USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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, w

____________
whom Daniel F. Lopez-Romo, United States Attorney, and Antonio
_____________________
_______
Bazan, Assistant United States Attorney, were on brief for appellan
_____
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

distribute

twenty

indicted

for possession

kilograms

of

841(a)(1), and its possession

from

the

Ferrer
district

United States,

filed a
court

motion to
granted.

suppression order.

cocaine,

with intent
21

to

U.S.C.

on board an aircraft departing

21 U.S.C.

955.

suppress the
The

We reverse.

De

evidence

government

Los Santos
which the

appeals

the

On

March

26, 1991,

Customs agents

Marin International Airport in

training exercise
the

at the

Luis Munoz

Puerto Rico were conducting a

with a certified drug-sniffing canine when

dog alerted on three checked suitcases that had not been

planted by the agents.

domestic

and

underneath
agents

The suitcases were intermingled with

international

the

American

Airlines

removed the suitcases

them through an airport

suitcases were

luggage

in

baggage

terminal.

The

from the baggage

x-ray machine.

area
Customs

area and ran

In the

identified as registered to

seated on board

meantime the

a "Maria Torres"

an American Airlines flight about

to depart

for Miami.
Customs

Agent

Marilyn

Garcia

boarded the

proceeded to the seat assigned to Maria Torres.

occupied by
Maria De Los

plane

and

The seat was

a man and sitting next to him was the defendant,

Santos Ferrer.

Garcia approached the

couple,

-2-2-

identified herself as

a Customs

officer, and

asked to

see

their airline tickets.

married and

The couple explained that

produced airline tickets

Torres" and "Maria Torres."

herself
three

as Maria Torres.
baggage claim

they were

registered to

"Anibal

De Los Santos Ferrer identified

Affixed to her airline ticket were

checks that

corresponded to

the claim

checks on the suitcases picked out by the drug-detecting dog.

The defendant and her
taken to the Customs

husband were led off the

airplane and

enclosure area, where they were

put in

separate rooms.
After

the defendant

patted down for weapons,

asked

De

Los

Santos

was

read her

Miranda rights
_______

Customs supervisor Benjamin

Ferrer

about

the

Garcia

suitcases.

The

defendant replied that the luggage did not belong to her.

hour

and

An

or more elapsed before Agent Enrique Nieves of the Drug

Enforcement

Administration

arrived.

defendant that a Customs dog

suitcases checked under her
X-rayed

and that

He

informed

the

had alerted authorities to

the

name, that the luggage had

the X-ray

been

revealed packages

which Nieves

for defendant's

permission to

believed contained narcotics.

Agent Nieves
open

the suitcases,

warrant
denied

then asked

stating that he

if she did not consent.

ownership, telling

would obtain

a search

De Los Santos Ferrer again

Agent Nieves

that she

could not

consent to a search because the luggage was not hers.

-3-3-

Nieves

continued

to

seek

the

(according to Nieves)
manner.

The

defendant's

consent.

she nodded her head in

luggage was

then opened and

This

time

an affirmative

found to

contain

cocaine, and the defendant was formally arrested.

De

Los Santos

moved to

suppress

luggage.
judge,

At

Ferrer was
as

evidence

a hearing

De Los Santos

and then

Garcia

Nieves.

But she denied that

She

She also

in

the

a magistrate

her testimony that

agreed that she had

luggage when questioned by Agent

Benjamin

the luggage.

found

motion before

Ferrer admitted in

disclaimed ownership of the

thereafter she

the cocaine

on the

the suitcases belonged to her.

of

indicted and

again

when

questioned by

Agent

she ever consented to a search

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.

defendant
suitcases,
court

had

The magistrate judge

voluntarily

and he

issued a

recommending that

The defendant

then sought

agreed

to the

found that the

opening

written report to

the motion

to suppress

review of the

of

the

the district
be denied.

magistrate judge's

recommended

report.

Based

on the

record

hearing, the district court reversed

of

the cocaine

seized

from the

of the

earlier

and ordered suppression

luggage

on two

principal

grounds.

-4-4-

First,

the

examination,

district

conducted

court

ruled

for criminal

that

the

x-ray

investigation purposes

without a warrant, violated the Fourth Amendment, and its use

to secure consent
found that
because

the disclaimer

they

atmosphere

vitiated the consent.

were

Second, the

and the consent

secured in

in which the defendant

court

were involuntary

custodial

"stationhouse"

was "detained for over an

hour, not free to leave at will and subjected to a frisk" and

to

repeated interrogation.

agents

for

warrantless

pattern

airport

The

court also

of abusive

searches

based

behavior
on

criticized the
in

x-ray

conducting
checks

and

alleged consent.
In this appeal, the government primarily argues that the

x-ray

scan

was

requirement.
a

valid

not

search

administrative

$124,570 U.S. Currency, 873 F.2d

______________________
administrative

requirement

is

explosives),

but it

to

the

warrant

United States
_____________

1240, 1244 (9th Cir.

exception

searches

maintains that

for

there is

in luggage checked at

least as to

x-ray searches.

U.S.

361

government

search,

search

limited

expectation of privacy

347,

to

It concedes that this x-ray examination was not

airport

(airport

subject

(1967)

See Katz v.
___ ____

(Harlan,

J.,

to

v.

1989)
warrant

weapons

and

no reasonable
an airport, at

United States, 389

_____________
concurring).

The

notes that luggage on the flight at issue in this

-5-5-

case

was

also subject

to an

administrative search

by the

Agriculture Department.
We think that the Fourth
one.

To

be sure, a

Amendment issue is a difficult

traveler who has

any experience

knows

that

luggage at airports is now commonly x-rayed for guns or

explosives and
luggage

that requests at

are not

uncommon.

the checkpoint to

At

the

administrative searches conducted

this limited--and

exigent--purpose

same time,

open the
these

are

for a limited purpose

and

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
further infringement.

enough to permit a

See Smith v. Maryland,

___ _____
________

442 U.S. 735,

740 n.5 (1979).

In

this

probable

case, the

second

search

was

by

x-ray

and

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
even

to x-ray searches.

some thought
warrantless

to the
search

reason

to

hurry

The government itself ought to give

fact that indiscriminate

authority may

case for legitimate

exceptions.
to

cause cases or, perhaps,

embrace

government in this case, for we

-6-6-

eventually

extensions of
undermine the

In all events,
the

position

we see

urged

by

no
the

think that the search may be

sustained

on

defendant's
luggage.
101,

quite

own admitted

different

disclaimer of

See United States v.

___ _____________

103-04 (1st

ground,

namely,

an interest

the

in the

Maldonado-Espinosa, 968 F.2d

__________________

Cir. 1992), cert. denied, 113

_____________

S.Ct. 1579

(1993).
It

is

well

established

disclaims ownership of
in its contents, and
search

608

that as to that

(2d

Cir.

1991)

not

give them authority to

not

hers.

would

abandons

person the police

E.g.,
____

or

be

Cir. 1978), cert. denied,

_____________

at the hearing

In

F.2d 606,
this

the agents that

to

find

case,

was that from

open the luggage

hard

may

United States v.
_____________

(collecting cases).

repeatedly, she told

It

who

United States v. Torres, 949

_____________
______

defendant's own testimony

outset, and

warrant.

1117, 1131 (1st

440 U.S. 958 (1979);

one

an item forfeits any claim of privacy

the item without a

Miller, 589 F.2d

______

that

the

she could

because it was
more

explicit

disclaimer or one more certain to have occurred.

The district
on

the

court noted that Agent Nieves did not rely

disclaimer

defendant's consent to

but

rather

open the

continued
luggage.

But

to

seek
there is

the
no

suggestion

in the

must actually
indeed

it

that law

enforcement officials

believe a defendant who

denies ownership, and

is

case law

often

the

case

that

the

disclaimer

immediately suspect.

E.g., United States v. Roman,

____ _____________
_____

920 (5th

(agent saw

Cir. 1988)

is

849 F.2d

defendant in possession

of

-7-7-

luggage

prior

bags);

to

defendant's

United States v.
______________

disclaimer of

Tolbert, 692 F.2d

_______

1982) (same), cert. denied, 464 U.S. 933

_____________
the

agent would

with

prefer to have

it an admission of

useful

knowledge
1041 (6th

(1983).

"consent" since

control or ownership

of
Cir.

Obviously
it carries

that could be

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

end of

judge found that it

the interview.

It

had occurred--at the

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,
to rule

on the government's argument that

was voluntary, although we

on

it is unnecessary for us

such issues

are

the later consent

note that district court findings

not lightly

disclaimer is another matter:

set

aside.

The

It occurred at the

initial
outset of

-8-8-

the

questioning well

before

much time had

became coercively
was so

before Agent
passed.

Assuming

oppressive, we

at the very outset.

Nieves even

arrived and

that the atmosphere

see no evidence

If the district

that this

court did mean

that this disclaimer was secured by undue pressure, we cannot

sustain that ruling.
Similarly,

the allegedly

unlawful x-ray

mentioned when the disclaimer

argument

that

it

had not

been

was first made so there

prompted,

and

thereby

is no

infected,

the

disclaimer.

Nor is there any basis for believing that the x-

ray

but-for cause

was

of

the

detention

detention would

not have occurred without

The

which is

dog sniff,

United States v.
_____________
"alert"--by

Place, 462
_____

the

the x-ray search.

a search,

U.S. 696, 707

was lawful,

(1983), and

certified, narcotics-detecting

probable cause to
holder of the

not itself

and that

the

dog--provided

detain and ample incentive to question the

claim checks for the

luggage.

E.g.,
____

United
______

States v. Race, 529 F.2d 12, 15 (1st Cir. 1976).

______
____
We have
States, 487
______

considered sua sponte whether

___ ______
U.S.

533

evidentiary hearing on

(1988),

warrants

Murray v. United
______
______
a

remand

the causation issue.

for

an

In Murray, the
______

Supreme Court required such a hearing because the known facts

left

it

in

doubt

whether

warrant-based

search

of

warehouse would have occurred without a prior unlawful search

of

the same facility by the same

-9-9-

agents.

In this case, the

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.
had worked
and

with its handler

scratching

defendant.

The evidence was that the dog, who

on

This,

these

for several years,

suitcases"

the handling

determining the

associated

were present.

the agents were

identity and

with

officer testified,

expected response when narcotics

the magistrate's report,

"was biting

location of

was the

According to

in the process
the owner

luggage at the same time the luggage was being x-rayed.

defendant,
from

they learned, was on

Puerto Rico.

agents could fairly assume

the

jurisdiction.

If

of

of the
The

an airplane ready to depart

Without immediate action

the

the

to detain her,

that she would

the x-ray

machine

order, the outcome would have been identical.

be gone from

had been

out of

Finally, we
at a pattern
airport:
alleged

note that the district

court was disturbed

it perceived of Customs and DEA

of

dog sniffs,

consents to

followed by

search.

Maldonado-Espinosa, 767 F.
__________________

conduct at the

x-rays, followed

by

See, e.g., United States v.

__________ ______________

Supp. 1176 (D.P.R.

1991), aff'd,
_____

-10-10-

968 F.2d 101 (1st Cir. 1992).

its unhappiness

with this pattern of

both at the beginning

concerns

the

enforcement

The district court underscored

and the end of the opinion.

warrantless

purposes,

conduct, discussing it

we

x-ray
have

search

expressed

So far as

for
our

criminal
doubts

and

declined in this case to adopt the government's position.

The

pattern

different issue.

of

alleged

consents

presents

quite

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

while--as occurred
detention

here--holding

for well over an

long detention will

his voice to

seek it over

and over again

a defendant

hour, with no

in

temporary

indication of how

continue, and with the DEA agent raising

the detainee

to tell her

to be

"respectful."

When the consent is conveyed by a "nod," its worth is further

diminished.
If

this

airport, we do

is the

pattern

not applaud it.

that the government should

derived

of

More to

searches at

the

the point, we think

appreciate that claims of consent

in this fashion are likely

jaundiced eye by reviewing courts.

undue pressure

consent

or improper means to

to be looked upon with a

If the

government exerts

secure consent, instead

-11-11-

of obtaining

a warrant as it

can easily do, it

is going to

lose cases.
The suppression order is
for further proceedings.

reversed and the case remanded

________
________

-12-12-