U.S. v. Posado
| Decision Date | 20 June 1995 |
| Docket Number | No. 94-20285,94-20285 |
| Citation | 57 F.3d 428 |
| Parties | , 42 Fed. R. Evid. Serv. 1 UNITED STATES of America, Plaintiff-Appellee, v. Miriam Henao POSADO, Pablo Ramirez and Irma Clemencia Hurtado, Defendants-Appellants. Fifth Circuit |
| Court | U.S. Court of Appeals — Fifth Circuit |
James L. Turner, Paula C. Offenhauser, Asst. U.S. Atty., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for U.S.
Appeals from the United States District Court For the Southern District of Texas.
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit Judges.
This appeal concerns the admissibility of polygraph evidence in a pretrial hearing to suppress forty-four kilograms of cocaine recovered after an airport interdiction and search of the defendants' luggage. The district court refused to consider polygraph evidence offered by the defendants to corroborate their version of events preceding the arrest. Our precedent, with few variations, has unequivocally held that polygraph evidence is inadmissible in a federal court for any purpose. See, Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028, 1031 (5th Cir.1984) (collecting cases). However, we now conclude that the rationale underlying this circuit's per se rule against admitting polygraph evidence did not survive Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Therefore, it will be necessary to reverse and remand to the district court for determination of the admissibility of the proffered evidence in light of the principles embodied in the Federal Rules of Evidence and the Supreme Court's decision in Daubert. Given the sparsity of the record, however, we express no opinion about whether, based on that analysis, the evidence possesses sufficient evidentiary reliability and relevance to be admissible in the suppression hearing on remand.
Defendants Miriam Henao Posado, Pablo Ramirez and Irma Clemencio Hurtado were each indicted and subsequently convicted of one count of conspiracy to possess and one count of possession with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(a)(A) and 846. Prior to trial the defendants moved to suppress the cocaine found in their luggage and certain post-arrest statements. At issue was whether the defendants validly consented to a search of their luggage. The prosecution sought to justify the search solely on the basis of consent, offering a Spanish-language consent form executed by all three defendants. 1 The three defendants, by way of affidavit, claimed (1) that they were not asked to consent and did not consent, either orally or in writing, to the search of their luggage until after the bags had been opened, (2) that they were told they were under arrest before their bags were searched, and (3) that they were not given Miranda warnings before the bags were opened. Defendants contended that the consent was invalid either (1) because it was given after the bags were opened, or (2) because it followed and was tainted by an illegal arrest without probable cause.
On September 17, 1993, Miriam Henao Posado, Pablo Ramirez and Irma Clemencio Hurtado arrived at Houston Intercontinental Airport in a maroon car driven by an unidentified third party. As they unloaded their Shortly thereafter, the two HPD officers approached the defendants in the snack bar area, identified themselves as police officers and asked the defendants for their tickets and identification. When it became apparent that none of the defendants spoke English, Officer Rodriguez conversed with them in Spanish. Neither Posado nor Hurtado were carrying any identification, and the name on the identification produced by Ramirez did not match either his ticket or the name placed on the baggage tag. Ramirez' identification was examined and then returned to him.
baggage, they were observed by Houston Police Department (HPD) Officers Rodriguez and Furstenfeld and an agent with the Drug Enforcement Agency (DEA). The officers became suspicious that the defendants might be carrying narcotics based on certain characteristics of the defendants' baggage and behavior. Based on those suspicions and prior to confronting the defendants, the officers retrieved from the airline the three suitcases checked by the defendants and "prepped" one of the bags. "Prepping" involves squeezing the sides of a bag, which causes the odor of whatever is contained inside to be emitted. In this case, the officers detected fabric softener, which is often used by narcotics traffickers to mask the odor of narcotics in transport.
When asked about luggage, the defendants responded by indicating three carry-on bags. When Officer Rodriguez pointed to the baggage tags stapled inside the defendants' ticket folders, one of the defendants conceded that they had checked three suitcases. Here the stories diverge. Officer Rodriguez testified that, after expressing some concern about missing their flight, the defendants agreed to accompany him downstairs so that he could inspect the luggage. He also testified that he advised the defendants at that time that they were free to leave. The defendants testified that Officer Rodriguez never informed them that they were free to leave and that they were under the impression that they were not free to leave. See Florida v. Bostick, 501 U.S. 429, 439-41, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991) (). The defendants also testified that Officer Rodriguez insisted they accompany him despite protests from defendant Ramirez that the delay would cause them to miss their scheduled flight. Defendant Ramirez testified that the officers took and maintained possession of two of their carry-on bags at that time. Once downstairs, the two HPD officers and the three defendants were joined by the DEA agent who had possession of the three larger suitcases checked by the defendants. The defendants were asked for keys to the padlocks, which they did not have.
The officers testified that immediately after asking for keys, Officer Rodriguez secured the defendants' consent to search, both orally and in writing. Officer Rodriguez also testified that he advised the defendants in Spanish that they were not required to consent. Next, Officer Furstenfeld unsuccessfully attempted to open the suitcases using a master set of luggage keys. Only then, according to the officers, were the padlocks pried open and the bags searched.
The defendants testified that immediately after they were asked for keys, Officer Furstenfeld began trying to open the suitcases with the master set of keys. When he could not, Officer Furstenfeld pried open the padlock and opened the zipper slightly. At that point, the defendants claim, Officer Furstenfeld stopped suddenly and ran upstairs. In his absence, the DEA agent continued opening the suitcase with a pen knife, looked inside and announced that it contained drugs. At that point, the defendants testified, Officer Furstenfeld returned with the consent form and it was executed by the defendants. Afterwards, the other two suitcases were opened.
Perceiving that the suppression hearing would amount to a "swearing match" between the three officers and the three defendants (that the defendants would be likely to lose), the defendants arranged to submit to polygraphs to establish the truth of the assertions in their affidavits. Well before the tests were given, counsel for the defendants Subsequently, the defendants were examined by polygraph experts Paul K. Minor and Ernie Hulsey. In separate examinations each defendant was asked the following questions and each gave the following answers:
contacted the prosecution and extended the opportunity to participate in the tests. The defendants also offered to stipulate that the results would be admissible in any way the government wanted to use them, at trial or otherwise. The prosecution declined this opportunity.
A. Before opening that first bag, did any police official ever ask for permission to search any of those bags? No.
B. Before searching your luggage, were you told that you were under arrest? Yes.
C. At the airport, were you ever told that you were free to leave? No.
D. Did you deliberately lie in your affidavit? No.
E. Before opening your bags, did the police officials advise you of your Miranda rights? No.
Both Minor and Hulsey concluded that in each case "deception was not indicated." Thereafter, the defendants moved for an order allowing Minor and Hulsey to testify regarding the results of the three tests at the pretrial suppression hearing or, in the alternative, for a hearing on the admissibility of polygraph results as expert evidence under the Federal Rules of Evidence and the standards enunciated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendants' proffer included the reports on the polygraph examinations as well as the curriculum vitae for both Minor and Hulsey. In support of their request for a Daubert hearing on the issue, defendants submitted the affidavit of another polygraph expert, Dr. Stan Abrams, Ph.D., to establish that polygraph technique possesses sufficient scientific validity to be admissible.
At the beginning of the subsequent suppression hearing, the district court summarily refused to consider the polygraph testimony and also refused to consider whether the testimony was reliable and relevant under the Federal Rules of Evidence, stating:
I am a great believer in polygraph, that polygraph technique, I think it's extremely effective as a law enforcement tool. I do not believe,...
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