US v. Doe, Crim. No. 93-0018CCC.

• Decision Date: 07 July 1993
• Docket Number: Crim. No. 93-0018CCC.
• Citation: 829 F. Supp. 511
• Parties: UNITED STATES of America, Plaintiff, v. John DOE also known as Geronimo Pizarro-Calderon, Defendant.
• Court: U.S. District Court — District of Puerto Rico

829 F. Supp. 511

UNITED STATES of America, Plaintiff, v. John DOE also known as Geronimo Pizarro-Calderon, Defendant.

Crim. No. 93-0018CCC.

United States District Court, D. Puerto Rico.

July 7, 1993.

Charles E. Fitzwilliam, Acting U.S. Atty. by Jorge E. Vega-Pacheco, Asst. U.S. Atty., Hato Rey, PR, for plaintiff.

Rafael Castro-Lang, San Juan, PR, for defendant.

ORDER

CEREZO, District Judge.

The Court has before it a Report and Recommendation filed by U.S. Magistrate Jesús A. Castellanos on April 27, 1993 (docket entry 24), in which he recommends that the motion to suppress filed by defendant on March 18, 1993 (docket entry 14) be denied. Defendant has objected to the Magistrate's recommendation (docket entry 26), and the government has filed a motion in support of the same (docket entry 34). Having considered the report and recommendation, the parties' motion, the transcript of the suppression hearing and the pertinent case law, we ADOPT the Magistrate's recommendation and now DENY the motion to suppress.

We begin by reciting the relevant facts elicited by the Magistrate in the hearing on the motion and aptly summarized at pages 2-4 of his report and recommendation:

Airport Security Officer Gladys Martinez testified she works at the Isla Verde Airport to check all passengers going through security point to detect knives and firearms with the use of X-ray machines, hand scanners and metal detectors. While Ms. Martinez was on duty at the entrance security check point to gates 31-42 on January 8, 1993, she noticed on the monitor a small carry-on suitcase or bag showing something strange inside, that is, it looked dark on the screen and she was unable to identify what it was. She waited for the owner to pass the walk-through and asked him if it was his luggage. Once he replied in the affirmative she asked what he was carrying inside and he said they were gifts boxes with figurines. Since that was not what it appeared on the screen, subsequently explaining that if a figurine the shape would be fully reflected, the passenger was asked to open the suitcase to which he sort of hesitated. A fellow worker from U.S. Department of Agriculture, José Mercado, was next to her and she proceeded to call Police Officer Avilés who was on duty at the area. Mr. Mercado told the passenger with a harder voice to open the suitcase for inspection. The gentleman placed the burgundy color bag on top of the table. When he opened same the witness saw there was a box with gift wrapping and inside some "Depends" kind of napkins, then a navy blue paper and then some blocks wrapped with beige and brown tape. At that time Officer Avilés, who was standing next to him, detained the passenger.

On cross-examination, Ms. Martínez indicated there are three different security check points towards the gate entrance areas of the airport. The scanners are used as small metal detector devices when there is a need to pass them closer to the skin of the passengers who enter the gate area for boarding and are not used for carry-on luggage which is passed through X-ray machines. The latter do not entail metal detectors. The witness denied she is looking for narcotics when X-rays are performed since this is a work for Customs. There is a state policeman at the security points upon instructions from the Head of Airport Facilities and no luggage or flights are processed unless one officer is present. She had never been asked by state or federal law enforcement nor have received training to look out for narcotics. Neither is she granted any benefit by her employer when narcotics are found, although she has been congratulated when it happens. Although the passengers are not informed that if they do not agree to the search same could be avoided by not boarding the plane, the passenger never refused to open his suitcase when so asked. There are also written notices, both in Spanish and English, apprising passengers that they would be searched for weapons. Ms. Martínez identified Joint Exhibit 1 as the photos depicting the packages inside the suitcase at the time the passenger was detained. That day there were two passengers at the same time with different bags but the same content. She was later asked to appear at the station house downstairs to provide a report for the Drug Enforcement Administration.

This witness also testified she has been trained to identify the content of luggage; silhouettes, basically for weapons and explosives identification. When an object appears dark, dense, that cannot be reflected on the screen, there could be a firearm or explosive behind and passengers are asked to open and display same for having created doubts on her mind as to the content.

....

Puerto Rico Police Officer Juan Antonio Avilés testified he was at the inspection point for gates 31-42 on January 8, 1993, and was called upon by Ms. Gladys Martínez for having seen on the X-ray machine some object which content she needed to check. When approaching them a small burgundy suitcase had already gone through the X-rays.

Mr. José Mercado was together with Ms. Gladys Martínez and since the Department of Agriculture had also to verify that no agricultural products go through which are prohibited from entering the United States he asked the passenger what was he carrying, to which he answered figurines. The passenger was opening the bag slowly and had to be asked to show it better, he was turning around and again opening little by little, until it could be seen better and sort of six kilos packages were observed by Police Officer Avilés. Joint Exhibit 2. At that time, having reasonable grounds to believe an offense had been committed, the passenger was placed under arrest, handcuffed, warned as to his rights, and taken downstairs to the Police Station. He was placed in a cell and the Drug Enforcement Administration was notified upon which Agent Iván Ríos Collazo and two other agents were sent. They performed a field test that gave positive for cocaine substance.

In his motion, defendant essentially advances two arguments, which we address in turn. He contends that inasmuch as the search of his carry-on luggage at the airport security checkpoint exceeded the legitimate scope of a search for weapons authorized by the applicable regulations, it was an unreasonable search whose fruits must be suppressed pursuant to the provisions of the Fourth Amendment. Specifically, he claims that the airport security search to which he was submitted was subverted into a general search for evidence of crime, as evidenced by the presence of a Commonwealth police officer at the site, and the subsequent hand search to which his luggage was subjected after it had been scanned by the X-ray machine. In view of the particular circumstances present in this case such an argument cannot stand. It must be noted that the subsequent visual inspection and hand search of defendant's luggage was conducted only after the initial X-ray scan proved to be inconclusive for the presence of weapons or explosives, and, as such, was permitted as part of the administrative search. United States v. Pulido-Baquerizo, 800 F.2d 899, 902 (9th Cir.1986), United States v. Herzbrun, 723 F.2d 773, 776 (11th Cir.1984), United States v. Wehrli, 637 F.2d 408, 409-10 (5th Cir.1981). Moreover, the evidence on record clearly shows that the search was conducted by a security agent of 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. Thus, the administrative search conducted in this case complied with the standards of reasonableness of the Fourth Amendment.

Relying on United States v. Davis, 482 F.2d 893 (1973), defendant further alleges that he should have been informed of his right to avoid the hand-search of his bag by electing not to board the aircraft. The problem with defendant's argument is that in the particular circumstances of this case he had no such right. To be fair, in Davis the Court of Appeals for the Ninth Circuit indeed required that potential passengers be allowed to avoid the airport searches by electing not to fly. However, Davis never determined at what point in the boarding process a passenger might decide not to fly. The matter was clarified more than a decade later in Pulido-Baquerizo, where the Court stated:

The requirement in Davis of allowing passengers to avoid the search by electing not to fly does not extend to a passenger who has already submitted his luggage for an x-ray scan. Davis requires notice, not actual knowledge, of the need to submit luggage for inspection. It was met here by evidence showing signs at the airport that advised passengers of the luggage inspection.... If a potential passenger chooses to avoid a search, he must elect not to fly before placing his baggage on the x-ray machine's conveyor belt.

United States v. Pulido-Baquerizo, 800 F.2d at 902 (citations omitted).

Inasmuch as in the case at bar defendant opted to submit his luggage to the x-ray inspection notwithstanding the warning signs posted at the airport, he implicitly waived his right of electing not to fly in order to avoid the search. Accordingly, the airport security agents were not required to advise him that he had such an option once they determined that a visual inspection and hand search of his luggage was necessary.

Defendant raises as a second argument that his arrest by a Commonwealth police officer lacked probable cause and as a consequence the subsequent search of his luggage was unreasonable under the Fourteenth Amendment. It is evident, however, that probable cause to arrest was obtained by the police officer immediately after he observed the blocks wrapped in brown paper that were located in defendant's luggage, which, to any seasoned law enforcement officer, were obviously indicative of the...