# Petition — United States v. Beale

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 1202

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1017%3A1. Public record. Not legal advice.