U.S. v. Baron

• Decision Date: 28 October 1988
• Docket Number: No. 87-1169,87-1169
• Citation: 860 F.2d 911
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deborah Ann Sonido BARON, aka Debbie A. Sonido, aka Debra Ann Sonido, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 911

860 F.2d 911

57 USLW 2358

UNITED STATES of America, Plaintiff-Appellee, v. Deborah Ann Sonido BARON, aka Debbie A. Sonido, aka Debra

Ann Sonido, Defendant-Appellant.

No. 87-1169.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1988.

Decided Oct. 28, 1988.

Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for defendant-appellant.

Mark Bennett, Asst. U.S. Atty. Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before JAMES R. BROWNING, ALARCON and WILLIAM A. NORRIS, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Debra Baron appeals her conviction of possession with intent to distribute cocaine and conspiracy to do the same. We affirm the conviction but remand for resentencing.

I BACKGROUND

In June, 1986, during a routine inspection, United Parcel Service employees in Miami, Florida discovered roughly 350 grams of cocaine with an estimated street value of $140,000, along with four stuffed animals, in a package. They gave the package to the police, who forwarded it to the DEA. DEA agents replaced most of the cocaine with a cocaine-substitute, dusted the outside of the plastic bag containing the mixture of cocaine and cocaine-substitute with fluorescent powder, and sewed an electronic beeper tracking device into one of the stuffed animals. They then arranged a controlled delivery of the package to the addressee, Joseph Paliafito, at his ice cream shop in Haleiwa, Hawaii, a small village on the north shore of Oahu.

When the package was delivered to Paliafito, he took it to his apartment in a nearby resort complex without opening it. Shortly after he went into his apartment, the beeper signal changed, indicating that the package had been opened. A few minutes later, he emerged from his apartment with a suspicious bulge in the leg of his shorts about the size of the plastic bag containing the cocaine-substitute. He walked to the apartment in the next building shared by appellant Baron and her boyfriend and co-defendant Mark Gilliland. Baron and Gilliland promptly accompanied Paliafito back to his apartment. Ten minutes later, Baron and Gilliland emerged onto the porch outside the apartment and stared at the DEA agent who was sitting in a car in the parking lot watching Paliafito's apartment. Gilliland called to Paliafito, who joined them on the patio and stared at the police. All three then went back into the apartment. Moments later, the electronic transmitter stopped beeping, indicating that it had ceased to function, which suggested to the law enforcement officers that it had been destroyed.

A few minutes later, all three left the apartment. Some agents arrested Paliafito while another went to call in information necessary to obtain a warrant to search the apartment. Meanwhile, Baron and Gilliland were detained for questioning, initially in the parking area and later on the porch outside of Paliafito's apartment. During the detention, they were ordered not to speak to one another or to touch anything. After about 35 minutes of detention, three DEA agents took Baron into a bedroom in Paliafito's apartment and read her the Miranda Baron was then formally "arrested" and taken outside the room while Paliafito and Gilliland were tested with the black light. Agents then brought Baron back into the bedroom to shine the black light on her face and in her mouth, which revealed the fluorescent powder on her chin and upper teeth. Next, the agents searched Paliafito's apartment pursuant to the search warrant they had obtained and found loaded guns, drug paraphernalia, and the plastic bags that the cocaine had been shipped in (which had been rinsed out), but not the cocaine-substitute mixture. The agents then searched the apartment shared by Baron and Gilliland, and found a triple beam scale with residue of Mannitol, a substance commonly used for cutting cocaine. They also found address books containing the address of Gilliland's brother, Michael, from whose Miami address the UPS package had been sent.

warning. The agents then closed the curtains to darken the room and shined a black light on Baron's hands and arms and the front of her blouse, revealing traces of the fluorescent powder on her hands and blouse.

Baron, Paliafito, and Mark and Michael Gilliland were charged in a three-count indictment with conspiracy, using a communication facility (UPS) to facilitate the distribution of cocaine, and possession of cocaine with intent to distribute. Mark Gilliland and Paliafito pleaded guilty. After a motion to suppress the results of the black light test was denied, Michael Gilliland and Baron were tried together. The jury convicted Michael Gilliland on all counts; Baron was acquitted on the communication facility charge, but was convicted on the conspiracy and possession charges. She appeals, raising a plethora of arguments. She challenges, first, the denial of the suppression motion; second, the admission of certain evidence at trial; third, the sufficiency of the evidence linking her to the cocaine; and last, the sentencing judge's possible reliance on statements in her presentence report which she contends are false. We consider her arguments in that order.

II SUPPRESSION MOTION

Both Baron and the government pursue alternative theories about why the results of the black light test should or should not have been suppressed. On the one hand, Baron contends that the evidence should have been suppressed because it was the fruit of a de facto arrest unsupported by probable cause. In response, the government argues that Baron was not subject to a de facto arrest at the time of the initial black light search, and that, even if she had been, the arrest was supported by probable cause and the black light test was justified as a search incident to a lawful arrest. Alternatively, Baron contends that if she was not under de facto arrest when the black light test was administered, the test was an unlawful search because it was conducted without probable cause and without either a warrant or exigent circumstances. To that line of argument, the government responds that the black light test was not a search within the purview of the Fourth Amendment, and that even if it were, it was proper without a warrant because probable cause and exigent circumstances existed. The first theory requires us to decide the somewhat difficult question whether Baron was arrested or subject only to a Terry-stop at the time of the black light examination. The second theory would require us to consider whether a black light examination is a full search within the meaning of the Fourth Amendment, or a slightly lesser search, analogous to the frisk permissible during a Terry-stop.

The district court held that Baron was subject to an investigative detention but not an arrest when the first black light test was administered and that the police had reasonable suspicion to detain her but lacked probable cause to arrest her until after the test. The court held that the test results were admissible, however, because the black light test was not a "search" requiring probable cause. We note that the question whether the black light test was a search is a novel question in this

                circuit, and that the law on the issue is uncertain. 1   We leave that question for another day, however.  We affirm the district court's order denying the suppression motion on the ground that Baron was subject to a de facto arrest rather than an investigative detention at the time the ultraviolet light test was administered, that the arrest was supported by probable cause, and that the test, even if it was a search, was justifiable as a search incident to a lawful arrest
                

A. Arrest

There is no "litmus-paper test ... for determining when a seizure exceeds the bounds of an investigative stop." Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983) (plurality opinion). In determining whether an investigative detention has ripened into an arrest, we consider the totality of the circumstances. ² United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.1987); see United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1574, 84 L.Ed.2d 605 (1985). When assessing the circumstances, we must bear in mind the Supreme Court's admonition that to qualify as a Terry-stop, "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." 460 U.S. at 500, 103 S.Ct. at 1325. We believe that the detention in this case was too intrusive to satisfy that standard.

The circumstances of this detention go far beyond any that the Supreme Court has sanctioned under the rubric of an investigative detention. The police ordered Baron not to speak or to touch anything. Having thus effectively silenced and immobilized her, they detained her for 35 to 40 minutes. Finally, after ordering her to move from the public parking area to the porch outside Paliafito's apartment, they ordered her to go into a bedroom, where she found herself alone, behind closed doors and obscured windows, with three male police officers.

Had the police moved Baron to a police station or interrogation room, we would clearly be compelled to hold that she was subject to an arrest. In Florida v. Royer, a seminal case spelling out when an investigative detention becomes so intrusive as to constitute a de facto arrest, the Supreme Court found particularly significant the fact that the police moved the suspect from an airport concourse to a DEA interrogation room. 460 U.S. at 504-05, 103 S.Ct. at 1328-29. The Court relied on the same principle in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), in holding that transporting a suspect to the police station transformed a Terry-stop into an arrest. In Dunaway, the court emphasized the difference between the brief detention...