61 F.3d 107 (1st Cir. 1995), 94-1096, United States v. Doe

Docket Nº:94-1096.
Citation:61 F.3d 107
Party Name:UNITED STATES of America, Appellee, v. John DOE, a/k/a Geronimo Pizarro-Calderon, Defendant, Appellant.
Case Date:August 04, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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61 F.3d 107 (1st Cir. 1995)

UNITED STATES of America, Appellee,

v.

John DOE, a/k/a Geronimo Pizarro-Calderon, Defendant, Appellant.

No. 94-1096.

United States Court of Appeals, First Circuit

August 4, 1995

Heard Jan. 10, 1995.

Rafael D. Castro Lang, for appellant.

Jose A. Quiles-Espinosa, Sr. Litigation Counsel, with whom Guillermo Gil, U.S. Atty., and Ernesto Hernandez-Milan, Asst. U.S. Atty., were on brief for appellee.

Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Appellant Geronimo Pizarro-Calderon ("Pizarro") contends that the district court erred in refusing to suppress six block-like articles--packaged in opaque beige and brown tape--which ultimately led to his conviction for possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1993). We reverse.

I

BACKGROUND

The district court adopted the findings recommended by the magistrate judge who conducted the suppression hearing. On January 8, 1993, Security Officer Gladys Martinez del Valle ("Martinez") was screening passengers and monitoring their carry-on luggage for weapons and explosives at a security checkpoint in the Isla Verde Airport terminal. See 14 C.F.R. Sec. 107.20 (1995) (Federal Aeronautics Administration ("FAA") regulation mandating screening requirements for carry-on luggage), Sec. 107.21 (banning unauthorized possession of any "explosive, incendiary, or deadly or dangerous weapons" beyond airport checkpoints). Prominent signs forewarned passengers, in English and Spanish, that their persons and carry-on luggage were subject to screening and search for weapons and explosives. Security screeners normally use x-ray machines to scan all carry-on luggage; metal detectors and hand scanners to screen passengers.

While tending the x-ray monitor, Martinez noticed a carry-on bag containing an unidentifiable dark object. She had been trained to regard such dense, nonreflective objects as possible camouflage for weapons or explosives. Upon questioning by Martinez, appellant Pizarro stated that the carry-on bag belonged to him, and the nonreflective objects inside were gift boxes containing "figurines." Concerned

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that the figurines reflected no distinguishable silhouette on the x-ray monitor, Martinez asked Pizarro to open the carry-on bag. When Pizarro "sort of hesitated," United States Department of Agriculture Inspector Jose Mercado, working beside Martinez, directed Pizarro to open the carry-on bag, then summoned a local law enforcement officer, Juan Aviles, to the security checkpoint. 1

Pizarro opened the carry-on bag in the presence of Martinez, Officer Aviles, and Inspector Mercado, revealing a box wrapped in Christmas paper. The box contained a layer of sanitary napkins, a layer of dark blue paper and, finally, six blocks wrapped in opaque beige and brown tape. A nineteen-year veteran of the Puerto Rico Police, Officer Aviles immediately suspected that the concealed blocks contained cocaine. Whereupon he seized the carry-on bag and its contents, then arrested and handcuffed Pizarro. 2

After placing Pizarro in an airport police-station cell, Aviles contacted the United States Drug Enforcement Administration

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("DEA"). Shortly thereafter, DEA agents tested the blocks by piercing their opaque wrappings; the contents tested positive for cocaine. In due course, Pizarro was indicted for possessing six kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A).

Pizarro moved to suppress the test results and the cocaine, on the ground that the warrantless searches of the carry-on bag and the containers inside it (i.e., the Christmas box and the blocks enclosed in intact, opaque wrapping) violated the Fourth Amendment to the United States Constitution. The government successfully defended the challenged DEA testing as a mere continuation of the administrative search aimed at ensuring airline security. See United States v. Pizarro-Calderon, 829 F.Supp. 511, 515 (D.P.R.1993). Following a jury trial, Pizarro was convicted and sentenced.

II

DISCUSSION

The government must demonstrate that the warrantless DEA testing of the enclosed blocks either entailed no Fourth Amendment search or came within some recognized exception to the warrant requirement. See, e.g., United States v. Doward, 41 F.3d 789, 791 (1st Cir.1994). 3 The government contends that the carry-on bag initially was opened and searched at the airport security checkpoint pursuant to a lawful administrative search for weapons and explosives. See, e.g., United States v. Skipwith, 482 F.2d 1272, 1277-78 (5th Cir.1973) (holding that inadvertent discovery of evidence of criminal activity in course of lawful security search for weapons at airport checkpoint does not violate Fourth Amendment). Further, it argues, once Pizarro's carry-on bag and the Christmas gift box lawfully had been opened for security purposes, it was proper to seize and open the packaged blocks thereby exposed to Aviles' "plain view." See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971).

Pizarro protests on both counts. First, he says, carry-on luggage screenings must be confined to ferreting out threats to airline security (i.e., weapons and explosives used in air piracy), whereas the customary presence of Officer Aviles at the security checkpoint permitted an inference that security concerns were a mere subterfuge for intercepting contraband posing no threat to airline security. Second, even assuming probable cause to seize the suspicious blocks, a search warrant was required before the intact, opaque packaging enclosing the blocks could be pierced to test for cocaine.

  1. The Searches and Seizure at the Security Checkpoint 4

    Pizarro argues that the warrantless search of the carry-on bag violated his Fourth Amendment rights, ab initio, since the customary presence of Aviles at the checkpoint subverted an otherwise lawful airline security screening into a warrantless general search for contraband (viz., cocaine) unrelated to airline security. The district court found that--

    the search was conducted by a security agent at the airport, and that the local police officer was summoned to the site of the search only after the initial X-ray scan did not rule out the presence of either weapons or explosives in defendant's luggage, requiring the presence of additional security.

    Pizarro-Calderon, 829 F.Supp. at 514 (emphasis added).

    Routine security searches at airport checkpoints pass constitutional muster

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    because the compelling public interest in curbing air piracy generally outweighs their limited intrusiveness. See, e.g., United States v. Pulido-Baquerizo, 800 F.2d 899, 902 (9th Cir.1986); cf. United States v...

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