U.S. v. Beale, No. 80-1652

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore ELY, FLETCHER, and REINHARDT; ELY
Citation674 F.2d 1327
Decision Date22 April 1982
Docket NumberNo. 80-1652
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Christopher BEALE, Defendant-Appellant.

Page 1327

674 F.2d 1327
UNITED STATES of America, Plaintiff-Appellee,
v.
John Christopher BEALE, Defendant-Appellant.
No. 80-1652.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 9, 1981.
Decided April 22, 1982.

Page 1328

Dan Alfaro, Corpus Christi, Tex., Paul H. Duvall, San Diego, Cal., for defendant-appellant.

Bruce P. Castetter, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before ELY, FLETCHER, and REINHARDT, Circuit Judges.

ELY, Circuit Judge:

This case, an appeal from a conviction of possession with intent to distribute and conspiracy to possess with intent to distribute a controlled substance, raises important constitutional issues relating to the application of Fourth Amendment rubric to the Government's use of trained canines to detect illegal substances not subject to perception by the unaided human senses. Because we hold that the use of trained canines in this case was improper absent a showing of "founded suspicion," we vacate and remand.

FACTS

As appellant Beale was convicted in a bench trial on stipulated facts, we consider the facts, as stipulated and as adduced at the suppression hearing, to be undisputed. The following rendition is gleaned from the trial "record," in the light most favorable to the Government. See United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969).

On April 17, 1980, Detective Rick Berks of the Broward County Sheriff's Department was assigned to the airport detail at the Fort Lauderdale (Florida) Airport. This detail, which Detective Berks had performed for at least two years, is responsible for the "interdiction" or interception of narcotics contraband passing through the airport. Also on duty were Deputy Sheriff Larry Burk and a trained canine, "Nick."

Berks observed two male caucasians, subsequently identified as John Beale and Joseph Pulvano, exit a taxicab in front of the National Airlines terminal. Beale and Pulvano checked three pieces of luggage with a "skycap" and then entered the terminal together. Upon reaching a security checkpoint inside, they separated and obtained their seating assignments from the ticket counter independently. They both possessed first-class tickets to San Diego, with a change of planes in Houston. Berks ascertained that Beale's suitcase bore an identification tag indicating a New Jersey address. After separately departing from the ticket counter, Beale and Pulvano entered the National Airlines boarding area and sat down together.

Detective Berks, suspicious of the foregoing behavior, 1 approached Beale and Pulvano, identified himself, explained that they were not under arrest, and requested that they answer a few questions and produce

Page 1329

some identification. Beale complied, producing his New Jersey driver's license. Pulvano, who appeared very nervous, stated that his identification was in his luggage, which he had just checked. Berks then asked the pair if they had ever been arrested. Pulvano said he had been arrested six years earlier on a narcotics charge. Berks thanked them for their cooperation and walked away. About five minutes later, Pulvano walked over to Berks and inquired if anything was wrong. Berks told Pulvano, who exhibited signs of abnormal anxiety-trembling hands, cracking voice, palpable agitation-that there was no problem at that time.

Berks proceeded to the baggage area, where he and Deputy Burk had "Nick" sniff or smell the vicinity of the suspects' bags. "Nick," an experienced and reliable drug detector, "alerted" on Beale's suitcase. As Beale and Pulvano had already boarded their flight to Houston, Berks contacted the Houston Police Department's airport detail and ran a computer check on the pair. Pulvano, the computer check revealed, had been arrested and convicted of possessing a large quantity of cocaine in an Atlanta airport approximately six months earlier.

Police officers in Houston kept the suspects and their luggage under surveillance as they changed planes in Houston. They deplaned separately and appeared as though they were not traveling together; they were the last two passengers to board the plane to San Diego. Agents in San Diego were alerted to the suspects' arrival.

When the plane arrived in San Diego, Beale and Pulvano, each carrying a shoulder bag, exited quickly and behaved warily. Beale did not go to the luggage area to claim his bags, but left the terminal and immediately attempted to board a taxicab. He was accosted by agents and, when asked about his luggage, asserted that he had lost the claim checks. While Pulvano was waiting inside the terminal at the baggage claim area, a United States Customs Service Officer and a trained canine "Duster" briefly intercepted the suspects' luggage. "Duster," an experienced and reliable narcotics detector, "alerted" on Beale's suitcase. When Pulvano retrieved the bags-including Beale's-and started to leave the airport, he too was accosted. "Duster" later "alerted" on Beale's shoulder bag.

Based on a sworn affidavit containing this information, the officers obtained a search warrant for Beale's suitcase and shoulder bag. Approximately 961 grams of cocaine were discovered in the shoulder bag and approximately 137 grams of marijuana were discovered in the suitcase.

Beale's motion to suppress the evidence obtained in these searches was denied. On the foregoing stipulated facts Beale was convicted of possession with intent to distribute and conspiracy to possess with intent to distribute a controlled substance-cocaine-in violation of 21 U.S.C. §§ 841(a)(1), 846.

ISSUES ON APPEAL

The only issue not subject to stipulation is the constitutional propriety of the principal police encounters with Beale and Pulvano, i.e., their questioning in the Fort Lauderdale Airport, the "sniffing expedition" of their luggage in Fort Lauderdale, and their ultimate arrest and the search of their bags in San Diego.

DISCUSSION

I.

Beale contends that the officer's initial approach and non-custodial questioning of him and his companion constituted a "seizure" or detention under the Fourth Amendment, requiring founded suspicion or probable cause. The District Court, however, concluded otherwise 2 and we agree. The suspects' mobility was not impaired; the situation was non-coercive; Berks did not request that they follow him or otherwise alter their destination, schedule, or location; the questions were routine and brief, and in an atmosphere not dominated by law enforcement personnel; and the suspects

Page 1330

agreed to answer Berks' queries "in a spirit of apparent cooperation." 3 See Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968); United States v. Fry, 622 F.2d 1218, 1219-21 (5th Cir. 1980) (per curiam); United States v. Elmore, 595 F.2d 1036, 1041-42 (5th Cir. 1979), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980); 3 W. La Fave, Search and Seizure: A Treatise on the Fourth Amendment 48-55 (1978).

Thus, we need not consider whether "founded" or "articulable" suspicion existed at that time. Cf. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Corbin, 662 F.2d 1066, 1068-71 (4th Cir. 1981).

II.

Beale next contends that even if the initial encounter was not an unlawful seizure, the use of the trained canine "Nick" to "conduct a sniffing expedition" of his luggage in the baggage area of the Fort Lauderdale Airport constituted an illegal search. If the "sniffing expedition" were an illegal search, the Government would face a difficult, perhaps impossible, burden of showing that this did not taint or infect the ultimate search of Beale's luggage in San Diego. See Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963).

Unfortunately, the parties have treated the "dog sniffing" issue in absolute terms. Beale argues, for instance, that the primary issue is whether the use of "Nick" to sniff his suitcase was a search requiring probable cause. The District Court, in the suppression hearing, held that the use of trained canines in this case was not a search and, hence, that no showing of suspicion was required. 4 Similarly, the Government argues on appeal that "it is well-established that the use of trained dogs to sniff the exteriors of containers, including luggage, is not a search in violation of the Fourth Amendment." Brief of Appellee at 15.

Not only do these arguments oversimplify our holding in United States v. Solis, 536 F.2d 880, 882 (9th Cir. 1976), they also misapprehend the importance of a person's privacy interest in personal luggage. See Arkansas v. Sanders, 442 U.S. 753, 762, 764-65, 99 S.Ct. 2586, 2592, 2593, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 11, 13, 97 S.Ct. 2476, 2483, 2484, 53 L.Ed.2d 538 (1977). See also United States v. Allen, 644 F.2d 749 (9th Cir. 1980); United States v. Homberg, 546 F.2d 1350, 1354-55 (9th Cir. 1976) (Ely, J., dissenting), cert. denied, 431 U.S. 940, 97 S.Ct. 2654, 53 L.Ed.2d 258 (1977); United States v. Moore, 483 F.2d 1361, 1363-64 (9th Cir. 1973).

Focusing on the precise physical nature of the canine sniffing obscures, we believe, the underlying Fourth Amendment interests. The Government emphasizes that only the "exterior of containers" were sniffed. Likewise, the Government relies on United States v. Bronstein, 521 F.2d 459, 461-63 (2nd Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976), to counter Beale's argument that the use of trained canines is as intrusive under the Fourth Amendment as a magnetometer. Bronstein, however, like the earlier United States v. Fulero, 498 F.2d 748, 749...

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34 practice notes
  • Wilson v. Superior Court, Los Angeles County
    • United States
    • California Court of Appeals
    • July 23, 1982
    ...U.S. at p. 554, 100 S.Ct. at p. 1878) (Italics added.) 35 Page 717 The recent case of United States of America v. Beale (9th Cir. 1982) 674 F.2d 1327 is relevant. 36 The Beale court held that the initial encounter by the police in Page 718 Fort Lauderdale was not a seizure or detention unde......
  • People v. Profit
    • United States
    • California Court of Appeals
    • July 24, 1986
    ...at 559, 100 S.Ct. at 1879; italics added.) The facts and circumstances in the case of United States of America v. Beale (9th Cir.1982) 674 F.2d 1327, cert. den., judgment vacated, and case remanded for further consideration in light of United States v. Place (1983) 462 U.S. 696, 103 S.Ct. 2......
  • Gonzalez v. Superior Court, Los Angeles County
    • United States
    • California Court of Appeals
    • February 24, 1983
    ...satisfies the requirements of the Fourth Amendment." (Fns. omitted.) The recent case of United States of America v. Beale (9th Cir.1982) 674 F.2d 1327 is relevant and instructive. 4 The Beale court held that the initial encounter by the police in Fort Lauderdale was not a seizure or detenti......
  • Zepeda v. U.S. I.N.S., No. 80-5464
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 26, 1985
    ...Cuevas-Ortega v. INS, 588 F.2d 1274 (9th Cir.1979); Cordon de Ruano v. INS, 554 F.2d 944 (9th Cir.1977); see United States v. Beale, 674 F.2d 1327, 1329-30 (9th Cir.1982); United States v. Anderson, 663 F.2d 934, 939 (9th Our conclusion does not conflict with our decision in Benitez-Mendez ......
  • Request a trial to view additional results
34 cases
  • Wilson v. Superior Court, Los Angeles County
    • United States
    • California Court of Appeals
    • July 23, 1982
    ...U.S. at p. 554, 100 S.Ct. at p. 1878) (Italics added.) 35 Page 717 The recent case of United States of America v. Beale (9th Cir. 1982) 674 F.2d 1327 is relevant. 36 The Beale court held that the initial encounter by the police in Page 718 Fort Lauderdale was not a seizure or detention unde......
  • People v. Profit
    • United States
    • California Court of Appeals
    • July 24, 1986
    ...at 559, 100 S.Ct. at 1879; italics added.) The facts and circumstances in the case of United States of America v. Beale (9th Cir.1982) 674 F.2d 1327, cert. den., judgment vacated, and case remanded for further consideration in light of United States v. Place (1983) 462 U.S. 696, 103 S.Ct. 2......
  • Gonzalez v. Superior Court, Los Angeles County
    • United States
    • California Court of Appeals
    • February 24, 1983
    ...satisfies the requirements of the Fourth Amendment." (Fns. omitted.) The recent case of United States of America v. Beale (9th Cir.1982) 674 F.2d 1327 is relevant and instructive. 4 The Beale court held that the initial encounter by the police in Fort Lauderdale was not a seizure or detenti......
  • Zepeda v. U.S. I.N.S., No. 80-5464
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 26, 1985
    ...Cuevas-Ortega v. INS, 588 F.2d 1274 (9th Cir.1979); Cordon de Ruano v. INS, 554 F.2d 944 (9th Cir.1977); see United States v. Beale, 674 F.2d 1327, 1329-30 (9th Cir.1982); United States v. Anderson, 663 F.2d 934, 939 (9th Our conclusion does not conflict with our decision in Benitez-Mendez ......
  • Request a trial to view additional results

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