UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 94-20285
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIRIAM HENAO POSADO, PABLO RAMIREZ and IRMA CLEMENCIO HURTADO,
Defendants-Appellants.
Appeals from the United States District Court For the Southern District of Texas (June 20, 1995) Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit Judges. DeMOSS, Circuit Judge:
This appeal concerns the admissibility of polygraph evidence
in a pretrial hearing to suppress forty-four kilograms of cocaine recovered after an airport interdiction and search of the
defendants' luggage. The district court refused to consider
polygraph evidence offered by the defendants to corroborate their
version of events preceding the arrest. Our precedent, with few
variations, has unequivocally held that polygraph evidence is
inadmissible in a federal court for any purpose. See, Barrel of
Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028, 1031 (5th Cir. 1984)(collecting cases). However, we now conclude that the
rationale underlying this circuit's per se rule against admitting
polygraph evidence did not survive Daubert v. Merrill Dow
Pharmaceutical, Inc., 113 S. Ct. 2786 (1993). Therefore, it will
be necessary to reverse and remand to the district court for
determination of the admissibility of the proffered evidence in
light of the principles embodied in the federal rules of evidence
and the Supreme Court's decision in Daubert. Given the sparsity of
the record, however, we express no opinion about whether, based on
that analysis, the evidence possesses sufficient evidentiary
reliability and relevance to be admissible in the suppression
hearing on remand.
BACKGROUND
Defendants Miriam Henao Posado, Pablo Ramirez and Irma
Clemencio Hurtado were each indicted and subsequently convicted of
one count of conspiracy to possess and one count of possession with
intent to distribute in excess of five kilograms of cocaine in
violation of 21 U.S.C. §§ 841 (a)(1), 841(b)(a)(A) and 846. Prior
to trial the defendants moved to suppress the cocaine found in
their luggage and certain post-arrest statements. At issue was
whether the defendants validly consented to a search of their
luggage. The prosecution sought to justify the search solely on
the basis of consent, offering a Spanish-language consent form
executed by all three defendants.1 The three defendants, by way of
1 As counsel for the government stated in oral argument, this case was treated "only as a consent case." It would be inappropriate, on the basis of the present record, to determine
2 affidavit, claimed (1) that they were not asked to consent and did
not consent, either orally or in writing, to the search of their
luggage until after the bags had been opened, (2) that they were
told they were under arrest before their bags were searched, and
(3) that they were not given Miranda warnings before the bags were
opened. Defendants contended that the consent was invalid either
(1) because it was given after the bags were opened, or (2) because
it followed and was tainted by an illegal arrest without probable
cause.
Events Leading up to the Search
On September 17, 1993, Miriam Henao Posado, Pablo Ramirez and
Irma Clemencio Hurtado arrived at Houston Intercontinental Airport
in a maroon car driven by an unidentified third party. As they
unloaded their baggage, they were observed by Houston Police
Department (HPD) Officers Rodriguez and Furstenfeld and an agent
with the Drug Enforcement Agency (DEA). The officers became
suspicious that the defendants might be carrying narcotics based on
certain characteristics of the defendants' baggage and behavior.
Based on those suspicions and prior to confronting the defendants,
the officers retrieved from the airline the three suitcases checked
by the defendants and "prepped" one of the bags. "Prepping"
involves squeezing the sides of a bag, which causes the odor of
whether independent probable cause existed for the search. We note, however, that that issue may well be appropriate for consideration on remand.
3 whatever is contained inside to be emitted. In this case, the
officers detected fabric softener, which is often used by narcotics
traffickers to mask the odor of narcotics in transport.
Shortly thereafter, the two HPD officers approached the
defendants in the snack bar area, identified themselves as police
officers and asked the defendants for their tickets and
identification. When it became apparent that none of the
defendants spoke English, Officer Rodriguez conversed with them in
Spanish. Neither Posado nor Hurtado were carrying any
identification, and the name on the identification produced by
Ramirez did not match either his ticket or the name placed on the
baggage tag. Ramirez' identification was examined and then
returned to him.
When asked about luggage, the defendants responded by
indicating three carry-on bags. When Officer Rodriguez pointed to
the baggage tags stapled inside the defendants' ticket folders, one
of the defendants conceded that they had checked three suitcases.
Here the stories diverge. Officer Rodriguez testified that, after
expressing some concern about missing their flight, the defendants
agreed to accompany him downstairs so that he could inspect the
luggage. He also testified that he advised the defendants at that
time that they were free to leave. The defendants testified that
Officer Rodriguez never informed them that they were free to leave
and that they were under the impression that they were not free to
leave. See Florida v. Bostick, 111 S. Ct. 2382, 2389 (1991)
(seizure occurs when police conduct would communicate to a
4 reasonable person that they are not free to leave). The defendants
also testified that Officer Rodriguez insisted they accompany him
despite protests from defendant Ramirez that the delay would cause
them to miss their scheduled flight. Defendant Ramirez testified
that the officers took and maintained possession of two of their
carry-on bags at that time. Once downstairs, the two HPD officers
and the three defendants were joined by the DEA agent who had
possession of the three larger suitcases checked by the defendants.
The defendants were asked for keys to the padlocks, which they did
not have.
The officers testified that immediately after asking for keys,
Officer Rodriguez secured the defendants' consent to search, both
orally and in writing. Officer Rodriguez also testified that he
advised the defendants in Spanish that they were not required to
consent. Next, Officer Furstenfeld unsuccessfully attempted to
open the suitcases using a master set of luggage keys. Only then,
according to the officers, were the padlocks pried open and the
bags searched.
The defendants testified that immediately after they were
asked for keys, Officer Furstenfeld began trying to open the
suitcases with the master set of keys. When he could not, Officer
Furstenfeld pried open the padlock and opened the zipper slightly.
At that point, the defendants claim, Officer Furstenfeld stopped
suddenly and ran upstairs. In his absence, the DEA agent continued
opening the suitcase with a pen knife, looked inside and announced
that it contained drugs. At that point, the defendants testified,
5 Officer Furstenfeld returned with the consent form and it was
executed by the defendants. Afterwards, the other two suitcases
were opened.
The Polygraph Examinations
Perceiving that the suppression hearing would amount to a
"swearing match" between the three officers and the three
defendants (that the defendants would be likely to lose), the
defendants arranged to submit to polygraphs to establish the truth
of the assertions in their affidavits. Well before the tests were
given, counsel for the defendants contacted the prosecution and
extended the opportunity to participate in the tests. The
defendants also offered to stipulate that the results would be
admissible in any way the government wanted to use them, at trial
or otherwise. The prosecution declined this opportunity.
Subsequently, the defendants were examined by polygraph
experts Paul K. Minor and Ernie Hulsey. In separate examinations
each defendant was asked the following questions and each gave the
following answers:
A. Before opening that first bag, did any police official ever ask for permission to search any of those bags? No.
B. Before searching your luggage, were you told that you were under arrest? Yes.
C. At the airport, were you ever told that you were free to leave? No.
D. Did you deliberately lie in your affidavit? No.
E. Before opening your bags, did the police officials advise you of your Miranda rights? No.
6 Both Minor and Hulsey concluded that in each case "deception was
not indicated." Thereafter, the defendants moved for an order
allowing Minor and Hulsey to testify regarding the results of the
three tests at the pretrial suppression hearing or, in the
alternative, for a hearing on the admissibility of polygraph
results as expert evidence under the Federal Rules of Evidence and
the standards enunciated by the Supreme Court in Daubert v. Merrill
Dow Pharmaceutical, 113 S. Ct. 2786 (1993). Defendants' proffer
included the reports on the polygraph examinations as well as the
curriculum vitae for both Minor and Hulsey. In support of their
request for a Daubert hearing on the issue, defendants submitted
the affidavit of another polygraph expert, Dr. Stan Abrams, Ph.D.,
to establish that polygraph technique possesses sufficient
scientific validity to be admissible.
At the beginning of the subsequent suppression hearing, the
district court summarily refused to consider the polygraph
testimony and also refused to consider whether the testimony was
reliable and relevant under the Federal Rules of Evidence, stating:
I am a great believer in polygraph, that polygraph technique, I think it's extremely effective as a law enforcement tool. I do not believe, however, that it belongs in the courtroom, either before the Court or before the jury, for several reasons, one of which is that it will lead to an impossible situation where we will have to hear polygraph experts on both sides, and we'll get into the same battle of experts that we get into in so many areas of the law. I am very concerned that it does have some valid use in determining whether people are likely to be truthful or likely not to be truthful, however, I think it opens up some policy questions that belong either to Congress or to the appellate courts to resolve before we get into it here in the courtroom.
7 At the conclusion of the suppression hearing, the district court
denied the defendants' motion to suppress, holding that the
defendants knowingly and voluntarily consented to a search of their
luggage before any of the bags were opened, and that the defendants
were not arrested until after the bags were searched. Shortly
after the hearing, the defendants and the government entered into
a stipulation that the defendants would be tried by the court on
the evidence presented at the suppression hearing. All three
defendants were convicted on both the conspiracy to possess and
possession counts, and this appeal followed.
APPLICABLE LAW
On appeal, the defendants contend that Daubert required the
district court to conduct a hearing on the admissibility of the
polygraph evidence as expert testimony under Federal Rule of
Evidence 702. Defendants also argue that the district court erred
in refusing to consider polygraph evidence where it was offered
solely for use in a pretrial suppression hearing, relying on
Bennett v. City of Grand Prairie, Texas, 883 F.2d 400 (5th Cir.
1989). Finally, the defendants maintain that the district court
erroneously found that consent was knowing and voluntary, and
therefore valid. The government concedes that a per se rule
against admitting polygraph evidence, without further inquiry, is
not viable after Daubert, but argues that the proffered evidence in
this case was properly excluded under rule 403.
We reject the defendants' argument that Bennett controls.
Bennett held that it was not error for a magistrate to consider an
8 affidavit referring to polygraph results, along with other
evidence, to determine whether there was probable cause to issue an
arrest warrant. 883 F.2d at 405-06. That case does not extend so
far as to control the admissibility of polygraph testimony in all
pretrial proceedings. Daubert, along with the Federal Rules of
Evidence, provide the guiding principles.
We also reject the government's invitation to short-circuit
the Daubert analysis by finding that the district court implicitly
relied on Rule 403 to exclude the evidence. We conclude that the
district court applied a per se rule against admitting polygraph
evidence. Even the government concedes that that rule is no longer
viable after Daubert. Therefore, the case must be remanded.
From Frye to Daubert - Rule 702
Before Daubert, the standard for determining the admissibility
of scientific or technical evidence in our circuit was the Frye
"general acceptance" test, which required the proponent to
demonstrate that the science or technology relied upon enjoyed
general acceptance in the relevant scientific or technical field
from which it arose. The Frye test originated in a short and
citation-free case in which a criminal defendant attempted to
introduce what Daubert called a "crude predecessor" of the
polygraph to demonstrate his innocence in a murder trial. Daubert,
113 S. Ct. at 2793; Frye v. United States, 293 F. 1013 (D.C. Cir.
1923). Frye thus became the seminal polygraph case, and many of
our precedents discussing polygraph or similar evidence either cite
Frye or conclude that such evidence is unreliable because the
9 polygraph does not enjoy general acceptance and use. See e.g.,
Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028,
1031 (5th Cir. 1984); United States v. Martino, 648 F.2d 367, 390
(5th Cir. 1981); United States v. Cochran, 499 F.2d 380, 393 (5th
Cir. 1974), cert. denied, 419 U.S. 1124 (1975); United States v.
Gloria, 494 F.2d 477, 483 (5th Cir.), cert. denied, 419 U.S. 995
(1974); United States v. Frogge, 476 F.2d 969, 970 (5th Cir.),
cert. denied, 414 U.S. 849 (1973).
Daubert expressly rejected the "austere" Frye standard,
holding that the Frye approach was superseded by adoption of the
Federal Rules of Evidence. 113 S. Ct. at 2794. In its stead the
Supreme Court outlined a "flexible" inquiry driven primarily by
Federal Rules of Evidence 401, 402, 403, and 702. After discussing
the "liberal thrust" of the federal rules, as reflected in Rules
401 and 402, the Court noted that nothing in Rule 702, which
governs the admissibility of expert testimony, makes "general
acceptance" an absolute prerequisite to admissibility.2 What that
rule does require, the Court held, is that the trial judge make
initial determinations under Rule 104(a)3 that the proffered
2 Rule 702 governing expert testimony provides: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 3 Rule 104(a) provides: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions (b) [pertaining to
10 evidence possesses sufficient evidentiary reliability to be
admissible as "scientific, technical, or other specialized
knowledge" and that the proffered evidence is relevant in the sense
that it will "assist the trier of fact to understand the evidence
or to determine a fact in issue." Daubert, 113 S. Ct. at 2796.
Whether evidence assists the trier of fact is essentially a
relevance inquiry. Daubert, 113 S. Ct. at 2795-96. To be
"helpful" under Rule 702, the evidence must possess validity when
applied to the pertinent factual inquiry.4 If polygraph technique
is a valid (even if not certain) measure of truthfulness, then
there is no issue of relevance. The defendants' polygraph answers,
which are consistent with their testimony, tend to prove that they
did not consent to a search of their bags until after the bags were
searched. That fact is clearly relevant, because it tends to prove
that the search was not valid.
Evidentiary reliability, or trustworthiness, is demonstrated
by a showing that the knowledge offered is "more than speculative
conditional admissions]. In making its determination it is not bound by the rules of evidence except those with respect to privileges." 4 The example given by the Supreme Court demonstrates that particular evidence may have validity for some purposes and not for others: The study of the phases of the moon, for example, may provide valid scientific "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent credible grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. 113 S. Ct. at 2796.
11 belief or unsupported speculation." Daubert, 113 S. Ct. at 2795.
Certainty is not required, but the knowledge asserted must be based
on "good grounds." Id. For scientific knowledge, there should be
proof that the principle supports what it purports to show, i.e.
that it is valid. Id. Validity can be measured by several
factors, including whether the theory or technique can be tested
and whether it has been subjected to peer review or publication.
Id. at 2796-97. For particular techniques, such as polygraph or
voice identification, the known or potential rate of error may be
helpful in making the validity determination. Id. at 2797.
Finally, although it is not dispositive, the extent to which a
particular theory or technique has received general acceptance may
be relevant to whether it is scientifically valid. Id.
What remains is the issue of whether polygraph technique can
be said to have made sufficient technological advance in the
seventy years since Frye to constitute the type of "scientific,
technical, or other specialized knowledge" envisioned by Rule 702
and Daubert. We cannot say without a fully developed record that
it has not.
Even before Daubert, this court's view of polygraph evidence
had expanded somewhat. See Bennett, 883 F.2d at 405-06
(magistrates may consider polygraph evidence when determining
whether probable cause to issue an arrest warrant exists); United
States v. Lindell, 881 F.2d 1313, 1326 (5th Cir. 1989)
("[i]mpeachment evidence includes the results of a polygraph test"
for purposes of the Brady rule), cert. denied sub nom. Kinnear v.
12 United States, 493 U.S. 1087 (1993). In 1980, twelve judges of
this court agreed that whether polygraph was generally accepted
would be subject to reconsideration given a proffer tending to show
that polygraph technique had improved in the years since Frye.
United States v. Clark, 622 F.2d 917, 917 (5th Cir. 1980) (en banc)
(Gee, J., concurring), cert. denied, 449 U.S. 1128 (1981).5 In
1984, we recognized the considerable controversy surrounding our
circuit's continued adherence to a per se rule against polygraph
evidence, but concluded that en banc consideration would be
required to change our existing precedent. Barrel of Fun, Inc. v.
State Farm Fire & Cas. Co., 739 F.2d 1028, 1031 n.8 (5th Cir.
1984). After Daubert, a per se rule is not viable. Because no
panel has squarely addressed the issue of polygraph admissibility
since Daubert, en banc consideration is not required for this
decision.
There can be no doubt that tremendous advances have been made
in polygraph instrumentation and technique in the years since Frye.
The test at issue in Frye measured only changes in the subject's
systolic blood pressure in response to test questions. Frye v.
United States, 293 F. at 1013. Modern instrumentation detects
5 Several other circuits went further by granting the district court limited discretion to consider polygraph evidence in certain circumstances. E.g., United States v. Johnson, 816 F.2d 918, 923 (3d Cir. 1987); United States v. Flores, 540 F.2d 432, 436-37 (9th Cir. 1976); United States v. Mayes, 512 F.2d 637, 648 n.6 (6th Cir.), cert. denied, 422 U.S. 1008 (1975); United States v. Infelice, 506 F.2d 1358, 1365 (7th Cir. 1974), cert. denied sub nom., Garelli v. United States, 419 U.S. 1107 (1975); see also United States v. Piccinonna, 885 F.2d 1529, 1532-35 (11th Cir. 1989)(summarizing various circuit approaches to polygraph admissibility).
13 changes in the subject's blood pressure, pulse, thoracic and
abdominal respiration, and galvanic skin response.6 Current
research indicates that, when given under controlled conditions,
the polygraph technique accurately predicts truth or deception
between seventy and ninety percent of the time.7 Remaining
controversy about test accuracy is almost unanimously attributed to
variations in the integrity of the testing environment and the
qualifications of the examiner.8 Such variation also exists in
6 See 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5169 at 95 n.7 (1978); Ronald J. Simon, Adopting a Military Approach to Polygraph Evidence Admissibility: Why Federal Evidentiary Protections Will Suffice, 25 TEX. TECH L. REV. 1055, 1059 (1994). 7 Bennett, 883 F.2d at 405 ("[p]olygraph exams, by most accounts, correctly detect truth or deception 80 to 90 percent of the time"). Even the most ardent polygraph detractors cite accuracy rates of 70 percent. See Brown v. Darcy, 783 F.2d 1389, 1395 n.12 (9th Cir. 1986) (collecting studies). In 1983 the Office of Technology Assessment (OTA) conducted a comprehensive inquiry for the United States Congress. That inquiry found that accuracy ranged anywhere from 58 to 98 percent. However, only ten of the thirty studies reviewed met even minimal standards for scientific validity in terms of the examiners and techniques used. Simon, supra note 6, 25 TEX. TECH L. REV. at 1062-63. A more recent comprehensive review of the OTA data reported that accuracy rates were much higher for studies which most resembled realistic polygraph practice, a factor which could explain as much as 65% of the observed variation in detection rates. See John E. Kircher, et al., Meta-Analysis of Mock Crime Studies of the Control Question Polygraph Technique, 12 LAW & HUMAN BEHAVIOR 79 (1988); see also David C. Raskin, The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence, 1986 UTAH L. REV. 29, 72 (1986) ("existing literature suggests an accuracy of 90% or higher when examinations are conducted to assess the credibility of suspects in criminal investigations."); 1 MCCORMICK ON EVIDENCE § 206 at 909-11 (John William Strong ed., 4th ed. 1992) and sources cited therein. 8 See United States v. Piccinonna,885 F.2d 1529, 1540-41 (11th Cir. 1989) (Johnson, J., concurring in part and dissenting in part) (citing research indicating that examiner expertise and test procedure affects accuracy); Simon, supra note 6, 25 Tex. Tech L.
14 many of the disciplines and for much of the scientific evidence we
routinely find admissible under Rule 702. See 1 MCCORMICK ON EVIDENCE
§ 206 at 915 & n. 57. Further, there is good indication that
polygraph technique and the requirements for professional
polygraphists are becoming progressively more standardized.9 In
addition, polygraph technique has been and continues to be
subjected to extensive study and publication.10 Finally, polygraph
is now so widely used by employers and government agencies alike.
To iterate, we do not now hold that polygraph examinations are
scientifically valid or that they will always assist the trier of
fact, in this or any other individual case. We merely remove the
obstacle of the per se rule against admissibility, which was based
on antiquated concepts about the technical ability of the polygraph
Rev. at 1063-66 (discussing the affect of test integrity, countermeasures, and examiner competence on polygraph accuracy). 9 See Piccinonna, 885 F.2d at 1533 & n. 13. At least 30 states require licenses or regulate polygraphists. Raskin, supra note 7, 1986 UTAH L. REV. at 68. Dr. Abrams reports that the American Polygraph Association (APA), which has about 2,500 members, accredits schools of polygraphy, screens its members and administers written and oral tests to graduates to assure an established level of competency. Standard test protocol calls for pre-test collection of data, a pre-test interview, administration of the test questions (usually in a control question format) and a post-test interview. In addition, the APA sanctions members who do not follow enumerated testing procedures. See Charles M. Sevilla, Polygraph 1984: Behind the Closed Door of Admissibility, 16 U. WEST L.A. L. REV. 5, 18-20 (1984); Raskin, supra note 7, 1986 UTAH L. REV. at 66-69 (both discussing the need for additional measures to professionalize polygraph practice, which would have the effect of increasing overall accuracy rates). In this case, counsel for the defendants conceded at oral argument that the defendants' proffer sufficiently established reliability. 10 See 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE & PROCEDURE § 5169 at 92 n. 2 (collecting an impressive bibliography).
15 and legal precepts that have been expressly overruled by the
Supreme Court.
Rule 403 as Gatekeeper
Assuming that polygraph evidence satisfies the requirements of
Rule 702 does not end the inquiry. Other evidentiary rules, such
as Rule 403, may still operate to exclude the evidence. Daubert,
113 S. Ct. at 2797-98. While not discussed at length in Daubert,
the presumption in favor of admissibility established by Rules 401
and 402, together with Daubert's "flexible" approach, may well
mandate an enhanced role for Rule 403 in the context of the Daubert
analysis, particularly when the scientific or technical knowledge
proffered is novel or controversial. See Conti v. Comm'r of
Internal Revenue, 39 F.3d 658 (6th Cir. 1994) (excluding polygraph
evidence on the basis of Rule 403), cert. denied, 115 S. Ct. 1793
(1995).
Aside from Frye, the traditional objection to polygraph
evidence is that the testimony will have an unusually prejudicial
effect which is not justified by its probative value, precisely the
inquiry required of the district court by Rule 403. See Bennett,
883 F.2d at 404; Brown v. Darcy, 783 F.2d 1389, 1396 (9th Cir.
1986). In the context of this case and on the present record,
there are several factors that may operate to counterbalance the
potential prejudicial effect of this testimony. First, the
prosecution was contacted before the tests were conducted and
offered the opportunity to participate in the exams, including
stipulating as to any limited use for the evidence. In such a
16 case, both parties have a risk in the outcome of the polygraph
examination, simultaneously reducing the possibility of unfair
prejudice and increasing reliability. Second, the evidence was not
offered at trial before a jury, but in a pretrial hearing before
the district court judge. A district court judge is much less
likely than a lay jury to be intimidated by claims of scientific
validity into assigning an inappropriate evidentiary value to
polygraph evidence. Bennett, 883 F.2d at 405. We have consistently
held that the rules of evidence are relaxed in pretrial suppression
hearings. See FED. R. CIV. P. 104(a); United States v. DeLaFuente,
548 F.2d 528 (5th Cir.), cert. denied sub nom. Stewart v. United
States, 431 U.S. 932 (1977); United States v. Lee, 541 F.2d 1145
(5th Cir. 1976).
We note also that there are factors in this record which
substantially boost the probative value of this evidence. The
evidence at the suppression hearing essentially required the
district court to decide between the story told by the officers and
that told by the defendants, a not unusual situation, and perhaps
not sufficient alone to justify admission of "tie-breaker" evidence
carrying a high potential for prejudicial effect. In this case,
however, there was more. Because Officer Rodriguez was the only
Spanish-speaking officer on the scene, he alone could testify as to
what the defendants were told and as to their understanding of
whether they were under arrest or whether they were consenting to
a search of their baggage. Although Officer Rodriguez testified
that he explained the consent form to the defendants, he was unable
17 to read the consent form (printed in Spanish) to the court at both
the probable cause hearing and the suppression hearing. There was
also evidence calling the officers' recollection of events into
question. For example, Officer Rodriguez testified incorrectly at
the probable cause hearing that the defendants were travelling with
one-way tickets, a fact which he said contributed to his reasonable
suspicion that the defendants were carrying drugs. The defendants
were in fact holding round-trip tickets. In addition, the
defendants offered the testimony of a disinterested witness, an
airline employee, who contradicted the officers' version of the
events surrounding their retrieval of the defendants' bags from the
airline prior to the search. Finally, the defendants introduced at
the suppression hearing an order from a similar case in another
district court in the Southern District involving Officer
Rodriguez. In that case, the district court judge found that
Officer Rodriguez' version of the events leading up to the search
in that case was "untruthful" and therefore suppressed evidence
obtained after the defendants allegedly consented to the search.
Taken individually, each one of these inconsistencies can be
explained and may seem inconsequential. Taken together, however,
we believe that they can be said to enhance the need for evidence,
and therefore its probative value, for clarifying which of the
competing versions of what happened that day is true.
CONCLUSION
The district court essentially applied the per se rule
against admitting polygraph evidence established by our earlier
18 precedent. Because the district court's assessment of the
proffered polygraph evidence under the Daubert standard may well
affect the other issues raised by this appeal, it is inappropriate
at this time to address the district court's decision to exclude
the polygraph evidence from its consideration on the motion to
suppress or its fact finding that the search was supported by valid
consent. Those issues can be adequately addressed on subsequent
appeal, if necessary.
It is with a high degree of caution that we have today opened
the door to the possibility of polygraph evidence in certain
circumstances. We may indeed be opening a legal Pandora's box.
However, that the task is full of uncertainty and risk does not
excuse us from our mandate to follow the Supreme Court's lead.
Rather, "[m]indful of our position in the hierarchy of the federal
judiciary, we take a deep breath and proceed with this heady task."
Daubert v. Merrell Dow Pharmaceutical, Inc., 43 F.3d 1311, 1316
(9th Cir. 1995) (on remand from the Supreme Court).
Nor are we unaware that our opinion today may raise as many
questions as it answers. We leave much unsaid precisely because we
believe that the wisdom and experience of our federal district
judges will be required to fashion the principles that will
ultimately control the admissibility of polygraph evidence under
Daubert.
For the foregoing reasons, the district court's ruling on the
motion to suppress is REVERSED, the defendants' convictions are
VACATED and the case is REMANDED to the district court for
19 consideration of the evidentiary reliability and relevance of the
polygraph evidence proffered by the defendants under the principles
embodied in the Federal Rules of Evidence and the Supreme Court's
decision in Daubert.
wjl\opin\94-20285.opn ves 20