U.S. v. Miller

• Decision Date: 20 August 1985
• Docket Number: No. 83-1244,83-1244
• Citation: 769 F.2d 554
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Frank MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 554

769 F.2d 554

UNITED STATES of America, Plaintiff-Appellee, v. Michael Frank MILLER, Defendant-Appellant.

No. 83-1244.

United States Court of Appeals Ninth Circuit.

Argued May 16, 1984.

Submitted July 8, 1985.

Decided Aug. 20, 1985.

Robert C. Furr, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Gilbert Eisenberg, San Francisco, Cal., for defendant-appellant.

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

Before WRIGHT, HUG and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Michael Frank Miller appeals his conviction for possession of cocaine with intent to distribute, a violation of 21 U.S.C. Sec. 841(a)(1). Miller contends that the district court erred in denying his pretrial motion to suppress evidence seized pursuant to an unlawful seizure and search.

FACTS AND PROCEDURAL HISTORY

On June 4, 1983, Miller flew from West Palm Beach, Florida to San Francisco, California. He stopped to change planes in Atlanta, Georgia. At the Atlanta International Airport, one of Miller's suitcases accidentally opened when airline baggage workers attempted to dislodge it from a baggage conveyor belt. A clear plastic bag, partially wrapped in masking tape, fell from the suitcase and was punctured. White powder spilled out of the puncture hole.

Airline employees delivered the suitcase and plastic bag to the airport police, who in turn summoned Agent Paul Markonni of the Drug Enforcement Administration (DEA). Agent Markonni conducted a field cocaine test on the white powder. The test result was negative. Agent Markonni then squeezed and attempted to bend the plastic bag. He later testified that "It felt solid. It wouldn't bend like loose powder."

After squeezing and bending the bag, Agent Markonni poked his finger into the hole punctured in its corner. He felt another container inside the bag. He used a knife to enlarge the hole, then peeled away layers of plastic and masking tape to expose the inner container. That container was opaque and made of fiberglass. Agent Markonni smelled the container and noticed a chloride odor that he associated with cocaine. When he cut open the container, he discovered crystalline white powder inside. A field test identified the powder as cocaine. Agent Markonni conducted the entire inspection without first obtaining a search warrant.

Based on the positive field test result, DEA agents arrested Miller in San Francisco, and obtained a warrant to search his other luggage. They discovered 18 kilograms of cocaine. Miller was charged under 21 U.S.C. Sec. 841(a)(1) with possession with intent to distribute cocaine.

At his arraignment, Miller moved to suppress the evidence obtained through Agent Markonni's search and pursuant to the warrant. The district court denied the motion. Miller then entered a conditional guilty plea under Fed.R.Crim.P. 11(a)(2), preserving his right to challenge the evidentiary ruling. Miller timely filed this appeal.

On May 29, 1984 we issued an order reversing the judgment of the district court and ordering the mandate to issue. Thereafter, on June 24, 1984, we issued an order recalling the mandate and withholding submission pending the Supreme Court's review of our decision in United States v. Johns, 707 F.2d 1093 (9th Cir.1983). The appeal has been resubmitted and we have concluded that the Supreme Court's decision in United States v. Johns, --- U.S. ----, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), does not alter our disposition of this case. ¹ We find the search unlawful and reverse the district court's denial of Miller's motion to suppress evidence.

DISCUSSION

I Standard of Review

The district court concluded: (1) that Agent Markonni's seizure of the plastic bag was proper under the plain view exception to the warrant requirement; (2) that Miller had no reasonable expectation of privacy in the bag because it was a "single-purpose container"; and (3) that seizure of the opaque fiberglass container was also proper under the plain view exception because the container was found inside the plastic bag. These conclusions decided mixed questions of fact and law because the issue in each case is "whether the rule of law as applied to the established facts is or is not violated." United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66 (1982)).

In McConney, we adopted a functional analysis for determining which standard to apply in reviewing mixed questions of fact and law. The analysis focuses upon the nature of the inquiry. 728 F.2d at 1204. De novo review is appropriate when the question "requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles." Id. at 1202. In this case, the district court's factual findings are not alone sufficient to support a decision. The findings have significance only as measured against the complex legal standard governing the plain view exception to the warrant requirement. We therefore apply a de novo standard of review in considering both the plain view and single-purpose container questions.

II. Application of the Plain View Exception

A. Seizure of the Plastic Bag

It is well established that the police may under some circumstances seize evidence in plain view without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971) (plurality opinion); United States v. Chesher, 678 F.2d 1353, 1356 (9th Cir.1982). Plain view seizure is permitted when three requirements are met. First, the officer must have a prior justification for the intrusion that allowed him to view plainly the evidence. Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038. Second, the discovery of the evidence must be inadvertent. Id. at 469, 91 S.Ct. at 2040. Third, it must be "immediately apparent to the police that they have [incriminating] evidence before them." Id. at 466, 91 S.Ct. at 2038; see also Chesher, 678 F.2d at 1356; United States v. Wright, 667 F.2d 793, 796 (9th Cir.1982).

The first two plain view requirements are clearly met here. Agent Markonni simply looked at the plastic bag after it had been exposed. He did not intrude into any place in which Miller had a reasonable expectation of privacy. Furthermore, discovery of the plastic bag was inadvertent The third plain view requirement is also met in this case. In United States v. Chesher, 678 F.2d 1353 (9th Cir.1982), we held that where "facts sufficient to provide probable cause to believe an object is incriminating are immediately apparent to the officer, the third Coolidge requirement is met." Id. at 1357. Probable cause arises when the available facts would warrant a reasonably cautious person's belief that the items in plain view are useful as evidence of a crime. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983).

because it was exposed by the accidental rending of Miller's suitcase.

We conclude that Agent Markonni had probable cause to believe that the plastic bag contained contraband. The presence of the white powder, the manner in which the plastic bag and suitcase were taped, and the presence of other similarly packaged bags in Miller's suitcase would have led a reasonably cautious person to believe that the plastic bag contained contraband. Agent Markonni's initial seizure of Miller's suitcase was therefore lawful under the plain view exception to the warrant requirement. ²

B. Search of the Plastic Bag

Although the initial seizure of the plastic bag in Miller's suitcase was proper under the plain view exception, we must distinguish the permissible seizure from an impermissible, warrantless search of Miller's possessions. Despite the government's contention that Agent Markonni did not search the plastic bag, his inspection of the bag and its contents went well beyond the minimal intrusion that is permitted in a plain view seizure.

The rationale behind the "immediately apparent" requirement illuminates the distinction between a plain view seizure and a warrantless search. In Coolidge, Justice Stewart explained the limitation that the "immediately apparent" requirement placed upon the plain view doctrine: "Of course, the extension of the original justification [for the officer's intrusion] is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." 403 U.S. at 466, 91 S.Ct. at 2038 (citations omitted). Thus, the plain view exception permits seizure of incriminating evidence, but does not authorize a warrantless search for concealed evidence.

We recently applied the distinction between search and seizure in a case presenting facts similar to the instant case that required us to examine the privacy expectations of those who conceal their possessions in closed, opaque containers. In United States v. Johns, 707 F.2d 1093 (9th Cir.1983), rev'd on other grounds, --- U.S. ----, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), ³ customs officers observed what appeared to be a large-scale drug transaction, smelled marijuana coming from two trucks used in the transaction, and seized several boxes and bags from the trucks. Three days later, without obtaining a search warrant, federal agents opened the containers As in the present case, the government argued that it was unnecessary to obtain a warrant because, under the circumstances, discovery of the contraband did not constitute a search. Id. at 1095. We held that while the distinctive marijuana odor and circumstances of the seizure supplied the requisite probable cause to obtain a search warrant, "they did not eliminate the need for one." Id. at 1096. The government's suspicion that...