Petition — United States v. Beale

82-674 ff

No. ; OCT 18 198

EEE

In the Supreme Court of the Mnurd States

OCTOBER TERM, 182

UNITED STATES OF AMERICA, PETITIONER

*

JOHN CHRISTOPHER BEALE

PETITION FOR A WRIT Of CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Rex E. Lee

Shi General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ALAN I. Horow!tz

Assistant to the Solicitor General

JOHN F. De Pug

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the Fourth Amendment requires that law en-

forcement officials have a reasonable suspicion that luggage

contains contraband before exposing it to a sniff test by a

trained narcotics detection dog.

(1)

TABLE OF CONTENTS

Page

SE GE oc ccccccceccccccesscccccceccooscccoccece 1

r ( 1

E

Reasons for granting the petitiocr n 6

i .. <ciedcccdagnanebdddebdesedceadsteetesenss 13

PE Bide cccccceccnctecsescnesccccdcesccccsosess la

IIE eco cccccccccccesccccvessescssseconscccees 184

ee. ess esse eee seseeeeeee 19a

TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders, 442 U.S. 788. 8

Horton v. Goose Creek Independent School Dist., 677

TTT 7

Katz v. United States, 389 U.S. 347. 11. 12

People v. Mayberry, 644 P.2d 810, 182 Cal. Rptr.

KK a COcasenCes Abs bSReepoSeCoes 9, 11

People v. Price, A N. V. 2 557, 431 N. E. 2d 267 .... 9

Rakas v. Illinois, 439 U.S. ꝶũ . 12

Smith v. Maryland, 442 U. S. 73. 11

State v. Morrow, 128 Ariz. 309, 625 P. 24 808 ...... 9

State v. Wolohan, 23 Wash. App. 813, 5@8 P.2d

T e 9

United States v. Bronstein, 521 F. 2d 459, eert.

GrrieG, GEG OG, GED ccccccccccccccccccessccces 7,8

United States v. Burns, 624 F. 2d 95, cert. denied,

GI es GE cc cccccccccccces secccccccccccscess 8

United States v. Chadwick, 433 U. S. ........ 5, 6, 7,8

United States v. Fulero, 498 F.2d 73 7

United States v. Goldstein, 635 F. 2d 356, cert.

Game, GIB UB. GER. cc cccccccccca cecccccccces 7

United States v. Johnson, 660 F. 2d 11. 7

United States v. Klein, 626 F. 2d 2ũã22222 6 cc eee 7-8

United States v. Lee, 274 U.S. 559 ¶ 9999 11

(111)

(Iv)

Cases Continued: Page

United States v. Race, 529 F.2d 12 ~

United States v. Solis, 536 F.2d 8860. ~

United States v. Sullivan, 625 F.2d 9, cert. denied,

BEDE, GED o.oo cccccsccccscccsccsccccccceccces 8

United States v. Venema, 563 F.2d 1008 ~

United States v. Viera, 644 F.2d 509, cert. denied,

reer esse esse eee eee 7

United States v. Waltzer, 682 F. 20 3700 8. 9, 11

Constitution and statutes:

United States Constitution,

Fourth Amendment 5, 6, 7, 8, 10, 11, 12

21 U.S. C. Sai(aK l)))))): eeeeenenes 2

21 U.S. C. 8VVuuö „„ 2

In the Supreme Court of the United States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

U.

JOHN CHRISTOPHER BEALE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States, peti-

tions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in this

case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra, la-17a)

is reported at 674 F. 2d 1327.

JURISDICTION

The judgment of the court of appeals (App. A, infra, 17a)

was entered on April 22, 1982. A petition for rehearing was

denied on August 5, 1982 (App. C, infra, 19a). On Septem-

ber 20, 1982, Justice Rehnquist extended the time within

which to file a petition for a writ of certiorari to and

including October 18, 1982. The jurisdiction of this Court is

invoked under 28 U.S.. 1254(1).

' The opinion as reported does not contain the modifications made by

the court of appeals in its July 21, 1982, amendment to the decision. See

App. B. infra, Ba.

1

STATEMENT

Following thé denial of his suppression motion, respon-

dent was convicted at a bench trial on stipulated facts in the

United States District Court for the Southern District of

California of conspiracy to distribute cocaine, in violation of

21 U.S.C. 846, and of possession of cocaine with intent to

distribute it, in violation of 21 U.S.C. 841(a)(1) (App A,

infra, la, 4a). He was sentenced to concurrent terms of 30

months’ imprisonment on each count, to be followed by a

seven-year special parole term. The court of appeals vacated

the conviction on the ground that the district court had

erred in denying the suppression motion.

1. The evidence adduced at a suppression hearing showed

that on April 17, 1980, Detective Rick Berks and Deputy

Larry Burk of the Broward County, Florida, Sheriff's De-

partment were assigned to the airport narcotics interdiction

detail at the Fort Lauderdale Airport.? While watching pas-

sengers in the vicinity of the National Airlines terminal, De-

tective Berks observed respondent and co-defendant Joseph

Pulvano® leave a taxicab, check three pieces of luggage

including a large maroon suitcase, and enter the terminal to-

gether. Upon reaching a security checkpoint inside, the two

men separated and independently approached the ticket

counter, but then sat together in the boarding area. After

observing this behavior, Detective Berks determined that

the two men had obtained separate seating assignments on a

National Airlines flight to San Diego, California, with a

change of planes in Houston, Texas. Detective Berks also

examined the labels on the defendants’ luggage and noticed

that Pulvano was watching him while he examined the bags

(App. A, infra, 2a; Tr. 6-7; Stip. 2-3).

* Respondent's trial consisted of the filing of a stipulation (“Stip.”) by

the parties to certain facts developed during the suppression hearing,

which was made a part of the trial record, and the entry of a guilty verdict

by the court on the basis of the stipulated facts (Tr. 80-82).

* Pulvano pled guilty to a conspiracy charge following the denial of his

suppression motion (Tr. 80) and was not a party on appeal.

3

Detective Berks then approached the two men, identified

himself, and asked whether they objected to answering a

few questions. When they responded that they did not, the

officer explained that they were not under arrest, but asked

to see their identification and inquired whether either of

them had ever been arrested. Petitioner displayed a New

Jersey driver's license; Pulvano, who appeared extremely

nervous, stated that his identification was in his suitcase and

that he had been arrested on a narcotics charge six years

earlier. Detective Berks then thanked them for their coop-

eration and walked to the other side of the boarding area.

Approximately five minutes later, Pulvano approached De-

tective Berks and inquired whether anything was wrong.

The officer responded that there was no problem at that

time (App. A, infra, 2a-3a; Tr. 8-10; Stip. 3).

While Detective Berks was speaking with respondent and

Pulvano, Officer Burk obtained a trained narcotics detection

dog. After Detective Berks concluded his conversation with

the defendants, the officers went to the baggage loading

ramp adjacent to the National Airlines ticket counter, which

contained the baggage that respondent and Pulvano had

checked. The dog immediately “alerted” to respondent's

large maroon suitcase, indicating that it contained narcotics

(App. A, infra, 3a; Tr. 10-11; Stip. 3).

The officers then requested a computer check on the two

men, which revealed that Pulvano had been arrested and

convicted about six months before for possession of cocaine.

Detective Berks then telephoned law enforcement officials at

the airports in Houston, Texas, and San Diego, California,

notifying them of the events that had transpired (App. A,

infra, 3a; Tr. 12-13; Stip. 3-4). Police officers in Houston

kept respondent and Pulvano under surveillance as they

changed planes there, observing that the two men acted as

though they were traveling separately (App. A, infra, 3a;

Tr. 14; Stip. 4).

When the two men deplaned in San Diego they were again

observed by law enforcement officers, who noted that they

did not appear to be traveling together and behaved as

though they feared surveillance. As they reached the front

of the terminal, Pulvano stopped at a telephone; respondent

4

walked directly to a taxi without making any effort to re

trieve his luggage (App. A, infra, 3a; Tr. 49-50; Stip. 5).

Police officers then approached respondent and asked him

about his luggage. In response, he stated falsely that he was

traveling alone and that he had lost his claim ticket. There-

upon the officers advised him that he was under arrest and

escorted him back to the terminal (App. A, infra, 3a; Tr.

50-58; Stip. 5-6).

While respondent and Pulvano were under surveillance,

other officers took a trained narcotics detection dog to the

baggage claim area, and this dog also alerted to respondent's

large maroon suitcase (App. A, infra, 3a; Tr. 2% Stip. 67).

Shortly thereafter, the officers observed Pulvano retrieve

the bags from the luggage carousel and proceed toward the

nearest exit. The officers then stopped him and escorted him

to the airport Narcotics Task Force Office where he

consented to a search of all the bags except the maroon suit-

case (App. A, infra, 4a; Tr. 30-32; Stip. 7). Subsequently,

when respondent arrived at the Narcotics Task Force Office,

the dog also alerted to the shoulder bag that respondent had

been carrying (App. A, infra, 4a; Tr. 63-64; Stip. 8).

Based on this information, the police obtained a search

warrant from a state court judge for the two suitcases to

which the dog had alerted. The ensuing search revealed that

responcent’s shoulder bag contained approximately one kilo-

gram of cocaine and that the maroon suitcase contained ap-

proximately 137 grams of marijuana (App. A, infra, 4a; Tr.

35; Stip. 8).

2. The district court denied the motions of respondent and

Pulvano to suppress the evidence obtained as the result of

these searches (Tr. 72-78). The court rejected the contention

that probable cause was required for the police at the Fort

Lauderdale Airport either to remove the bags from the

airline luggage rack or to expose them to a narcotics detec-

tion dog, explaining that “the present state of the law is that

the dog search in Fort Lauderdale and here is not a search

ad the Fourth Amendment” (App. A, infra, 5a n.4; Tr.

3. The court of appeals vacated the conviction and re-

manded (App. A, infra, la-17a). The court held that “the

use of a canine’s keen sense uf smell to detect the presence

5

of contraband within personal luggage is a Fourth

Amendment intrusion, albeit a limited one that may be con-

ducted without a warrant and which may be based on an offi-

cer’s ‘founded’ or ‘articulable’ suspicion rather than probable

cause” (id. at 15a; footnote omitted; emphasis deleted).* Ac-

cordingly, the court of appeals remanded to the district

court for a determination whether the officers who exposed

respondent's luggage to a trained dog at the Fort

Lauderdale airport possessed the requisice suspicion that it

contained contraband (id. at I6a-17a).

The court explained that the Fourth Amendment pro-

tects people from unreasonable government intrusion: into

their legitimate expectations of privacy (App. A, %u u, Ta,

quoting United States v. Chadwick, 432 U.S. 1, 7 (1977)).

The use of a trained dog to detect contraband within person-

al luggage, the court stated, violated such an expectation of

privacy. The court acknowledged that if the odor of drugs

emanating from a suitcase were detectable by the human

nose, there would be no Fourth Amendment intrusion (App.

A, infra, Wa), but it held that the use of a trained dog did

constitute such an intrusion. The court explained (id. at

12a-13a; footnote omitted):

The molecules of contraband emanating from the in-

terior of luggage are so subtle and incapable of human

perception that a canine’s detection of them constitutes

an intrusion into the owner's privacy interest in the

contents of the container.* * *

To Katz |v. United States, 389 U.S. 347

(1967), t [respondent] sought to exclude when he

locked his suitcase was not only the intruding human

eye—it was also the intruding canine nose. One who re-

poses his personal effects, including contraband, in a

* The court rejected respondent's contention that the officers’ approach

to him in Fort Lauderdale violated the Fourth Amendment. The court

locked suitease is surely entitled to assume that a

trained canine will not broadcast its incriminating con-

tents to the authorities.

Hence, the court concluded that the Fourth Amendment re-

quires a threshold of reasonable suspicion® before law en-

forcement officers may employ a dog to determine whether

or not a suitcase contains contraband (id. at IB)“

REASONS FOR GRANTING THE PETITION

Thix case presents an important and recurring question

concerning the restrictions, if any, that the Fourth Amend-

ment imposes upon the use of specially trained dogs to assist

in the detection of illegal narcoties traffic. The court of ap-

peals’ holding that the use of a trained dog to detect the

presence of narcotics contained in personal luggage consti-

tutes a “search” within the meaning of the Fourth Amend-

ment that must be predicated upon reasonable suspicion di-

rectly conflicts with the decisions of six other courts of

appeals and the highest courts of four States. Moreover, it is

contrary to well established principles of Fourth Amend-

ment law. If permitted to stand, it will have a substantial

adverse impact upon the efforts of law enforcement authori-

ties to reduce the illicit drug traffic at major airports and

elsewhere.

® The court of appeals rejected respondent's contention that dog sniff.

are indistinguishable from the use of a magnetometer or an x-ray machine

and hence unlawful in the absence of probable cause. Finding that the use

of narcotics detection dogs is less intrusive than such techniques because a

dog detects only the presence or absence of contraband, the court held

that a less mgorous standard than probable cause was appropriate. See

App. A, infra, Via- Ma.

* The court of appeals recognized that its decision was contrary to desi.

sions in several other courts of appeals (App. A, infra, d- Ja, I n.20).

The court stated that, in its view, those decisions holding dog sniff tests ff

luggage to be permissible in the absence of reasonable suxpicion were no

longer sound in light of this Court's decision in United States v.

Chadunck, supra, which recognized the importance of an individual's pri-

vacy interest in personal luggage (App. A, infra, d a, Wa). With re

spect to those contrary court of appeals decidons rendered subsequent to

Chadunck, the court below announced that it “decline|d| to follow them”

(App. A, infra, at lia n. A.

7

1. Other courts of appeals have long recognized that the

use of dogs trained to detect contraband by sniffing the

airspace surrounding luggage does not constitute a search

within the meaning of the Fourth Amendment. For exam-

ple, in United States v. Fulero, 498 F. 2d 748, 749 (D.C. Cir.

1974), the court dismissed as “frivolous” the defendant's ar-

gument that the sniffing by a trained dog of footlockers at a

bus terminal constituted an unconstitutional intrusion into

the lockers. In United States v. Bronstein, 521 F .2d 459 (2d

Cir. 1975), cert. denied, 424 U.S. 918 (1976), the court like-

wise held that the use of a trained dog to detect the odor of

marijuana emanating from luggage on an airport baggage

carousel did not constitute a search within the meaning of

the Fourth Amendment. The court reasoned (521 F.2d at

461):

If the police officers here had detected the aroma of the

drug through their own olfactory senses, there could be

no serious contention that their sniffing in the area of

the bags would be tantamount to an unlawful search.

* * * We fail to understand how the detection of the

odoriferous drug by the use of the sensitive and

schooled canine senses here employed alters the situa-

tion and renders the police procedures constitutionally

suspect.

Accord, United States v. Johnson, 660 F. 2d 21, 22 (2d Cir.

1981). In l/nited States v. Goldstein, 635 F. 2d 356 (5th

Cir.), cert. denied, 452 U.S. 962 (1981), the court specifically

rejected the contention that reasonable suspicion is a prereq-

uisite to a dog sniff. The court explained that the sniffing of

the exterior of the defendant's bags “was not an intrusion

into an area protected by the Fourth Amendment” because

it did not expose the contents of the luggage. 635 F. 2d at

360-361. Accord, United States v. Viera, 644 F. 2d 509, 510

(5th Cir.), cert. denied, 454 U.S. 867 (1981).’ Three other

circuits have reached the same result. See United States v.

But ef. Horton v. Goose Creek Independent School District, 677 F 2d

471, 478-482 (Sth Cir. 1982), where the court distinguished cases involving

checked luggage and held that the use of trained druy detection dogs to

sniff school students, their lockers, and their automobiles constituted a

search within the meaning of the Fourth Amendment that required indi-

vidualized suspicion.

8

Klein, 626 F.2d 22, 26-27 (7th Cir. 1980); United States v.

Sullivan, 625 F.2d 9, 13 (4th Cir. 1980), cert. denied, 450

U.S. 923 (1981); United States v. Burns, 624 F.2d 95,

100-101 (10th Cir.), cert. denied, 449 U.S. 954 (1980); United

States v. Venema, 568 F.2d 1008, 1005-1006 (10th Cir. 1977).

See also United States v. Race, 529 F.2d 12, 14 n.2 (ist Cir.

1976) (asserting that there is no Fourth Amendment ques-

tion raised by the use of a sniffing dog for a routine check of

freight in an airport warehouse).*

The court of appeals’ view that the above cases are incon-

sistent with this Court's decisions in Arkansas v. Sanders,

442 U.S. 758 (1979), and United States v. Chadwick, 4233

U.S. 1 (1977), plainly cannot withstand analysis. Those cases

were concerned solely with the question whether probable

cause searches of luggage could be valid in the absence of re-

sort to the warrant procedure—an issue not present here.

While Chadwick and Sanders recognize the existence of a

privacy interest in the contents of personal luggage, a propo-

sition that was hardly in doubt before, they do not suggest

in any way that a dog sniff of the airspace surrounding the

luggage intrudes on that privacy interest. See United States

v. Waltzer, 682 F.2d 370, 373 (2d Cir. 1982), in which the

court specifically rejected the decision below on this ground,

stressing that the limited information revealed by the dog

sniff, which discloses only the presence or absence of contra-

band, makes the procedure entirely different from the open-

ing of luggage and consequent visual inspection of its con-

tents.”

* Indeed, even the Ninth Circuit in a prior decison had rejected the

view that a dog sniff of the outside of «a truck trailer was a search, stating

rather that it was simply a “monitoring of the air in an area open to the

public.” United States v. Solis, 536 F 2d 880, 881 (1976).

* Waltzer also demonstrates the error of the suggestion of the court be

low (App. A, %%, Aa- Iba that its decision ix “consistent with the

unarticulated reasoning” of Bronstein, supra. While it ix true that in some

of the decisions holding a dog sniff not to be a search it appears that the

police did have reasonable suspicion of criminal activity, that was not the

basi« of those decisions, which fMatly held that the dog sniff was not a

search. Indeed, the court below itself recognized that there was no rea-

Unless the conflict in the circuits engendered by the deci-

sion below is resolved, there will be a serious adverse effect

on the enforcement of the narcotics laws. Both state and fed-

eral law enforcement officials use trained narcotics detection

dogs to examine luggage arriving at airports and other pas-

senger terminals, particularly luggage arriving from cities

known as major sources of drug traffic. Because an “alert” to

a particular bag generally establishes probable cause to be-

lieve that the bag contains contraband (see, e.g., United

States v. Waltzer, supra, 682 F. 2d at 372), the use of these

dogs results in the seizure of substantial amounts of contra-

band. In many cases, narcotics agents may wish to spot

check a particular shipment of luggage or to check a particu-

lar piece of luggage that they suspect may contain contra-

band, although the basis for their suspicion does not rise to

the level of reasonable suspicion. Thus, if the decision below

is followed, some of the most effective law enforcement uses

of these trained dogs would be eliminated.

The conflict here is exacerbated by the decision of the

California Supreme Court in People v. Mayberry, 644 P.2d

810, 182 Cal. Rptr. 617 (1982). The court there specifically

rejected the decision below and held that a dog sniff is not a

search, explaining that “one who secrets illegal narcotics in

his suitcase has no protectible privacy interest in those nar-

cotics, nor any legitimate objection to an unintrusive method

of detection which reacts only to such contraband.” 644 P. 2d

at 813, 182 Cal. Rptr. at 620; emphasis in original.“ The

combination of Mayberry and the decision below places law

enforcement officials in California—where there is a very

substantial drug traffic problem—in a difficult position. Un-

less they decide to forego a valid law enforcement tool that

has been approved by the highest court of the State, they

will be unable to proceed with a federal prosecution and may

sonable suspicion in several of the other contrary decisions (see App. A,

infra, 15a n. 20. Thus, it is clear that the decision below conflicts with de-

cisions in most of the other courts of appeals.

Several other state courts have also reached this result. See People

v. Price, A N.Y.2d 557, 431 N.E.2d 267 (1981); State v. Morrow, 128

Ariz. 309, 312-313, 625 P.2d 898, 901-902 (1981); State v. Wolohan, B

Wash. App. 813, 598 P.2d 421 (1979).

10

be subject to personal damage liability for their actions.'' By

the same token, many defendants who succeed in having evi-

dence suppressed in federal court may find themselves fac-

ing a state prosecution based on the suppressed evidence.

Moreover, while the impact of the decision below in the

Ninth Circuit alone will be severe, the effect of the decision

cannot be so limited. Because of the mobility of air travelers,

law enforcement officials outside the Ninth Circuit will have

to take account of the decision below or else risk the sup-

pression of vital evidence. In the instant case, for example,

the challenged dog sniff took place in Florida, but respon-

dent continued on to California and was arrested and tried in

the Ninth Circuit; hence, the officers in Florida could not, as

a practical matter, rely on the fact that the Fifth Circuit has

held that reasonable suspicion is not required for a dog sniff

of checked luggage (a holding also having precedential force

in the Eleventh Circuit). Thus, it is important that the Court

resolve the conflict created here and establish a uniform rule

to govern the use of trained narcotics detection dogs

nationwide. *

2. The decision below is unsupported by any accepted

principles of Fourth Amendment jurisprudence. It is true, of

urse, that an individual has a privacy interest in the con-

tents of his personal luggage (see App. A, infra, 6a-7a) and

therefore that an exposure of those contents would be a

search within the meaning of the Fourth Amendment. But a

dog sniff does not expose those contents nor physically

™ While Mayberry was decided after the decision below, the conflict

with Mayberry was brought to the attention of the court below in the gov-

ernment's petition for rehearing.

1 Because the court of appeals remanded for further findings on the

question of the existence of reasonable suspicion, it is possible that the

government will prevail in this case on remand. In that event, however,

the decision below will remain on the books and presumably will be bind-

ing precedent on district courts and law enforcement officials in the Ninth

Circuit. Unlike a private party, our concern is not solely with the outcome

of this particular case, but also with ascertainment of the proper rule to

govern law enforcement activities throughout the Nation. Because of the

confusion and problems described above that would result from that situa-

tion, it is our view that it is appropriate for the Court to grant certiorari

here even though the case is at an interlocutory stage.

11

invade the luggage. Rather, a dog sniff simply involves an

examination of the public airspace surrounding the iuggage

(which is being stored in a public place), and the suspicion

that the luggage itself contains contraband is simply an in-

ference drawn from the dog's reaction to the odor extant in

that public airspace. When the odor escapes from the lug-

gage into the air, the owner of the luggage has no right to

exclude the public or the police from examining that odor.

See, e. g., United States v. Waltzer, supra, 682 F.2d at 373;

People v. Mayberry, supra, 644 P. 2d at 814, 182 Cal. Rptr.

at 621."

The court of appeals relied on Katz v. Uniled States, 389

U.S. 347 (1967), which held that a warrantless bugging of a

public telephone booth violated the Fourth Amendment, for

its conclusion that “a canine’s detection of molecules of con-

traband in the air surrounding luggage| constitutes an intru-

sion into the owner's privacy interest in the contents of the

jluggage|" (App. A, % u, 12a). Katz establishes, of course,

that a surveillance technique may implicate Fourth Amend-

ment concerns even if there is no physical invasion of a pri-

vate area. But the rationale of Katz does not extend to the

situation here. The Court explained there that:

What a person knowingly exposes to the public, even in

his own home or office, is not a subject of Fourth

Amendment protection. * * But what he seeks to

preserve as private, even in an area accessible to the

public, may be constitutionally protected.

389 U.S. at 351-352. The Court held that an individual who

uses a telephone booth “is surely entitled to assume that the

words he utters into the mouth piece will not be broadcast to

the world” (id. at 352), e., that an individual has a legiti-

mate expectation of privacy in the contents of his conversa-

tions. Here, by contrast, an individual has no legitimate ex-

pectation of privacy in the odors that inevitably escape his

luggage when he leaves it in a public place; those odors are

Nor is there any constitutional violation simply because the odor is

detectable by dogs and not humans; surveillance techniques that improve

on the human senses do not necessarily implicate Fourth Amendment con-

cerns. See, ¢.g., Smith v. Maryland, 442 U.S. 735 (1979); United States

v. Lee, 274 U.S. 559, 568 (1927).

12

not inherently private like the contents of telephone conver-

sations and they have been “knowingly expose|d] to the pub-

lie” (see id. at 351).

Moreover, as the court below acknowledged (App. A,

infra, 14a), “\ujnlike wiretapping, which is almost inherently

indiscriminate, the intruding canine nose is highly discrimi-

nate.” A sniff test by a trained narcotics detection dog re-

veals no information other than the presence or absence of

narcotics. Thus, the situation here is sharply distinguishable

from that in Katz in terms of the individual’s legitimate need

for Fourth Amendment protection. The monitoring of a pri-

vate conversation is obviously a substantial intrusion into an

individual's privacy because it reveals the contents of his

conversations, whether related to criminal activity or wholly

innocent. But the dog sniff does not expose the contents of

an individual’s luggage. An individual who is not smuggling

narcotics will suffer no intrusion whatsoever from a dog

sniff. The only information the sniff test reveals is whether

the luggage contains narcotics. While a drug smuggler obvi-

ously desires to keep that information private, that is not a

privacy interest “that society is prepared to recognize as

‘reasonable.’” Rakas v. Illinois, 439 U.S. 128, 144 n.12

(1978), quoting Katz v. United States, supra, 389 U.S. at

361 (Harlan, J., concurring). In short, it is untenable to

maintain that, when an individual leaves his luggage in a

public place such as an airport baggage terminal, the Fourth

Amendment is violated if a dog trained to detect contraband

walks close enough to the luggage to sniff it.

13

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Rex E. Lee

Solicitor General

1). LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ALAN I. Horow!Tz

Assistant to the Solicitor General

JOHN F. De Pug

Attorney

OCTOBER 1982

la

APPENDIX A

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

No. 80-1652

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

JOHN CHRISTOPHER BEALE,

DEFENDANT-APPELLANT.

Argued and Submitted April 9, 1981.

Decided April 22, 1982.

Appeal from the United States District Court for the

Southern District of California.

Before ELY, FLETCHER, and REINHAA DT, Circuit

Judges.

ELY, Circuit Judge:

This case, an appeal from a conviction of possession with

intent to distribute and conspiracy to possess with intent to

distribute a controlled substance, raises important constitu-

tional issues relating to the application of Fourth Amend-

ment rubric to the Government's use of trained canines to

detect illegal substances not subject to perception by the

unaided human senses. Because we hold that the use of

trained canines in this case was improper absent a showing

of “founded suspicion,” we vacate and remand.

FACTS

As appellant Beale was convicted in a bench trial on stip-

ulated facts, we consider the facts, as stipulated and as ad-

duced at the suppression hearing, to be undisputed. The

2a

following rendition is gleaned from the trial “record,” in the

light most favorable to the Government. See United States

v. Nelson, 419 F. 2d 1237, 1241 (9th Cir. 1969).

On April 17, 1980, Detective Rick Berks of the Broward

County Sheriff's Department was assigned to the airport

detail at the Fort Lauderdale (Florida) Airport. This detail,

which Detective Berks had performed for at least two

years, is responsible for the “interdiction” or interception

of narcotics contraband passing through the airport. Also

on duty were Deputy Sheriff Larry Burk and a trained ca-

nine, “Nick.”

Berks observed two male caucasians, subsequently iden-

tified as John Beale and Joseph Pulvano, exit a taxicab in

front of the National Airlines terminal. Beale and Pulvano

checked three pieces of luggage with a “skycap” and then

entered the terminal together. Upon reaching a security

checkpoint inside, they separated and obtained their seat-

ing assignments from the ticket counter independently.

They both possessed first-class tickets to San Diego, with a

change of planes in Houston. Berks ascertained that Beale's

suitcase bore an identification tag indicating a New Jersey

address. After separately departing from the ticket coun-

ter, Beale and Pulvano entered the National Airlines

boarding area and sat down together.

Detective Berks, suspicious of the foregoing behavior,'

approached Beale and Pulvano, identified himself, ex-

plained that they were not under arrest, and requested

Berke, based on his expertise in airport-related narcotics cases, be-

lieved that the subjects’ conduct in separating upon entering the air-

port terminal, obtaining separate seat assignments, and looking about

furtively, and their destination—a known center of drug traffic—gave

rise to an inference that they were drug couriers. See generally United

States v. Mendenhall, 446 U.S. 544, 563-65, 100 S. Ct. 1870, 1878-30,

64 L.Ed.2d 497 (1980) (Powell, J., concurring). But see Reid v.

Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2750-4, 65 L.Ed.2d

890 (1980) (per curiam). We express no view, however, whether these

facts, later circumstances, and “rational inferences” therefrom rose to

the level of “founded” or “articulable” suspicion. See Terry v. Ohio,

392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); United

States v. Post, 607 F. 2d 847, 849-51 (9th Cir. 1979). This determina-

tion should be made in the first instance by the District Court on

remand.

3a

that they answer a few questions and produce some identi-

fication. Beale complied, producing his New Jersey driver's

license. Pulvano, who appeared very nervous, stated that

his identification was in his luggage, which he had just

checked. Berks then asked the pair if they had ever been

arrested. Pulvano said he had been arrested six years earli-

er on a narcotics charge. Berks thanked them for their co-

operation and walked away. About five minutes later,

Pulvano walked over to Berks and inquired if anything was

wrong. Berks told Pulvano, who exhibited signs of abnor-

mal anxiety—trembling hands, cracking voice, palpable

agitation—that there was no problem at that time.

Berks proceeded to the baggage area, where he and Dep-

uty Burk had “Nick” sniff or smell the vicinity of the sus-

pects’ bags. “Nick,” an experienced and reliable drug de-

tector, “alerted” on Beale’s suitcase. As Beale and Pulvano

had already boarded their flight to Houston, Berks con-

tacted the Houston Police Department’s airport detail and

ran a computer check on the pair. Pulvano, the computer

check revealed, had been arrested and convicted of pos-

sessing a large quantity of cocaine in an Atlanta airport ap-

proximately six months earlier.

Police officers in Houston kept the suspects and their

luggage under surveillance as they changed planes in

Houston. They deplaned separately and appeared as though

they were not traveling together; they were the last two

passen ers to board the plane to San Diego. Agents in San

Diego were alerted to the suspect H arrival.

When the plane arrived in San Diego, Beale and Pulvano,

each carrying a shoulder bag, exited quickly and behaved

warily. Beale did not go to the luggage area to claim his

bags, but left the terminal and immediately attempted to

board a taxicab. He was accosted by agents and, when

asked about his luggage, asserted that he had lost the claim

checks. While Pulvano was waiting inside the terminal at

the baggage claim area, a United States Customs Service

Officer and a trained canine “Duster” briefly intercepted

the suspects’ luggage. “Duster,” an experienced and relia-

ble narcotics detector, “alerted” on Beale’s suitcase. When

4a

Pulvano retrieved the bags—including Beale’s—and

started to leave the airport, he too was accosted. “Duster”

later “alerted” on Beale’s shoulder bag.

Based on a sworn affidavit containing this information,

the officers obtained a search warrant for Beale’s suitcase

and shoulder bag. Approximately 961 grams of cocaine

were discovered in the shoulder bag and approximately 137

grams of marijuana were discovered in the suitcase.

Beale’s motion to suppress the evidence obtained in these

searches was denied. On the foregoing stipulated facts

Beale was convicted of possession with intent to distribute

and conspiracy to possess with intent to distribute a con-

trolled substance—cocaine—in violation of 21 U.S.C.

$8 84 1(a)(1), 846.

ISSUES ON APPEAL

The only issue not subject to stipulation is the constitu-

tional propriety of the principal police encounters with

Beale and Pulvano, i. e., their questioning in the Fort Lau-

derdale Airport, the “sniffing expedition” of their luggage

in Fort Lauderdale, and their ultimate arrest and the

search of their bags in San Diego.

DISCUSSION

I.

{1} Beale contends that the officer's initial approach and

non-custodial questioning of him and his companion const'-

tuted a “seizure” or detention under the Fourth Amend-

ment, requiring founded suspicion or probable cause. The

District Court, however, concluded otherwise* and we

agree. The suspects’ mobility was not impaired; the situa-

tion was non-coercive; Berks did not request that they fol-

low him or otherwise alter their destination, schedule, or

location; the questions were routine and brief, and in an at-

mosphere not dominated by law enforcement personnel;

and the suspects agreed to answer Berks’ queries “in a

spirit of apparent cooperation.“ See Sibron v. New York,

2 Reporter's Transcript at 73-74, 77.

5a

392 U.S. 40, 68, 88 S.Ct. 1889, 1902, 20 L. Ed. 2d 917 (1968);

United States v. Fry, 622 F.2d 1218, 1219-21 (5th Cir.

1980) (per curiam); United States v. Elmore, 595 F.2d

1036, 1041-42 (5th Cir. 1979), cert. denied, 447 U.S. 910,

100 S.Ct. 2998, 64 L. Ed. 2d 861 (1980); 3 W. La Fave,

Search and Seizure: A Treatise on the Fourth Amendment

4855 (1978).

Thus, we need not consider whether “founded” or “artic-

ulable” suspicion existed at that time. Cf. United States v.

Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L.Ed.2d 497

(1980); Brown v. Teras, 443 U.S. 47, 99 S.Ct. 2687, 61

L.Ed.2d 357 (1979); Adams v. Williams, 407 U.S. 143, 92

S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v.

Corbin, 662 F. 2d 1066, 1068-71 (4th Cir. 1981).

Beale next contends that even if the initial encounter was

not an unlawful seizure, the use of the trained canine

“Nick” to “conduct a sniffing expedition” of his luggage in

the baggage area of the Fort Lauderdale Airport consti-

tuted an illegal search. If the “sniffing expedition” were an

illegal search, the Government would face a difficult, per-

haps impossible, burden of showing that this did not taint

or infect the ultimate search of Beale’s luggage in San

Diego. See Wong Sun v. United States, 371 U.S. 471,

484-88, 83 S.Ct. 407, 415-17, 9 L. Ed 2d 441 (1968).

Unfortunately, the parties have treated the “dog sniff-

ing” issue in absolute terms. Beale argues, for instance,

that the primary issue is whether the use of “Nick” to sniff

his suitease was a search requiring probable cause. The

District Court, in the suppression hearing, held that the

use of trained canines in this case was not a search and,

hence, that no showing of suspicion was required.* Similar-

ly, the Government argues on appeal that “it is well-estab-

3 Jd. at 8.

* See id. at 72 (“1 think the present state of the law is that the dog

search sie in Fort Lauderdale and here is not a search under the

Fourth Amendment.)

ba

lished that the use of trained dogs to sniff the exteriors of

containers, including luggage, is not a search in violation of

the Fourth Amendment.” Brief of Appellee at 15.

Not only do these arguments oversimplify our holding in

United States v. Solis, 536 F. 2d 880, 882 (9th Cir. 1976),

they also misapprehend the importance of a person’s priva-

cy interest in personal luggage. See Arkansas v. Sanders,

442 U.S. 758, 762, 764-65, 99 S.Ct. 2586, 2592, 2598, 61

L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S.

1, 11, 13, 97 S.Ct. 2476, 2483, 2484, 53 L.Ed.2d 538 (1977).

See also United States v. Allen, 644 F.2d 749 (9th Cir.

1980); United States v. Homberg, 540 F. 2d 1350, 1354-55

(9th Cir. 1976) (Ely, J., dissenting), cert. denied, 431 U.S.

940, 97 S.Ct. 2654, 58 L.Ed.2d 258 (1977); United States v.

Moore, 483 F. 2d 1361, 1363-64 (9th Cir. 1973).

Focusing on the precise ph. l nature of the canine

sniffing obscures, we believe, ge underlying Fourth

Amendment interests. The Government emphasizes that

only the “exterior of containers” were sniffed. Likewise,

the Government relies on United States v. Bronstein, 521

F. 2d 459, 461-68 (2nd Cir. 1975), cert. denied, 424 U.S.

918, 96 S.Ct. 1121, 47 L. Ed. 2d 324 (1976), to counter

Beale’s argument that the use of trained canines is as intru-

sive under the Fourth Amendment as a magnetometer.

Bronstein, however, like the earlier United States v.

Fulero, 498 F. 2d 748, 749 (D.C. Cir. 1974) (per curiam), is

a pre-Chadwick case.

We seriously doubt whether the reasoning employed in

Bronstein and Fulero is still sound. In Bronstein the Sec-

ond Circuit stated that It here can be no reasonable expec-

tation of privacy when one transports baggage by plane,

particularly today when the menace to public safety by the

skyjacker and the passage of dangerous of hazardous

freight compels continuing scrutiny of passengers and their

impedimenta.” 521 F.2d at 462. By applying Chadwick to

transcend and limit the “automobile exception” to the war-

rant requirement in Arkansas v. Sanders, 442 U.S. at

763-65, 99 S.Ct. at 2592-98, the Supreme Court seems to

7a

have rejected the Bronstein reasoning.* The D. C. Circuit's

characterization as “frivolous” of the Fulero appellant's ar-

gument that a canine’s sniffing of personal luggage was an

unconstitutional intrusion into the lockers seems similarly

flawed. 498 F. 2d at 749.

Our analysis must begin with the premise that “the

Fourth Amendment protects people, not places.” Katz v.

United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19

L.Ed.2d 576 (1967). More particularly, it protects people

from unreasonable government intrusions into their legiti-

mate expectations of privacy.” United States v. Chadwick,

433 U.S. at 7, 97 S. Ct at 2481. The protection of the Fourth

5 Moreover, it seems to us that Bronstein’s equation of the menace

of drug smuggling and use with the threat of skyjacking is logically

flawed. Whatever danger drugs may pose to society, see United States

v. Mendenhall, 446 U.S. at 561-62, 100 S.Ct. at 1881 (Powell, J., con-

curring), to our knowledge no one has ever hijacked or blown up an air-

plane with drug-type contraband. Compare United States v. Gumer-

lock, 590 F. 2d 794, 796-800 (9th Cir.) (en bane), cert. denied, 441 U.S.

948, 99 S.Ct. 2173, 60 L.Ed.2d 1052 (1979), and United States v.

Davis, 482 F .2d 898, 910-15 (9th Cir. 1973) (Fourth Amendment con-

straints on pre-boarding screening security searches of passengers and

carry-on baggage at airports), with United States v. Allen, 644 F .2d at

750-52, and United States v. Moore, 483 F.2d at 1362-64 (Fourth

Amendment constraints on drug-motivated searches or seizures of per-

sonal luggage “checked-through” airline or retained within airport

terminal).

If the potentially “hazardous” or “dangerous” nature of a cargo is

sufficient to abrogate travelers’ reasonable expectation of privacy in

containers being transported, the Bronstein approach would justify

unrestricted roadblocks and vehicular searches, dragnet monitoring of

domestic mail, and other unacceptable results. “Terry does not justify

the wholesale ‘frisking’ of the general public in order to locate weapons

and prevent future crimes.” United States v. Davis, 482 F 2d at 908.

“There is an obvious danger ... that the screening of passengers and

their carry-on luggage for weapons and explosives will be subverted

into a general search for evidence of crime.” Id. at 909 (footnote

omitted). The increasing use of dogs, in airports and elsewhere, to de-

tect contraband exemplifies the “powerful hydraulic pressures” to

“water down constitutional guarantees.” Terry v. Ohio, 392 U.S. at 39,

88 S.Ct. at 1888 (Douglas, J., dissenting). We must be vigilant lest we

succumb to those powerful pressures. See United States v. Johnson,

431 F.2d 441, 452 (Sth Cir. 1970) (en bane) (Godbold, J., dissenting);

of. nate 20 infra.

da

Amendment is invoked when the individual claiming it had

a legitimate expectation of privacy in the invaded place.

Raus v. Illinois, 439 U.S. 128, 143, 99 8. Ct. 421, 430, 58

L.Ed.2d 387 (1978). The Supreme Court has recognized

that “luggage is a common repository for one’s personal ef-

fects, and therefore is inevitably associated with the expec-

tation of privacy.” Arkansas v. Sanders, 442 U.S. at 762,

99 S.Ct. at 2592 (emphasis added). The critical factor

relied on jin Arkansas v. Sanders| was the objective na-

ture of the suitcase as personal luggage, e., the inherent

nature of the container itself rather than the behavior of its

owner.” United States v. Cleary, 656 F. 2d 1302, 1304 (9th

Cir. 1981), petition for cert. filed, 50 U. S. L. W. 3466 (U.S.

Nov. 20, 1981) (No. 81-953).

Our inquiry, then, is whether the use of independent

monitoring devices, such as drug-trained canines, to detect

the presence of contraband within personal luggage® is an

invasion of the owner's “inevitable” and “inherent” privacy

interest in the contents therein.“

* As we stated in United States v. Cleary, “the term ‘personal lug-

gage’ encompasses those items commonly perceived as being designed

for carrying and storing personal effects or papers and which have

some sort of device to keep them closed.” 656 F.2d at 1304-05 (foot-

note omitted).

We need not decide whether the use of trained canines to detect

the contents of other containers constitutes a violation of the Fourth

Amendment. See, ¢e.g., United States v. Van Leeuwen, 397 U.S. 249,

90 S.Ct. 1029, 25 L. Ed. 2d 282 (1970) (parcels of mail); United States u.

Choate, 576 F. 2d 165, 174-80 (9th Cir.), cert. denied, 439 U.S. 958, 99

S.Ct. 350, 58 L.. Ed. 2d 344 (1978) (same); United States v. Mackey, 626

F. 2d 684, 687 (9th Cir. 1980) (contents of paper bag); United States u.

Venema, 563 F.2d 1008, 1006-07 (106th Cir. 1977) (rental storage lock-

er); United States v. Race, 529 F 2d 12, 13-14 (ist Cir. 1976) (air cargo

freight in warehouse); Doe v. Renfrow, 475 F Supp. 1012 (N. D. Ind.

1979), modified per curiam, 631 F .2d 91 (7th Cir. 1980), cert. denied,

451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981) (students and

lockers in public schools); Bilbrey v. Brown, 481 F.Supp. 26

(D.C.D.Or. 1979) (same); State v. Rogers, 43 N. C. App. 475, 259

S. E. 2d 572 (1979) (safe deposit box). It bears emphasis, however, that

if canine intrusions into these areas are permitted, it must be because

the intrusion was reasonable or the expectation of privacy nonexistent,

not because the dog's nose did not physically invade the protected area

Ya

In United States v. Solis, 536 F.2d 880 (9th Cir. 1976),

we avoided characterizing the use of trained canines in

terms of conventional detection devices. Instead, we ap-

plied a general reasonableness standard. See id. at 881-83.

Solis noted, without drawing an analogy, that:

Generally evidence acquired by unaided human senses

from without a protected area is not considered an ille-

gal invasion of privacy, but is usable under doctrines

of plain view or open view or the equivalent. Odors so

detected may furnish evidence of probable cause of

“most persuasive character, Johnson v. United

States, 333 U.S. 10, 18, 68 S.Ct. 367, 368, 92 L.Ed.

436 (1948) ....

Id. at 881. Looking at the totality of the circumstances, we

held in Solis that Customs Officers’ use of trained “drug

dogs” to sniff a semi-trailer parked on the lot of a gas sta-

tion was reasonable and not a prohibited Fourth Amend-

ment search for the following reasons: “The agents had a

founded suspicion based on the partial corroboration of the

informant’s statements”; the semi-trailer was parked in an

area open to the public; At here was no invasion of the ‘cur-

tilage’”; and At he investigation was not indiscriminate.”

Id. at 882.

Beale’s privacy interest in the contents of his suitcase

was far greater than Solis’ expectation of privacy in his

semi-trailer. See Arkansas v. Sanders, 442 U.S. at 761-66,

99 S.Ct. at 2591-94; United States v. Chadwick, 433 U.S.

at 11, 13, 97 S.Ct. at 2483, 2484;* Cardwell v. Lewis, 417

U.S. 583, 589-92, 94 S.Ct. 2464, 2468-70, 41 L.Ed.2d 325

(1974); Carroll v. United States, 267 U.S. 132, 158, 45

in a trespassory sense. See Katz v. United States, 389 U.S. at 352-58,

88 S.Ct. at 510-11; note 20 infra & accompanying text.

Finally, irrespective of whether canine-sniffing of luggage at a port

of entry or international border is a Fourth Amendment intrusion,

there is ample authority that routine searches and inspections con-

ducted by Customs officials at the border are per se reasonable. This

includes the inspection of international letter mail. United States v.

Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); see

United States v. Dubrofsky, 581 F .2d 208, 211 (9th Cir. 1978).

A] person's expectations of privacy in personal luggage are sub-

stantially greater than in an automobile.” 433 U.S. at 13.

10a

S.Ct. 280, 285, 69 L.Ed. 543 (1925). In fact, the Supreme

Court has elevated personal luggage to the Fourth Amend-

ment status accorded private residences:

No less than one who locks the doors of his home

against intruders, one who safeguards his personal

possessions |by locking them in a piece of luggage| is

due the protection of the Fourth Amendment Warrant

Clause.

Chadwick, 433 U.S. at 11, 97 S.Ct. at 2483.

Whether arrested in a hotel lobby, an airport, a rail-

road terminal, or on a public street, as here, the owner

has the right to expect that the contents of his luggage

will not, without his consent, be exposed on demand of

the police.

Arkansas v. Sanders, 442 U.S. at 767, 99 S.Ct. at 2594

(Burger, C. J., concurring).

This distinction between Solis and the present case,

while relevant, is not dispositive. Had Detective Berks,

utilizing only his own natural senses, been able to detect

the odor of controlled substances emanating from Beale's

suitcase, this would not have been a Fourth Amendment in-

trusion. See United States v. Solis, 536 F. 2d at 881. “What

a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment pro-

tection.” Katz v. United States, 389 U.S. at 351, 88 S.Ct.

at 511.°

The superficially appealing analogy between the use of a

canine’s acute sense of smell, and, for instance, mechanical

* Compare Katz v. United States, 389 U.S. at 352, 88 S.Ct. at 512

(electronic eavesdropping device invades the reasonable expectation of

acy one has in a phone booth), with United States v. McLeod, 498

F.2d 1186 (7th Cir. 1974) (when telephone caller is aware of nearby

third party, who overhears caller’s conversation, no reasonable expec-

tation of privacy is violated). See generally, United States v. White,

401 U.S. 746, 748-54, 91 S.Ct. 1122, 1124-27, 28 L.Ed.2d 453 (1971).

lla

enhancement devices such as flashlights“ or binoculars!!

is, upon reflection, inapt. A trained canine’s sense of smell

is more than eight times as sensitive as a human's. See

United States v. Solis, 536 F. 2d at 881. Moreover, the dog

does not amplify its handler’s perception; it is an independ-

ent detection device, alerting the officer to information he

would have been utterly unable to detect with his own

senses. Nick’s nose did not enhance Detective Berks’

senses, it replaced them.'? Accord, United States v. Bron-

Under particular circumstances, we have approved certain limited

use of such devices. See, e.g., United States v. Hood, 498 F .2d 677, 680

(9h Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84

(1974); United States v. Walling, 486 F. 2d 229, 236 (9th Cir, 1973),

cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974);

United States v. Marin, 444 F. 2d 86, 87 (9th Cir. 1971) (citing

Marshall v. United States, 422 F. 2d 185 (5th Cir. 1970)) (use of flash-

light neither validates otherwise unlawful search nor invalidates other-

wise lawful search). In these cases, the sense-enhancing devices mere-

ly enabled the officers to perceive at night that which they could

normally have perceived, unaided, during the day.

In United States v. Allen, 633 F. 2d 1282, 1290 (9th Cir. 1980), as

amended, (9th Cir. April 16, 1981), cert. denied, U.S. .

102 S.Ct. 133, 70 L.Ed.2d 112 (1981), we held that the use of binocu-

lars from a hill observation site violated no reasonable expectation of

privacy. In that case, however, we also validated surveillance from a

hill accomplished with the naked eye. Id. No valid analogy, however,

can be drawn between Allen and the case at bar. Our decision in Allen

was premised on the necessarily reduced expectation of privacy held

by the defendant because of the location of the area searched. As we

stated:

The Allen Ranch is virtually on the United States sea-coast bor-

der (citations omitted), and Coast Guard helicopters routinely

traversed the nearby airspace for several reasons, including law

enforcement. The residents of the Allen Ranch would, no doubt,

have been aware of these routine flights and any reasonable per-

son, cognizant of the ranch's proximity to the coastline and the

Coast Guard's well-known function of sea-coast patrol and sur-

veillance, could expect that government officers conducting such

flights would be aided by sense-enhancing devices.

As such, the residents could not reasonably bear a subjective ex-

pectation of privacy from the Coast Guard's air-borne telephoto-

graphic scrutiny of the objects observed here, large scale modifi-

cations of the Allen Ranch landscape and barn.

1 Since Katz, supra, the use of independent detection devices such

as Magnetometers and x-ray scans has uniformly been held to consti-

tute a search. See, e.g., United States v. Henry, 615 F.2d 1223, 1227

12a

stein, 521 F.2d at 464 (Mansfield, J., concurring); Com-

ment, United States v. Solis: Have the Gove iments

Supersniffers Come Down With a Case of Constitutional

Nasal Congestion?, 13 San Diego L.Rev. 410, 423 (1976).

Thus, the use of trained canines to monitor the contents of

personal luggage cannot be analyzed as a variant of human

plain view or plain smell. Cf. United States v. Leazar, 460

F. 2d 982, 983-85 (9th Cir. 1972) (police officer's olfactory

detection of marijuana odor in car created probable cause

for arrest). Accord, United States v. Johnston, 497 F. 2d

397, 398 (9th Cir. 1974); United States v. Barron, 472 F. 2d

1215, 1217 (9th Cir.) (per curiam), cert. denied, 413 U.S.

920, 93 S.Ct. 3063, 37 L.Ed.2d 1041 (1973).

The molecules of contraband emanating from the interior

of luggage are so subtle and incapable of human perception

that a canine’s detection of them constitutes an intrusion

into the owner’s privacy interest in the contents of the con-

tainer. See Hernandez v. United States, 358 F. 2d 624, 626

(9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972,

16 L.Ed.2d 1021 (1966). The “trepassory” or “physical pen-

etration” mode of Fourth Amendment analysis was aban-

doned in Katz v. United States in favor of a normative “ex-

pectation of privacy” standard. 389 U.S. at 352-58, 88 S.Ct.

at 511-12; see Smith v. Maryland, 442 U.S. 735, 740-41

n.5, 99 S.Ct. 2577, 2580 n.5, 61 L.Ed.2d 220 (1979); United

States v. Taborda, 635 F.2d 131, 136-39 (2nd Cir. 1980);

United States v. Davis, 482 F. 2d 898, 905 (9th Cir. 1973).

(9th Cir. 1980) (x-ray sean); United States v. Albarado, 495 F. 2d 799

(2nd Cir. 1974) (magnetometer). While the use of independent elec-

tronic or mechanical detection devices constitutes a search, the corolla-

ry is not necessarily true in the case of sense-enhancing devices. Gen-

erally, we have limited our exemption of the use of sense-enhancing

devices from the strictures of the Fourth Amendment to cases in which

ordinary, commercially available devices, which citizens might expect

members of the general public as well as the law enforcement commu-

nity to possess, are employed and their use occurs in a location from

which the ordinary citizens might otherwise observe the property or

activity. Clearly, the use of some sense-enhancing devices may consti-

tute a search. See, e.g., Katz, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d

576.

13a

To paraphrase Katz, what Beale sought to exclude when

he locked his suitcase was not only the intruding human

eye—it was also the intruding canine nose. One who re-

poses his personal effects, including contraband, in a locked

suitcase is surely entitled to assume that a trained canine

will not broadcast its incriminating contents to the authori-

ties. 1 See 389 U.S. at 352, 88 S.Ct. at 512. Cf. Stanley v.

Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22

L.Ed.2d 542 (1969) (“Whatever may be the justifications

for other statutes regulating |, inter alia, the sale and pur-

chase of] obscenity, we do not think they reach into the pri-

vacy of one’s own home.“); id. at 571-72, 89 S.Ct. at 1251

(Stewart, J., concurring) (reaching same conclusion on

Fourth Amendment grounds).

21 However, we do not agree with Beale that the use of

drug-detecting canines is identical to the use of a magne-

tometer, x-ray machine, or other electronic or mechanical

surveillance device, invoking the full rigors of the Fourth

Amendment rubric. While x-ray scans and the use of mag-

netometers are “searches” subject to the full requirements

of the Fourth Amendment, see United States v. Henry, 615

F. 2d 1223, 1227-28 (9th Cir. 1980), we find the use of drug

dogs sufficiently distinct and less intrusive to warrant a dif-

ferent treatment.

Drug-detecting canines may be “utilized with minimal in-

vasion of privacy.” United States v. Solis, 536 F. 2d at 882.

“(Their use] is distinguishable from all other search activi-

ties in that there is no risk that an innocent person’s priva-

cy will be intruded upon.” 1 W. La Fave, supra, at 387.

1 We agree with the Second Circuit that “analysis of the constitu-

tional protection to be accorded to privacy expectations is not] signifi-

cantly aided by reference to the nature of the conduct involved.”

United States v. Taborda, 635 F. 2d at 138 n. 10.

A person in his home has no greater, nor more reasonable, expec-

tation that he will be observed by his neighbor when his conduct

is criminal than when it is innocent. What varies with the nature

of the activity is not the likelihood, but rather the consequences,

of its being observed.

Id. at 139 n.10. The fact that trained canines detect only contraband

diminishes, but does not obliterate, the nature of the intrusion. A

graduated Fourth Amendment approach may not be appropriate with

other forms of detection technology.

14a

Unlike wiretapping, which is almost inherently indiseri mi-

nate, the intruding canine nose is highly discriminate. See

Peebles, The Uninvited Canine Nose and the Right to Pri-

vacy: Some Thoughts on Katz and Dogs, 11 Ga.L.Rev. 75,

89 (1976). In contrast to “dragnet” detection measures,

which discern all conversations, all metal objects, or all ob-

served activity, the canine detects only contraband. “Any

intrusion is minimal because the only information gleaned

from the (canine| ‘examination’ is whether contraband is

present. If an innocent person's suitcase were ‘examined’

by the canine, the handler would learn only that marijuana

was not present.” Note, Constitutional Limitations on the

Use of Canines to Detect Evidence of Crime, 44 Fordham

L. Rev. 973, 987 (1976) (footnote omitted). Properly trained

canines are extremely reliable and any mistake is one of

omission, favoring the suspect. When a dog is directed to

approach luggage which does not contain the suspected con-

traband, the animal will not “alert,” obviating the possibili-

ty of annoyance, inconvenience, harassment, and humilia-

tion associated with unproductive surveillance of other

sorts. 1 W. La Fave, supra, at 288.

3] Therefore, we hold—consistent with the unartic-

ulated reasoning of United States v. Solis;'* United States

v. Klein, 626 F.2d 22 (7th Cir. 1980)“ United States v.

Our decision is expressly premised on this concept of canine relia-

bility and on the fact that the Government must establish the dog’s re-

liability as part of its showing to support the issuance of a warrant or a

finding of probable cause. Should either of these premises prove inac-

curate, the use of dogs to sniff luggage would not be condoned by the

court unless all the normal prerequisites to an ordinary search were

complied with.

The agents had a founded suspicion (that the semi-trailer con-

tained marijuana}. Calling upon the dogs for further corroboration .. .

as a basis for application to a magistrate for a warrant to enter the ve-

hicle was a reasonable course of action on the part of the agents.” 536

F. 2d at 882.

[Suspicious circumstances] coupled with the agents’ previous ob-

servation of defendants and the information from the Florida

rn ei-

— — 2 2 — of defendants’ — but

enough e ts reasonable on to

— — —— pp

15

Bronstein; “ and United States v. Fuleros - that the use

of a canine’s keen sense of smell to detect the presence of

contraband within personal luggage’® is a Fourth Amend-

ment intrusion, albeit a limited one that may be conducted

without a warrant and which may be based on an officer's

“founded” or “articulable” suspicion rather than probable

cause. See State v. Wolohan, 23 Wash. App. 813, 598 P.2d

421 (1979) (Melnturff, J., dissenting).

626 F. 2d at 25. [There is no substantial difference between the doc-

trine of ‘founded suspicion’ ... and the ‘reasonable suspicion’ test

United States v. Rocha-Lopez, 527 F .2d 476, 477 (9th Cir. 1975), cert.

denied, 425 U.S. 977, 96 S.Ct. 2181, 48 L. Ed. 2d 802 (1976).

‘7 “In view of the tip received from the airline-employee informants

previously found to be reliable by the West Coast DEA agent ...,

there was ample cause for the agents to pursue the lead and to place

under surveillance the fully described passengers and their luggage.”

521 F. 2d at 461. “I would strictly limit canine sniffing| to cases where

there are grounds for |reasonable suspicion that the baggage contains

contraband], similar to or stronger than that present here, and would

not permit a wholesale examination of all baggage in the hope that a

crime might be detected.” Id. at 465 (Mansfield, J., concurring).

Prior to using the drug-detecting dogs, the police officer in Fulero

had reasonable suspicion, based on the totality of circumstances, that

the footlockers contained contraband. See 498 F. 2d at 748-49. See also

People v. Lester, 101 Cal. App.3d 613, 161 Cal. Rptr. 703, cert. denied,

449 U.S. 919, 101 S.Ct. 316, 66 L.Ed.2d 146 (1980); People v. Furman,

30 Cal. App.3d 454, 106 Cal. Rptr. 366 (1973).

In the present case, the luggage sniffed was located in an airport

baggage room removed from the vicinity of its owners and other trav-

elers. There was no possibility that the dog would alert to contraband

being carried on a person. Thus we do not confront the constitutional

problem u ch would be presented if law enforcement officers sought

to use highly trained canines to sniff luggage in close proximity to peo-

ple. See last part of note 20, infra, and Solis, 536 F. 2d at 883 (“There

was no embarrassment to or search of the person.).

20 To the extent that United States v. Burns, 624 F. 2d 95, 101 (10th

Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980);

United States v. Sullivan, 625 F. 2d 9, 12-13 (4th Cir. 1980), cert.

denied, 450 U.S. 923, 101 S.Ct. 1374, 67 L.Ed.2d 352 (1981); and

United States v. Goldstein, 635 F. 2d 356, 360-62 (5th Cir.), cert.

denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981), depart

from this unstated rationale, we decline to follow them. As stated

earlier in this opinion, after Katz, Chadwick, and Arkansas v. San-

ders, it is not tenable to assert that “|tjhere can be no reasonable ex-

pectation of privacy when any passenger's bags may be subjected to

l6a

4] Because the District Court apparently misconstrued

Solis as holding that canine sniffing is not a Fourth Amend-

ment intrusion at all, it did not make any factual or legal

determination with respect to the Fort Lauderdale officers’

quantum of suspicion. See Reporter’s Transcript at 72-78.

Rather than make this finding de novo, we prefer to re-

mand the case to the District Court to make the necessary

determinations. If the District Court finds that the Fort

Lauderdale “sniffing expedition” was supported by artic-

ulable, founded suspicion, then the District Court would be

correct in its prior ruling that “probable cause for | Beale’s|

close scrutiny for the protection of public safety,” Su/livan, 625 F. 2d

at 13, or that “the olfactory activities of a trained police dog legiti-

mately on the premises do not constitute a search.” Burns, 624 F. 2d at

101. Nor do we agree with either the formulation or the conclusion that

“the passenger's reasonable expectation of privacy does not extend to

the airspace surrounding his] luggage.” Goldstein, 635 F. 2d at 361.

See note 5 supra & accompanying text; text accompanying notes 8-13

supra.

We are mindful that Professor Amsterdam might view our holding as

a “sliding scale” application of Fourth Amendment principles that may

gradually dilute its protections in critical respects. Amsterdam, Per-

spectives on the Fourth Amendment, 58 Minn.L. Rev. 349, 393 (1974).

We do not intend any dilution. The rule we adopt here sets forth a min-

imum level of Fourth Amendment “entitlement.” In situations less

pervasively regulated than airports, it may be that a person's reason-

able expectation of privacy in his luggage is greater, warranting a cor-

respondingly more protective analysis of the “intrusion” issue. And it

goes without saying that the alternative to random checkpoint stops

cited in Jelaware v. Prouse, i.e., “\qjuestioning ... all oncoming traf-

fic at roadblock-type stops,” 440 U.S. 648 at 663, 99 S.Ct. 1391 at 1401,

59 L.Ed.2d 660, is totally unpalatable in the canine sniffing context.

Nothing would invoke the spectre of a totalitarian police state as much

as the indiscriminate, blanket use of trained dogs at roadblocks, air-

ports, and train stations. See generally Terry v. Ohio, 392 U.S. 1,

38-39, 88 S.Ct. 1868, 1888, 20 L.Ed.2d 889 (1968) (Douglas, J., dis-

senting); United States v. Bronstein, 521 F. 2d at 465 (Mansfield, J.,

concurring); 1 W.La Fave, supra, at 286. Similarly, the use of dogs to

sniff people, rather than objects, is highly intrusive and is normally in-

consistent with the concepts embodied in our Constitution. We would

not preclude, however, the use of a trained canine who sniffs from a

distance as an alternative where a more intrusive strip search or

search of the body cavities is justified.

17a

arrest was established by the narcotic dog’s actions in Flor-

ida, followed up by the narcotic dog alerting again in San

Diego.” Id. at 77.

If, however, the District Court finds that the Fort

Lauderdale intrusion was based on a constitutionally defi-

cient level of suspicion, it will have to revise its probable

cause determination concerning Beale's arrest and the issu-

ance of the search warrant in San Diego, excluding evi-

dence tainted by the Florida dog sniffing.?!

The judgment of conviction is therefore VACATED

AND REMANDED, WITH INSTRUCTIONS.

21 See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9

L.Ed.2d 441 (1963); United States v. Cella, 568 F.2d 1266, 1284-87

(9h Cir. 1977); note 1 supra.

18a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-1652

D.C. No. CR 80-277-LCN

Filed July 21, 1982

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

JOHN CHRISTOPHER BEALE, DEFENDANT-APPELLANT.

ORDER

Amending Opinion

Before: ELY, FLETCHER, and REINHARDT, Circuit

Judges

The Opinion, filed April 22, 1982, in the above-entitled

case shall be amended as follows:

1. At 674 F.2d 1327, 1334 (9th Cir. 1982) Aal, second

column, line 35, insert “normally” after the words “any mis-

take is”.

2. At page 1334 | 14a], second column, line 38, insert “or-

dinarily” after the words “the animal will”.

3. At page 1334 | 13a], footnote 13, second column, line 4,

insert “may” after “that trained canines”.

4. At page 1335 | l4a], footnote 14, add a new paragraph

to the footnote as follows:

It must be emphasized that dogs, like humans and

machines, are not infallible, and that, not withstanding

the optimistic vi of some commentators, on occa-

sion a narcotics dog may err. Thus, the mere fact that

phn —＋ Sea ag even when there is founded

to allow the dog to sniff, is not necessarily

nd for 2 cause to open and inspect it.

—— the dog is reliable is central to estab-

lishing the necessary probable cause.

19a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-1652

D.C. No. CR 80-277-LCN

Filed Aug. 5, 1982

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

JOHN CHRISTOPHER BEALE, DEFENDANT-APPELLANT.

Before: ELY, FLETCHER, and REINHARDT, Circuit Judges

The judges constituting the panel originally concerned

with the subject case (Ely, Fletcher, Reinhardt) have voted

unanimously to deny the Petition for Rehearing. Judges

Fletcher and Reinhardt have voted to reject the suggestion

for en bane rehearing, and Judge Ely has recommended

that such suggestion be rejected.

The full court having been advised of the suggestion for

en banc rehearing, and a judge in active service having re-

quested that a vote be taken on the suggestion on en banc

rehearing, such a vote has been taken. Fed. R. App. P.

3b). The suggestion for en banc rehearing was not adopt-

ed by a majority of the court's judges in active service.

Accordingly, the Petition for Rehearing is denied, and

the suggestion for en banc rehearing is rejected.