U.S. v. West, 80-1727

• Decision Date: 12 December 1983
• Docket Number: No. 80-1727,80-1727
• Citation: 723 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Claude K. WEST, Defendant, Appellant. . Re
• Court: U.S. Court of Appeals — First Circuit

Page 1

723 F.2d 1

UNITED STATES of America, Appellee, v. Claude K. WEST, Defendant, Appellant.

No. 80-1727.

United States Court of Appeals First Circuit.

Reargued Oct. 4, 1983.

Decided Dec. 12, 1983.

Douglas K. Mansfield, with whom Thomas D. Edwards, and Casner, Edwards & Roseman, Boston, Mass., were on brief, for defendant, appellant.

William F. Weld, U.S. Atty., with whom John C. Doherty, Asst. U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, GIBSON, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

This case is on remand from the Supreme Court, --- U.S. ----, 103 S.Ct. 3528, 77 L.Ed.2d 1382, for reconsideration in light of United States v. Place, --- U.S. ----, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In our earlier opinion, reported in 651 F.2d 71, affirming West's conviction on a narcotics charge, we upheld the temporary detention of West's suitcase in Boston by Drug Enforcement Agency (DEA) agents for purposes of conducting a sniff test by a detection dog. The dog alerted, cocaine was found, and West was subsequently convicted.

At the time we decided West, the Supreme Court had yet to pass on the constitutionality of detaining a traveler's luggage in such circumstances. The Court finally confronted the problem in Place, holding that luggage could be briefly held for sniffing by a detection dog if an officer's observations led him reasonably to believe the traveler was carrying narcotics in his luggage, and if the detention was properly limited in scope. Requiring luggage to undergo a sniff test was held not to amount to a "search" within the fourth amendment; rather the limitations applicable to Terry-type stops of the person were said to define the permissible scope of an investigative detention of luggage on less than probable cause. But while the Place Court ruled that luggage could be briefly detained for detection dog examination, it went on to hold that Place himself had been subjected to too lengthy and onerous an intrusion to meet the standards of Terry. The Court concluded "that the detention of respondent's [Place's] luggage ... went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics." Place, --- U.S. at ----, 103 S.Ct. at 2646, 77 L.Ed.2d at 123. The seized evidence was accordingly suppressed.

In the present case, the issue on remand is whether the detention of West's suitcase, like that of Place, was so intrusive as to exceed the officers' limited authority, as that authority has now been explained in Place. ¹

While this issue has been briefed and argued to us, we think, upon further consideration, that its resolution depends upon factual matters not sufficiently developed in the record and the findings below. Because the record and findings are inadequate for us to decide the appropriateness under Place of the trial court's denial of the motion to suppress, we therefore remand to the district court for supplementation of the record. Hodges v. Atlantic Coast Line R.R., 310 F.2d 438, 445 (5th Cir.1962); United States v. Ueber, 299 F.2d 310, 315 (6th Cir.1962). See also 28 U.S.C. Sec. 2106. While we retain jurisdiction of this appeal, we pose particular questions on which the district court should take additional evidence, make appropriate findings and certify the results to this court as a supplemental record. Camacho v. United States, 392 F.2d 575, 576 (9th Cir.1968); Cross v. Pasley, 267 F.2d 824, 827 (8th Cir.1959).

The questions upon which we require further evidence and findings of fact relate to the expedition with which the officers conducted the canine search. The Supreme Court has said that a Terry-type detention must "be reasonably related in scope to the circumstances which justified the interference in the first place." 392 U.S. 1, at 20, 88 S.Ct. 1868 at 1879, 20 L.Ed.2d 889. Here the object of the "interference," as explained by the Court in Place, is "to arrange [the luggage's] exposure to a narcotics detection dog." --- U.S. at ----, 103 S.Ct. at 2644. It follows that the period of detention must afford time enough for officers to conduct a proper canine examination. ² At the same time, Place makes it very clear that "the brevity of the invasion ... is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion." --- U.S. at ---- - ----, 103 S.Ct. at 2645. Also important is "whether the police diligently pursue their investigation." --- U.S. at ----, 103 S.Ct. at 2645. Additionally relevant is the sufficiency of the information the agents give the suspect, in advance, concerning the time involved in the dispossession and the arrangements for return of the luggage if the investigation dispels suspicion. A court must balance the right of agents to have adequate time to conduct an efficient canine examination, against the right of the suspect to endure no more than a brief, diligently pursued and professionally managed detention of his luggage.

To enable us to resolve and weigh these matters, the parties should be permitted to explore and the court should make express findings upon the following questions: (1) the reasons the agents did not approach West until minutes before the scheduled departure of his 12:52 p.m. flight to Burlington, including proper law enforcement objectives, if any, served by their delay; (2) the reasons the agents did not have the...