United States v. Navedo Colon

• Court: Court of Appeals for the First Circuit
• Decided: July 2, 1993
• Docket: 92-1236
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1236

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                JORGE M. NAVEDO-COLON,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ____________________

            Juan R. Acevedo Cruz for appellant.
            ____________________
            Jose A. Quiles-Espinosa,  Senior Litigation Counsel, with  whom
            _______________________
          Daniel F.  Lopez-Romo, United States  Attorney, was on  brief for
          _____________________
          appellee. 

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                                    June 30, 1993
                                 ____________________

BREYER,  Chief  Judge.    Jorge  M.  Navedo  Col n
                                ____________

             appeals from  his conviction for unlawfully possessing drugs

             with intent to distribute  them. 21 U.S.C.   841(a)(1).   He

             argues that the district court should not have permitted the

             government to  introduce as  evidence about 26  kilograms of

             cocaine that government agents took from his suitcase at San

             Juan's  airport.   He says  that the  agents' search  of his

             suitcases was warrantless and without his consent.   He adds

             that,  in any  event,  the  search  was  the  "fruit"  of  a

             "poisonous  tree," namely  an earlier  illegal x-ray  of the

             suitcases.   Wong Sun v. United States, 371 U.S. 471, 484-86
                          ________    _____________

             (1963).  We find neither argument convincing.

                       The basic facts are the following:

                       1.   On  March 20,  1991, a  trained drug-sniffing
                            dog alerted  customs agents  at the  San Juan
                            airport  to the  likely  presence of  illegal
                            drugs  in  several  suitcases  tagged  for  a
                            flight to New York.

                       2.   The  agents  put  the  suitcases   through  a
                            Department of Agriculture x-ray machine.  The
                            x-ray revealed several  packages within  that
                            appeared as if they could contain cocaine.

                       3.   Using  the  suitcase's luggage  tags (bearing
                            the name  "Luis  Garcia"), agents  found  the
                            suitcases' owner, namely  the appellant,  who
                            was sitting  in the New  York bound airplane,
                            which  had not  yet  taken off.   The  agents
                            asked  appellant  to accompany  them  off the
                            airplane, and soon after arrested him.

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4.   One  of  the agents  brought  appellant to  a
                            special customs room, about nine feet by nine
                            feet  in   size.     He  handcuffed  one   of
                            appellant's  hands to a  chair, and  left the
                            door  open.     He  gave   appellant  Miranda
                                                                  _______
                            warnings, and then began to question him.

                       5.   Appellant consented to  a search of  his hand
                            luggage, in  which  the agent  found  luggage
                            claim  checks that matched the suitcase tags.
                            Appellant  also  emptied  his pockets,  which
                            contained  identification  bearing  his  real
                            name,  thereby revealing  that  the  name  of
                            "Luis Garcia" written on  the luggage tag was
                            a false name.  

                       6.   After  some time  had passed  (perhaps  a few
                            minutes,  but certainly  less than  an hour),
                            the  agent brought  the  suitcases  into  the
                            room, told  appellant about "the  dog search,
                            the dog  alert" and "the x-ray  machine," and
                            asked if  he could  open the suitcases.   The
                            appellant  (who,  according  to   the  agent,
                            simply  said "yes") "shrugged  by lifting his
                            shoulders  as  if  admitting  defeat,"  which
                            action, the district court found, amounted to
                            "consent."   The  agent opened  the suitcases
                            and found the cocaine.

                       Appellant does  not now deny that  he consented to

             the  suitcase search;  rather, he  says that  the government

             "coerced" this consent.   The district court, however, found

             to the contrary, and  we must affirm this finding  unless it

             is  clearly erroneous.    See, e.g.,  United States  v. Cruz
                                       ___  ____   _____________     ____

             Jim nez, 894 F.2d  1, 7 (1st Cir.  1990).  According to  the
             _______

             record, the appellant was simply questioned by one agent for

             less   than  an   hour,  after   Miranda  warnings,   in  an
                                              _______

             approximately eighty square foot  room with an open  door --

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albeit while appellant was  sitting with one hand handcuffed

             to  a   chair.     Despite  the  handcuff,   however,  these

             circumstances  fall within  the bounds  of what  courts have

             deemed  valid and  "voluntary" consent.   See,  e.g., United
                                                       ___   ____  ______

             States v.  Watson, 423 U.S.  411, 424 (1976)  (custody alone
             ______     ______

             does not  demonstrate  coerced consent  to  search);  United
                                                                   ______

             States  v. Arango-Correa, 851 F.2d  54, 57-58 (2d Cir. 1988)
             ______     _____________

             (where   Miranda   warnings   given,  normal   tone-of-voice
                      _______

             questioning  by  several agents  over  five  hours does  not

             demonstrate  coerced  consent   to  search,  despite   strip

             search). Cf.  Shriner v. Wainwright, 715  F.2d 1452, 1455-56
                      ___  _______    __________

             (11th Cir. 1983), cert. denied,  465 U.S. 1051 (1984) (where
                               ____________

             Miranda   warnings  given,  handcuffs   and  ten   hours  of
             _______

             detention,  including five  hours of  intensive questioning,

             does  not demonstrate that confession was coerced); Stawicki
                                                                 ________

             v. Israel, 778 F.2d  380 (7th Cir. 1985), cert.  denied, 479
                ______                                 _____________

             U.S.  842 (1986) (where  Miranda warnings given,  5 1/2 hour
                                      _______

             detention including 1 1/2  hour interrogation did not render

             confession coerced). 

                       Appellant's  second argument --  the "fruit of the

             poisonous tree"  -- presents  a somewhat closer  question of

             fact, though not  of law.   As in the  very similar case  of

             United States v. Maldonado-Espinosa,  968 F.2d 101, 103 (1st
             _____________    __________________

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Cir. 1992), cert.  denied, 113  S.Ct. 1579  (1993), we  will
                         _____________

             assume without deciding (as did the district court) that the

             luggage x-ray was unlawful.  If  the cocaine proves to be  a

             "fruit" of  that x-ray (i.e., if the  x-ray caused appellant
                                     ____

             to consent  to the  search), then,  given the  assumption we

             have indulged, the law requires its suppression.   Wong Sun,
                                                                ________

             371 U.S. at 484-86.

                       We  concede that the district court's opinion does

             not explicitly  deny a  causal connection between  the x-ray
                 __________

             and appellant's consent.  Yet that  opinion does ask whether

             this  consent   was  the   "fruit  of  a   poisonous  tree."

             Furthermore, the  opinion found  the dog  sniffing to  be "a

             lawful   act"  which  provided  "an  independent  legitimate

             reason"  for seeking  consent.   Lastly, it  says that  "the

             government cannot use  the x-ray evidence .  . . as a  basis

             for obtaining . .  . consent," and that the  ("unlawful") x-

             ray "results must be suppressed  . . . ."  Fairly  read, the

             opinion indicates  that the  court asked, and  answered, the

             correct  causal  question in  deciding  whether  to suppress

             evidence of consent.

                       We also  concede that  the factual question  was a

             close one.  On one hand, the agent's telling appellant about

             the x-ray suggests that the x-ray might have played a causal

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role in producing consent.  On the other hand, the dog sniff

             alone  provided  the  agents  with  sufficient  grounds  for

             obtaining a search  warrant (had they found  it necessary to

             do so), and for seeking appellant's consent.  United  States
                                                           ______________

             v. Sokolow, 490 U.S. 1, 5 (1989); United States v. Race, 529
                _______                        _____________    ____

             F.2d 12, 15  (1st Cir.  1976).  Given  this legal fact,  the

             combined factors apart  from the x-ray search -- the agent's

             description of the dog's  reaction, the baggage tags linking

             appellant to the suitcases,  and the discovery of the  false

             name --  might well  have convinced appellant  that refusing

             consent  was  pointless,  for   the  bags  would  be  opened

             eventually anyway.  

                       While the factual question on appeal is close, the

             legal  question is  not.   Here again,  the law  directs the

             district  court,   not   this   court,   to   make   factual

             determinations.  How  appellant's mind worked at the time --

             whether  or  not  the  x-ray  significantly  influenced  his

             decision to  consent --  is one such  factual determination.

             In light of the evidence presented to the district court, we

             cannot  find  its  conclusion  to  be  "clearly  erroneous."

             Fed.R.Civ.P. 52(a) ("Findings of fact . . . shall not be set

             aside  unless clearly  erroneous,  and due  regard shall  be

             given  to the opportunity of the district court to judge the

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credibility of the witnesses").  We therefore reach the same

             legal conclusion  we reached in Maldonado,  which affirmed a
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             district court's determination that  an illegal x-ray search

             did  not play  a significant  role in  obtaining appellant's

             consent  to search his luggage.  There, as here, agents told

             appellant  about a  dog  sniff, which  by itself  could have

             induced appellant to accede to the search.  And, we affirmed

             a district court's determination  that it did so. Maldonado,
                                                               _________

             968 F.2d at 103-04.  Cf. United States v. Race, 529 F.2d 12,
                                  ___ _____________    ____

             14-15  (1st Cir. 1976) (consent to search of air cargo found

             to  contain marijuana was  not tainted by  agent's prior and

             arguably illegal inspection of  cargo, where dog sniff alone

             provided ample motive to seek consent of cargo's owner).  In

             light of the findings  of fact and the legal  precedent, the

             district court judgment is

                       Affirmed. 
                       ________

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