United States v. Malina Green

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 2024
• Docket: 22-50293
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50293

Plaintiff-Appellant, D.C. No. 2:20-cr-00553-FMO-1 v.

MALINA JO GREEN, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Argued and Submitted January 8, 2024 Pasadena, California

Before: CHRISTEN and BENNETT, Circuit Judges, and KATZMANN,** Judge.

The United States of America appeals the district court’s order granting

Defendant Malina Green’s motion to suppress. Because the parties are familiar

with the facts, we do not recount them here. We have jurisdiction pursuant to 18

U.S.C. § 3731, and we review the district court’s ruling on a motion to suppress de

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. novo and its underlying factual findings for clear error, United States v.

Grandberry, 730 F.3d 968, 970-71 (9th Cir. 2013). We reverse and remand.

1. The Government first argues that the officers’ warrantless search of

Green’s suitcase satisfies the administrative search exception to the Fourth

Amendment’s warrant requirement. The Government contends this exception

allowed officers to search Green’s suitcase to rule out the possibility that it

contained hazardous materials like fentanyl.

Under our precedent, airport screening searches are permissible

administrative searches because they are “conducted as part of a general regulatory

scheme in furtherance of an administrative purpose, namely, to prevent the

carrying of weapons or explosives aboard aircraft, and thereby to prevent

hijackings.” United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc)

(citation omitted). “A particular airport security screening search is

constitutionally reasonable provided that it ‘is no more extensive nor intensive than

necessary, in the light of current technology, to detect the presence of weapons or

explosives and that it is confined in good faith to that purpose.’” Id. at 962

(alterations accepted) (citation omitted).

To show that fentanyl poses the sort of risk encompassed by this

administrative purpose, the Government relies in part on a Drug Enforcement

Administration (DEA) press release from 2016, which suggests that incidental

2 exposure to fentanyl presents a lethal risk to law enforcement officers. The district

court found that the scientific community had uniformly rejected this theory. The

district court cited, among other sources, a 2020 journal article that identified this

press release as an example of “misinformation about risks of fentanyl contact,”

and a 2017 position statement from the American College of Medical Toxicology

and the American Academy of Clinical Toxicology that explained “the risk of

clinically significant exposure [from fentanyl] to emergency responders is

extremely low.” The district court also noted that recommendations from an

interagency committee (of which the DEA was a member) recognized that

incidental exposure to fentanyl “poses only a minimal risk.”

At oral argument before our court, counsel for the Government suggested

that DEA’s position had not been discredited, and that the 2016 press release

remained “ongoing guidance from DEA” that had not been retracted or changed.

The Government did not grapple with the district court’s factual findings or

acknowledge that the press release is no longer accessible on DEA’s website.1

Ultimately, we need not resolve whether fentanyl presents the sort of danger

envisioned by our precedent on airport screening searches because we conclude

that the search of Green’s suitcase satisfied the single-purpose container exception.

1 Page Not Found, U.S. Drug Enf’t Admin. (last visited Apr. 3, 2024), www.dea.gov/press-releases/2016/06/10/dea-warning-police-and-public-fentanyl- exposure-kills.

3 2. The single-purpose container exception is “little more than another

variation of the ‘plain view’ exception, since, if the distinctive configuration of a

container proclaims its contents, the contents cannot fairly be said to have been

removed from a searching officer’s view.” United States v. Gust, 405 F.3d 797,

800 (9th Cir. 2005) (quoting Robbins v. California, 453 U.S. 420, 427 (1981)

(plurality opinion), overruled on other grounds by United States v. Ross, 456 U.S.

798 (1982)); see also United States v. Huffhines, 967 F.2d 314, 319 (9th Cir. 1992)

(“There can be no reasonable expectation of privacy in a container if its contents

can be discerned from its outward appearance.”). In determining the applicability

of the exception, courts evaluate “the nature of containers from the objective

viewpoint of a layperson, rather than from the subjective viewpoint of a trained

law enforcement officer, and without sole reliance on the specific circumstances in

which the containers were discovered.” Gust, 405 F.3d at 801.

Our review of the record, which includes the same photographs and written

declarations that were available to the district court,2 leads us to conclude that a

layperson would readily ascertain that the packages in Green’s suitcase contained

illicit drugs. After Green’s checked suitcase set off an alarm during a security

screening, officers opened it and discovered two clear vacuum-sealed clothing

bags, inside of which were three smaller vacuum-sealed packages and clothing.

2 The district court did not conduct an evidentiary hearing.

4 These packages were wrapped in multiple layers of transparent plastic, and

weighed approximately one kilogram each. Each package contained an unknown

substance wrapped in dryer sheets, which were visible through the layers of plastic

wrap.

The district court found that because multiple layers of packaging covered

the contents of the packages, a layperson would not be able to infer the contents of

the packages based on their outward appearance alone. But packages need not be

transparent to announce their contents. See Gust, 405 F.3d at 801 (noting that “a

container must so clearly announce its contents, whether by its distinctive

configuration, its transparency, or otherwise, that its contents are obvious to an

observer” (emphasis added) (quoting Robbins, 453 U.S. at 428)). Although the

packages were opaque and concealed their contents from visual inspection, the

distinct configuration of the packages—one-kilogram packages wrapped in dryer

sheets and vacuum-sealed plastic and concealed in checked luggage—made it

obvious that they contained drugs. See, e.g., Huffhines, 967 F.2d at 319

(concluding that one could discern that a gun was in a plastic bag, even though the

bag was opaque). The use of visible dryer sheets is particularly significant because

their purpose is plainly to disguise the scent of the contents they conceal. Because

the outward appearance of the packages made their illicit contents obvious, the

officers’ search satisfied the single-purpose container exception.

5 REVERSED AND REMANDED.