USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1096
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN DOE, a/k/a GERONIMO PIZARRO-CALDERON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________
____________________
Torruella, Chief Judge,
___________
Aldrich, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Rafael D. Castro Lang for appellant.
_____________________
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with whom
_________________________
Guillermo Gil, United States Attorney, and Ernesto Hern ndez-Mil n,
_____________ ________________________
Assistant United States Attorney, were on brief for appellee.
____________________
August 4, 1995
____________________
CYR, Circuit Judge. Appellant Geronimo Pizarro-Cald-
CYR, Circuit Judge.
_____________
eron ("Pizarro") contends that the district court erred in
refusing to suppress six block-like articles packaged in
opaque beige and brown tape which ultimately led to his
conviction for possessing cocaine with intent to distribute in
violation of 21 U.S.C. 841(a)(1) (1993). We reverse.
I
I
BACKGROUND
BACKGROUND
__________
The district court adopted the findings recommended by
the magistrate judge who conducted the suppression hearing. On
January 8, 1993, Security Officer Gladys Martinez del Valle
("Martinez") was screening passengers and monitoring their carry-
on luggage for weapons and explosives at a security checkpoint in
the Isla Verde Airport terminal. See 14 C.F.R. 107.20 (1995)
___
(Federal Aeronautics Administration ("FAA") regulation mandating
screening requirements for carry-on luggage), 107.21 (banning
unauthorized possession of any "explosive, incendiary, or deadly
or dangerous weapons" beyond airport checkpoints). Prominent
signs forewarned passengers, in English and Spanish, that their
persons and carry-on luggage were subject to screening and search
for weapons and explosives. Security screeners normally use x-
ray machines to scan all carry-on luggage; metal detectors and
hand scanners to screen passengers.
While tending the x-ray monitor, Martinez noticed a
carry-on bag containing an unidentifiable dark object. She had
been trained to regard such dense, nonreflective objects as
2
possible camouflage for weapons or explosives. Upon questioning
by Martinez, appellant Pizarro stated that the carry-on bag
belonged to him, and the nonreflective objects inside were gift
boxes containing "figurines." Concerned that the figurines
reflected no distinguishable silhouette on the x-ray monitor,
Martinez asked Pizarro to open the carry-on bag. When Pizarro
"sort of hesitated," United States Department of Agriculture
Inspector Jos Mercado, working beside Martinez, directed Pizarro
to open the carry-on bag, then summoned a local law enforcement
officer, Juan Avil s, to the security checkpoint.1
Pizarro opened the carry-on bag in the presence of
Martinez, Officer Avil s, and Inspector Mercado, revealing a box
wrapped in Christmas paper. The box contained a layer of sani-
tary napkins, a layer of dark blue paper and, finally, six blocks
wrapped in opaque beige and brown tape. A nineteen-year veteran
of the Puerto Rico Police, Officer Avil s immediately suspected
that the concealed blocks contained cocaine. Whereupon he seized
the carry-on bag and its contents, then arrested and handcuffed
Pizarro.2
____________________
1Officer Avil s was employed by the airport administration
to patrol the security checkpoint area and respond to incidents
encountered by screeners and inspectors, in accordance with FAA
regulations requiring the presence of a local law enforcement
official. See 14 C.F.R. 107.15.
___
2At about the same time, Martinez noticed another nonreflec-
tive object on the x-ray monitor, similar to the one observed in
Pizarro's carry-on bag. The passenger in line behind Pizarro
Ariel Figueroa-Cruz claimed ownership of the second bag, which
was found to contain two Christmas gift boxes similar to the one
Pizarro had been carrying. Without opening the gift boxes,
Officer Avil s placed Figueroa under arrest, and transported both
3
After placing Pizarro in an airport police-station
cell, Avil s contacted the United States Drug Enforcement Admin-
istration ("DEA"). Shortly thereafter, DEA agents tested the
blocks by piercing their opaque wrappings; the contents tested
positive for cocaine. In due course, Pizarro was indicted for
possessing six kilograms of cocaine with intent to distribute, in
violation of 21 U.S.C. 841(a)(1), (b)(1)(A).
Pizarro moved to suppress the test results and the
cocaine, on the ground that the warrantless searches of the
carry-on bag and the containers inside it (i.e., the Christmas
box and the blocks enclosed in intact, opaque wrapping) violated
the Fourth Amendment to the United States Constitution. The
government successfully defended the challenged DEA testing as a
mere continuation of the administrative search aimed at ensuring
airline security. See United States v. Pizarro-Calderon, 829 F.
___ _____________ ________________
Supp. 511, 515 (D.P.R. 1993). Following a jury trial, Pizarro
was convicted and sentenced.
II
II
DISCUSSION
DISCUSSION
__________
The government must demonstrate that the warrantless
DEA testing of the enclosed blocks either entailed no Fourth
Amendment search or came within some recognized exception to the
warrant requirement. See, e.g., United States v. Doward, 41 F.3d
___ ____ _____________ ______
____________________
suspects to the airport police station. See United States v.
___ _____________
Figueroa-Cruz, 822 F. Supp. 853 (D.P.R. 1993); infra note 9 and
_____________ _____
accompanying text.
4
789, 791 (1st Cir. 1994).3 The government contends that the
carry-on bag initially was opened and searched at the airport
security checkpoint pursuant to a lawful administrative search
for weapons and explosives. See, e.g., United States v. Skip-
___ ____ ______________ _____
with, 482 F.2d 1272, 1277-78 (5th Cir. 1973) (holding that
____
inadvertent discovery of evidence of criminal activity in course
of lawful security search for weapons at airport checkpoint does
not violate Fourth Amendment). Further, it argues, once Pi-
zarro's carry-on bag and the Christmas gift box lawfully had been
opened for security purposes, it was proper to seize and open the
packaged blocks thereby exposed to Avil s' "plain view." See
___
Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971).
________ _____________
Pizarro protests on both counts. First, he says,
carry-on luggage screenings must be confined to ferreting out
threats to airline security (i.e., weapons and explosives used in
air piracy), whereas the customary presence of Officer Avil s at
the security checkpoint permitted an inference that security
concerns were a mere subterfuge for intercepting contraband
posing no threat to airline security. Second, even assuming
probable cause to seize the suspicious blocks, a search warrant
was required before the intact, opaque packaging enclosing the
blocks could be pierced to test for cocaine.
____________________
3The Fourth Amendment is implicated even though airport
security checkpoints are manned by nongovernmental personnel,
since the FAA prescribes extensive administrative directives.
See United States v. Davis, 482 F.2d 893, 896-97 (9th Cir. 1973);
___ _____________ _____
see also Air Transportation Security Act of 1974, Pub. L. No.
___ ____
93-366, 88 Stat. 415 (1974) (codified as amended at 49 U.S.C.
1356, 1357, 1371, 1372, 1472, 1516); 14 C.F.R. 108.9.
5
A. The Searches and Seizure at the Security Checkpoint4
A. The Searches and Seizure at the Security Checkpoint
___________________________________________________
Pizarro argues that the warrantless search of the
carry-on bag violated his Fourth Amendment rights, ab initio,
__ ______
since the customary presence of Avil s at the checkpoint subvert-
ed an otherwise lawful airline security screening into a warrant-
less general search for contraband (viz., cocaine) unrelated to
airline security. The district court found that
the search was conducted by a security agent
at the airport, and that the local police
officer was summoned to the site of the
search only after the initial X-ray scan did
_____
not rule out the presence of either weapons
or explosives in defendant's luggage, requir-
ing the presence of additional security.
Pizarro-Calderon, 829 F. Supp. at 514 (emphasis added).
________________
Routine security searches at airport checkpoints pass
constitutional muster because the compelling public interest in
curbing air piracy generally outweighs their limited intrusive-
ness. See, e.g., United States v. Pulido-Baquerizo, 800 F.2d
___ ____ ______________ ________________
899, 902 (9th Cir. 1986); cf. United States v. Ferrer, 999 F.2d
___ _____________ ______
7, 9 (1st Cir. 1993) (upholding warrantless search of checked
luggage on alternate ground of "abandonment," but faulting
government's "falling-domino approach, by which each intrusion
diminishes privacy expectations enough to permit further in-
fringements"). Consequently, all carry-on luggage can be sub-
___
jected to initial x-ray screening for weapons and explosives
____________________
4The factual findings underlying a suppression ruling are
reviewed for clear error. United States v. Lewis, 40 F.3d 1325,
_____________ _____
1332-33 (1st Cir. 1994). Related rulings of law, including the
"reasonableness" of a particular warrantless search, are accorded
plenary review. Id.
___
6
without offending the Fourth Amendment. In the event the initial
x-ray screening is inconclusive as to the presence of weapons or
explosives, the luggage may be hand-searched as reasonably
required to rule out their presence. Pulido-Baquerizo, 800 F.2d
________________
at 902.
Other contraband inadvertently discovered during a
routine checkpoint search for weapons and explosives may be
seized and introduced in evidence at trial even though unrelated
to airline security. See, e.g., Skipwith, 482 F.2d at 1277-78.
___ ____ ________
On the other hand, lawful airline security searches of carry-on
luggage may not be enlarged or tailored systemically to detect
contraband (e.g., narcotics) unrelated to airline security. See,
____ ___
e.g., United States v. $124,570 U.S. Currency, 873 F.2d 1240,
____ ______________ _______________________
1243-45 (9th Cir. 1989) (upholding suppression of contraband
unrelated to airline security where screeners were rewarded
monetarily by law enforcement authorities for detecting such
contraband in carry-on luggage).
As we conclude that the government failed to demon-
strate that the subsequent warrantless search of the packaged
__________
blocks by the DEA satisfied the Fourth Amendment warrant require-
ment, see infra Section II.B, for present purposes we simply
___ _____
assume arguendo that the carry-on bag and the Christmas box were
________
subjected to lawful airport administrative searches.
B. The Subsequent DEA Searches of the Seized Blocks
B. The Subsequent DEA Searches of the Seized Blocks
________________________________________________
The district court upheld the warrantless penetration
of the opaque packaging enclosing the seized blocks on the ground
7
that the DEA tests were "not . . . search[es] per se" but merely
___ __
"more thorough examination[s] of the objects which had already
been lawfully seized." Pizarro-Calderon, 829 F. Supp. at 515.
________________
We cannot agree.
The uncontroverted evidence reveals that until the DEA
agents conducted their field tests, the opaque packaging enclos-
ing the six blocks remained intact, precluding any "plain view"
of their contents such as might permit a warrantless search in
the absence of exigent circumstances. See, e.g., United States
___ ____ _____________
v. Miller, 769 F.2d 554, 558 (9th Cir. 1985) (poking finger
______
through plastic bag containing white powder, or cutting into
opaque fiberglass container inside plastic bag, constitutes
"search" requiring warrant, where both "containers were original-
ly packed inside suitcase"). Thus, regardless whether the
packaged blocks could have been subjected to lawful warrantless
search at the security checkpoint, the question with which we are
__ ___ ________ __________
presented is whether a warrant was required before the packaging
enclosing the blocks could be pierced once the blocks had been
seized and removed from the security checkpoint. The government
_______ ____ ___ ________ __________
neither cites, nor have we found, any case upholding a warrant-
less administrative search for contraband unrelated to airline
security concerns, absent exigent circumstances, consent, a
finding of "virtual certainty," or some other recognized excep-
tion to the warrant requirement.5
____________________
5The government does not contend that the packaged blocks,
once removed from the checkpoint area, were subject to warrant-
less search for explosives. See Skipwith, 482 F.2d at 1277
___ ________
8
Although probable cause, as well as exigent circum-
stances, may support the warrantless seizure of an enclosed
_______
opaque container, see Texas v. Brown, 460 U.S. 730, 743 (1983)
___ _____ _____
(involving validity of warrantless seizure of tied-off balloon
_______
containing drugs), the same probable-cause showing is not neces-
____
sarily sufficient to justify its subsequent warrantless search.
______
Id. at 749-51 (Stevens, J., concurring); United States v. Chad-
___ _____________ _____
wick, 433 U.S. 1, 13-14 n.8 (1977); Miller, 769 F.2d at 558; cf.
____ ______ ___
____________________
(noting that modern technology permits hijacker to conceal
plastic explosives in container no larger than a toothpaste
tube). Moreover, any exigency adequate to support a warrantless
search for explosives lapsed at or about the time of Pizarro's
arrest, since he obviously would not be permitted to remain at
large in the airport or to board an aircraft. Likewise, any
finding of exigency is totally belied by Aviles' subjective
belief that the blocks contained cocaine and by their unhurried
removal to the police station for DEA field-testing.
There is no evidence or contention that screeners, pursuant
to practice or regulation, customarily open packages of this type
or size to check for weapons or explosives, notwithstanding the
_______________ ___
prior arrest of the passenger, and the seizure of the carry-on
_____ ______ __ ___ _________ ___ ___ _______ __ ___ ________
luggage and its contents, based on conduct unrelated to airline
_______ ___ ___ ________
security. Cf. Nix v. Williams, 467 U.S. 431, 444 (1984) (noting
___ ___ ________
doctrine of "inevitable discovery," whereby "prosecution can
establish by a preponderance of the evidence that the [evidence]
ultimately or inevitably would have been discovered by lawful
means" even if unlawful search had not occurred); United States
______________
v. Hernandez-Cano, 808 F.2d 779, 783 (11th Cir. 1987) (noting
______________
testimony from party conducting lawful search that but for
intervention of unlawful search procedure, she would have contin-
ued search of luggage until she found suspicious package).
Finally, the evidence precluded a contention that the DEA
testing was incident to Pizarro's arrest, see Chimel v. Califor-
___ ______ ________
nia, 395 U.S. 752 (1969), since the blocks had been removed from
___
the arrest scene and from the presence of the arrestee. See
___
United States v. Chadwick, 433 U.S. 1, 15 (1977) (noting that
_____________ ________
"[e]ven though . . . the issuance of a warrant by a judicial
officer was reasonably predictable, a line must be drawn";
invalidating foot-locker search remote in time and place from
arrest); United States v. $639,558, 955 F.2d 712 (D.C. Cir. 1992)
_____________ ________
(same). But cf. United States v. Johns, 469 U.S. 478, 483 (1985)
___ ___ _____________ _____
(finding no comparable contemporaneity requirement under automo-
bile exception to warrant requirement).
9
United States v. Jacobsen, 466 U.S. 109, 114 (1984) (upholding
_____________ ________
seizure to prevent loss or destruction of contraband, but noting
that "Fourth Amendment requires that [the police] obtain a
warrant before examining contents of such a package").6 These
discrete treatments stem from the recognition that seizure
temporarily deprives the defendant of a possessory interest only,
__________
whereas a search entails an intrusion upon privacy interests as
_______
well. See generally Segura v. United States, 468 U.S. 796, 806
___ _________ ______ _____________
(1984). Normally, therefore, once an exigency ends, as by an
arrest or the seizure and custodial retention of a container by
the police, a neutral judicial officer must authorize any subse-
_______ ________ _______
quent search on a showing of probable cause. United States v.
_____________
Soule, 908 F.2d 1032, 1040 (1st Cir. 1990) (citing Shadwick v.
_____ ________
City of Tampa, 407 U.S. 345, 350 (1972)).
_____________
Although the government was required to show that any
warrantless search was valid under an exception to the warrant
requirement, see Doward, 41 F.3d at 791; United States v.
___ ______ ______________
Rutkowski, 877 F.2d 139, 141 (1st Cir. 1989), it has not attempt-
_________
ed to demonstrate that the warrantless piercing of the packaged
blocks was either an integral part of the security-checkpoint
search or came within any other exception to the warrant require-
ment. The government instead simply concludes, as did the
district court, see Pizarro-Calderon, 829 F. Supp. at 515, and
___ ________________
without argumentation or citation to authority, that the warrant-
____________________
6Chadwick has been overruled only as to closed containers
________
seized from inside an automobile. See California v. Acevedo, 500
__________ ___ __________ _______
U.S. 565 (1991).
10
less piercing of the packaged blocks at the police station was
simply an extension of the hand-search initiated at the check-
point. But see supra note 5. Moreover, the government does not
___ ___ _____
pretend that the DEA agents pierced the packaged blocks for any
purpose other than to test for illicit drugs.7 Thus, although
____________________
7The cases cited in the magistrate-judge's report and
recommendation are inapposite to the DEA search in the present
case. See Pizarro-Calderon, 829 F. Supp. at 616 (citing United
___ ________________ ______
States v. Herzbrun, 723 F.2d 773 (11th Cir. 1984); United States
______ ________ _____________
v. Wehrli, 637 F.2d 408 (5th Cir. 1981); United States v. De-
______ ______________ ___
Angelo, 584 F.2d 46 (4th Cir.), cert. denied, 440 U.S. 935
______ _____ ______
(1978); United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976);
_____________ _______
United States v. Williams, 516 F.2d 11 (2d Cir. 1975)). Even
_____________ ________
assuming that airport security checkpoint searches are justified
on the ground that the passenger's "implied consent" is irrevoca-
ble, but see Wayne R. Lafave, Search and Seizure: A Treatise on
___ ___ _________________________________
the Fourth Amendment 10.6(c), 10.6(g), at 16-17, 31-33 (2d ed.
____________________
1987), thus permitting screeners to search throughout the carry-
on bag and all closed containers within it, the passenger's
implied "consent" nonetheless would be limited to permitting
_______
searches for the purpose of detecting weapons and explosives.
___ ___ _______ __ _________ _______ ___ __________
See Florida v. Jimeno, 500 U.S. 248, 252 (1991) (noting that
___ _______ ______
warrantless "consent"-based searches are limited in scope by the
_____
terms of defendant's consent); see also, e.g., Wehrli, 637 F.2d
_____ ___ ____ ____ ______
at 409 (noting that screener's "task [was] to insure that Weh-
rli's bag was devoid of skyjacking weapons," and the search "did
not range beyond an area reasonably calculated to discover
__________ __________
dangers to air safety") (emphasis added); DeAngelo, 584 F.2d at
________
47-48 (holding that passenger impliedly consents to full search
of luggage, and if it "should be considered necessary to assure
the safety of the travelling public, [the passenger] should be
required to submit to it for that purpose") (emphasis added);
___ ____ _______
Williams, 516 F.2d at 12 (inquiring into "the bounds of any
________ ______
implied consent," but noting that bags of cocaine were found
alongside a metal canister, so that screener might reasonably
think white powder was explosive, rather than cocaine) (emphasis
added).
By contrast, Avil s admitted that he delivered the blocks to
the DEA for the very purpose of detecting narcotics. In these
circumstances once the focus of the search shifted from the
detection of weapons to the detection of narcotics a warrant
was required unless the ensuing search came within another recog-
nized exception to the warrant requirement. Cf. Jacobsen, 466
___ ________
U.S. at 118-22 (noting that DEA did not need a search warrant to
open a closed container to perform a field test on contents
because the contents had already been disclosed by a prior
_______
11
we may affirm the denial of a suppression motion on any ground
supported by the record, see, e.g., Soule, 908 F.2d at 1036 n. 7,
___ ____ _____
the legal theories relied on by the government have led to a
dearth of record evidence not to mention argumentation to
support such an exercise of discretion.8
____________________
"private party" search of that container); Herzbrun, 723 F.2d at
________
775 (noting that law enforcement officials obtained search
warrant for bag after defendant withdrew from checkpoint, even
though their search followed an aborted checkpoint search for
_______
weapons which might have uncovered same evidence (i.e., coc-
aine)).
8Avil s conceded at the suppression hearing, and the magis-
trate judge later found, that the contents of the blocks could
not have been "known" from their outward appearance. Thus, given
the undisputed evidence that the blocks were completely enclosed
in opaque packaging which had to be pierced even for field-
_______
testing, the government's unexplicated statement that the cocaine
was in Avil s' "plain view" at the checkpoint must be premised on
something more illuminating than its rose-colored perception.
Nor has the government attempted to argue that the outward
appearance of the blocks, or the context in which they were
seized, so "clearly announce[d]" the nature of their contents
that it was a "virtual certainty" that they contained cocaine.
See Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13 (1979); see
___ ________ _______ ___
also Texas, 460 U.S. at 761 (Stevens, J., concurring); United
____ _____ ______
States v. Corral, 970 F.2d 719, 725 (10th Cir. 1992) (contents
______ ______
must be "foregone conclusion"). But see Miller, 769 F.2d at 560-
___ ___ ______
61 (squarely rejecting prosecution argument that no warrant was
needed to search a lawfully-seized plastic bag containing an
opaque fiberglass vial filled with cocaine, both of which had
been lawfully seized from defendant's suitcase); United States v.
_____________
Donnes, 947 F.2d 1430, 1439 (10th Cir. 1991) (adopting Miller
______ ______
approach); accord United States v. Cardona-Rivera, 904 F.2d 1149,
______ _____________ ______________
1155 (7th Cir. 1990); cf. United States v. Prandy-Binett, 995
___ _____________ _____________
F.2d 1069 (D.C. Cir. 1993) (upholding seizure of package wrapped
_______
in opaque duct tape based on probable cause), cert. denied, 114
_____ ______
S. Ct. 1196 (1994); United States v. Barrios-Moriera, 872 F.2d 12
_____________ _______________
(2d Cir.) (same), cert. denied, 493 U.S. 953 (1989). We think it
_____ ______
would be imprudent in the present vacuum either to embrace or
reject for the first time a "virtual certainty" exception
to the warrant requirement.
Nor has the government suggested that the DEA testing should
be upheld under the "inventory search" exception to the warrant
requirement. Compare, e.g., Colorado v. Bertine, 479 U.S. 367,
_______ ____ ________ _______
371 (1987) (even closed containers may be opened pursuant to
12
The litigation strategy adopted by the government seems
especially remarkable considering the portentous district court
opinion previously entered in the companion case, United States
_________ _____________
v. Figueroa-Cruz, 822 F. Supp. 853 (D.P.R. 1993); see supra note
_____________ ___ _____
2, wherein the government elected not to appeal from an order
suppressing virtually identical evidence seized from the person
next in line to Pizarro at the security checkpoint.9 In the
companion case, the district court suppressed the cocaine Fi-
gueroa was carrying in Christmas gift packages inside his
_________ ____ ________
luggage because Avil s had permitted the DEA to conduct the
initial search at the airport police station without first
_______
obtaining a warrant. Avil s testified that he arrested Figueroa
based on probable cause to believe that the gift boxes, exposed
to view during the security-checkpoint search of his carry-on
bag, were so similar to Pizarro's gift box that it was likely
that they too contained blocks of cocaine.
The government's attempt to distinguish the two cases
misses the mark. The carry-on bags, the gift boxes, and the
blocks enclosed in opaque packaging all were discrete closed
___
____________________
inventory search exception) with United States v. Infante-Ruiz,
____ _____________ ____________
13 F.3d 498, 504 (1st Cir. 1994) (to justify warrantless search
as inventory search, government must introduce evidence of
"established procedures and standard criteria" governing invento-
ry process). In addition to the government's failure to evince
an established inventory procedure or policy, such a rationale is
effectively disavowed by Avil s' testimony expressly predicating
the DEA searches on the need to field-test the contents of the
enclosed blocks for cocaine.
9The government apparently decided to try Figueroa-Cruz
separately due to insufficient evidence that the two men were
traveling in tandem.
13
containers. Even assuming the warrantless checkpoint searches
conducted on the carry-on bags and the gift boxes were lawful,
the government nevertheless failed to establish that the subse-
quent warrantless DEA penetration of the previously unopened
blocks enclosed in opaque packaging came within any recognized
exception to the warrant requirement. Consequently, their
warrantless search at the police station after any exigency
had ceased violated the Fourth amendment.
III
III
CONCLUSION
CONCLUSION
__________
As the government failed to shoulder its burden, by
demonstrating either that its warrantless searches of the opaque
packaged blocks were permissible under the Fourth Amendment, or
that the admission of the tainted evidence was harmless beyond a
reasonable doubt, see United States v. Modarressi, 886 F.2d 6, 8
___ _____________ __________
(1st Cir. 1989), appellant's conviction must be reversed.
The district court judgment is reversed.
The district court judgment is reversed.
_______________________________________
14
