United States v. Navedo Colon ( 1993 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

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    No. 92-1236

    UNITED STATES,

    Appellee,

    v.

    JORGE M. NAVEDO-COLON,

    Defendant, Appellant.


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    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO


    [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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    Before

    Breyer, Chief Judge,
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    Torruella and Selya, Circuit Judges.
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    Juan R. Acevedo Cruz for appellant.
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    Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom
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    Daniel F. Lopez-Romo, United States Attorney, was on brief for
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    appellee.


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    June 30, 1993
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    BREYER, Chief Judge. Jorge M. Navedo Col n
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    appeals from his conviction for unlawfully possessing drugs

    with intent to distribute them. 21 U.S.C. 841(a)(1). He

    argues that the district court should not have permitted the

    government to introduce as evidence about 26 kilograms of

    cocaine that government agents took from his suitcase at San

    Juan's airport. He says that the agents' search of his

    suitcases was warrantless and without his consent. He adds

    that, in any event, the search was the "fruit" of a

    "poisonous tree," namely an earlier illegal x-ray of the

    suitcases. Wong Sun v. United States, 371 U.S. 471, 484-86
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    (1963). We find neither argument convincing.

    The basic facts are the following:

    1. On March 20, 1991, a trained drug-sniffing
    dog alerted customs agents at the San Juan
    airport to the likely presence of illegal
    drugs in several suitcases tagged for a
    flight to New York.

    2. The agents put the suitcases through a
    Department of Agriculture x-ray machine. The
    x-ray revealed several packages within that
    appeared as if they could contain cocaine.

    3. Using the suitcase's luggage tags (bearing
    the name "Luis Garcia"), agents found the
    suitcases' owner, namely the appellant, who
    was sitting in the New York bound airplane,
    which had not yet taken off. The agents
    asked appellant to accompany them off the
    airplane, and soon after arrested him.



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    4. One of the agents brought appellant to a
    special customs room, about nine feet by nine
    feet in size. He handcuffed one of
    appellant's hands to a chair, and left the
    door open. He gave appellant Miranda
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    warnings, and then began to question him.

    5. Appellant consented to a search of his hand
    luggage, in which the agent found luggage
    claim checks that matched the suitcase tags.
    Appellant also emptied his pockets, which
    contained identification bearing his real
    name, thereby revealing that the name of
    "Luis Garcia" written on the luggage tag was
    a false name.

    6. After some time had passed (perhaps a few
    minutes, but certainly less than an hour),
    the agent brought the suitcases into the
    room, told appellant about "the dog search,
    the dog alert" and "the x-ray machine," and
    asked if he could open the suitcases. The
    appellant (who, according to the agent,
    simply said "yes") "shrugged by lifting his
    shoulders as if admitting defeat," which
    action, the district court found, amounted to
    "consent." The agent opened the suitcases
    and found the cocaine.

    Appellant does not now deny that he consented to

    the suitcase search; rather, he says that the government

    "coerced" this consent. The district court, however, found

    to the contrary, and we must affirm this finding unless it

    is clearly erroneous. See, e.g., United States v. Cruz
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    Jim nez, 894 F.2d 1, 7 (1st Cir. 1990). According to the
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    record, the appellant was simply questioned by one agent for

    less than an hour, after Miranda warnings, in an
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    approximately eighty square foot room with an open door --

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    albeit while appellant was sitting with one hand handcuffed

    to a chair. Despite the handcuff, however, these

    circumstances fall within the bounds of what courts have

    deemed valid and "voluntary" consent. See, e.g., United
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    States v. Watson, 423 U.S. 411, 424 (1976) (custody alone
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    does not demonstrate coerced consent to search); United
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    States v. Arango-Correa, 851 F.2d 54, 57-58 (2d Cir. 1988)
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    (where Miranda warnings given, normal tone-of-voice
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    questioning by several agents over five hours does not

    demonstrate coerced consent to search, despite strip

    search). Cf. Shriner v. Wainwright, 715 F.2d 1452, 1455-56
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    (11th Cir. 1983), cert. denied, 465 U.S. 1051 (1984) (where
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    Miranda warnings given, handcuffs and ten hours of
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    detention, including five hours of intensive questioning,

    does not demonstrate that confession was coerced); Stawicki
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    v. Israel, 778 F.2d 380 (7th Cir. 1985), cert. denied, 479
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    U.S. 842 (1986) (where Miranda warnings given, 5 1/2 hour
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    detention including 1 1/2 hour interrogation did not render

    confession coerced).

    Appellant's second argument -- the "fruit of the

    poisonous tree" -- presents a somewhat closer question of

    fact, though not of law. As in the very similar case of

    United States v. Maldonado-Espinosa, 968 F.2d 101, 103 (1st
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    Cir. 1992), cert. denied, 113 S.Ct. 1579 (1993), we will
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    assume without deciding (as did the district court) that the

    luggage x-ray was unlawful. If the cocaine proves to be a

    "fruit" of that x-ray (i.e., if the x-ray caused appellant
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    to consent to the search), then, given the assumption we

    have indulged, the law requires its suppression. Wong Sun,
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    371 U.S. at 484-86.

    We concede that the district court's opinion does

    not explicitly deny a causal connection between the x-ray
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    and appellant's consent. Yet that opinion does ask whether

    this consent was the "fruit of a poisonous tree."

    Furthermore, the opinion found the dog sniffing to be "a

    lawful act" which provided "an independent legitimate

    reason" for seeking consent. Lastly, it says that "the

    government cannot use the x-ray evidence . . . as a basis

    for obtaining . . . consent," and that the ("unlawful") x-

    ray "results must be suppressed . . . ." Fairly read, the

    opinion indicates that the court asked, and answered, the

    correct causal question in deciding whether to suppress

    evidence of consent.

    We also concede that the factual question was a

    close one. On one hand, the agent's telling appellant about

    the x-ray suggests that the x-ray might have played a causal


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    role in producing consent. On the other hand, the dog sniff

    alone provided the agents with sufficient grounds for

    obtaining a search warrant (had they found it necessary to

    do so), and for seeking appellant's consent. United States
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    v. Sokolow, 490 U.S. 1, 5 (1989); United States v. Race, 529
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    F.2d 12, 15 (1st Cir. 1976). Given this legal fact, the

    combined factors apart from the x-ray search -- the agent's

    description of the dog's reaction, the baggage tags linking

    appellant to the suitcases, and the discovery of the false

    name -- might well have convinced appellant that refusing

    consent was pointless, for the bags would be opened

    eventually anyway.

    While the factual question on appeal is close, the

    legal question is not. Here again, the law directs the

    district court, not this court, to make factual

    determinations. How appellant's mind worked at the time --

    whether or not the x-ray significantly influenced his

    decision to consent -- is one such factual determination.

    In light of the evidence presented to the district court, we

    cannot find its conclusion to be "clearly erroneous."

    Fed.R.Civ.P. 52(a) ("Findings of fact . . . shall not be set

    aside unless clearly erroneous, and due regard shall be

    given to the opportunity of the district court to judge the


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    credibility of the witnesses"). We therefore reach the same

    legal conclusion we reached in Maldonado, which affirmed a
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    district court's determination that an illegal x-ray search

    did not play a significant role in obtaining appellant's

    consent to search his luggage. There, as here, agents told

    appellant about a dog sniff, which by itself could have

    induced appellant to accede to the search. And, we affirmed

    a district court's determination that it did so. Maldonado,
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    968 F.2d at 103-04. Cf. United States v. Race, 529 F.2d 12,
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    14-15 (1st Cir. 1976) (consent to search of air cargo found

    to contain marijuana was not tainted by agent's prior and

    arguably illegal inspection of cargo, where dog sniff alone

    provided ample motive to seek consent of cargo's owner). In

    light of the findings of fact and the legal precedent, the

    district court judgment is

    Affirmed.
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