U.S. v. Beale

• Decision Date: 24 October 1983
• Docket Number: No. 80-1652,80-1652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Christopher BEALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 590

731 F.2d 590

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.

Resubmitted June 27, 1983.

Decided Oct. 24, 1983.

Bruce R. Castetter, Asst. U.S. Atty., on the brief, Peter K. Nunez, U.S. Atty.,San Diego, Cal., for plaintiff-appellee.

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

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

Before ELY, FLETCHER, and REINHARDT, Circuit Judges.

ELY, Circuit Judge:

On July 21, 1982, we issued an amended opinion reversing the District Court's judgment in the subject appeal. United States v. Beale, 674 F.2d 1327 (9th Cir.1982) ("Beale I "). On June 27, 1983, the Supreme Court vacated our opinion and issued its mandate. ¹ The mandate remands the cause to us and directs our "further consideration" of our opinion in the light of the Supreme Court's opinion in United States v. Place, 462 U.S. ----, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

After careful consideration of the Supreme Court's opinion in Place, we conclude that this case must be remanded to the District Court to permit it to determine whether the canine investigation of Beale's luggage was supported by articulable, founded suspicion.

I. Effect of the Supreme Court's Analysis in Place on Our Decision in Beale I

In Beale I, our holding was limited to the stipulated facts, which presented only two issues: (1) Whether a police officer's use of a trained canine, with an established record of reliability, to sniff the exterior of a traveler's luggage, located in an airport, to detect the presence of contraband, implicates the Fourth Amendment; and (2) if so, to what extent the officer's use of the canine is limited by the Fourth Amendment. We held

that the use of a canine's keen sense of smell to detect the presence of contraband within personal luggage is a Fourth Amendment intrusion, albeit a limited one that may be conducted without a warrant and which may be based on an officer's "founded" or "articulable" suspicion rather than probable cause.

674 F.2d at 1335 (footnotes and emphasis omitted).

Because the district court had not made any factual determination with respect to the quantum of prior suspicion possessed by the officers who conducted the canine investigation of Beale's luggage, we remanded to allow the District Court to make an appropriate finding. Id. at 1330, 1336.

In Place, the Supreme Court was presented with two entirely different Fourth Amendment issues: (1) Whether the seizure and detention of a traveler's luggage, located in an airport, may be effected without a warrant and on less than probable cause; and (2) if so, to what extent the seizure and detention are limited by the Fourth Amendment. See 103 S.Ct. at 2639. In resolving these issues, the Court reasoned by analogy to Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882-1883, 20 L.Ed.2d 889 (1968), and balanced the importance and difficulty of the Government's task in impeding the transportation of contraband against the degree of Fourth Amendment intrusion involved in a limited detention of luggage. 103 S.Ct. at 2642-2644. The Court held that

when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.

Id. at 2644.

Drug Enforcement Administration agents had seized Place's luggage upon his arrival at New York's LaGuardia Airport and transported the luggage to New York's Kennedy Airport where, approximately ninety minutes after the initial seizure, the agents exposed the luggage to a narcotics detection dog. Id. at 2640. The Court concluded that the length of time for which the police detained Place's luggage exceeded the permissible scope of a detention premised, as it was, solely on reasonable suspicion. Id. at 2645-46. The Court upheld the Second Circuit's judgment that the evidence ultimately seized was inadmissible as the tainted fruit of the unlawful detention. ²

In Beale I, questions concerning the existence, duration, and validity of a detention of Beale's luggage prior to the canine sniff were not presented in the facts as stipulated by the parties. We therefore addressed the dog sniffing question in isolation. Under Place, any detention incident to the sniff would be permissible if it were supported by articulable, founded suspicion and if it were not unreasonable in length and scope. See 103 S.Ct. at 2644. It was stipulated that Beale checked his luggage with a "skycap" at Florida's Fort Lauderdale Airport and left to board his flight. The detection dog and its handler were already at the Fort Lauderdale terminal. Agents exposed the exterior of Beale's luggage to a canine sniff during the period between the time Beale checked his bags and the time his flight took off. The duration of the detention is not revealed. Under Place, a brief and limited detention of Beale's luggage would have been reasonable if the initial sniffing had been warranted on the basis of reasonable suspicion.

We now turn to the only issue we decided in Beale I: if we assume that a canine sniff is performed in such a manner that no detention whatsoever of the luggage were required, would the Fourth Amendment demand that any prior suspicion exist that the luggage may have contained contraband?

In Place, after concluding that reasonable suspicion justified a brief detention of luggage for the purpose of a minimally intrusive investigation, the Supreme Court considered the unique nature of canine sniff investigations:

We are aware of no other investigative procedure that is so limited, both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here--exposure of respondent's luggage, which was located in a public place, to a trained canine--did not constitute a "search" within the meaning of the Fourth Amendment.

103 S.Ct. at 2644-45.

We recognize that this passage is dictum and are aware that the Supreme Court has often remarked that its dicta are not binding. See McDaniel v. Sanchez, 452 U.S. 130, 141, 101 S.Ct. 2224, 2231, 68 L.Ed.2d 724 (1981); Kastigar v. United States, 406 U.S. 441, 454-55, 92 S.Ct. 1653, 1661-62, 32 L.Ed.2d 212 (1971); Permian Basin Area Rate Cases, 390 U.S. 747, 775, 88 S.Ct. 1344, 1364, 20 L.Ed.2d 312 (1967); Cohens v. Virginia, 19 U.S. (6 Wheat.) 120, 179, 5 L.Ed. 257 (1821). The Place dictum, however, is so recent and appears to have been so carefully considered that we feel obliged to apply it to the case at hand. We turn, then, to the careful consideration of its meaning.

After thoughtful study, we conclude that the Court's statement that a canine sniff investigation "did not constitute a 'search' within the meaning of the Fourth Amendment," 103 S.Ct. at 2645, must be read in the context of the entire decision in Place.

The Fifth Circuit has observed that "[t]he decision to characterize an action as a search is in essence a conclusion about whether the fourth amendment applies at all." Horton v. Goose Creek Independent School District, 690 F.2d 470, 476 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983). The term "search," however, though conceptually convenient, is not essential to the conclusion that the investigative activity is subject to the Fourth Amendment. See Terry, 392 U.S. at 19, 88 S.Ct. at 1879. The crucial inquiry is whether the investigative activity is the kind of intrusion a free society is willing to tolerate if unregulated by constitutional constraints. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 403 (1974); see United States v. Solis, 536 F.2d 880, 881 (9th Cir.1976). The general consensus appears to be that canine investigations are or ought to be subject to some limitations. In recognizing that canine investigations implicate the Fourth Amendment, Beale I took the stance essential to the imposition of some level of Fourth Amendment scrutiny over the procedure.

In Place, the Supreme Court remarked that a canine sniff was not itself a "search" only after it concluded that any detention of luggage for the purpose of performing a canine sniff investigation would implicate the Fourth Amendment. The Court indicated that such a detention would be valid only if supported by the degree of suspicion necessary to justify the investigation for the purpose of which the luggage was seized. See 103 S.Ct. at 2644 ("Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of [Place's] luggage for the purpose of subjecting it to the sniff test--no matter how brief--could not be justified on less than probable cause."). In concluding that a canine sniff was not a "search," the Court indicated that the Fourth Amendment imposed no more stringent requirement for performance of a canine sniff beyond the reasonable suspicion required to justify the initial detention of the luggage. We do not believe that Place should be read to validate a canine sniff in the absence of the reasonable suspicion required for a minimally intrusive detention of luggage, whenever fortuity makes a canine sniff feasible without any seizure of the luggage. We instead interpret Place to conclude that no additional suspicion is required to justify exposing luggage to a trained canine once founded or articulable suspicion has been established.

II. Review of Beale I

Opinions concerning the fourth amendment significance of canine investigations, rendered after...