U.S. v. West, 80-1727

• Decision Date: 06 April 1984
• Docket Number: No. 80-1727,80-1727
• Parties: UNITED STATES of America, Appellee, v. Claude K. WEST, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 90

731 F.2d 90

UNITED STATES of America, Appellee, v. Claude K. WEST, Defendant, Appellant.

No. 80-1727.

United States Court of Appeals,

First Circuit.

Argued Oct. 4, 1983.

Decided April 6, 1984.

Douglas K. Mansfield, Boston, Mass., with whom Thomas D. Edwards, and Casner, Edwards & Roseman, Boston, Mass., were on brief, for defendant, appellant.

William F. Weld, U.S. Atty., Boston, Mass., with whom John C. Doherty, Asst. U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, GIBSON, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

This case presents the narrow issue of the reasonableness of a detention and "sniff test" of luggage by Drug Enforcement Administration (DEA) officers in light of United States v. Place, --- U.S. ----, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The case was remanded to us by the Supreme Court, --- U.S. ----, 103 S.Ct. 3528, 77 L.Ed.2d 1382 (1983), and we in turn remanded to the district court for supplementation of the record, 723 F.2d 1 (1st Cir.1983). The district court held an evidentiary hearing and certified findings to us which we append to this opinion.

We begin our analysis with the factual description from our first opinion:

Claude West was convicted of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). His contention on appeal is that the district court erred in denying his motion to suppress the cocaine seized from his suitcase by Drug Enforcement Administration (DEA) agents at Logan Airport in Boston.

There was testimony at the suppression hearing from which the court could find the following facts: West arrived at the airport in Miami on the morning of January 15, 1980, checked in for a flight to Boston, and made a reservation for a connecting flight to Burlington, Vermont. Two Dade County Public Safety Department officers, their suspicion aroused by West's appearance and conduct, approached him after he had passed through the metal detector and started walking down the concourse. He responded to their questions in a cooperative manner, showing them identification and permitting a search of his boots, but refusing to permit a search of his suitcase. West terminated the conversation himself, telling the officers to "keep up the good work" and leaving to board his flight. The officers alerted DEA agents in Boston, who awaited West's arrival there, observed his conduct, and approached him while he waited for his flight to Burlington. Twice in the course of his conversation with the agents, West told them (falsely, as the agents knew) that his suitcase had been searched in Miami. Asked about this a third time, he recanted and said that it had not. The agents requested his consent to search the suitcase, and West refused. The agents then told West that they were going to summon a narcotics detector dog to sniff the suitcase and that he could either wait with the suitcase (thereby missing his flight) or go on to Burlington. He chose the latter. The dog arrived and alerted to the suitcase, indicating the presence of drugs. The agents then obtained a warrant, searched the suitcase, and found 20 ounces of cocaine.

651 F.2d 71, 72 (1st Cir.1981) (footnotes omitted).

The Supreme Court in Place applied Terry -stop standards to detention of luggage for the purpose of conducting a "sniff test." 103 S.Ct. at 2644. In particular the Court stated that the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New York agents knew the time of Place's scheduled arrival at LaGuardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests.

103 S.Ct. at 2645 (footnote omitted). Also relevant to the reasonableness of a detention of luggage is the duty of agents

to accurately inform [a suspect] of the place to which they [are] transporting his luggage, of the length of time he might be dispossessed, and of what arrangement [will] be made for return of the luggage if the investigation dispel[s] the suspicion.

103 S.Ct. at 2646.

The agents in Place did not have any drug detection dog available at LaGuardia Airport, where Place's luggage was detained. They therefore transported the luggage to Kennedy Airport, where a dog was available. As a consequence, it was not sniffed until 90 minutes after it had been seized at LaGuardia. The officers made no arrangements with Place regarding return of his luggage other than giving him their telephone number and they misinformed Place that they were taking his bag to a judge to obtain a warrant.

The reasonableness of a detention of luggage for the purpose of conducting a "sniff test" is dependent on the facts of each case. We review the facts of the present case in light of the three main factors discussed in Place:

1) the diligence of officers in pursuing their investigation so as to minimize the intrusion;

2) the brevity of the detention; and

3) the information afforded the suspect regarding the detention and return of the luggage.

West argues that the officers were not diligent because they did not have a dog waiting at the gate when he arrived. While, as the district court found, the agents could have avoided alerting the suspect to the fact that he was under surveillance by concealing the dog and its handler in a non-public area near the gate (Finding # 2), we do not believe the agents acted unreasonably in not bringing a dog to the immediate vicinity before West's plane arrived. Given the frequent delays in air traffic, an absolute requirement that DEA agents have a dog waiting near the gate whenever a sniff test of a known suspect's baggage is either probable or possible would seem excessively burdensome. If dogs are to be used at all, the government must have some flexibility, bearing in mind there are practical limits to the number of dogs and handlers the government can maintain at one airport. In the present case West's flight was over 50 minutes late, and thus the dog and handler would have been forced to wait uselessly for over an hour near the gate before detention of West's luggage for sniffing.

In Place the problem was not that a dog was not at the gate, but that no dog was available at the whole of LaGuardia Airport, thus necessitating a 90-minute trip to another airport before conducting the sniff test. Clearly the government must have its dog either at the same airport or at a similarly accessible location, so that the dog can sniff the suspect's luggage with dispatch. We do not read Place, however, as denying to officers some period of time for bringing a dog from one part of the same airport to another. We construe Place as mandating only that the dog be available within a reasonable time--which, absent extraordinary circumstances, means something far less than the 90-minutes in Place. In the present case the agents had a dog at the same airport where West arrived, and the dog could be obtained in no more than 20 minutes (Finding # 3). We think this degree of preparedness was reasonable, and fell within permissible limits in a case like this. ¹

The next question is whether the agents' failure to summon the dog immediately upon arrival of West's flight constituted a lack of diligence. West's flight arrived at 12:35 and his flight to Burlington was scheduled to depart at 12:52. The district court found, under optimistic assumptions, that a dog summoned promptly at 12:35 might have been able to arrive on the scene and complete a sniff test by 12:55 (Finding # 5). Thus, given the late departure of the Burlington flight, the sniff test could conceivably have been completed in time for West's luggage to make the flight. However, we cannot fault the officers' conduct merely because in retrospect we can envision a course of events which would have lessened the degree of intrusion on West's fourth amendment interests. The district court found that the agents had not decided to request a search until they had observed and spoken to West (Finding # 8(b)). The agents further testified that most people consent to a search when asked, thus obviating the need to summon a dog (Finding # 2). (The DEA agents knew, however, that West had previously refused a request by the Dade County officers to search his luggage in Miami before boarding his flight to Boston. They had less reason, therefore, to believe that West would consent to a search.)

Nonetheless we do not believe that the failure to summon a dog immediately upon West's arrival was improper. This conclusion is supported by the recognition in Place of the "important need to allow authorities to graduate their responses to the demands of any particular situation." 103 S.Ct. at 2646 n. 10. Here the officers watched West for ten minutes for the purpose of ascertaining whether he was meeting with confederates (Finding # 1). The officers also wished to see whether his behavior at the Boston airport would enhance or diminish the suspicion aroused in Florida that he possessed drugs (Finding # 1). The fact that West, when finally questioned, twice told the Boston officers falsely that his bag had been searched in Miami greatly strengthened the objective basis for their suspicions. This deception by West, coupled with the officers' observation of West's behavior and appearance and with the information they had received from Miami, led the officers to request a search. When West refused, they detained his luggage for a sniff test. As a result of this graduated approach, recognized as legitimate in Place, West's luggage was not seized until minutes before his...