U.S. v. De Los Santos Ferrer

• Decision Date: 02 February 1993
• Docket Number: No. 92-2171,92-2171
• Citation: 999 F.2d 7
• Parties: UNITED STATES, Plaintiff, Appellant, v. Maria E. DE LOS SANTOS FERRER, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 7

999 F.2d 7

UNITED STATES, Plaintiff, Appellant, v. Maria E. DE LOS SANTOS FERRER, Defendant, Appellee.

No. 92-2171.

United States Court of Appeals, First Circuit.

Heard Feb. 2, 1993.

Decided July 15, 1993.

Vicki Marani, Attorney, U.S. Dept. of Justice, Washington, DC, with whom Daniel F. Lopez-Romo, U.S. Atty., and Antonio R. Bazan, Asst. U.S. Atty., Hato Rey, PR, were on brief for plaintiff, appellant.

Frank D. Inserni, Hato Rey, PR, by appointment of the Court, for defendant, appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Based on evidence obtained through a warrantless search of airport luggage, Maria De Los Santos Ferrer was indicted for possession with intent to distribute twenty kilograms of cocaine, 21 U.S.C. § 841(a)(1), and its possession on board an aircraft departing from the United States, 21 U.S.C. § 955. De Los Santos Ferrer filed a motion to suppress the evidence which the district court granted. The government appeals the suppression order. We reverse.

On March 26, 1991, Customs agents at the Luis Munoz Marin International Airport in Puerto Rico were conducting a training exercise with a certified drug-sniffing canine when the dog alerted on three checked suitcases that had not been planted by the agents. The suitcases were intermingled with domestic and international luggage in a baggage area underneath the American Airlines terminal. The Customs agents removed the suitcases from the baggage area and ran them through an airport x-ray machine. In the meantime the suitcases were identified as registered to a "Maria Torres" seated on board an American Airlines flight about to depart for Miami.

Customs Agent Marilyn Garcia boarded the plane and proceeded to the seat assigned to Maria Torres. The seat was occupied by a man and sitting next to him was the defendant, Maria De Los Santos Ferrer. Garcia approached the couple, identified herself as a Customs officer, and asked to see their airline tickets. The couple explained that they were married and produced airline tickets registered to "Anibal Torres" and "Maria Torres." De Los Santos Ferrer identified herself as Maria Torres. Affixed to her airline ticket were three baggage claim checks that corresponded to the claim checks on the suitcases picked out by the drug-detecting dog. The defendant and her husband were led off the airplane and taken to the Customs enclosure area, where they were put in separate rooms.

After the defendant was read her Miranda rights and patted down for weapons, Customs supervisor Benjamin Garcia asked De Los Santos Ferrer about the suitcases. The defendant replied that the luggage did not belong to her. An hour or more elapsed before Agent Enrique Nieves of the Drug Enforcement Administration arrived. He informed the defendant that a Customs dog had alerted authorities to the suitcases checked under her name, that the luggage had been x-rayed and that the x-ray revealed packages which Nieves believed contained narcotics.

Agent Nieves then asked for defendant's permission to open the suitcases, stating that he would obtain a search warrant if she did not consent. De Los Santos Ferrer again denied ownership, telling Agent Nieves that she could not consent to a search because the luggage was not hers. Nieves continued to seek the defendant's consent. This time (according to Nieves) she nodded her head in an affirmative manner. The luggage was then opened and found to contain cocaine, and the defendant was formally arrested.

De Los Santos Ferrer was indicted and thereafter she moved to suppress as evidence the cocaine found in the luggage. At a hearing on the motion before a magistrate judge, De Los Santos Ferrer admitted in her testimony that the suitcases belonged to her. She also agreed that she had disclaimed ownership of the luggage when questioned by Agent Benjamin Garcia and then again when questioned by Agent Nieves. But she denied that she ever consented to a search of the luggage. She testified that when the luggage was opened, Nieves did so using a tool.

The magistrate judge credited Agent Nieves' testimony on the issue of consent. The magistrate judge found that the defendant had voluntarily agreed to the opening of the suitcases, and he issued a written report to the district court recommending that the motion to suppress be denied. The defendant then sought review of the magistrate judge's recommended report. Based on the record of the earlier hearing, the district court reversed and ordered suppression of the cocaine seized from the luggage on two principal grounds.

First, the district court ruled that the x-ray examination, conducted for criminal investigation purposes without a warrant, violated the Fourth Amendment, and its use to secure consent vitiated the consent. Second, the court found that the disclaimer and the consent were involuntary because they were secured in a custodial "stationhouse" atmosphere in which the defendant was "detained for over an hour, not free to leave at will and subjected to a frisk" and to repeated interrogation. The court also criticized the agents for a pattern of abusive behavior in conducting warrantless airport searches based on x-ray checks and alleged consent.

In this appeal, the government primarily argues that the x-ray scan was not a search subject to the warrant requirement. It concedes that this x-ray examination was not a valid airport administrative search, United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir.1989) (airport administrative search exception to warrant requirement is limited to searches for weapons and explosives), but it maintains that there is no reasonable expectation of privacy in luggage checked at an airport, at least as to x-ray searches. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 517, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The government notes that luggage on the flight at issue in this case was also subject to an administrative search by the Agriculture Department.

We think that the Fourth Amendment issue is a difficult one. To be sure, a traveler who has any experience knows that luggage at airports is now commonly x-rayed for guns or explosives and that requests at the checkpoint to open the luggage are not uncommon. At the same time, these are administrative searches conducted for a limited purpose and this limited--and exigent--purpose has been the basis for allowing the searches en masse, without a warrant and without probable cause. There is at least some basis for concern about the government's falling-domino approach, by which each intrusion diminishes privacy expectations enough to permit a further infringement. See Smith v. Maryland, 442 U.S. 735, 740 n. 5, 99 S.Ct. 2577, 2580 n. 5, 61 L.Ed.2d 220 (1979).

In this case, the second search was by x-ray and probable cause to secure a warrant happened to exist; but it is not clear whether the government's diminished expectations theory would be limited to probable cause cases or, perhaps, even to x-ray searches. The government itself ought to give some thought to the fact that indiscriminate extensions of warrantless search authority may eventually undermine the case for legitimate exceptions. In all events, we see no reason to hurry to embrace the position urged by the government in this case, for we think that the search may be sustained on a quite different ground, namely, the defendant's own admitted disclaimer of an interest in the luggage. See United States v. Maldonado-Espinosa, 968 F.2d 101, 103-04 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993).

It is well established that one who abandons or disclaims ownership of an item...