United States of America, and v. Lindsay Martell, and United States of America, and v. Joseph Minneci, AndUnited States of America, and v. Lindsay Martell, and United States of America, and v. Joseph Minneci, And
Lead Opinion
Appellants Martell and Minneci were convicted of “conspiracy to possess cocaine with intent to distribute” and “possession of cocaine with intent to distribute” in violation of Title
I. FACTUAL BACKGROUND
On September 30, 1979, DEA agent Charles Kenerson, based in San Diego, received a telephone call from a DEA agent in Anchorage, Alaska. Kenerson understood the other agent to say that two subjects, one a known drug trafficker (Martell) who had been arrested eight months earlier with approximately a pound of cocaine and $109,000 in cash
Kenerson and other agents began surveillance of the San Diego airport on Septem
At about 9:45 a. m. Martell was observed leaving the hotel with an unidentified male' in a white Toyota pickup truck which was then driven in a somewhat erratic manner, known to the agents as being a method of discovering and avoiding any possible surveillance. It then returned to the hotel within five minutes, whereupon Martell reentered the hotel and proceeded to the third floor. Ten minutes later Minneci was observed making telephone calls, after which he went to Martell’s room on the third floor.
At 11:30 a. m. Minneci and Martell left the hotel, went back to the airport and purchased tickets under the names of Minneci and Taylor on a 12:20 p. m. Western Airlines flight to Anchorage. After purchasing their tickets they left their suitcases in the security area and went back outside the security area to have a drink. At 11:40 a. m., DEA agents sent for a narcotics detector dog. At about 12:10 p. m., Martell and Minneci were detained by DEA agents as they approached the boarding area. The agents identified themselves and stated that they were conducting a narcotics investigation. There was testimony by the agents that they had intended to detain the subjects when they approached them, and that the subjects were not free to board their flight. In Martell’s case an agent testified that this was made clear to Martell by, inter alia, the fact that his flight left in five minutes. In Minneci’s case there was testimony that his ticket was seized. The agents asked for permission to search the suitcases, which Martell and Minneci refused.
At about 12:30 (twenty minutes later) Martell, Minneci and their luggage were escorted downstairs to the Harbor Police Office (about a one-minute walk) where a narcotics detector dog (Duster) was allowed to “sniff” the luggage. In response to a question about precautions taken by the agents against escape attempts by the subjects while on the way downstairs, there was testimony that the only precaution was that the subjects were surrounded by agents. After Duster gave positive alert for narcotics in the suitcases, Martell and Minneci were transported to the Narcotics Task Force office in the east end of the airport. It was at the time of the alert that the trial court held probable cause first arose. The subjects were detained there for four hours until a search warrant was obtained, at which time the suitcases were searched and a large quantity of cocaine found, whereupon appellants were arrested.
II. APPELLANTS’ CONTENTION
Appellants argue that their twenty-minute detention by the DEA agents constituted an illegal arrest unsupported by probable cause, citing the Supreme Court’s recent decision in Dunaway v. New York,
III. A STOP AND DETENTION OF APPELLANTS
[I] Admittedly, the agents had a well founded suspicion that the appellants were
Based upon the same reasons, the officers likewise had a well founded suspicion that the suitcases contained the narcotics; therefore, they were justified in detaining the suitcases for further investigation. United States v. Van Leeuwen,
As the Terry Court points out, for fourth amendment purposes, “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”
“In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness.”
392 U.S. n.15 at 18,
“stop” and “frisk” detention would cause a citizen, against the necessity of protecting the police in their law enforcement endeavors, and held that a momentary stop for the purpose of making brief inquiry and for frisking for weapons was a reasonable seizure within the fourth amendment.
Some twelve years after Terry, the Supreme Court decided Dunaway v. New York,
In our view, however, Terry and Dunaway and their progeny relate to detention of persons and not inanimate objects. The rationale relied upon by the Court in those cases is inappropriate as applied to “things,” a seizure of which constitutes a substantially less serious intrusion upon rights of the individual.
IV. SEIZURE AfsTD DETENTION OF LUGGAGE
We look then to the standard of reasonableness as required by the fourth amendment in the seizure- and detention of inanimate objects.
In United States v. Van Leeuwen,
Although the length of time during which appellants’ luggage was detained is a relevant factor when considered in the light of all the surrounding circumstances in determining whether such an intrusion is permissible under fourth amendment standards, we know of no case which has placed an outer time limit on the detention of impersonal objects such as Dunaway placed upon the detention’ of persons. As the Court said in Van Leeuwen :
“Theoretically — and it is theory only that respondent has on his side — detention of mail could at some point become an unreasonable seizure of ‘papers’ or ‘effects’ within the meaning of the Fourth Amendment. Detention for lVfe hours— from 1:30 to 3 p. m. — for an investigation certainly was not excessive; ...” Id.
In any event, in the case before us, the suitcases were detained for only twenty minutes awaiting the arrival of a police dog, a period of time well within that allowed in Van Leeuwen. It was the dog’s signal that the luggage contained narcotics which provided probable cause upon which a warrant was then issued pursuant to which the suitcases were searched and the appellants arrested. In our view such a detention under these facts does not offend constitutional standards.
The dissent finds this holding a startling departure from the fourth amendment’s prohibition against warrantless seizures without probable cause, a precept which the dissent apparently considers inviolate and inflexible. However, the fourth amendment addresses itself only to “unreasonable searches and seizures” and the books are replete with cases wherein, for a variety of reasons, warrantless searches without probable cause have been held not unreasonable.
For example, border searches have generally been recognized as permissible even though without warrant or probable cause, and even where there has been no justifiable suspicion of illegality. Although specifically allowed by statute, such searches must still pass constitutional muster. Such searches have been upheld not as “exceptions to the rule,” but as being reasonable in the light of the government’s sovereign right to protect its borders. United States v. Ramsey,
Furthermore, administrative searches have been upheld without warrant, without probable cause, and without a reasonable suspicion of the illegality where they serve as a part of some governmental regulatory scheme. United States v. Biswell,
Warrantless searches without probable cause have been upheld when required as a condition for entering aircraft or public buildings as a part of a regulatory scheme to assure public safety. Downing v. Kunzig,
In considering these decisions, we recognize that the Fourth Amendment itself defines the standard for searches and seizures. We do not retreat from the requirement of a warrant or probable cause except in exceptional circumstances. The basic test of reasonableness under the Fourth Amendment is the warrant requirement. The decisions upon which we rely are bottomed upon the concept that in the light of all the circumstances the searches are not unreasonable by constitutional standards.
In Van Leeuwen, which the dissent brushes aside as having no application outside the mail context, the Court made no pretense of carving out a brand new exception to the fourth amendment. Instead it merely held that under those suspicious circumstances a warrantless seizure without probable cause was not unreasonable.
Furthermore, the dissent calls our attention to United States v. Allen,
V. EFFECT OF UNLAWFUL ARREST
If the detention of the appellants became an unlawful arrest by reason of the length of time they were detained,
In United States v. Mayes,
“. . . [E]ven if the detention was unconstitutional, it was unrelated to the discovery of the cache. No evidence gained during Mayes’ detention led to the cache of marijuana. The only evidence from Mayes that they relied upon was the shape of his boot print and his improbable story that he was robbed in Tijuana. Both were obtained during the short time — approximately five minutes — that he was questioned at Jewel Valley Road. Detention for this brief time undoubtedly was justified by Mayes’ improbable account of being robbed in Tijuana, Terry v. Ohio,392 U.S. 1 , 20-23 [88 S.Ct. 1868 , 1879-1881,20 L.Ed.2d 889 ] (1968) [other cites omitted]. We conclude that the cache of marijuana was discovered without reliance upon any allegedly illegal police conduct. This discovery produced probable cause for an arrest of Mayes.”
In United States v. Klein,
More recently, the first circuit reached a similar conclusion in United States v. Viegas,
Our ruling here does not erode appellants’ right to privacy as protected by the fourth amendment. As the Court pointed out in Van Leeuwen:
“The only thing done here on the basis of suspicion was detention of the packages. There was at that point no possible invasion of the right ‘to be secure’ in the ‘persons, houses, papers, and effects’ protected by the Fourth Amendment against ‘unreasonable searches and seizures. .. . ’ No interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day when they were deposited. The significant Fourth Amendment interest was in the privacy of this first-class mail; and that privacy was not disturbed or invaded until the approval of the magistrate was obtained.”
Therefore, we hold no fourth amendment right was invaded here for the suitcases were detained upon a well founded suspicion that they contained narcotics, and their detention for approximately twenty minutes awaiting the police dog was not unreasonable. The actual search of the contents of the bags did not occur until after a valid search warrant had been obtained.
Accordingly, we affirm..
Notes
. Although this information was given in good faith, it was in error in that it was not Martell but an associate of his who had been arrested.
. The “seizure” issue in this case is distinguishable from the “search” issue in Ybarra v. Illinois,
In this case, we are concerned only with “detention” where the agents have a well founded suspicion that the defendants and their luggage were involved in illegal activity.
. In Michigan v. Summers,-U.S.-,
These cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity. In these cases, as in Dunaway, the Court was applying the ultimate standard of reasonableness embodied in the Fourth Amendment. (Footnote omitted.) They are consistent with the general rule that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause. But they demonstrate that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams. (Footnote omitted). - U.S. at -,101 S.Ct. at 2592 .
. We specifically refrain from deciding whether the detention of the defendants personally exceeded the limits established by Terry and Dun-away.
Dissenting Opinion
dissenting:
Today this Circuit breaks new constitutional ground in a troublesome interpretation of fourth amendment law. Going beyond even the First Circuit in United States v. Viegas and the Seventh Circuit in United States v. Klein, the majority finds in a Supreme Court case concerned with the delay of mail the authority to justify seizure of a suitcase — seizure not' only without a warrant but without even probable cause. Furthermore, in order to apply this new doctrine, the majority must disregard the simultaneous unlawful arrest of the defendants. In examining the seizure of the suitcases as a separable, independent action, the majority seeks to legitimize part of what was clearly a single, integrated instance of unconstitutional police conduct. I must respectfully dissent. While I can understand, and indeed share, the reluctance of the majority to release these defendants when the police conduct involved seems so “reasonable,” we cannot ignore the doctrinal framework of decided fourth amendment law in search of a particular result.
I. Seizure of the Suitcases
The majority’s analysis begins by indicating that the “real issue” here is whether government agents could “detain” the suitcases without probable cause for twenty minutes. In Section III, the majority tells us that a stop and detention of the appellants was justified by Terry. The “detention” of the suitcases, which the majority acknowledges to be a fourth amendment seizure, is supposedly justified independently under Van Leeuwen. While the Supreme Court in Dunaway made it clear that the Terry exception was a narrow one, the majority avoids the force of this stricture by stating that “Terry and Dunaway and their progeny relate to detention of persons and not inanimate objects.” The seizure and detention of the suitcases is not subject to the same restrictions, we are told, and is therefore to be analyzed under a general standard of reasonableness under Van Leeuwen. To understand why such an approach is a profound departure from both Supreme Court and Ninth Circuit precedent, we must first look to some basic fourth amendment principles.
a. Fourth Amendment Principles
We start with the proposition that the Fourth Amendment applies equally to searches and to seizures. It provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. . . .
A search and seizure question therefore begins with the proposition that “themost basic constitutional rule in this area is that ‘searches [and seizures] conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject to a few specifically established and well delineated exceptions.’ ” Coolidge v. New Hampshire, ... 403 U.S. [443] at 454-55, [ 91 S.Ct. 2022 , at 2031-2032,29 L.Ed.2d 564 ], quoting Katz v. United States, 1967,389 U.S. 347 , 357 [,88 S.Ct. 507 , 514,19 L.Ed.2d 576 ]____
United States v. McCormick,
The majority takes a different approach, concluding that the prohibition against warrantless searches and seizures is not a per se rule subject to only limited exceptions. It states that “the books are replete with cases wherein, for a variety of reasons, warrant-less searches without probable cause have been held not unreasonable,” and offers as examples a number of recent decisions. The searches in these cases were not justified, according to the majority, “as exceptions to the general constitutional prohibition against warrantless searches without probable cause. These decisions are bottomed upon the concept that in the light of all the circumstances the searches were not unreasonable by constitutional standards.”
This notion goes to the heart of my disagreement with the majority. Two considerations persuade me that it does not correctly state fourth amendment law. First, it is impossible to square with the repeated statements by the Supreme Court on the subject of the warrant requirement. See, e. g., Schneckloth v. Bustamonte,
There is no question that, although the majority often chooses to use the word “detention,” there was a seizure of the suitcases here. Because there was no warrant, the majority must point to an exception to the warrant requirement that would justify a seizure under circumstances where, as here, the police not only lack the judicial determination of probable cause that is the necessary prerequisite to the issuance of a warrant, but the underlying probable cause itself. See United States v. Allen,
b. Van Leeuwen and Terry
For both its approach and conclusion, the majority, like the Klein and Viegas courts, relies heavily on principles it perceives in United States v. Van Leeuwen. Van Leeuwen was a case involving the detention of first class mail.
A more likely reading of Van Leeuwen would treat it not as a case creating a new type of constitutionally permissible seizures of objects, but as a case defining the level of expectation of privacy in mail which determines the extent of applicability of the fourth amendment itself. See Rakas v. Illnois,
Justice Douglas’ discussion in Van Leeuwen begins by focusing on the constitutional protections historically applicable to mail, a discussion which emphasizes security from government intrusion of the interior contents of letters and packages as a fourth amendment value and notes the important freedom of expression interests in those contents under the first amendment.
The Court next notes that the suspicious nature of the packages “certainly justified detention, without a warrant, while an investigation was made.” Id.
The only thing done here was detention of the packages. There was at that point no possible invasion of the right “to be secure” in the “persons, houses, papers, and effects” protected by the Fourth Amendment against “unreasonable searches and seizures.” Theoretically— and it is theory only that respondent has on his side — detention of mail could at some point become an unreasonable seizure of “papers” or “effects” within the meaning of the Fourth Amendment.
Id. (emphasis added).
This passage appears only to establish fourth amendment parameters for the sui generis category of mail. Surely it does not contain the sweeping proposition that any time the police seize and detain any object there is “no possible invasion” of fourth amendment rights. Rather, it is clear that the Court is saying only that the mere detention of mail, the immediate possession of which has already been voluntarily surrendered to government officials, does not necessarily constitute a fourth amendment seizure — although in “theory only,” such a detention could at some point become an unreasonable seizure.
Van Leeuwen thus stands in sharp contrast to Terry, where the Court acknowledged that the defendant’s fourth amendment interests had been intruded upon when he was seized and searched,
No interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day they were deposited. The significant Fourth Amendment interest was in the privacy of this first class mail; and that privacy was not disturbed or invaded until the approval of the magistrate was obtained.
Two other points buttress this conclusion. First, as mentioned above, mail is necessarily voluntarily placed in the possession of the government. The detention involved there is a significantly different type of intrusion from the type of seizure involved in the instant case, and is not surprisingly subject to a different type of analysis. The Court in Van Leeuwen was thus very careful not to use the word “seizure” in describing the treatment of the mail. Rather than a removal from the possession of an individual, this was merely an increase in the amount of time a package already in government hands remained in. government hands. Second, the significant amount of detention time involved in Van Leeuwen makes broader applicability unlikely. If, as the majority holds today, Van Leeuwen constitutes authority for a broad range of object seizures, then it would follow that in at least some circumstances, such an object could be held not merely for the twenty minutes involved in the instant case, but for at least the time permitted in Van Leeuwen —in the area of nineteen hours from the detention to the time probable cause arose in the case of the second package — without having invaded any interest protected by the fourth amendment.
In short, I find very little support for the majority holding. In contrast with Van Leeuwen, where “[n]o interest protected by the Fourth Amendment” was infringed, it is undeniable that fourth amendment interests are intruded upon when the police remove a suitcase from an individual’s possession. The fundamental character of such an action cannot be altered by labeling it a detention — it is unquestionably a fourth amendment seizure. While the logic of the majority opinion makes sense on the surface, the Supreme Court has repeatedly and emphatically rejected the balancing-type “reasonableness” inquiry the majority chooses here, except for rare instances involving extremely limited intrusions. As the Court noted recently in the arrest context:
[T]he protections intended by the Framers could all to easily disappear in the consideration and balancing of the multifarious circumstances presented by the different cases, especially when that balancing may be done in the first instance by police officers engaged in the “often competitive enterprise of ferreting out crime.” Johnson v. United States,333 U.S. 10 , 14 [68 S.Ct. 367 , 369,92 L.Ed. 436 ] (1948). A single, familiar standard is essential to guide police officers who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront. Indeed, our recognition of these dangers and our consequent reluctance to depart from the proved protections afforded by the general rule, are reflected in the narrow limitations emphasized in the cases employing the balancing test. For all but these narrowly defined intrusions, the requisite “balancing” has been performed in centuries of precedent and is embodied in the principle that seizures are “reasonable” only if supported by probable cause.
Dunaway,
The majority’s departure from established fourth amendment principles may seem eminently reasonable and quite justified by pragmatic considerations of law enforcement. Yet, as Justice Bradley sagely observed in Boyd v. United States,
II. Relationship of the Unlawful Arrest
I also question the majority’s analytical approach in evaluating the seizure of the suitcases as separable from the unlawful arrest. The majority looks to United States v. Chamberlin,
In Mayes, statements made by a defendant when initially detained led the police to follow his footprints backward, thereby discovering the marijuana cache that supplied the probable cause for Mayes’ arrest. In Chamberlin, statements made during a Terry stop did not need to be suppressed when that stop later became an unlawful arrest.
What happened here was a seizure of people and suitcases. I would analyze this integrated action as a single, unlawful seizure and thus would never have reached the Van Leeuwen issue.
I would reverse the district court.
. Coolidge v. New Hampshire,
. The majority also looks for support to Michigan v. Summers,-U.S.-,
. The absence of probable cause at the time the DEA agents seized the suitcases marks a crucial distinction between the instant case and, e. g., Arkansas v. Sanders,
While the Court did not need to address the propriety of the seizures in either case, the seizure in Sanders could presumably have been justified by the presence of probable cause plus exigent circumstances, see
Here, by contrast, the seizures could not be justified on a similar basis due to the lack of probable cause (or a lawful arrest). Furthermore, it is interesting to consider whether one could even argue the existence of exigent circumstances. Due to the unlawful arrest, the defendants were immobilized across the room from their suitcases. It is difficult to see what exigency remained after that time. See
Notably, the Court in both Sanders and Chadwick rejected prosecution arguments that the exigent circumstances exception associated with automobiles under Carroll should be ex
[B]ecause each exception to the warrant requirement invariably impinges to some extent on the protective purpose of the Fourth Amendment, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated and the “burden is on those seeking the exception to show the need for it.” .. . Moreover, we have limited the reach of each exception to that which is necessary to accommodate the identified needs of society.
. The facts in Van Leeuwen were described by the Court in the following manner:
Respondent, at about 1:30 p. m. on Thursday, March 28, 1968, mailed two 12-pound packages at the post office in Mt. Vernon, Washington, a town some 60 miles from the Canadian border. One package was addressed to a post office box in Van Nuys, California, and the other to a post office box in Nashville, Tennessee. Respondent declared they contained coins. Each package was to be sent airmail registered and each was insured for $10,000, a type of mailing that the parties agree was first class, making them not subject to discretionary inspection.
When the postal clerk told a policeman who happened to be present that he was suspicious of the packages, the policeman at once noticed that the return address on the packages was a vacant housing area of a nearby junior college, and that the license plates of respondent’s car were British Columbia. The policeman called the Canadian police, who called customs in Seattle. At 3 o’clock that afternoon customs called Van Nuys and learned that the addressee of one package was under investigation in Van Nuys for trafficking in illegal coins. Due to the time differential, Seattle customs was unable to reach Nashville until the following morning, March 29, when Seattle was advised that the second addressee was also being investigated for the same crime. A customs official in Seattle thereupon filed an affidavit for a search warrant for both packages with a United States commissioner, who issued the search warrant in Mt. Vernon at 6:30 p. m., 2V2 hours later. Thereupon the packages were opened, inspected, resealed, and promptly sent on their way.
. Indeed, in the eleven years since Van Leeuwen was decided, the Supreme Court has cited it only twice and this court has cited it only three times, one of which was the remand of Van Leeuwen itself. In none of these cases is there any suggestion that the principle enunciated in Van Leeuwen applies to anything other than mail. See United States v. Chadwick,
. At the very least, Van Leeuwen would permit such lengthy detentions where, because of administrative problems, such delay was not “unreasonable.” In Van Leeuwen, for example, one package was detained in Washington state overnight because, due to the time difference, it had been received too late in the day to contact federal officials in Tennessee. The Court termed this delay “unavoidable.” See
. I also note that neither the Klein nor Viegas courts cite to any Supreme Court authority other than Van Leeuwen for their assertion that a suitcase can be detained on reasonable suspicion. See Viegas,639 F.2d at 45 ; Klein,626 F.2d at 25-26 .
This court’s recent decision in United States v. Allen,
We held in that case that the fruits of the search had to be suppressed because “the seizure of the briefcase remain[ed] unjustified by any exception to the requirement of a valid warrant.” Id. at 752. As in the present case, the lack of probable cause prevented the use of a “probable cause plus exigent circumstances” type formulation.
Of particular interest was our statement that, because probable cause must be determined at the time of seizure, “Allen’s admissions following the seizure of the briefcase cannot be used to justify the seizure.” Id. at 752 n.5. Were a brief detention of the briefcase a legitimate act, as the majority holds today, statements made by the defendant during that apparently brief detention would clearly seem to be admissible to establish probable cause. See, e. g., Adams v. Williams,
. By employing such an analysis, this court is going beyond both Klein and Viegas. In Klein, the defendants were initially told they were free to go while their suitcases were being detained. See