
the key to the trunk in response to the request and stood by
without objection as the trunk was being searched.
Two briefcases, one brown and one black, were
inside the trunk. De la Paz, upon inquiry by Sgt. Padilla,
said that he was the owner of the brown briefcase. Sgt.
Padilla opened and searched the brown briefcase, apparently
without objection by de la Paz.
Sgt. Padilla then asked de la Paz who owned the
black briefcase. De la Paz answered that it belonged to
Infante. Without expressly asking for de la Paz's consent,
but without any express objection from him, Sgt. Padilla then
opened the unlocked briefcase belonging to Infante. Inside
were various documents belonging to Infante, as well as items
belonging to de la Paz and others. Also inside was a loaded
.22 caliber Derringer pistol.
Infante was later charged with knowingly receiving
while a fugitive from justice a firearm transported in
interstate commerce. De la Paz and the other passenger were
not arrested.
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Infante moved to suppress the gun, arguing that it
had been seized in violation of the Fourth Amendment. In an
oral ruling, the district court denied the motion to
suppress. The defendant later pleaded guilty to the charge,
reserving his right to appeal from the court's denial of his
motion to suppress. We now hold that the search of Infante's
briefcase was unlawful and that the pistol should have been
suppressed.
II.
The district court upheld the warrantless search of
Infante's briefcase on four grounds: (1) Infante's lack of
privacy interest in the suitcase; (2) probable cause; (3) a
finding that the weapon would have been inevitably
discovered; and (4) the drivers' consent. In reviewing a
district court's denial of a suppression motion, we uphold
its findings of fact unless they are clearly erroneous.
United States v. Sanchez, 943 F.2d 110, 112 (1st Cir. 1991);
United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).
The court's ultimate conclusion, however, is subject to
plenary review, Sanchez, 943 F.2d at 112; United States v.
Curzi, 867 F.2d 36, 42 (1st Cir. 1989), as "[f]indings of
reasonableness . . . are respected only insofar as consistent
with federal constitutional guarantees." Ker v. California,
374 U.S. 23, 33 (1963). We will, "where necessary to the
determination of constitutional rights, make an independent
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examination of the facts, the findings, and the record so
that [we] can determine for [ourselves] whether in the
decision as to reasonableness the fundamental i.e.,
constitutional criteria . . . have been respected." Id.
at 34.
Applying these principles, we discuss in turn each
of the grounds for upholding the search offered by the
district court.
A. Infante's Privacy Interest in the Briefcase
The district court found that Infante had no
privacy interest in the briefcase and concluded that the lack
of such an interest provided a sufficient basis to deny the
suppression motion. The district court found that Infante
had left the unlocked briefcase in the trunk of the Mazda for
a period of some days, even when he was not a passenger, and
that he allowed de la Paz and others to place possessions of
their own inside it. The district court found that the
briefcase "was not under the control of the defendant" and
that Infante had no Fourth Amendment privacy rights that
could have been violated by its search.
While the district court cited no authority, the
best analogy we could find for the district court's reasoning
is California v. Greenwood, 486 U.S. 35 (1988). There, the
police searched without a warrant the contents of garbage
bags left at the curb outside the defendants' home. The
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Court held that the defendants "exposed their garbage to the
public sufficiently to defeat their claim to Fourth Amendment
protection." Id. at 40. It was "common knowledge," said the
Court, that garbage bags left for pick up are "readily
accessible to animals, children, scavengers, snoops, and
other members of the public." Id. (footnotes omitted). The
defendants were considered to have left their refuse "in an
area particularly suited for public inspection and . . .
consumption, for the express purpose of having strangers take
it." Id. at 40-41 (internal quotation omitted).
The facts in this case, however, are clearly
distinguishable from Greenwood. Storing items inside a
closed briefcase inside a locked car trunk did not reveal a
willingness on the part of Infante to "expose" such items to
the public. Moreover, nothing in the circumstances indicated
that Infante had abandoned the briefcase, relinquished
authority over it, or left it open to "public inspection and
consumption." De la Paz's identification of the briefcase as
belonging to Infante indicated that, among his friends, the
case was still believed to belong to Infante. While there is
evidence that Infante's confederates felt entitled to place
items of their own within it, he did nothing to indicate its
availability to the public generally nor did his actions
betray an intention to forego an owner's normal right to
exclude those he wished to exclude. By the time of the
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search, Infante himself was once more a passenger in the car
carrying his briefcase.
We think it is clear, therefore, that Infante did
not repudiate his privacy interest in the briefcase by
placing it in the trunk of the Mazda. While he indicated a
willingness to share access with a few friends, he in no way
opened the case to public access. We therefore hold that
Infante had a privacy interest in the briefcase and that the
district court's finding to the contrary was in error.
B. Probable Cause
The district court also concluded that the search
was justified by probable cause. It is now established that
if the police have probable cause to believe that either a
vehicle or a container within a vehicle contains contraband,
evidence of crime, or other matter that may lawfully be
seized, no Fourth Amendment violation occurs when the police
open and search the container without a warrant. United
States v. Ross, 456 U.S. 798 (1982); California v. Acevedo,
111 S. Ct. 1982 (1991). The district court found here that
because Infante was a federal fugitive and that the other
occupants were allegedly under suspicion for trafficking in
drugs, the police officers could have reasonably believed
that the car's occupants were "dangerous people" and that
contraband or weapons would be in the automobile. The
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district court supported its finding by saying it was
"conventional wisdom" that "drug traffickers carry weapons."
But in order for probable cause to search to exist,
the officer must have reasonably trustworthy information of
supporting facts and circumstances such as would persuade a
person of reasonable caution to believe the search is
justified. 3 Charles Alan Wright, Federal Practice and
Procedure: Criminal 2d 662 at 579 (1982). Certainty is not
required. Id. But in the absence of supporting facts, the
officer's suspicion or personal belief that probable cause
exists is not enough. Id. at 582. Thus it was not enough
here that the suspected vehicle contained persons with
serious drug trafficking records. There had to be particular
facts indicating that, at the time of search, the vehicle or
a container within it carried contraband, evidence of crime,
or other seizable matter. Id. at 2664.
The government conceded at oral argument that the
police officers who conducted the search had no concrete
information that Infante and his friends were transporting
drugs or weapons at the time of the stop. The probable cause
standard could not be satisfied merely by dependence on
"conventional wisdom" or by the "dangerous" reputation of
Infante and his associates.1 See United States v. Harris,
1. A related argument for upholding the search, which the
government did not press below and waived on appeal, was that
the search was justified as incident to Infante's lawful
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403 U.S. 573, 582 (1971) (suspect's reputation, standing
alone, is insufficient to support probable cause).
arrest under the warrant. New York v. Belton, 453 U.S. 454,
457, 460 (1981). Under Belton, when a police officer makes a
lawful custodial arrest of the occupant of an automobile, the
officer may, "as a contemporaneous incident of that arrest,"
search the car's passenger compartment and any containers
found within it. Id. at 460-61 & n.4. The "passenger
compartment" has been interpreted to mean those areas
reachable without exiting the vehicle and without dismantling
door panels or other parts of the car. See Wayne R. LaFave &
Jerold H. Israel, Criminal Procedure 3.7 at 277 (1984).
The Belton doctrine has thus been extended to allow
warrantless searches of the rear section of a station wagon
and the trunk area of a hatchback, when these areas are
accessible from inside the vehicle. United States v. Pino,
855 F.2d 357, 364 (6th Cir. 1988) (station wagon), cert.
denied, 493 U.S. 1090 (1990); United States v. Russell, 670
F.2d 323, 327 (D.C. Cir.) (hatchback), cert. denied, 457 U.S.
1108 (1982).
The Supreme Court in Belton expressly excluded trunks
from its holding, 453 U.S. at 460-61 n.4, as the Court may
have assumed that all car designs were such as to prevent
passengers from reaching into the trunk from the back seat
and seizing a weapon or evidence there. In the instant case,
however, the vehicle was a 1991 Mazda 626 sedan, which
appears to have had a divided rear seat permitting one or
both segments to be lowered, allowing direct access to the
trunk from the passenger compartment. See Road Test: Sedans,
56 Consumer Reports 475 (1991). If this was the design,
there may have been little difference for purposes of the
Belton doctrine between a trunk of the Mazda and the rear
portion of a station wagon or the rear compartment of a
hatchback. But as the government failed to make this
argument either below or on appeal, and as the record is
entirely without evidence as to how accessible the Mazda's
trunk may have been to persons seated within the car, we do
not reach the novel question of whether Belton should be
extended in this way.
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C. Inevitable Discovery
As a third ground for denying the suppression
motion, the district court found that the Derringer pistol
would have been inevitably found. According to the district
court, because the Mazda was a rental car, the officers would
have taken custody of the car, and the car would have had to
be inspected before the vehicle was returned. The gun
inevitably would have been found in the inspection of the
vehicle. On the present record, however, this argument is
unsupported and must be rejected.
The inevitable discovery doctrine, an exception to
the exclusionary rule, applies when "the government can prove
that the evidence would have been admitted regardless of any
overreaching." Nix v. Williams, 467 U.S. 431, 447-48 (1984).
The government bears the burden of showing, by reference to
"demonstrated historical facts" and by a preponderance of the
evidence, that the information or item would inevitably have
been discovered by lawful means. Id. at 444-45 & n.5.
Furthermore, to be permissible under the Fourth
Amendment, warrantless inventory searches must be conducted
according to standardized procedures. South Dakota v.
Opperman, 428 U.S. 364, 372-75 (1976); Colorado v. Bertine,
479 U.S. 367, 374 n. 6, 375 (1987); Florida v. Wells, 495
U.S. 1, 4-5 (1990). Any "discretion [must be] exercised
according to standard criteria and on the basis of something
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other than suspicion of criminal activity." Bertine, 479
U.S. at 375.
The government cites United States v. Mancera-
Londo o, 912 F.2d 373, 375-77 (9th Cir. 1990), in support of
its argument here. In Mancera-Londo o, the Ninth Circuit
upheld a warrantless search of several suitcases found in a
rented station wagon, after the arrest of two suspects who
had been using the car to transport drugs. The court held
that it was "legitimate" for the DEA agents involved in the
arrest to take custody of the vehicle after the arrest of the
two suspects, as apparently no one else was available to
return the car to the rental company. Id. at 376.
The agents in Mancera-Londo o testified that after
a rented vehicle is seized, the DEA's standard policy was to
return the car to the rental agency after "a complete
inventory of the car." The policy, though oral only, was,
according to testimony, identical to the policy found in the
DEA Manual regarding the search of cars seized for
forfeiture. Id. at 375-76. Also, the agents testified that
DEA policy required searching of all closed containers. Id.
at 376. See also Wells, 495 U.S. at 4-5 (in order to justify
searching closed containers during an inventory search,
officers must be acting pursuant to a specific policy
regarding closed containers).
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In the present case, however, the record is barren
of evidence that would support the district court's finding
that the discovery of the gun was inevitable. First, the
government has not met its burden of showing that the
officers could have taken "legitimate custody" of the vehicle
but for the discovery of the gun, see United States v.
Jenkins, 876 F.2d 1085, 1089 (2d Cir. 1989), and that the
officers indeed would have taken such custody inevitably.
See United States v. Silvestri, 787 F.2d 736, 744 (1st Cir.
1986) (noting that a "basic concern" in inevitable discovery
cases is whether both the discovery of the legal means and
the use of that means are truly inevitable), cert. denied,
487 U.S. 1233 (1988). In Mancera-Londo o, both persons
connected with the vehicle were arrested. Here, however,
only Infante a passenger was arrested. Insofar as
appears, the police were not compelled by the mere discovery
and arrest of Infante to seize the car within which he was
riding and return it to the rental company. There was no
testimony, and no evidence otherwise, that the car would have
been impounded or seized if the gun had not been found, or
that without impoundment the car would have otherwise
remained on the side of a public highway or city street. See
United States v. Ramos-Morales, 981 F.2d 625, 626 (1st Cir.
1992), cert. denied, 113 S. Ct. 2384 (1993).
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Second, the government failed to introduce any
evidence that their actions were controlled by established
procedures and standardized criteria, as required by
Opperman, Bertine, and Wells, supra. No officer testified
that a policy dictated that they seize the car, search its
contents including closed containers, and return it to the
rental agency. The government did not introduce into
evidence a written policy to that effect, nor did any officer
testify that an oral policy or established routine existed.
Though no officer testified that regulations
directed the making of an inventory search, one officer did
testify that certain regulations governed how inventory
searches were to be conducted when they in fact were
performed. The officer testified that the regulations
required the officers to keep a list of everything seized
from the vehicle. When asked if he had followed such
regulations in this case, however, the officer testified that
he had not. The inventory list that was introduced at trial
did not list the gun.
In the absence of specific evidence of standardized
procedures making inevitable the seizure of the car, the
search of the trunk, and the opening of the closed briefcase,
and in light of the fact that the officers on the scene
failed to comply with the established regulations that did
exist, we hold that the government failed to carry its burden
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of showing that the gun would have been inevitably
discovered.
D. Consent
The government argues on appeal that the evidence
and the court's findings indicate that the driver of the
Mazda, de la Paz, consented to the search of Infante's
briefcase. While there was no evidence that de la Paz
consented to a search of Infante's briefcase specifically,
the district court felt it "a reasonable conclusion that when
the police searched the trunk or asked permission to Freddie
[de la Paz] to open the trunk . . . there was consent to open
the trunk . . . ." From this the government would have us
infer de la Paz's consent to search Infante's closed
briefcase located within the trunk. While the question is
close, we are unable to find that de la Paz consented to the
briefcase search.
The evidence shows that de la Paz had access to the
briefcase for several days and that de la Paz's property was
co-mingled with Infante's inside the briefcase. It appears,
therefore, that de la Paz had sufficient authority over the
briefcase to consent to its search if he in fact had chosen
to do so. See Frazier v. Cupp, 394 U.S. 731 (1969) (owner of
duffel bag, in allowing friend to use bag jointly and in
leaving it at friend's house, assumed risk that friend would
consent to its search); United States v. Matlock, 415 U.S.
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164 (1974) (search of diaper bag in bedroom closet
permissible when based on consent of one with common
authority over bedroom); cf. United States v. Welch, 4 F.3d
761, 764 (9th Cir. 1993) (one occupant of rental car had no
authority to consent to search of another occupant's purse
where there was no evidence of joint access to or shared
control over the purse).
It was not reasonable, however, for the police
officers to have believed that de la Paz gave his consent to
the search of Infante's briefcase. Under Florida v. Jimeno,
500 U.S. 248, , 111 S. Ct. 1801, 1803 (1991), a Fourth
Amendment violation occurs when it is not "objectively
reasonable" under the circumstances for a police officer to
believe that the scope of a suspect's consent permitted the
officer to open a particular container within a car. In
Jimeno, the driver's general consent to search the vehicle
was found sufficient to authorize the search of a paper bag
on the floorboard containing cocaine. The Court held that it
was objectively reasonable for the officer to believe that
the suspect's general consent to search the car included his
consent to search containers within the car that might
contain drugs. Id. at 1804. The Court noted that the
officer had informed the suspect that he was under suspicion
for carrying narcotics, and that the suspect had not placed
any explicit limitation on the scope of the search. Id.
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The instant case is distinguishable on its facts
from Jimeno. Unlike Jimeno, Sgt. Padilla did not notify de
la Paz that he was looking for drugs, making it somewhat more
difficult to impute to de la Paz consent to search every
container within the car that might contain drugs. Moreover,
Infante's briefcase was secured inside the locked trunk
rather than lying on the floorboard. Cf. id. at 1804 ("It is
very likely unreasonable to think that a suspect, by
consenting to the search of his trunk, has agreed to the
breaking open of a locked briefcase within the trunk, but it
is otherwise with respect to a closed paper bag.").
Still, were the above the sole distinctions, Jimeno
would seem to allow a finding of consent. Infante's arrest
warrant related to drug-dealing and de la Paz' furnishing of
the keys to the trunk is consistent with granting permission
to search within the trunk. What leads us to hold that the
scope of de la Paz's consent did not include defendant's
briefcase, is that de la Paz's general permission to search
the car and its trunk was qualified by de la Paz's further
statement to the officer, before the latter opened and
searched the briefcase, that the briefcase belonged to
Infante. Even though Infante was nearby, handcuffed in the
squad car, the police officers never sought his permission to
search his briefcase. We do not think that it was
"objectively reasonable," in these circumstances, for the
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officer to believe that de la Paz's prior consent to search
the vehicle and its trunk encompassed opening that particular
briefcase, later clearly identified by de la Paz as belonging
solely to another nearby passenger. De la Paz's
identification of the briefcase as belonging to another
nearby passenger suggested precisely the contrary. See
Jimeno, 111 S. Ct. at 1804 ("A suspect may of course delimit
as he chooses the scope of the search to which he
consents."). At very least, the scope of de la Paz's consent
was ambiguous an ambiguity that could have been but was
not clarified by further inquiry of de la Paz, Infante or
both.
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III.
As none of the grounds offered to uphold the search
of the briefcase survives analysis, appellant's motion to
suppress the fruits of the search should have been granted.
The district court's denial of appellant's motion to suppress
is reversed and the judgment vacated. The defendant may
withdraw his plea of guilty below.
So ordered.
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