United States of America, and v. Lindsay Martell, and United States of America, and v. Joseph Minneci, And

654 F.2d 1356

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 6, 1981
• Docket: 80-1163, 80-1154
• Status: Published

Opinions

CURTIS, District Judge:

Appellants Martell and Minneci were convicted of “conspiracy to possess cocaine with intent to distribute” and “possession of cocaine with intent to distribute” in violation of Title 21 U.S.C. §§ 841(a)(1) and 846. They appeal from an order of the trial court refusing to suppress as evidence narcotics seized at the time of their arrest. Finding that the motion was properly denied, we affirm.

I. FACTUAL BACKGROUND

On September 30, 1979, DEA agent Charles Kenerson, based in San Diego, received a telephone call from a DEA agent in Anchorage, Alaska. Kenerson understood the other agent to say that two subjects, one a known drug trafficker (Martell) who had been arrested eight months earlier with approximately a pound of cocaine and $109,000 in cash¹ had made arrangements to fly from Anchorage to San Diego. Mar- ' tell was traveling under the name of A. Brewer.

Kenerson and other agents began surveillance of the San Diego airport on September 30, 1979. Minneci arrived that night carrying two suitcases. He was observed making two phone calls, and then taking a cab to the Sheraton Harbor Island Hotel. Martell arrived at 7:10 the next morning, made a phone call to the Sheraton and proceeded directly there, checking in under the name of Martell.

At about 9:45 a. m. Martell was observed leaving the hotel with an unidentified male' in a white Toyota pickup truck which was then driven in a somewhat erratic manner, known to the agents as being a method of discovering and avoiding any possible surveillance. It then returned to the hotel within five minutes, whereupon Martell reentered the hotel and proceeded to the third floor. Ten minutes later Minneci was observed making telephone calls, after which he went to Martell’s room on the third floor.

At 11:30 a. m. Minneci and Martell left the hotel, went back to the airport and purchased tickets under the names of Minneci and Taylor on a 12:20 p. m. Western Airlines flight to Anchorage. After purchasing their tickets they left their suitcases in the security area and went back outside the security area to have a drink. At 11:40 a. m., DEA agents sent for a narcotics detector dog. At about 12:10 p. m., Martell and Minneci were detained by DEA agents as they approached the boarding area. The agents identified themselves and stated that they were conducting a narcotics investigation. There was testimony by the agents that they had intended to detain the subjects when they approached them, and that the subjects were not free to board their flight. In Martell’s case an agent testified that this was made clear to Martell by, inter alia, the fact that his flight left in five minutes. In Minneci’s case there was testimony that his ticket was seized. The agents asked for permission to search the suitcases, which Martell and Minneci refused.

At about 12:30 (twenty minutes later) Martell, Minneci and their luggage were escorted downstairs to the Harbor Police Office (about a one-minute walk) where a narcotics detector dog (Duster) was allowed to “sniff” the luggage. In response to a question about precautions taken by the agents against escape attempts by the subjects while on the way downstairs, there was testimony that the only precaution was that the subjects were surrounded by agents. After Duster gave positive alert for narcotics in the suitcases, Martell and Minneci were transported to the Narcotics Task Force office in the east end of the airport. It was at the time of the alert that the trial court held probable cause first arose. The subjects were detained there for four hours until a search warrant was obtained, at which time the suitcases were searched and a large quantity of cocaine found, whereupon appellants were arrested.

II. APPELLANTS’ CONTENTION

Appellants argue that their twenty-minute detention by the DEA agents constituted an illegal arrest unsupported by probable cause, citing the Supreme Court’s recent decision in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and that the seizure of the narcotics being the poisonous fruit of an illegal arrest cannot withstand a fourth amendment challenge. Believing, as we do, that a conceptual difference exists between the detention of the appellants on the one hand, and the detention of their suitcases on the other, we focus on what we believe to be the real issue — whether the government agents can detain the appellants’ suitcases without probable cause, but upon a well founded suspicion, for twenty minutes without running afoul of the fourth amendment. We conclude that they can and that the trial court did not err in refusing to suppress such evidence.

III. A STOP AND DETENTION OF APPELLANTS

[I] Admittedly, the agents had a well founded suspicion that the appellants were engaged in drug trafficking, thus justifying, at least, a momentary detention of them for investigative purposes. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Based upon the same reasons, the officers likewise had a well founded suspicion that the suitcases contained the narcotics; therefore, they were justified in detaining the suitcases for further investigation. United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). Such a detention in both instances was a “seizure” to be judged by fourth amendment standards, for it was apparent from the moment the agents announced that a narcotic investigation was underway, they would not have permitted either the appellants to leave or their luggage to be removed during the brief investigation.

As the Terry Court points out, for fourth amendment purposes, “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U.S. at 16, 88 S.Ct. at 1877. After referring to the difficulties other courts have experienced in attempting to distinguish between a stop not requiring probable cause, and an arrest which does, the Supreme Court said:

“In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness.”

392 U.S. n.15 at 18, 88 S.Ct. at 1878. The Court then proceeded to balance the minimal intrusions which a momentary

“stop” and “frisk” detention would cause a citizen, against the necessity of protecting the police in their law enforcement endeavors, and held that a momentary stop for the purpose of making brief inquiry and for frisking for weapons was a reasonable seizure within the fourth amendment.

Some twelve years after Terry, the Supreme Court decided Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), in which it recognized Terry as an exception to the well established prohibition of arrests without probable cause, and held that because any detention by a police officer is such “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment,” the Terry exception must be narrowly construed allowing only momentary stops for on-the-spot questioning. In Dunaway, the Court specifically disapproved a detention of approximately twenty minutes, which became an in-custody interrogation.

In our view, however, Terry and Dunaway and their progeny relate to detention of persons and not inanimate objects. The rationale relied upon by the Court in those cases is inappropriate as applied to “things,” a seizure of which constitutes a substantially less serious intrusion upon rights of the individual.²

IV. SEIZURE AfsTD DETENTION OF LUGGAGE

We look then to the standard of reasonableness as required by the fourth amendment in the seizure- and detention of inanimate objects.

In United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), the Supreme Court recognized the propriety of detaining inanimate objects without probable cause when “reasonable suspicion existed” that they were included in a scheme of criminal activity. In that case two twelve pound packages of coins sent by first-class mail were stopped and delayed for more than a day because government agents suspected they were part of an illegal coin importation system. Speaking for a unanimous Court, Justice Douglas acknowledged the sanctity of a citizen’s fourth amendment privacy interest in sending objects through first-class mail, but added, “Yet even first-class mail is not beyond the reach of all inspection; and the sole question here is whether the conditions of its detention and inspection had been satisfied.” Id. at 252, 90 S.Ct. at 1032. After pointing out that the officers had justifiable suspicion about these packages of coins, the Court approved their removal from the flow of the mail without a warrant while a brief investigation was being completed.

Although the length of time during which appellants’ luggage was detained is a relevant factor when considered in the light of all the surrounding circumstances in determining whether such an intrusion is permissible under fourth amendment standards, we know of no case which has placed an outer time limit on the detention of impersonal objects such as Dunaway placed upon the detention’ of persons. As the Court said in Van Leeuwen :

“Theoretically — and it is theory only that respondent has on his side — detention of mail could at some point become an unreasonable seizure of ‘papers’ or ‘effects’ within the meaning of the Fourth Amendment. Detention for lVfe hours— from 1:30 to 3 p. m. — for an investigation certainly was not excessive; ...” Id.

In any event, in the case before us, the suitcases were detained for only twenty minutes awaiting the arrival of a police dog, a period of time well within that allowed in Van Leeuwen. It was the dog’s signal that the luggage contained narcotics which provided probable cause upon which a warrant was then issued pursuant to which the suitcases were searched and the appellants arrested. In our view such a detention under these facts does not offend constitutional standards.

The dissent finds this holding a startling departure from the fourth amendment’s prohibition against warrantless seizures without probable cause, a precept which the dissent apparently considers inviolate and inflexible. However, the fourth amendment addresses itself only to “unreasonable searches and seizures” and the books are replete with cases wherein, for a variety of reasons, warrantless searches without probable cause have been held not unreasonable.

For example, border searches have generally been recognized as permissible even though without warrant or probable cause, and even where there has been no justifiable suspicion of illegality. Although specifically allowed by statute, such searches must still pass constitutional muster. Such searches have been upheld not as “exceptions to the rule,” but as being reasonable in the light of the government’s sovereign right to protect its borders. United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977).

Furthermore, administrative searches have been upheld without warrant, without probable cause, and without a reasonable suspicion of the illegality where they serve as a part of some governmental regulatory scheme. United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (upheld a search of a licensed firearm dealer’s storeroom as part of inspection procedures authorized by the Gun Control Act of 1968); Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971) (upheld entry into leased premises as part of a routine annual inspection by city housing inspectors to determine compliance with city codes); United States v. Schafer, 461 F.2d 856 (9th Cir. 1972) (upheld the search of an air traveler’s luggage as part of a screening inspection of all luggage and personal effects of aircraft passengers leaving Hawaii to prevent exportation of plants, pests and diseases).

Warrantless searches without probable cause have been upheld when required as a condition for entering aircraft or public buildings as a part of a regulatory scheme to assure public safety. Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972) (upheld the search of a briefcase for weapons and explosives pursuant to a rule conditioning entry into a federal building upon submission to such a search).

In considering these decisions, we recognize that the Fourth Amendment itself defines the standard for searches and seizures. We do not retreat from the requirement of a warrant or probable cause except in exceptional circumstances. The basic test of reasonableness under the Fourth Amendment is the warrant requirement. The decisions upon which we rely are bottomed upon the concept that in the light of all the circumstances the searches are not unreasonable by constitutional standards.³

In Van Leeuwen, which the dissent brushes aside as having no application outside the mail context, the Court made no pretense of carving out a brand new exception to the fourth amendment. Instead it merely held that under those suspicious circumstances a warrantless seizure without probable cause was not unreasonable.

Furthermore, the dissent calls our attention to United States v. Allen, 644 F.2d 749 (9th Cir. 1980), a case recently decided by this court, holding that the warrantless seizure of a briefcase without probable cause violated the fourth amendment. However, that case is clearly distinguishable from the one at bar. The sole issue there was whether the district court’s finding of probable cause was supported by the evidence. We held that the evidence there was insufficient to uphold such a finding. In that case, we specifically refused to address the question of whether or not the agent had a “founded suspicion.” In the case before us, however, the district court found that the agent had such “founded suspicion” when defendants were stopped and, consequently, at the time the bags were seized, and the facts before us are more than sufficient to support such a finding.

V. EFFECT OF UNLAWFUL ARREST

If the detention of the appellants became an unlawful arrest by reason of the length of time they were detained,⁴ it has importance in this case only if the detention during the unlawful period contributed in some fashion to the search and seizure of the narcotics. Since the agents conducted no interrogation of the appellants during the unlawful portion of their detention, the agents gained nothing that they had not already learned during the permissible portion of their detention. Consequently, even assuming the arrest to be unlawful by reason of the detention of the appellants for an excessive period of time, it would not taint the search and seizure of the suitcases.

The concept of evaluating evidence in detention cases, depending upon whether evidence was obtained before or after the detention became unlawful, has been clearly recognized in this and other circuits. In United States v. Chamberlin, 644 F.2d 1262 (9th Cir. 1979), the officers made an investigatory stop and asked the suspect several questions. The detention ultimately became an unlawful arrest. Upon motion the court, while excluding the statements made by the defendant after the arrest became unlawful, admitted statements made by the defendant in the early stages of the arrest when its illegality could not be questioned.

In United States v. Mayes, 524 F.2d 803 (9th Cir. 1975), the court was considering a border search which was legal in its inception, but which later became an unlawful detention. Acting upon information which they obtained from the suspect when first interrogated, the agents detained the suspect while the original information was being verified. As a result, the agents obtained evidence sufficient to justify the issuance of the search warrant. The court held that even though the lengthy detention of the suspect was illegal, such detention did not taint the seizure of the contraband found as a result of following the lead given by the suspect during the first part of the confrontation when his detention was lawful. In denying the motion to suppress, the court said:

“. . . [E]ven if the detention was unconstitutional, it was unrelated to the discovery of the cache. No evidence gained during Mayes’ detention led to the cache of marijuana. The only evidence from Mayes that they relied upon was the shape of his boot print and his improbable story that he was robbed in Tijuana. Both were obtained during the short time — approximately five minutes — that he was questioned at Jewel Valley Road. Detention for this brief time undoubtedly was justified by Mayes’ improbable account of being robbed in Tijuana, Terry v. Ohio, 392 U.S. 1, 20-23 [88 S.Ct. 1868, 1879-1881, 20 L.Ed.2d 889] (1968) [other cites omitted]. We conclude that the cache of marijuana was discovered without reliance upon any allegedly illegal police conduct. This discovery produced probable cause for an arrest of Mayes.”

524 F.2d at 806.

In United States v. Klein, 626 F.2d 22 (7th Cir. 1980), the court confronted a factual situation almost identical with the facts before us. Officers having a well founded suspicion detained defendants at an airport and seized their bags. Although the suspects were told they were free to go, subsequent police conduct resulted in what all parties agreed was an unlawful arrest. The bags were detained until a canine narcotic detector was obtained which furnished the basis for a search warrant. The court, in reliance upon Van Leeuwen, held “that at the time they decided to detain the bags while waiting for a canine trained in drug detection, the DEA agents had reasonable suspicion to believe that the bags contained contraband; they would have been remiss in not detaining the bags for further investigation .... [T]hey did not search the defendants’ luggage until after probable cause had been established and after they had obtained a search warrant, ...” 626 F.2d at 26.

More recently, the first circuit reached a similar conclusion in United States v. Viegas, 639 F.2d 42 (1st Cir. 1981). The facts in this case are strikingly similar to those in the case before us. In both cases reasonable suspicion existed at the outset, both as to the suspects and their suitcases. In both cases the suspects were not interrogated during the detention of their bags, and in both cases the bags were not opened until a search warrant was obtained after the dog gave positive alert signs indicating the presence of drugs in the bags. Under these facts, the court affirmed the lower court’s denial of a motion to suppress.

Our ruling here does not erode appellants’ right to privacy as protected by the fourth amendment. As the Court pointed out in Van Leeuwen:

“The only thing done here on the basis of suspicion was detention of the packages. There was at that point no possible invasion of the right ‘to be secure’ in the ‘persons, houses, papers, and effects’ protected by the Fourth Amendment against ‘unreasonable searches and seizures. .. . ’ No interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day when they were deposited. The significant Fourth Amendment interest was in the privacy of this first-class mail; and that privacy was not disturbed or invaded until the approval of the magistrate was obtained.”

397 U.S. at 252-53, 90 S.Ct. at 1032.

Therefore, we hold no fourth amendment right was invaded here for the suitcases were detained upon a well founded suspicion that they contained narcotics, and their detention for approximately twenty minutes awaiting the police dog was not unreasonable. The actual search of the contents of the bags did not occur until after a valid search warrant had been obtained.

Accordingly, we affirm..

1 . Although this information was given in good faith, it was in error in that it was not Martell but an associate of his who had been arrested.

2 . The “seizure” issue in this case is distinguishable from the “search” issue in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In that case, police while executing a search warrant for a public tavern detained and searched all of the customers present. No question was raised as to the legality of the detention, but the Court held the search invalid, as the police had no basis to suspect that the customers were in any way involved in illegal activity.

In this case, we are concerned only with “detention” where the agents have a well founded suspicion that the defendants and their luggage were involved in illegal activity.

3 . In Michigan v. Summers,-U.S.-, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), after citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Brigoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574,45 L.Ed.2d 607 (1975), and United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Court commented:

These cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity. In these cases, as in Dunaway, the Court was applying the ultimate standard of reasonableness embodied in the Fourth Amendment. (Footnote omitted.) They are consistent with the general rule that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause. But they demonstrate that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams. (Footnote omitted). - U.S. at -, 101 S.Ct. at 2592.

4 . We specifically refrain from deciding whether the detention of the defendants personally exceeded the limits established by Terry and Dun-away.