United States v. John Christopher Beale

America, STATES UNITED

Plaintiff-Appellee, BEALE, Christopher

John

Defendant-Appellant.

No. 80-1652. Appeals,

United States Court

Ninth Circuit. En

Argued Submitted Banc

April 1984. July

Decided July

As Amended Alfaro,

Dan Corpus Christi, Tex., Paul H. Duvall, Cal., Diego, San for defendant-ap- pellant. Ray Edwards, Asst. Atty., San Die-

go, Cal., for plaintiff-appellee. BROWNING, Before Judge, Chief CHOY, WALLACE, SNEED, HUG, SKO- PIL, SCHROEDER, PREGERSON, POOLE, CANBY, BOOCHEVER, Cir- Judges. cuit CHOY, Judge: Circuit appeal presents ques This the sole luggage by tion whether trained narcotics detection constitutes meaning a “search” within the Fourth Amendment. hold that it We does not. Background

I. Florida detectives observed John Beale Joseph pieces three Pulvano check skycap at the National Air- Lauderdale, then lines terminal at Fort but separate terminal and saw them inside the seating assignments from the obtain separately. ticket counter After area, together boarding Pulvano sat at the A “canine Fourth Amendment. sniff” ques- them and approached detective dog, exhibited narcotics detection briefly. Pulvano a well-trained them tioned anxiety, require opening and ad- of abnormal does not signs several on had been earlier arrested expose he not noncontra- luggage. that It does mitted charge. remain would narcotics items that otherwise band does, view, public as hidden from “Nick,” a narcot- then had The detectives rummaging example, officer’s dog, sniff around the sus- detection ics luggage. of the through the contents in the checked pects’ Thus, informa- in which the the manner suitcase. to Beale’s Nick alerted area. investiga- through this tion is obtained kept suspects were point, that From intrusive than technique is much less tive they reached San until surveillance under Moreover, the sniff typical search. “Duster,” There, narcotics another Diego. of presence or absence discloses to Beale’s suitcase dog, alerted detection Thus, narcotics, item. de- a contraband Agents Diego in bag. San and shoulder tells the spite the fact that the sniff pursuant to then searched something about the contents warrant, discovering contraband. authorities luggage, the information obtained suppress unsuccessfully moved to limited also is limited. This disclosure ground that evidence obtained on property of ensures that the owner illegally tainted the Fort Lauderdale subjected to embarrassment of Beale was then convicted that evidence. in less discrimi- inconvenience entailed intent to distrib- cocaine with possession of nate and more intrusive ute, conspiracy possess cocaine and of methods. distribute, intent in violation of §§ 841(a), respects, In these the canine sniff is U.S.C. aware generis. We are of other sui court, appealed to this and we va investigative procedure that is so limited a determination of cated and remanded for the informa- both the manner which Florida had articulable whether the tion is obtained and the content by Nick. suspicion justifying procedure. information revealed Beale, (9th F.2d 1327 v. United States Therefore, particu- we conclude that the Cir.1982). petitioned Government investigation lar course of certiorari, Court, Supreme and the which pursue expo- agents intended to here— recently decided v. had United States respondent’s luggage, which was sure of Place, 2637, 77 103 S.Ct. place, a trained public located (1983), judgment vacated our L.Ed.2d 110 canine—did not constitute a “search” case to us for further and remanded the meaning within the light that decision. consideration Amendment. U.S. —, 3529, 77 L.Ed.2d 1382 panel’s decision on re From the (citation omitted). Al 2644-45 Court, Supreme 731 F.2d mand from the though the Court has been criti (9th Cir.1983), granted court re exploring this issue its cized for (9th Cir. hearing en banc. 728 F.2d unnecessary was to the Court’s resolution 1984). judgment of affirm the We now decision, J., see, (Brennan, e.g., id. at 2651 conviction. J., (Blackmun, concurring); con id. at 2653 curring); and Sei W. Search II. Discussion Amend A on the Fourth zure: Treatise Court, (Supp.1984), (1983), the legality involving the of a in a recent case stated: presence Court field test to disclose the chemical its statement characterized person possess- We have affirmed that a holding, saying that “the in Place as a privacy es a interest in the contents of subjecting to a protected by the Court held that is (9th Cir.1980) (holding narcotics detection that X- by a trained ‘sniff test’ “reveals, meaning ray scan is a search within the because it not a ‘search’ extent, a certain articles the Fourth Amendment.” United owner has view”); chosen to conceal from United States Doran, (9th — - —, Cir.1973) (implicitly holding magne the statement Whether or not dictum, presence tometer scan to detect the holding a the Su of met Place search). a lower al is clearly has directed the preme Court pronouncement. to follow its courts B. Intrusiveness Investigative the of Supreme ex- The essence of the Court’s Method Jacobsen, we in which

positions Place recognize that here, investigative tech- We the in apply is that the Court Place only particular “the to be validated course of in- nique employed here is not considered vestigation that the (1) pur- the intended to a “search” since it discloses item, exposure respondent’s sue presence lug- or absence of a contraband here— (2) gage, public place, the owner of which was located in a its use “ensures that to the embar- to a trained canine.” 103 property subjected is not S.Ct. at 2644-45. declaring dog in less In that the and inconvenience entailed Place did rassment search, investiga- intrusive not constitute a and more Court assumed discriminate Place, particular 103 S.Ct. at 2644. that the method of dog tive methods.” property

“ensures that the owner of the is by subjected A. Disclosed the Inves- not to the embarrassment and Information Technique tigative inconvenience entailed in less discriminate investigative and more intrusive methods.” that in Place reasoned Court at 2644. investigative technique gen sniff is an sui expose in that it “does not noncontra as well as in eris investigative technique require any items that otherwise would remain did not band view____” public property hidden from S.Ct. at contact with the owner of the emphasized point investigated, in being property 2644. The Court as the investi gated that “the Jacobsen when stated reason was located area. Here, dog sniff in did not intrude are not confronted with a case in Place we [the ] upon any legitimate privacy interest was which the detection conducted a sniff obj governmental person that the conduct could reveal of a rather than an inanimate nothing ect,1 luggage.that person items.” or a sniff of about noncontraband Ja — cobsen, carrying at investiga U.S. at — n. 104 S.Ct. at was the time.2 The technique applied luggage n. 24. We therefore see no need to tive to Beale’s “virtually annoyance rarely use of caused holding reexamine our cases that the revealing bags, more than even contact with the owner of the devices positive.” in limit presence albeit unless Unit [test result] fashion, See, Waltzer, (2d ed F.2d does constitute a search. ed States Cir.1982), —, denied, 615 F.2d cert. e.g., Henry, United States v. See, Renfrow, e.g., Independent Horton v. Creek See Doe 1026 n. Goose District, Cir.1982), (Bren- (5th 3018 n. L.Ed.2d School nan, J., certiorari) dissenting denial cert. from dogs (noting allowing dog (holding that cases sniffs "involved that use of search); Loewy, sniffing and unattended ob- sniff students in class was a of inanimate added); jects”) supra, (emphasis The Fourth Amendment as a Device Protect 1 W. Innocent, ("a ing (Supp.1984) 1246-47 sniff directed at 81 Mich.L.Rev. (1983) ("the very being subjected objects being person to a carried is no less act of body may objectionable, especially Shepherd when done in an air- a German be offen amounting harrowing port sive in circumstances to a at best or at worst to the inno corridor crime.”). sniffee”) (footnote omitted). public cent accusation of properly Accordingly, judg- There denied. 3543, L.Ed.2d 392 appealed Beale himself was de ment that of conviction from is

no evidence moment, tained, due to that even AFFIRMED. sniff. investigation that holdWe PREGERSON, Judge, dissenting: Circuit in these circumstances did Beale’s respectfully I dissent for the reasons interfere, any meaningful way, Judge Ely expressed in excellent two luggage. interest in his possessory (9th panel opinions: 674 F.2d 1327 that the Court Place We realize Cir.1982), II, (9th 731 F.2d 590 of a traveler’s equated the seizure Cir.1983). point I mainly write further person when seizure of

to seizure of his majority, telling out that the us possi subjects person “to the tell sniff is not a fails to us disruption his travel order to ble intruding what it is. submit arrange luggage remain with his or for its nose, 1334, like canine 674 F.2d at (footnote return.” 103 at 2645 omit S.Ct. ear, intruding eye and the uninvited ted). Place, however, agents In DEA held 347, States, v. 389 Katz United U.S. Friday suspect’s luggage between 507, 511, (1967), 88 S.Ct. 19 L.Ed.2d 576 Monday following afternoon and the morn exacting deserves a more Fourth Amend- ing. “absolutely The never made it inquiry majority given than the it. has they [planned] clear how to reunite the holding police may In employ that the suspect possessions and his at some future trained narcotics detection to sniff place.” 103 at 2645 n. time 8 luggage implicating § Beale’s without LaFave, 9.6, supra, (quoting 3 W. Amendment, search clause of the Fourth Consequently, the (Supp.1982)). Court held First, majority makes three errors. luggage that Place’s was seized. denigrates the reasonable contrast, Beale was detained privacy that lug- travelers retain inconvenienced, otherwise nor were his Second, gage. adequately it fails ex- travel slightest, interfered with plain how an intrusion into obvious some- Nick while and the other Florida detectives one’s effects—his suitcases—is Any did their work. interference with Bea Finally, not a search. majority never possession luggage le’s was de minimis. question panel even reaches the critical — Cf v. . sniff, faced below: whether the if not a n. 104 U.S. at — & S.Ct. at 1663 & n. full-blown nonetheless constitutes (discussing de minimis invasions of investigatory stop triggering the more interests); Fourth Améndment United modest Fourth Amendment standards of Leeuwen, States v. Van 397 U.S. Ohio, 88 S.Ct. 25 L.Ed.2d 282 I consider each matter (one-day packages placed detention of in turn. seizure). the mail not a There was thus no A. Personal and the property necessitating proba seizure of his Effects Fourth Amendment suspicion. ble cause or reasonable See Ja cobsen, at —, at majority light The of using makes (defining property). a seizure of luggage for cocaine because this technique having is less intrusive than III. Conclusion person lug sniff the who owns the gage. The canine sniff of con- also tells us that the ducted at Airport the Fort Lauderdale was this case caused Beale no inconven not a “search” under the Fourth Amend- ience or embarrassment the Flori detectives, ment. suppress police Beale’s motion to evi- da unlike the United ground illegally dence on the that it States v. (1983), tainted the Fort Lauderdale sniff was detained nei the intrusion at issue is one that a free appre for an man nor his ther the society willing to tolerate. United length of time. ciable (C.D.Cal.1975), Solis, F.Supp. States lurks the as- rationalization Behind this part, 536 F.2d in relevant aff 880, 'd privacy interest person’s sumption LaFave, (9th Cir.1976); see 1 W. pri- his important than is less his § (1982); 2.2(f), at 286 Search and Seizure I person or home. in his vacy interest Amsterdam, Perspectives on the Fourth luggage rather than sniffing the agree that Amendment, Minn.L.Rev. less intrusive. is somewhat the owner society I do not that a free believe premise that disagree, willing spectre should be to tolerate the at all intrusion occurs. dogs randomly sniffing private lug know, you don’t won’t This is a “what police gage help determine whether approach. permits It the author- you” hurt carrying “It someone is contraband. secretly inspect luggage whenever ities police, way if the in no would be intolerable separated happens to become the owner Amendment, limited were It its nose at the rule from it. thumbs dogs free to utilize to undertake ‘a whole than who locks the doors of hope less examination of all in the sale “[n]o ” intruders, against might one who safe- that a crime be detected.’ 1 W. his home (quoting personal possessions supra his in this guards Bronstein, United [by placing them in a locked suit- manner concurring), (2d Cir.1975) J., (Mansfield, due the of the Fourth case] rt. Amendment Warrant Clause.” United ce 1121, (1976)). the ma 47 L.Ed.2d 324 Yet Chadwick, 1, 11, 433 U.S. jority moves in direction. The 53 L.Ed.2d all, Amendment, protects after Fourth The invaded authorities Beale’s reason- searches and seizures from unreasonable expectation privacy in the able contents right people to be secure they employed “[t]he a when houses, papers, and persons, Const, their drugs. Judge trained to sniff for As effects." added). (emphasis amend. IV out, pointed Ely wisely the detectives need- dog; they ed the could not detect the sub- “[L]uggage repository is a common for by relying their unaided senses. stance on effects, therefore in- personal one’s I, using at Beale 1333-34. When evitably associated with police dogs to ferret out Sanders, 442 privacy.” Arkansas simply walking hoping are around to not 2586, 2592, 61 L.Ed.2d Instead, of a crime. come across evidence does not lose its Luggage investigating. They trying are to they are simply be- protection Fourth Amendment something. They seeking are find evidence 764-65, mobile, at highly see id. cause places. activity If this does not in hidden 2593-94, up it turns at or because “search,” qualify as a then I am not sure at 99 S.Ct. at public places, id. see event, majority, any The what does. C.J., concurring judg- in the (Burger, reasoning up finding little to back its offers home, ment). away from To the traveler that the intrusion was not a search. containing personal be- the closed suitcase me, practical To there is little difference represents of the few bul- longings employing a trained to sniff between Therefore, I cannot privacy. warks officer, permitting police luggage and protections agree that Fourth Amendment warrant, acting without consent or search thing merely inoperative are x-ray through an ma to view the suitcase than the owner. searched is rather chine, F.2d Henry, Dog B. The as a Search Sniff (9th Cir.1980), simply open or to Bronstein, that a canine sniff The believes F.2d it, United States v. concurring), Cir.1975) (Mansfield, J., Amendment. implicate (2d does not disagree. question in Again The critical t. cer (1976). In each every case is whether S.Ct. Fourth Amendment instance, pres private learn about the police contents of particular crime, police contraband evidence of ence or absence have some that, reason, The fact necessarily suitcase. articulable learn less infor dog, cause, the authorities amounting probable suspect (such remaining mation about the contents luggage may contain contra- articles, books) clothing, toilet mat as band. little if the information leads ters II, 731 F.2d (emphasis at 595-96 namely, detecting expos same result — original). ing illicit items. majority, The has chosen the Dog C. The as a Sniff approach. illogical explored It has not Stop Investigative investigation, the canine if not a whether requiring probable cause, “search” is none- Even if I were satisfied that theless a lesser “intrusion” or sniff at issue was not a I would still “invasion” Ely’s reasoning subject to some modicum of Fourth Judge adhere to in Beale I protection. Amendment privacy that the sniff was an invasion of deserving Fourth Amend- some level of majority’s all-or-nothing approach The Ely scrutiny. Judge thought awarding Fourth Amendment sought what Beale to exclude when he First, suffers from three defects. it com locked his suitcase was not the in- pletely judiciary’s responsibili removes the eye truding human was also the in- —it ty supervising limited invasions of truding canine nose. reposes One who See, rights. Fourth Amendment e.g., John effects, including his contra- States, son v. United band, surely in a locked suitcase is enti- (1948)(discuss 92 L.Ed. 436 tled to that a trained assume canine will ing importance authority pass of a neutral incriminating not broadcast its contents ing warrants). on reasonableness of search to the authorities. police longer justify need no to a neu (footnote magistrate F.2d tral to use trained omitted). dogs probable citations before the sniff at a — either hearing, during cause sup afterward despite finding But that Beale retained pression hearing. free, The authorities are privacy against having on the basis of guesses, hunches and the contents suitcase “broadcast” to employ dogs to police, Judge Ely still would not have purpose detecting contraband. required the authorities to full establish probable cause to conduct the sniff. Second, overlooks circum- Instead, required only he would have key stances Court’s deci- “ ” the officers ‘founded’ or establish indicating sions that the intermediate Terry “ ” suspicion ‘articulable’ of crime under approach appropriate in dog is sniff cases. Ohio, standards set out in 392 Place, example, did not hold that the 1, 20-27, 1868, 1879-83, provide Government did not need to any 674 F.2d at Instead, conducting basis for the sniff. Ely explained Judge As Beale II: Place held that the briefly authorities could detain based illogical approach

Rather than follow an on an articulable sus- picion that the ignoring judicial drug owner was a source courier. authority inquiry pre- re- See 2644. This to establish reasonable any investigations, straints ceeded discussion about on canine we whether the employ think authorities could then infinitely recog- more sensible to a canine Relying facts, sniff. Id. scope Judge nize that the of the Fourth Amend- on these Ely simply encompasses held the Government to the Moreover, technique. articulating modest burden of restraint reasonable adopted suspicion. correctly eminently here is the reasonable He reasoned that such one of simply requiring suspicion present when the before suitcase own- investigate very drug profile er fits the courier that narcot- commonly identify drug use ics Ely recog- doing, Judge In so smugglers. Terry-type both Government’s

nized flexible, on-the-spot investi- need to conduct society’s avoiding interest

gations, capricious intrusions into tra-

random and effects.

velers’

Third, majority readily all too forfeits protection little Fourth Amendment

what developing area of

might still obtain in this suspicion

police work. The reasonable If already easy to meet. courts

standard even

fail to hold the authorities to this low reasonableness,

threshold of then longer offer the

Fourth Amendment will no against arbitrary authority that Framers insisted on. Douglas “pow- worried about the

Justice hydraulic pressures”

erful that bear on guar- constitutional

courts to water down Ohio, Terry v.

antees. J., dissenting). I fear that with

(Douglas, decision, majority has ventured

today’s

beyond watering down Fourth Amendment Instead, category in a new

protections.

cases, it them out of existence. has defined RESTAURANT, INC., dba

MINGTREE Restaurant, City Forbidden

Petitioner/Cross-Respondent LABOR RELATIONS NATIONAL

BOARD, Respondent/Cross-Petitioner,

Hotel, Motel, Employees and Restaurant

Bartenders International Local

Union, AFL-CIO, Party. Charging 82-7773, 83-7119.

Nos. Appeals,

United States Court

Ninth Circuit. Dec.

Argued and Submitted July

Decided

Case Details

Case Name: United States v. John Christopher Beale

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 20, 1984

Citation: 736 F.2d 1289

Docket Number: 80-1652

Court Abbreviation: 9th Cir.