Petition for Writ of Certiorari — Beale v. United States

Supreme Court brief1984

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No. ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

JOHN CHRISTOPHER BEALE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAN ALFARO

FRANK G. DAVILA

(Counsel of Record)

2818 S. Port Avenue

Corpus Christi, Texas 78405

(512) 888-5273

Attorneys for Petitioner

September, 1984

CASILLAS PRESS, INC. - 1717 K Street NW WASHINGTON DC - 223-1220

(i)

QUESTION PRESENTED

Whether the Fourth Amendment requires that law en-

forcement officials have a reasonable suspicion that lug-

gage contains contraband before exposing it to a sniff test

by a trained narcotics detection dog.

(iii)

TABLE OF CONTENTS

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REASONS FOR GRANTING THE PETITION ................ 6

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(iv)

TABLE OF AUTHORITIES

Cases: Page

Arkansas vs. Sanders,

442 U.S. 753, 762, 99 S. Ct. 2586, 2592, 61 L. Ed. 2d

PEED t nd-6ubdnichsu6endcadsensbaeeabiandah uesseaeet ks -

Katz vs. United Staes,

389 U.S. 347, 88S. Ct. 507, 19 L. Ed. 2d 576 (1967) ...... 9, 10, 12

State vs. Elkins,

47 Ohio App. 2d 307, 357 N.E.2d 716 (1976) ................. 13

Terry vs. Ohio,

De Sckclns cece kG aseheshe sal eseaneees ness 7

United Staets vs. Alvarado,

a ncaa cnbeseenbacdsbenwenhs 10, 11

United States vs. Beale,

(Beale I), 674 F.2d 1327 (9th Cir. 1982) .............. 0. eee e nee 2

United States vs. Beale,

(Beale II), 731 F.2d $90 (9th Cir. 1983) .................008. 2,2

United States vs. Beale,

ee ee. cake dasenvaweeences cues 2, 6, 7

United States vs. Bronstein,

§21 F.2d 459 (2nd Cir. 1975), cert. denied, 424 U.S.

918, 96S. Ct. 1121, 47 L. Ed. 2d, 324 (1976) ...... 8, 10, i1, 12, 13

United States vs. Chadwick,

Nee nn Cue eee Cewhdeeweneshouns 8,9

United States vs. Cleary,

656 F.2d 1302, 1304 (9th Cir. 1981), petition for cert.

filed, 50 U.S.L.W. 3466 (U.S. Nov. 20, 1981)

I te i oO Aub eb he eke wanna we 9

United States vs. Goldstein,

635 F.2d 356, 361-62, (Sth Cir.), cert. denied,

Se Ae, OU ED cance wc ect ccenccacescans 12

(v)

United States vs. Klein,

Ge GPU Ms BOE vcs cccccceneccsececeess

United States vs. Lee,

274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927) ..

United States vs. McDonald,

Gi canedennnbeseeedsekensinnces

United States vs. Place,

ee ei tv énateersenudeekvnseeene

United States v. Solis,

EOC res

United States vs. Viegas,

639 F.2d 42, 54 (Ist Cir.), cert. denied, 451 U.S. 970,

101 S.Ct. 2046, 68 L.Ed. 2d 348 (1981) ...............

United States vs. West,

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IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1984

No.

JOHN CHRISTOPHER BEALE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN CHRISTOPHER BEALE petitions 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-7a) is reported at 736 F.2d 1289.'

‘The opinion as reported does not contain the modifications made

by the court of appeals in its July 20, 1984 amendment to the decision.

See App. B, infra.

JURISDICTION

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

7a) was entered July 2, 1984 after an April 11, 1984, en

banc rehearing requested by the government. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following the denial of his suppression motion, Peti-

tioner was convicted at a bench trial on stipwiated facts in

the United States District Court for the Soutiie’n District

of California of conspiracy to distribute cocaine, in viola-

tion 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, 2a). 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. See App. C,

Beale I, 674 F.2d 1327 (1982). Upon denial of the govern-

ment’s petition for rehearing, a Petition for a Writ of Cer-

tiorari was granted the government and the Supreme

Court vacated the judgment and remanded, directing the

court of appeals to consider the case again in light of

United States vs. Place, 103 S.Ct. 2637 (1983). Following

such reconsideration, the court of appeals issued a second

opinion, vacating the conviction and remanding the cas

to district court. See App. D, Beale II, 731 F.2d 590

(1983). The government filed a petition for rehearing, and

upon rehearing en banc, the court of appeals affirmed the

judgment of conviction (App. A, 7a).

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

Department were assigned to the airport narcotics inter-

diction detail at the Fort Lauderdale Airport.? While

watching passengers in the vicinity of the National Airlines

terminal, Detective Berks observed Petitioner and co-

defendant Joseph Pulvano? leave a taxicab, check three

pieces of luggage including a large maroon suitcase, and

enter the terminal together. Upon reaching a security

checkpoint inside, the two men separated and indepen-

dently approached the ticket counter, but then sat together

in the boarding area. After observing this behavior, Detec-

tive Berks determined that the two men had obtained sepa-

rate seating assignments on a National Airlines flight to

San Diego, California, with a change of planes in Hous-

ton, Texas. Detective Berks also examined the labels on

the Defendant’s luggage and noticed that Pulvano was

watching him while he examined the bags (Tr. 6-7; Stip.

2-3).

Detective Berks then approached the two men, iden-

tified himself, and asked whether they objected to answer-

ing 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 ex-

tremely nervous, stated that his identification was in his

Suitcase and that he had been arrested on narcotics charge

six years earlier. Detective Berks then thanked them for

*Petitioner’s trial consisted of the filing of a stipulation (“Stip”) by

the parties to certain facts developed during the suppression hearing,

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

dict 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.

their cooperation and walked to the other side of the

boarding area. Approximately five minutes later, Pulvano

approached Detective Berks and inquired whether any-

thing was wrong. The officer responded that there was no

problem at that time (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 conciuded his con-

versation with the Defendants, the officers went to the

baggage loading ramp adjacent to the National Airlines

ticket counter, which contained the baggage that Res-

pondent and Pulvano had checked. The dog immediately

“alerted” to Petitioner’s large maroon suitcase, indicating

that it contained narcotics (App. A, 2a; 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 trans-

pired (Tr. 12-13; Stip. 3-4). Police officers in Houston

kept Petitioner and Pulvano under surveillance as they

changed planes there, observing that the two men acted as

though they were traveling separately (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 be-

haved as though they feared surveillance. As he reached

the front of the terminal, Pulvano stopped at a telephone;

Petitioner walked directly to a taxi without making any ef-

fort to retrieve his luggage (Tr. 49-50; Stip. 5). Police of-

ficers then approached Petitioner and asked him about his

luggage. In response, he stated falsely that he was travel-

ing alone and that he had lost his claim ticket. Thereupon

the officers advised him that he was under arrest and es-

corted him back to the terminal (Tr. 50-53; Stip. 5-6).

While Petitioner and Pulvano were under surveillance,

other officers took a trained narcotics detection dog to

the baggage claim area, and this dog also alerted to Pe-

titioner’s large maroon suitcase (App. A, 2a; Tr. 29; Stip.

6-7). 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 suitcase (Tr. 30-32; Stip. 7). Subsequently, when

Petitioner arrived at the Narcotics Task Force Office, the

dog also alerted to the shoulder bag that Petitioner had

been carrying (App. A, 2a; 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 Petitioner’s shoulder bag and suitcase contained con-

traband. (App. A, 2a; Tr. 35; Stip. 8).

2. The district cuurt denied the motions of Petitioner

and Pulvano to suppress the evidence obtained as the re-

sult of these searches (Tr. 7278). The Court rejected the

contention that probable cause or even the lesser standard

of reasonable suspicion, 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

detection dog, explaining that “the present state of the law

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

search under the Fourth Amendment” (Tr. 72).

3. The Court of Appeals ultimately affirmed Peti-

tioner’s conviction after en banc consideration (App. A,

la-7a). The Court, in considering the effect of United

States v. Place, held that a sniff of luggage by a trained

narcotics detection dog does not constitute a “search”

within the meaning of the Fourth Amendment. The Court

of Appeals summarily dispensed with any Fourth Amend-

ment considerations, finding no “search” had taken place,

thus avoiding altogether the central issue regarding the re-

quirement of reasonable suspicion as a standard of proof.

REASONS FOR GRANTING THE PETITION

This case presents a very important question concerning

the restrictions that the Fourth Amendment should impose

upon the use of specially trained dogs to assist in the detec-

tion of illegal narcotics traffic. The court of appeals’

ultimate holding that the use of a trained dog to detect the

presence of narcotics contained in personal luggage does

not constitute a “search” within the meaning of the Fourth

Amendment directly conflicts with decisions of other

courts of appeals and moreoever, is contrary to well es-

tablished principles of Fourth Amendment law. If permit-

ted to stand, it will no doubt have an adverse impact

against individual liberties, resulting in unlawful intru-

sions of individual privacy interests.

1. The panel’s holding in Beale IT, requiring prior suspi-

cion before a detector dog may be utilized in the area of

luggage, is entirely consistent with the Supreme Court’s

views on canine sniffs as set forth in United States v.

Place, 103 S.Ct. 2637 (1983). Since the Supreme Court in

Place held that reasonable suspicion was required before

the luggage can be detained to be sniffed, it must naturally

follow that reasonable suspicion is still necessary to con-

duct such a sniff, even if no “detention” were required.

The Government would seek to distinguish Beale IT from

Place by noting that Place involved two separate issues

and evaluated two separate claims concerning legitimate

expectations of privacy: (1) whether the seizure and deten-

tion of a traveler’s luggage, located in an airport, may be

effected without a warrant and on less than probable

cause; and (2) if so, to what extent the seizure and deten-

tion were limited by the Fourth Amendment. /d. at 2639.

Even though the Government would seek to rely on such

distinction, Appellant would not readily concede this

distinction since the matter of detention would ultimately

be a question of fact that would have to be determined ini-

tially on remand. Notwithstanding any distinctions that

the Government may seek to rely upon, Appellant main-

tains that Fourth Amendment requirements of reasonable

suspicion should be applied to canine sniffs, irrespective

of detention considerations. Since the duration of Appel-

lant’s detention is not revealed, under Place, a brief. and

limited detention of Appellant’s luggage would have been

reasonable if the initial sniffing had been warranted on the

basis of reasonable suspicion.

Since the Government summarily discounts the issue

of detention considerations altogether, the Government

would at the same time lead this Court to believe that

reasonable suspicion is therefore of no consideration as

well.

It is most unfortunate that the Supreme Court utilized

dictum language in stating that a canine sniff investigation

“did not constitute a “search” within the meaning of the

Fourth Amendment,” Jd. at 2645. This dictum in Place is

certainly misleading in the context of its entire decision.,

As the court of appeals noted in Beale IJ, the term

“search”, however, though conceptually convenient, is not

essential to the conclusion that the investigative activity is

suspect to the Fourth Amendment.” See Terry v. Ohio,

392 US 1, (1968). Thus, the most important consideration

is not the use of the non-conclusory word “search”, but

rather, “whether the investigative activity is the kind of in-

trusion a free society is willing to tolerate if unregulated by

constitutional constraints.” Amsterdam, Perspectives on

the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974);

See United States v. Solis, 536 F.2d 880, 881 (9th Cir.

1976).

It is well settled that the essence of a search is the intru-

sion into an area which the owner or possessor is entitled

to enjoy as private. United Siates v. Bronstein, 521 F.2d

459 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S. Ct.

1121, 47 L. Ed. 2d, 324 (1976). Clearly there cannot be

such intrusion where a human being can with his own

senses and without physical investigation, ascertain the

contents of a particular area. However, where one must

rely on the use of certain aids or instruments such as bino-

culars, flashlights, hidden microphones, or even drug-snif-

fing dogs, the answer may not be as clear.

In wrestling with Fourth Amendment considerations

courts have drawn distinctions between the use of certain

“sense-enhancing” instruments that aid in the detection of

contraband, and independent monitoring devices, such as

drug-trained canines. See United States v. Lee, 274 U.S.

559, 563, 47 S. Ct. 746, 71 L. Ed. 1202 (1927). In conjunc-

tion with this is the level of privacy associated with the

area that is searched. United States v. Chadwick, 433

U.S., 97 S. Ct. 2481 (1977). The necessary inquiry in the

instant case, then, relates to the use of drug-trained

canines for the explicit purpose of detecting contraband

within personal luggage.

Tie Supreme Court has indeed recognized that “luggage

is a common repository for one’s personal effects, and

therefore is inevitably associated with the expectation of

privacy.” Arkansas v. Sanders, 442 U.S. 753, 762, 99 S.Ct.

2586, 2592, 61 L. Ed. 2d 235 (1979) (emphasis

added). “(T]he critical factor reli* 1 on (in Arkansas v.

Sanders) was the objective nature of the suitcase as per-

sonal luggage, i.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).

Under our fact situation, the obvious question pre-

sented is whether the detection of the odoriferous drug by

the use of the sensitive and schooled canine senses

employed, constitutes an invasion of Appellant’s “in-

evitable” and “inherent” privacy interest in the contents of

his luggage. Appellee would argue that a canine’s detection

of molecules of contraband in the air surrounding Appel-

lant’s luggage does not constitute an intrusion into his

privacy interest in the content of said luggage, since there

is no physical invasion of a private area.

The Supreme Court has previously held, however, that a

surveillance technique may implicate the Fourth Amend-

ment concerns even if there is no physical invasion of a

private area. Katz v. United States, 389 U.S. 347, 88 S. Ct.

507, 19 L. Ed. 2d 576 (1967). In Katz the warrantless bugg-

ing of a public telephone booth was found to violate the

Fourth Amendment and 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. By way of analogy, in drawing upon

Katz, this Court of Appeals recognized Appellant’s

legitimate expectation of privacy not only in the contents,

but in the odors emanated as well. Thus, “the use of

sophisticated modern mechanical or electronic devices and

the frightening implications of their possible development

have led to abandonment of the test of physical trespass

within the protected area and broadening of protection to

cover a ‘reasonable expectation of privacy’ ” Katz, supra

at 360.

In delivering his concurring opinion in United States v.

Bronstein, supra at 464, Circuit Judge Mansfield stated:

[T]he police have been permitted to enhance or

magnify the human senses with the aid of in-

struments such as binoculars or flashlights, ***

[bJut that is not the case here where the nose be-

ing put into other’s business was clearly an intru-

sion.

The police agents here did not smell or see any contra-

band, nor were their senses enhanced. The only indication

that contraband was present was the action of the dog.

Their own senses were replaced by the more sensitive nose

of the dog in the same manner that a police officer’s ears

are replaced by hidden microphone in areas where he can-

not otherwise hear because of the inaudibility of the

sounds. The illegality of the latter practice in the absence

of a search warrant for special circumstances has long

been established. Katz, supra. In his opinion, Judge

Mansfield concluded there was “no legally significant dif-

ference between the use of any X-ray machine or magne-

tometer to invade a closed area in order to detect the

presence of a metal pistol or knife,” which as been held to

be a search, United States v. Alvarado, 495 F.2d 799 (2d

Cir. 1974), “and the use of dogs to sniff for marijuana in-

side a private bag. Each is a non-human means of detect-

ing the contents of a closed area without physically enter-

ing into it,” Bronstein, supra at 464. Even though neither

intrusion is particularly offensive, the fact remains that

each detects hidden objects without actual entry and with-

out the enhancement of human senses. “The fact that a

canine’s search is more particularized and discriminate

than that of the magnetometer is not a basis for a legal dis-

tinction. Judge Mansfield states that:

{t]he important factor is not the relative accuracy

of the sensing device but the fact of the intrusion

into a closed area otherwise hidden from human

view, which is the hallmark of any search.

If, as we have held, examination of carry-on lug-

gage and individual passengers by a magne-

tometer or X-ray machine amounts to a search

within prohibition of the Fourth Amendment

because it discloses hidden items within areas

where there is a normal expectation of privacy,

United States v. Alvarado, supra, 495 F.2d at

802-03, then the intrusion of a sniffing dog in

search of marijuana must also fall within that

prohibition when directed at hidden areas where

there is similarly a normal expectation of pri-

vacy” Bronstein, supra at 464.

In another case handed down from the Tenth Circuit,

United States v. MacDonald, 670 F.2d 910 (1982), the

Court of Appeals commented on the standard of reasona-

ble suspicion required in utilizing a dog search in stating:

Other courts that have addressed the substantive

issue have held that so long as the police rea-

sonably suspect criminal activity, they may tem-

porarily detain baggage or move it to permit

examination by drug-detecting dog without vio-

lating the baggage owner’s Fourth Amendment

interest in privacy.

United States v. West, 651 F.2d 71, 74 (Ist Cir. 1981);

United States v. Viegas, 639 F.2d 42, 54 (ist Cit), cert.

denied, 451 U.S. 970, 101 S. Ct. 2046, 68 L. Ed. 2d 348

(1981); United States v. Goldstein, 635 F.2d 356, 361-62

(Sth Cir.), cert. denied, ___ U.S. ___., 101 S. Ct. 3111,

69 L. Ed. 2d 972 (1981); United States v. Klein, 626 F.2d

22 (7th Cir. 1980).

Similarly, Judge Mansfield expressed the same concerns

over such searches:

[I]t is not unreasonable, where the police have

reasonable grounds to suspect the presence of

contraband, to permit use of an external method

or device to determine whether the baggage con-

tains contraband. On this ground I will uphold

the search here. However, I will strictly limit

such a search to cases where there are grounds

for such a suspicion, similar to or stronger than

that presented here. I would not permit a whole-

sale examination of all baggages in the hope that

a crime might be detected.

Bronstein, supra at 465.

In the final analysis, the question of whether the use of a

trained canine to detect the presence of concealed contra-

band is a search, must be determined by the justified-

expectation-of-privacy-test applied originally in the case

of Katz v. United States, supra. As previously stated under

Katz, “the critical question is the kind of intrusion that a

free society is willing to tolerate.” That is, a valued judg-

ment must be made whether the particular form of surveil-

lance practiced by the police is permitted to go unregulated

by constitutional restraints. In effect, the amount of

privacy and freedom remaining to citizens would be dim-

inished to a compass inconsistent with the aims of a free

and open society.

Totally unrestrained use of trained dogs, it is submitted,

would not be consistent with the kind of open society to

which we are committed. It would be intolerable if the

police, in no way limited by the Fourth Amendment, were

free to utilize dogs to undertake “a wholesale examination

of all baggage in the hope that a crime might be detected”

or “to roam the streets at will with trained dogs or sensor

instruments, detecting the odor of marijuana and arresting

persons at will as a result.” See State v. Elkins, 47 Ohio

App. 2d 307, 357 N.E. 2d 716 (1976).

As Judge Mansfield so wisely cautioned us in Bronstein:

Otherwise, as the majority recognizes, the spec-

tre of a “Big Brother” baggage search, uncurbed

by the Fourth Amendment, would then loom

much larger on the horizon. As more sophis-

ticated detection devices are developed in the

future, such a broad authority would be an open

invitation to conduct blanket examinations, thus

eroding the principles of the Fourth Amendment

itself.

Thus, Petitioner maintains that canine investigations do

fit within the parameters of the Fourth Amendment, in-

cluding investigations not founded on articulable suspi-

cion. As such, that Court’s original holding that the sniff

was a Fourth Amendment intrusion and that, as such, rea-

sonable suspicion was required before the sniff could le-

gally take place, is entirely consistent with the Place deci-

sion.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Frank G. Davila

Dan Alfaro

Attorneys for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

) No. 80-1652

Plaintiff-Appellee, )

) OPINION

VS. )

)

JOHN CHRISTOPHER BEALE, )

)

Defendant-Appellant. )

)

Appeal from the United States District Court for

the Southern District of California

Leland C. Nielsen, District Judge, Presiding

Argued and Submitted En Banc April 11, 1984

Before: BROWNING, Chief Judge, CHOY, WAL-

LACE, SNEED, HUG, SKOPIL, SCHROE-

DER, PREGERSON, POOLE, CANBY, and

BOOCHEVER, Circuit Judges.

CHOY, Circuit Judge:

This apveal presents the sole question of whether a sniff

of luggage by a trained narcotics detection dog constitutes

a “search” within the meaning of the Fourth Amendment.

We hold that it does not.

I. Background

Florida detectives observed John Beale and Joseph Pul-

vano check three pieces of luggage with a skycap at the

National Airlines terminal at Fort Lauderdale, but then

saw them separate inside the terminal and obtain their

seating assignments from the ticket counter separately.

After Beale and Pulvano sat together at the boarding area,

one detective approached them and questioned them brief-

ly. Pulvano exhibited several signs of abnormal anxiety,

and admitted that he had been earlier arrested on a nar-

cotics charge.

The detectives then had “Nick,” a narcotics detection

dog, sniff around the suspects’ luggage in the checked bag-

gage area. Nick alerted to Beale’s suitcase. From that

point, the suspects were kept under surveillance until they

reached San Diego. There, “Duster,” another narcotics

detection dog, alerted to Beale’s suitcase and shoulder bag.

Agents in San Diego then searched Beale’s luggage pur-

suant to a warrant, discovering contraband.

Beale unsuccessfully moved to suppress the evidence ob-

tained on the ground that the Fort Lauderdale sniff illegal-

ly tainted that evidence. Beale was then convicted of

possession of cocaine with intent to distribute, and of con-

spiracy to possess cocaine with intent to distribute, in

violation of 21 U.S.C. §§ 841(a), 846.

Beale appealed to this court, and we vacated and

remanded for a determination of whether the Florida

agents had articulable suspicion justifying the dog sniff by

Nick. United States v. Beale, 674 F.2d 1327 (9th Cir.

1982). The Government petitioned for certiorari, and the

Supreme Court, which had recently decided United States

v. Place, 103 S. Ct. 2637 (1983), vacated our judgment and

remanded the case to us for further consideration in light

of that decision. 103 S. Ct. 3529 (1983). From the panel’s

unreported decision on remand from the Supreme Court,

this court granted rehearing en banc. ___ F.2d (9th

Cir. 1984). We now affirm the judgment of conviction.

II. Discussion

In United States v. Place, 103 S. Ct. 2637 (1983), the

Supreme Court stated:

We have affirmed that a person possesss a

privacy interest in the contents of personal lug-

gage that is protected by the Fourth Amendment.

A “canine sniff’ by a well-trained narcotics

detection dog, however, does not require open-

ing the luggage. It does not expose noncontra-

band items that otherwise would remain hidden

from public view, as does, for example, an of-

ficer’s rummaging through the contents of the

luggage. Thus, the manner in which the informa-

tion is obtained through this investigative techni-

que is much less intrusive than a typical search.

Moreover, the sniff discloses only the presence or

absence of narcotics, a contraband item. Thus,

despite the fact that the sniff tells the authorities

something about the contents of the luggage, the

information obtained is limited. This limited

disclosure also ensures that the owner of the pro-

perty is not subjected to the embarrassment and

inconvenience entailed in less discriminate and

more intrusive investigative methods.

In these respects, the canine sniff is sui generis.

We are aware of no other investigative procedure

that is so limited both in the manner in which the

information is obtained and in the content of the

information revealed by the procedure. There-

fore, we conclude that the particular course of

investigation that the agents intended to pursue

here — exposure of respondent’s luggage, which

was located in a public place, to a trained canine

— did not constitute a “search” within the mean-

ing of the Fourth Amendment.

103 S. Ct. at 2644-45 (citation omitted). Although the

Court majority has been criticized for exploring this issue

because its resolution was unnecessary to the Court’s deci-

sion, see, e.g., id. at 2651 (Brennan, J., concurring); id. at

2653 (Blackmun, J., concurring); 1 W. LaFave, Search

and Seizure: A Treatise on the Fourth Amendment §

2.2(f), at 81 (Supp. 1984), the Court, in a recent case in-

volving the legality of a chemical field test to disclose the

presence of contraband, characterized its statement in

Place as a holding, saying that “the Court held that subjec-

ting luggage to a ‘sniff test’ by a trained narcotics detection

dog was not a ‘search’ within the meaning of the Fourth

Amendment.” United States v. Jacobsen, slip op. at 13-14

(U.S. Apr. 2, 1984). Whether or not the statement in Place

was a holding or dictum, the Supreme Court has clearly di-

rected the lower courts to follow its pronouncement.

The essence of the Supreme Court’s exposition in

Place, as extended and applied in Jacobsen, is that an in-

vestigative technique is not considered to be a “search” if

(1) it discloses only the presence or absence of a contra-

band item, and (2) its use “ensures that the owner of the

property is not subjected to the embarrassment and incon-

venience entailed in less discriminate and more intrusive

investigative methods.” Place, 103 S. Ct. at 2644.

A. Information Disclosed by the Investigative

Technique

The Court in Place reasoned that a dog sniff is an in-

vestigative technique sui generis in that it “does not expose

noncontraband items that otherwise would remain hidden

from public view... .” 103 S. Ct. at 2644. The Court

emphasized this point in Jacobsen when it stated that “the

reason {the dog sniff in Place] did not intrude upon any

legitimate privacy interest was that the governmental con-

duct could reveal nothing about noncontraband items.”

Jacobsen, slip op. at 14 n.24. We therefore see no need to

reexamine our cases holding that the use of investigative

devices revealing more than the presence of contraband,

albeit in limited fashion, do constitute searches. See, e.g.,

United States v. Henry, 615 F.2d 1223, 1227 (9th Cir.

1980) (holding that X-ray scan is a search because it “re-

veals, to a certain extent, articles the owner has chosen to

conceal from view”); United States v. Doran, 482 F.2d

929, 932 (9th Cir. 1973) (implicitly holding that a magne-

tometer scan to detcct the presence of metal is a search).

B. Intrusiveness of the Investigative Method

We recognize that the Court in Place validated only “the

particular course of investigation that the agents intended

to pursue here — exposure of respondent’s luggage, which

was located in a public place, to a trained canine.” 103 S.

Ct. at 2644-45. In declaring that the dog sniff in Place did

not constitute a search, the Court assumed that the par-

ticular method of using the dog “ensures that the owner of

the property is not subjected to the embarrassment and in-

convenience entailed in less discriminate and more intru-

sive investigative methods.” 103 S. Ct. at 2644.

In Place, as well as in Jacobsen, the investigative techni-

que did not require any contact with the owner of the pro-

perty being investigated, as the property investigated was

located in a baggage area. Here, we are not confronted

with a case in which the detection dog conducted a sniff of

a person rather than an inanimate object,' or a sniff of

'See, e.g., Horton v. Goose Creek Independent School District, 690

F.2d 470, 479 (Sth Cir. 1982), cert. denied, 103 S. Ct. 3536 (1983)

(holding that use of dogs to sniff students in class was a search);

Loewy, The Fourth Amendment as a Device for Protecting the Inno-

cent, 81 Mich. L. Rev. 1229, 1246-47 (1983) (“the very act of being

luggage that a person was carrying at the time.? The in-

vestigative technique applied to Beale’s luggage caused

“virtually no annoyance and rarely even contact with the

owner of the bags, unless the [test result] is positive.”

United States v. Waltzer, 682 F.2d 370, 373 (2d Cir. 1982),

cert. denied, 103 S. Ct. 3543 (1983). There is no evidence

that Beale himself was detained, even for a moment, cue

to that sniff.

We hold that the investigation of Beale’s luggage in

these circumstances did not interfere, in any meaningful

way, with Beale’s possessory interest in his luggage. We

realize that the Supreme Court in Place equated the seizure

of a traveler’s luggage to seizure of his person when seizure

of luggage subjects the person “to the possible disruption

of his travel plans in order to remain with his luggage or

arrange for its return.” 103 S. Ct. at 2645 (footnote omit-

ted). In Place, however, DEA agents held the suspect’s

luggage between a Friday afternoon and the following

Monday morning. The agents never made it “absolutely

clear how they [planned] to reunite the suspect and his

possessions at some future time and place.” 103 S. Ct. at

2645 n.8 (quoting 3 W. LaFave, supra, § 9.6, at 61 (Supp.

1982)). Consequently, the Court held that Place’s luggage

was seized.

subjected to a body sniff by a German Shepherd may be offensive at

best or harrowing at worst to the innocent sniffee”) (footnote

omitted).

2See Doe v. Renfrow, 451 U.S. 1022, 1026 n.4 (Brennan, J., dis-

senting from denial of certiorari) (noting that cases allowing dog sniffs

“involved the sniffing of inanimate and unattended objects”) (em-

phasis added); 1 W. LaFave, supra, § 2.2(f), at 84 (Supp. 1984) (“a

sniff directed at objects being carried by the person is no less objec-

tionable, especially when done in an airport corridor in circumstances

amounting to a public accusation of crime.”).

In contrast, Beale was not detained or otherwise incon-

venienced, nor were his travel plans interfered with in the

slightest, while Nick and the other Florida detectives did

their work. Any interference with Beale’s possession of his

luggage was de minimis. Cf. United States v. Jacobsen,

slip op. at 15 & n.28 (discussing de minimis invasions of

Fourth Amendment interests); United States v. Van

Leeuwen, 397 U.S. 249, 252 (1970) (one-day detention of

packages placed in the mail not a seizure). There was thus

no seizure of his property necessitating probable cause or

reasonable suspicion. See Jacobsen, slip op. at 3 (defining

a seizure of property).

III. Conclusion

The canine sniff of Beale’s luggage conducted at the

Fort Lauderdale Airport was not a “search” under the

Fourth Amendment. Beale’s motion to suppress the evi-

dence on the ground that it was illegally tainted by the Fort

Lauderdale sniff was properly denied. Accordingly the

judgment of conviction appealed from is

AFFIRMED.

United States v. Beale, No. 80-1652 (en banc)

PREGERSON, Circuit Judge, dissenting:

I respectfully dissent for the reasons that Judge Ely ex-

pressed in two excellent panel opinions: Beale I, 674 F.2d

1327 (9th Cir. 1982), and Beale II, 731 F.2d 590 (9th Cir.

1983). I write further mainly to point out that the majori-

ty, in telling us that a dog sniff is not a search, fails to tell

us what it is. I submit that the intruding canine nose, Beale

I, 674 F.2d at 1334, like the intruding eye and the unin-

vited ear, Katz v. United States, 389 U.S. 347, 352 (1967),

deserves a more exacting Fourth Amendment inquiry than

the majority has given it.

In holding that the police may employ a trained nar-

cotics detection dog to sniff Beale’s luggage without im-

plicating the search clause of the Fourth Amendment, the

majority makes three errors. First, it denigrates the

reasonable expectation of privacy that travelers retain in

their luggage. Second, it fails adequately to explain how

an obvious intrusion into someone’s personal effects — his

suitcases — is not a search. Finally, the majority never

even reaches the critical question the panel faced below:

whether the sniff, if not a full-blown search, nonetheless

constitutes an investigatory stop triggering the more

modest Fourth Amendment standards of Terry v. Ohio,

392 U.S. 1 (1968). I consider each matter in turn.

A. Personal Effects and the Fourth Amendment

The majority makes light of using a dog to sniff luggage

for cocaine because this technique is less intrusive than

having the dog sniff the person who owns the luggage. The

majority also tells us that the sniff in this case caused Beale

no inconvenience or embarrassment because the Florida

detectives, unlike the police in United States v. Place, 103

S. Ct. 2637 (1983), detained neither the man nor his lug-

gage for an appreciavle length of time.

Behind this rationalization lurks the assumption that a

person’s privacy interest in his luggage is less important

than his privacy interest in his person or home. I agree that

sniffing the luggage rather than the owner is somewhat less

intrusive. I disagree, however, with the premise that no in-

trusion at all occurs.

This is a “what you don’t know, won’t hurt you” ap-

proach. It permits the authorities secretly to inspect lug-

gage whenever the owner happens to become separated

from it. It thumbs its nose at the rule that “[nJo less than

one who locks the doors of his home against intruders, one

who safeguards his personal possessions in this manner

[by placing them in a locked suitcasej is due the protection

of the Fourth Amendment Warrant Clause.” United States

v. Chadwick, 433 U.S. 1, 11 (1977). The Fourth Amend-

ment, after all, protects from unreasonable searches and

seizures “(t]he right of the people to be secure in their per-

sons, houses, papers, and effects.” U.S. Const. amend. IV

(emphasis added).

“[L]uggage is a common repository for one’s personal

effects, and therefore is inevitably associated with the ex-

pectation of privacy.” Arkansas v. Sanders, 442 U.S. 753,

762 (1979). Luggage does not lose its Fourth Amendment

protection simply because it is highly mobile, see id. at

764-65, or because it turns up in public places, see id. at

767 (Burger, C.J., concurring in the judgment). To the

traveler away from home, the closed suitcase containing

personal belongings represents one of the few bulwarks of

privacy. Therefore, I cannot agree that Fourth Amend-

ment protections are inoperative merely because the thing

searched is luggage rather than the owner.

B. The Dog Sniff as a Search

The majority believes that a canine sniff does not im-

plicate the Fourth Amendment. Again I disagree. The crit-

ical question in every Fourth Amendment case is whether

the intrusion at issue is one that a free society is willing to

tolerate. United States v. Solis, 393 F. Supp. 325, 328

(C.D. Cal. 1975), aff'd in relevant part, 536 F.2d 880, 881

(9th Cir. 1976); see 1 W. LaFave, Search and Seizure §

2.2(f), at 286 (1982); Amsterdam, Perspectives on the

Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974). I

do not believe that a free society should be willing to

tolerate the spectre of trained dogs randomly sniffing

10a

private luggage to help the police determine whether some-

one is carrying contraband. “It would be intolerable if the

police, in no way limited by the Fourth Amendment, were

free to utilize dogs to undertake ‘a wholesale examina-

tion of all baggage in the hope that a crime might be de-

tected.’” 1 W. LaFave, supra § 2.2(f), at 286 (quoting

United States v. Bronstein, 521 F.2d 459, 465 (2d Cir.

1975) (Mansfield, J., concurring), cert. denied, 424 U.S.

918 (1976). Yet the majority moves in this direction.

The authorities invaded Beale’s reasonable expectation

of privacy in the contents of his luggage when they em-

ployed a trained dog to sniff for drugs. As Judge Ely wise-

ly pointed out, the detectives needed the dog; they couid

not detect the substance by relying on their unaided senses.

Beale I, 674 F.2d at 1333-34. When using dogs to ferret

out contraband, the police are not simply walking around

hoping to come across evidence of a crime. Instead, they

are investigating. They are trying to find something. They

are seeking evidence in hidden places. If this activity does

not qualify as a “search,” then I am not sure what does.

The majority, in any event, offers little reasoning to back

up its finding that the intrusion was not a search.

To me, there is little practical difference between em-

ploying a trained dog to sniff luggage and permitting a

police officer, acting without consent or a search warrant,

to view the suitcase through an x-ray machine, United

States v. Henry, 615 F.2d 1223, 1227 (9th Cir. 1980), or

simply to open it. United States v. Bronstein, 521 F.2d

459, 464 (2d Cir. 1975) (Mansfield, J., concurring), cert.

denied, 424 U.S. 918 (1976). In each instance, the police

learn about the presence or absence of particular contra-

band in the suitcase. The fact that, in using a trained dog,

the authorities learn less information about the remaining

lia

contents (such as clothing, toilet articles, and books) mat-

ters little if the information leads to the same result —

namely, detecting and exposing illicit items.

C. The Dog Sniff as a Terry Investigative Stop

Even if I were satisfied that the dog sniff at issue was

not a search, I would still adhere to Judge Ely’s reasoning

in Beale I that the sniff was an invasion of privacy deserv-

ing some level of Fourth Amendment scrutiny. Judge Ely

thought that

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

reposes his personal effects, including contra-

band, in a locked suitcase is surely entitled to

assume that a trained canine will not broadcast

its incriminating contents to the authorities.

Beale I, 674 F.2d at 1334 (footnote and citations omitted).

But despite finding that Beale retained an expectation of

privacy against having the contents of his suitcase “broad-

cast” to the police, Judge Ely still would not have required

the authorities to establish full probable cause to conduct

the dog sniff. Instead, he would have required only that

the officers establish a “ ‘founded’ ” or “ ‘articulable’ ”

suspicion of crime under the standards set out in Terry v.

Ohio, 392 U.S. 1, 20-27 (1968). Beale I, 674 F.2d at 1335.

As Judge Ely explained in Beale IT:

Rather than follow an illogical approach of ig-

noring the source of the judicial authority to

establish reasonable restraints on canine in-

vestigations, we think it infinitely more sensible

to recognize that the scope of the Fourth Amend-

ment encompasses this investigative technique.

12a

Moreover, the restraint adopted here is the

eminently reasonable one of simply requiring

that before using a trained dog to investigate

the very private contents of personal luggage for

evidence of crime, the police have some ar-

ticulable reason, not necessarily amounting to

probable cause, to suspect that the luggage may

contain contraband.

Beale II, 731 F.2d at 595-96 (emphasis in original).

The majority, however, has chosen the illogical ap-

proach. It has not explored whether the canine investiga-

tion, if not a “search” requiring probable cause, is none-

theless a lesser “intrusion” or “invasion” subject to some

modicum of Fourth Amendment protection.

The majority’s all-or-nothing approach to awarding

Fourth Amendment protection suffers from three defects.

First, it completely removes the judiciary’s responsibility

for supervising limited invasions of Fourth Amendment

rights. See, e.g., Johnson v. United States, 333 U.S. 10, 14

(1948) (discussing importance of a neutral authority pass-

ing on reasonableness of search warrants). The police need

no longer justify to a neutral magistrate their plans to use

trained dogs — either before the sniff at a probable cause

hearing, or afterward during a suppression hearing. The

authorities are free, on the basis of hunches and guesses,

to employ dogs to sniff personal luggage for the purpose

of detecting contraband.

Second, the majority overlooks circumstances in the

Supreme Court’s key decisions indicating that the interme-

diate Terry approach is appropriate in dog sniff cases.

Place, for example, did not hold that the Government did

not need to provide any basis for conducting the sniff. In-

stead, Place held that the authorities could briefly detain

l3a

luggage based on an articulable suspicion that the owner

was a drug courier. See 103 S. Ct. at 2644. This inquiry

preceded any discussion about whether the authorities

could then employ a canine sniff. Jd. Relying on these

facts, Judge Ely simply held the Government to the mo-

dest burden of articulating a reasonable suspicion. He cor-

rectly reasoned that such suspicion is present when the

suitcase owner fits the drug courier profile that narcotics

agents commonly use to identify drug smugglers. In so do-

ing, Judge Ely recognized both the Government’s Terry-

type need to conduct flexible, on-the-spot investigations,

and society’s interest in avoiding random and capricious

intrusions into travelers’ luggage and personal effects.

Third, the majority all too readily forfeits what little

Fourth Amendment protection might still obtain in this

developing area of police work. The reasonable suspicion

standard is already easy to meet. If courts fail to hold the

authorities to even this low threshold of reasonableness,

then the Fourth Amendment will no longer offer the pro-

tection against arbitrary authority that the Framers in-

sisted on.

Justice Douglas worried about the “powerful hydraulic

pressures” that bear on courts to water down constitu-

tional guarantees. Terry v. Ohio, 392 U.S. 1, 39 (1968)

(Douglas, J., dissenting). I fear that with today’s deci-

sion, the majority has ventured beyond watering down

Fourth Amendment protections. Instead, in a new cate-

gory of cases, it has defined them out of existence.

l4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No. 80-1652

Plaintiff-Appellee,

OPINION

VS.

JOHN CHRISTOPHER BEALE,

)

Defendant-Appellant. )

)

Before: BROWNING, Chief Judge, CHOY, WAL-

LACE, SNEED, HUG, SKOPIL, SCHROE-

__DER, PREGERSON, POOLE, CANBY, and

BOOCHEVER, Circuit Judges.

The Opinion in this case is amended as follows:

On page 2, lines 25-27, change the sentence beginning

with “From the panel’s” to the following:

From the panel’s decision on remand from the

Supreme Court, 731 F.2d 590 (9th Cir. 1983), this

court granted rehearing en banc. 728 F.2d 411 (9th

Cir. 1984).

On page 4, lines 14-16, replace all material on those lines

with the following:

The essence of the Supreme Court’s expositions in

Place and Jacobsen, which we apply here, is that the

investigative technique employed here is not consi-

dered to be a “search” since

On page 5, lines 6-7, change “do constitute searches” to

“does constitute a search.”

1Sa

APPENDIX C

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

No. 80-1652

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

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 REINHARDT, Circuit

Judges.

ELY, Circuit Judge:

This case, an appeal from a conviction of possession

with intent to distribute and conspiracy to possess with in-

tent to distribute a controlled substance, raises important

constitutional issues relating to the application of Fourth

Amendment rubric to the Government’s use of trained

canines to detect illegal substances not subject to percep-

tion 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 apellant Beale was convicted in a bench trial on

stipulated facts, we consider the facts, as stipulated and as

16a

adduced at the suppiession hearing, to be undisputed. The

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 intercep-

tion of narcotics contraband passing through the airport.

Also on duty were Deputy Sheriff Larry Burk and a train-

ed canine, “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

counter, Beale and Pulvano entered the National Airlines

boarding area and sat down together.

Detective Berks, suspicious of the foregoing behavior,!

‘Berks, based on his expertise in airport-related narcotics cases,

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

port terminal, obtaining separate seat assignemnts, 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, 466 U.S. 544, 563-65, 100 S.Ct. 1870,

1878-80, 64 L.Ed.2d 497 (1980) (Powell, J., concurring). But see Reid

v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2753-54, 65 L.Ed.2d

17a

approached Beale and Pulvano, identified himself, ex-

plained that they were not under arrest, and requested that

they answer a few questions and produce some identifica-

tion. 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

earlier on a narcotics charge. Berks thanked them for their

cooperation 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 ab-

normal anxiety — trembling hands, cracking voice, palpa-

ble 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

suspects’ bags. “Nick,” an experienced and reliable drug

detector, “alerted” on Beale’s suitcase. As Beale and Pul-

vano had already boarded their flight to Houston, Berks

contacted the Houston Police Department’s airport detail

and ran a computer check on the pair. Pulvano, the com-

puter check revealed, had been arrested and convicted of

possessing a large quantity of cocaine in an Atlanta airport

approximately 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

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

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

should be made in the first instance by the District Court on remand.

i8a

two passengers to board the plane to San Diego. Agents in

San Diego were alerted to the suspects’ 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 at-

tempted 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 ex-

perienced and reliable narcotics detector, “alerted” on

Beale’s suitcase. When Pulavno retrieved the bags — in-

cluding 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 dis-

tribute a controlled substance — cocaine — in violation of

21 U.S.C. §§ 841(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

19a

Lauderdale Airport, the “sniffing expedition” of their lug-

gage in Fort Lauderdale, and their ultimate arrest and the

search of their bags in San Diego.

DISCUSSION

[1] Beale contends that the officer’s initial approach

_ and non-custodial questioning of him and his companion

constituted a “seizure” or detention under the Fourth

Amendment, requiring founded suspicion or probable

cause. The District Court, however, concluded otherwise?

and we agree. The suspects’ mobility was not impaired; the

situation was non-coercive; Berks did not request that they

follow him or otherwise alter their destination, schedule,

or location; the questions were routine and brief, and in an

atmosphere 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,

3982 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917

(1968); United States v. Fray, 622 F.2d 1218, 1219-21 (Sth

Cir. 1980) (percuriam); United States v. Elmore,m 595

F.2d 1036, 1041-42 (Sth 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

48-55 (1978)

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

ticulable” suspicion existed at that time. Cf. United States

v. Mendenhall, 466 U.S. 544, 1000 S.Ct. 1870, 64 L.Ed.2d

?Reporter’s Transcript at 73-74, 77.

Id. at 8.

20a

497 (1980); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 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 con-

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

an illegal search, the Government would face a difficult,

perhaps 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 (1963).

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 suitcase 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.‘

Similarly, the Government argues on appeal that “it is

well-established that the use of trained dogs to sniff the ex-

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

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

search [sic] in Fort Lauderdale and here is not a search under the

Fourth Amendment.”).

2la

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 pri-

vacy interest in personal luggage. See Arkansas v.

Sanders, 442 U.S. 753, 762, 764-65, 99 S.Ct. 2586, 2592,

2593, 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, 546 F.2d 1350,

1354-55 (9th Cir. 1976) (Ely, J., dissenting), cert. denied,

431 U.S. 940, 97 S.Ct. 2654, 53 L.Ed.2d 258 (1977);

United States v. Moore, 483 F.2d 1361, 1363-64 (9th Cir.

1973).

Focusing on the precise physical nature of the canine

sniffing obscures, we believe, the 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, 461-63 (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 in-

trusive 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 Se-

cond Circuit stated that “[t]here can be no reasonable ex-

pectation of privacy when one transports baggage by

plane, particularly today when the menace to public safety

by the skyjacker and the passage of dangerous or hazar-

22a

dous freight compels continuing scrutiny of passengers

and their impedimenta.” 521 F.2d at 462. By applying

Chadwick to transcend and limit the “automobile excep-

tion” to the warrant requirement in Arkansas v. Sanders,

442 U.S. at 763-65, 99 S.Ct. at 2592-93, the Supreme

Court seems to have rejected the Bronstein reasoning.°

The D.C. Circuit’s characterization as “frivolous” of the

Fulero appellant’s argument that a canine’s sniffing of

SMoreover, 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

airplane with drug-type contraband. Compare United States v.

Gumerlock, 590 F.2d 794, 796-800 (9th Cir.) (en banc), cert. denied,

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

States v. Davis, 482 F.2d 893, 910-15 (9th Cir. 1973) (Fourth Amend-

ment constraints 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 personal 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.” Jd. at 909

(footnote omitted). The increasing use of dogs, in airports and

elsewhere, to detect 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 banc) (God-

bold, J., dissenting); cf. note 20 infra.

23a

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). “[MJore particularly, it protects peo-

ple from unreasonable government intrusions into their

legitimate expectations of privacy.” United States v. Chad-

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

Fourth Amendment is invoked when the individual claim-

ing it had a legitimate expectation of privacy in the invad-

ed place, Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct.

421, 430, 58 L.Ed.2d 387 (1978). The Supreme Court has

recognized that “luggage is a common repository for one’s

personal effects, and therefore is inevitably associated

with the expeciation of privacy.” Arkansas v. Sanders, 442

U.S. at 762, 99 S.Ci. at 2592 (emphasis added). “[T]he

critical factor relied on [in Arkansas v. Sanders] was the

objective nature of the suitcase as personal luggage, i.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

*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).

24a

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

interest in the contents therein.’

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

we avoided characterizing the use of trained canines in

terms ¢« 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 consi-

dered an illegal invasion of privacy, but is usable

under doctrines of plain view or open view or the

™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

v. Choate, 576 F.2d 165, 174-80 (9th Cir.), cert. denied, 439 U.S. 953,

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 v. Venema, 563 F.2d 1003, 1006-07 (10th Cir. 1977) (rental

storage locker); 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 in-

vade the protected area in a trespassory sense. See Katz v. United

States, 389 U.S. at 352-53, 88 S.Ct. at 510-11; note 20 infra & accom-

panying 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).

25a

equivalent. Odors so detected may furnish evi-

dence of probable cause of “most persuasive char-

acter,” Johnson v United States, 333 U.S. 10, 13,

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; “[t]here was no invasion

of the ‘curtilage’ ”; and “[t]he investigation was not in-

discriminate.” Jd. 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, 153, 45

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 per-

sonal 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

railroad terminal, or on a public street, as here,

*“[A] person’s expectations of privacy in personal luggage are

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

26a

the owner has the right to expect that the con-

tents 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

intrusion. 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 Amend-

ment protection.” Katz v. United States, 389 U.S. at 351,

88 S.Ct. at 511.9

The superficially appealing analogy between the use of a

canine’s acute sense of smell, and, for instance, mechan-

ical enhancement devices such as flashlights'® or bino-

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

(electronic eavesdropping device invades the reasonable expectation of

privacy one has in a phone booth), with United States v. McLeod, 493

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. 745, 748-54, 91 S.Ct. 1122, 1124-27, 28 L.Ed.2d 453 (1971).

'°Under particular circumstances, we have approved certain limited

use Of such devices. See, e.g., United States v. Hood, 493 F.2d 677,

680 (9th 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 Mar-

shall v. United States, 422 F.2d 185 (Sth Cir. 1970)) (use of flashlight

neither validates otherwise unlawful search nor invalidates otherwise

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

enabled the officers to perceive at night that which they could normal-

ly have perceived, unaided, during the day.

27a

culars'' 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 in-

dependent detection device, alerting the officer to infor-

mation 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.

''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

binoculars from a hill observation site violated no reasonable expecta-

tion of privacy. In that case, however, we also validated surveillance

from a hill accomplished with the naked eye. Jd. No valid analogy,

however, can be drawn between A/llen and the case at bar. Our deci-

sion 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

border (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 person, cognizant of the ranch’s

proximity to the coastline and the Coast Guard’s well-

known function of sea-coast patrol and surveillance, could

expect that government officers conducting such flights

would be aided by sense-enhancing devices.

As such, the residents could not reasonably bear a sub-

jective expectation of privacy from the Coast Guard's air-

borne telephotographic scrutiny of the objects observed

here, large scale modifications of the Allen Ranch land-

scape and barn.

'2Since Katz, supra, the use of independent detection devices such

as magnetometers and x-ray scans has uniformly been held to con-

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

(9th Cir. 1980) (x-ray scan); 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 corol-

28a

Bronstein, 521 F.2d at 464 (Mansfield, J., concurring);

Comment, United States v. Solis; Have the Government’s

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 of-

ficer’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 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. See Hernandez v. United States, 353 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 penetration” mode of Fourth Amendment analy-

sis was abandoned in Katz v. United States in favor of a

normative “expectation of privacy” standard. 389 U.S. at

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

Generally, 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 community 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 constitute a search. See, e.g., Katz, 389 U.S. 347, 88 S.Ct.

507, 19 L.Ed.2d 576.

29a

352-53, 88 S.Ct. at 511-12; Jee 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

893, 905 (9th Cir. 1973).

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

reposes 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

authorities.'? 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 justi-

fications for other statutes regulating [, inter alia, the sale

and purchase of] obscenity, we do not think they reach in-

to the privacy of one’s own home.”); id. at 571-72, 89

S.Ct. at 1251 (Stewart, J., concurring) (reaching same

conclusion on Fourth Amendment grounds).

'\3We agree with the Second Circuit that “analysis of the constitu-

tional protection to be accorded to privacy expectations is [not]

significantly 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,

expectation that he will be observed by his neighbor when

his conduct is criminal than when it is innocent. What

varies with ihe 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 on/y 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.

30a

[2] However, we do not agree with Beale that the use of

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

netometer, x-ray machine, or other electronic or mechan-

ical surveillance device, invoking the full rigors of the

Fourth Amendment rubric. While x-ray scans and the use

of magnetometers are “searches” subject to the full re-

quirements 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 different treatment.

Drug-detecting canines may be “utilized with minimal

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

882. “[Their use] is distinguishable from all other search

activities in that there is no risk that an innocent person’s

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

387. Unlike wiretapping, which is almost inherently indis-

criminate, the intruding canine nose is highly discriminate.

See Peebles, The Uninvited Canine Nose and the Right to

Privacy: 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

observed activity, the canine detects only contraband.

“Any intrusion is minimal because the only information

gleaned from the [canine] ‘examination’ is whether contra-

band is present. If an innocent person’s suitcase were ‘ex-

amined’ by the canine, the handler would learn only that

marijuana was not present.” Note, Constitutional Limita-

tions 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 con-

tain the suspected contraband, the animal will not “alert,”

obviating the possibility of annoyance, inconvenience,

3la

harassmeut, and humiliation associated with unproductive

surveillance of other sorts. 1 W. La Fave, supra, at 288.'4

[3] Therefore, we hold — consistent with the unarticu-

lated reasoning of United States v. Solis;'5 United States

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

Bronstein;'’ and United States v. Fulero'* — that the use

'4Our decision is expressly premised on this concept of canine

reliability and on the fact that the Government must establish the

dog’s reliability as part of its showing to support the issuance of a war-

rant or a finding of probable cause. Should either of these premises

prove inaccurate, the use of dogs to sniff luggage would not be con-

doned by the court unless all the normal prerequisites to an ordinary

search were complied with.

'S“The agents had a founded suspicion [that the semi-trailer con-

tained marijuana]. Calling upon the dogs for further corroboration

... asa basis for application to a magistrate for a warrant to enter the

vehicle was a reasonable course of action on the part of the agerits.”

536 F.2d at 882.

'6 [Suspicious circumstances] coupled with the agents’

previous observation of defendants and the information

from the Florida deputy sheriff were not enough to es-

tablish probable cause, either for an arrest or for a search

of defendants’ luggage, but were certainly enough to give

the agents reasonable suspicion to believe that the suitcases

contained contraband. 626 F.2d at 25. “[T]here is no sub-

stantial difference between the doctrine of ‘founded sus-

picion’. . . 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).

'7In 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.” Jd. 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

32a

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 prob.ble

cause.*° See State v. Wolohan, 23 Wash.App. 813, 598

P.2d 421 (1979) (MclInturff, J., dissenting).

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).

'9In the present case, the luggage sniffed was located in an airport

baggage room removed from the vicinity of its owners and other

travelers. There was no possibility that the dog would alert to contra-

band being carried on a person. Thus we do not confront the constitu-

tional problem which would be presented if law enforcement officers

sought to use highly trained canines to sniff luggage in close proximity

to people. See last part of note 20, infra, and Solis, 536 F.2d at 883

(“There was no embarrassment to or search of the person.”)

20To 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 (Sth 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.

Sanders, it is not tenable to assert that “[t]here can be no reasonable

expectation of privacy when any passenger’s bags may be subjected to

close scrutiny for the protection of public safety,” Sullivan, 625 F.2d

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

legitimately on the premises do not constitute a search.” Burns, 624

F.2d at 101. Nor do we agree with either the formulation or the con-

clusion 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 accompany-

ing 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,

33a

[4] Because the District Court apparently misconstrued

Solis as holding that canine sniffing is not a Fourth

Amendment intrusion at all, it did not make any factual or

legal determination with respect to the Fort Lauderdale of-

ficers’ quantum of suspicion. See Reporter’s Transcript at

72-78. Rather than make this finding de novo, we prefer to

remand the case to the District Court to make the neces-

sary determinations. If the District Court finds that the

Fort Lauderdale “sniffing expedition” was supported by

articulable, founded suspicion, then the District Court

would be correct in its prior ruling that “probable cause

for [Beale’s] arrest was established by the narcotic dog’s

actions in Florida, followed up by the narcotic dog alert-

ing again in San Diego.” Jd. at 77.

If, however, the District Court finds that the Fort

Lauderdale intrusion was based on a constitutionally defi-

Perspectives 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 minimum level of Fourth Amendment “entitlement” In situa-

tions less pervasively regulated than airports, it may be that a person’s

reasonable expectation of privacy in his luggage is greater, warranting

a correspondingly more protective analysis of the “intrusion” issue.

And it goes without saying that the alternative to random checkpoint

stops cited in Delaware v. Prouse, i.e., “[qjuestioning . . . all oncom-

ing traffic 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 snif-

fing context. Nothing would invoke the spectre of a totalitarian police

state as much as the indiscriminate, blanket use of trained dogs at

roadblocks, airports, 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., dissenting); 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 inconsistent with the concepts embodied in our Con-

stitution. 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.

34a

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

cause determination concerning Beale’s arrest and the is-

suance 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.

2!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.

35a

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,

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) [14a], second

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

mistake is”.

2. At page 1334 [14a], second column, line 38, insert

“ordinarily” 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 [14a], footnote 14, add a new para-

graph to the footnote as follows:

It must be emphasized that dogs, like humans

and machines, are not infallible, and that, not-

withstanding the optimistic views of some com-

mentators, on occasion a narcotics dog may err.

36a

Thus, the mere fact that a dog alerts to a suit-

case, even when there is founded suspicion to al-

low the dog to sniff, is not necessarily ground for

probable cause to open and inspect it.

Knowledge that the dog is reliable is central to

establishing the necessary probable cause.

37a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

) No. 80-1652

v. )

) D.C. No. 80-0277-N

JOHN CHRISTOPHER BEALE, )

) OPINION

Defendant-Appellant. )

)

Appeal from the United States District Court

for the Southern District of California

Leland C. Nielson, District Judge, Presiding

Argued and Submitted April 9, 1981

Resubmitted June 27,1983

Before: ELY, FLETCHER, and REINHARDT, Circuit

Judges

ELY, CIRCUIT JUDGE:

On July 21, 1982, we issued an amended opinion revers-

ing the District Court’s judgment in the subject appeal.

United States v. Beale, 674 F.2d 1327 (9th Cir. 1982)

(“Beale P’). On June 27, 1983, the Supreme Court vacated

our opinion and issued its mandate.' The mandate re-

mands the cause to us and directs our “further consider-

ation” of our opinion in the light of the Supreme Court’s

opinion in United States v. Place, 462 U.S. __, 103 S.Ct.

2637 (1983).

'United States v. Beale, 103 S.Ct. 3529 (1983).

38a

After careful consideration of the Supreme Court’s opi-

nion in Place, we conclude that this case must be remand-

ed to the district court to permit it to determine whether

the canine investigation of Beale’s luggage was supported

by articulable, founded suspicion.

I. Effect of the Supreme Court’s Analysis in Place

on Our Decision in Beale I

In Beale I, our holding was limited to the stipulated

facts, which presented only two issues: (1) Whether a po-

lice officer’s use of a trained canine, with an established

record of reliability, to sniff the exterior of a traveler’s lug-

gage, located in an airport, to detect the presence of con-

traband, implicates the Fourth Amendment; and (2) if so,

to what extent the officer’s use of the canine is limited by

the Fourth Amendment. We held

that the use of a canine’s keen sense of smell to

detect the presence of contraband within per-

sonal luggage is a Fourth Amendment 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.

674 F.2d at 1335 (footnotes and emphasis omitted).

Because the district court had not made any factual de-

termination with respect to the quantum of prior suspicion

possessed by the officers who conducted the canine in-

vestigation of Beale’s luggage, we remanded to allow the

district court to make an appropriate finding. Jd. at 1330,

1336.

In Place, the Supreme Court was presented with two en-

tirely different Fourth Amendment issues: (1) Whether the

seizure and detention of a traveler’s luggage, located in an

39a

airport, may be effected without a warrant and on less

than probable cause; and (2) if so, to what extent the

seizure and detention are limited by the Fourth Amend-

ment. See 103 S.Ct. at 2639. In resolving these issues, the

Court reasoned by analogy to Terry v. Ohio, 392 U.S. 1,

25-26 (1968), and balanced the importance and difficulty

of the Government’s task in impeding the transportation

of contraband against the degree of Fourth Amendment

intrusion involved in a limited detention of luggage. 103

S.Ct. at 2642-2644. The Court held that

when an officer’s observations lead him reason-

ably to believe that a traveler is carrying luggage

that contains narcotics, the principles of Terry

and its progeny would permit the officer to de-

tain the luggage briefly to investigate the cir-

cumstances that aroused his suspicion, provided

that the investigative detention is properly lim-

ited in scope.

Id. at 2644.

Drug Enforcement Administration agents had seized

Place’s luggage upon his arrival at New York’s LaGuardia

Airport and transported the luggage to New York’s Ken-

nedy Airport where, approximately ninety minutes after

the initial seizure, the agents exposed the luggage to a nar-

cotics detection dog. Jd. at 2640. The Court concluded

that the length of time for which the police detained

Place’s luggage exceeded the permissible scope of a deten-

tion premised, as it was, solely on reasonable suspicion.

Id. at 2645-46. The Court upheld the Second Circuit’s

judgment that the evidence ultimately seized was inad-

missible as the tainted fruit of the unlawful detention.

2See United States v. Place, 660 F.2d 44 (2d Cir. 1981).

40a

In Beale I, questions concerning the existence, duration,

and validity of a detention of Beale’s luggage prior to the

canine sniff were not presented in the facts as stipulated by

the parties. We therefore addressed the dog sniffing ques-

tion in isolation. Under Place, any detention incident to

the sniff would be permissible if it were supported by ar-

ticulable, founded suspicion and if it were not unreason-

able in length and scope. See 103 S.Ct. at 2644. It was

stipulated that Beale checked his luggage with a “skycap”

at Florida’s Fort Lauderdale Airport and left to board his

flight. The detection dog and its handler were already at

the Fort Lauderdale terminal. Agents exposed the exterior

of Beale’s luggage to a canine sniff during the period be-

tween the time Beale checked his bags and the time his

flight took off. The duration of the detention is not reveal-

ed. Under Place, a brief and limited detention of Beale’s

luggage would have been reasonable if the initial sniffing

had been warranted on the basis of reasonable suspicion.

We now turn to the only issue we decided in Beale J: if

we assume that a canine sniff is performed in such a man-

ner that no detention whatsoever of the luggage were re-

quired, would the Fourth Amendment demand that any

prior suspicion exist that the luggage may have contained

contraband?

In Place, after concluding that reasonable suspicion

justified a brief detention of luggage for the purpose of a

minimally intrusive investigation, the Supreme Court con-

sidered the unique nature of canine sniff investigations:

We are aware of no other investigative procedure

that is so limited, both in the manner in which

the information is obtained and in the content

of the information revealed by the procedure.

Therefore, we conclude that the particular course

4la

of investigation that the agents intended to pur-

sue here — exposure of respondent’s luggage,

which was located in a public place, to a trained

canine — did not constitute a “search” within the

meaning of the Fourth Amendment.

103 S.Ct. at 2644-45.

We recognize that this passage is dicturn and are aware

that the Supreme Court has often remarked that its dicta

are not binding. See McDaniel v. Sanchez, 452 U.S. 130,

141 (1981); Kastigar v. United States, 406 U.S. 441, 454-55

(1971), Permian Basin Area Rate Cases, 390 U.S. 747, 775

(1967), Cohens v. Virginia, 19 U.S. (6 Wheat.) 120, 179

(1821). The Place dictum, however, is so recent and ap-

pears to have been so carefully considered that we feel

obliged to apply it to the case at hand. We turn, then, to

the careful consideration of its meaning.

After thoughtful study, we conclude that the Court’s

statement that a canine sniff investigation “did not con-

stitute a ‘search’ within the meaning of the Fourth Amend-

ment,” 103 S.Ct. at 2645, must be read in the context of

the entire decision in Place.

The Fifth Circuit has observed that “[t]he decision to

characterize an action as a search is in essence a conclusion

about whether the Fourth Amendment applies at all.”

Horton v. Goose Creek Independent School District, 690

F.2d 470, 476 (Sth Cir. 1982), cert. denied, 103 S.Ct. 3536

(1983). The term “search,” however, though conceptually

convenient, is not essential to the conclusion that the in-

vestigative activity is subject to the Fourth Amendment.

See Terry, 392 U.S. at 19. The crucial inquiry is whether

the investigative activity is the kind of intrusion a free

society is willing to tolerate if unregulated by constitu-

tional constraints. Amsterdam, Perspectives on the Fourth

42a

Amendment, 58 Minn. L. Rev. 349, 403 (1974); see United

States v. Solis, 536 F.2d 880, 881 (9th Cir. 1976). The

general consensus appears to be that canine investigations

are or Ought to be subject to some limitations. In recogniz-

ing that canine investigations implicate the Fourth

Amendment, Beale J took the stance essential to the im-

position of some level of Fourth Amendment scrutiny over

the procedure.

In Place, the Supreme Court remarked that a canine

sniff was not itself a “search” only after it concluded that

any detention of luggage for the purpose of performing a

canine sniff investigation would implicate the Fourth

Amendment. The Court indicated that such a detention

would be valid only if supported by the degree of suspicion

necessary to justify the investigation for the purpose of

which the luggage was seized. See 103 S.Ct. at 2644 (“Ob-

viously, if this investigative procedure is itself a search re-

quiring probable cause, the initial seizure of [Place’s] lug-

gage for the purpose of subjecting it to the sniff test — no

matter how brief — could not be justified on less than pro-

bable cause.”). In concluding that a canine sniff was not a

“search,” the Court indicated that the Fourth Amendment

imposed no more stringent requirement for performance

of a canine sniff beyond the reasonable suspicion required

to justify the initial detention of the luggage. We do not

believe that Place should be read to validate a canine sniff

in the absence of the reasonable suspicion required for a

minimally intrusive detention of luggage, whenever for-

tuity makes a canine sniff feasible without any seizure of

the luggage. We instead interpret Place to conclude that

no additional suspicion is required to justify exposing lug-

gage to a trained canine once founded or articulable suspi-

cion has been established.

43a

Il. Review of Beale i

Opinions concerning the fourth amendment significance

of canine investigations, rendered after Beale’s publica-

tion, have offered no new insights into the dog sniffing

question and, indeed, have perpetuated arguments that

were and continue to be “short on reasoning.” 1 W. La-

Fave, Search and Seizure: A Treatise on the Fourth

Amendment 283 (1978).: In an effort to demonstrate that

canine investigations do not fit within the parameters of

the fourth amendment, courts recite the arguments that

dogs sniff only the airspace surrounding luggage in which

there is no reasonable expectation of privacy,‘ that there is

noe legal difference between an officer’s detection of a

3In United States v. Waltzer, 682 F.2d 370, 373 (2d Cir. 1982), cert.

denied, 103 S.Ct. 3543 (1983), the Second Circuit reaffirmed its ruling

in United States v. Bronstein, $21 F.2d 459 (2d Cir. 1975), cert.

denied, 424 U.S. 918 (1976), an opinion which, we argued in Beale J,

had been implicitly overruled by the Surpeme Court in 4Arkansas v.

Sanders, 442 U.S. 753, 763-65 (1979). 674 F.2d at 1330-31 &n.10. We

argued that the Court's affirmation of the expectation of privacy in

luggage refuted Bronstein’s reasoning that there is no expectation of

privacy in luggage transported by plane. We note that Waltzer ap-

parently abandoned reliance on Bronstein’s reduced expectation on

privacy rationale. See 682 F.2d at 373.

In People v. Mayberry, 31 Cal. 3d 335, 341-42 (1982), the Califor-

nia Supreme Court upheld a conviction based on evidence obtained

through a dragnet canine sniffing investigation of luggage. In so do-

ing, the Court disapproved two appellate court opinions cited in Beale

I, see 6/4 F.2d at 1335 n.18, People v. Lester, 101 Cal. App. 3d 613,

161 Cal. Rptr. 703, cert. denied, 449 U.S. 919 (1980), and People v.

Furman, 30 Cal. App. 3d 454, 106 Cal. Rptr. 366 (1973), to the extent

that these opinions upheld a requirement of reasonable suspicion prior

to a canine investigation. See 31 Cal. 3d at 339-40.

“See, e.g., United States v. Waltzer, 682 F.2d 370, 373 (2d Cir.

1982), cert. denied, 103 S.Ct. 3543 (1983); United States v. Goldstein,

635 F.2d 356, 360-61 (Sth Cir.}, cert. denied, 452 U.S. 962 (1981);

People v. Mayberry, 31 Cal. 3d 335, 341 (1982).

44a

“plain smell” and a dog’s detection of the escaping odor of

contraband, and the related argument that the dog’s senses

merely “enhance” the senses of the police.5 We ex-

pressly considered and rejected these arguments in Beale J

and need not pursue further rebuttal here. °®

In holding that canine investigations do fit within the

parameters of the Fourth Amendment, Beale J has been

criticized for failing to fall in line with the bulk of authori-

ty. See People v. Mayberry, 31 Cal. 3d 335, 340 (1092).

Despite the general proffer of arguments tending to ex-

clude canine investigations from Fourth Amendment con-

trol, no federal court has yet upheld a canine investigation

in the face of a record demonstrating a /ack of prior in-

dividualized suspicion.’ Several courts have expressly

noted the existence of prior suspicion in affirming the

validity of the sniff,* and some have stressed that the court

‘See, e.g., Horton v. Goose Creek Independent School District, 690

F.2d 470, 477 (Sth Cir. 1982), cert. denied, 103 S.Ct. 3536 (1983);

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

U.S. 923 (1980).

°We rejected the “airspace” argument at 674 F.2d at 1333-34. The

physical penetration test to determine Fourth Amendment coverage of

police investigative activities has long been abandoned. Katz v. United

States, 389 U.S. 347, 352-53 (1967). We rejected the “plain smell”

arguments at 674 F.2d at 1332-33. See also 1 W. LeFavre, Search and

Seizure: A Treatise on the Fourth Amendment, 283-84 (1978).

In United States v. Race, 529 F.2d 12 (1st Cir. 1976), the First Cir-

cuit upheld a dragnet canine inspection of a warehouse containing

commingled domestic and international freight. /d. at 14 & n.2. Race

is distinguishable, however, as involving a customs inspection in

which traditional Fourth Amendment constraints are extremely relax-

ed. See United States v. Odland, 502 F.2d 148, 151 (7th Cir.), cert.

denied, 419 U.S. 1088 (1974); Klein v. United States, 472 F.2d 847,

849 (9th Cir. 1973).

*See, e.g., United States v. Goldstein, 635 F.2d 356, 362 n.10 (Sth

Cir.), cert. denied, 452 U.S. 962 (1981); United States v. Klein, 626

F.2d 22, 27 (7th Cir. 1980); United States vy. Sullivan, 625 F.2d 9,

11-12 (4th Cir.), cert. denied, 450 U.S. 923 (1980).

45a

was not confronted with an indiscriminate “dragnet” type

of investigation.2 We have little doubt that if faced

with the dragnet sniffing of human beings for evidence of

crime, most of our brothers would join in outrage at the

egregious violation of the reasonable expectation of pri-

vacy in one’s body.'° The effect of holding that a canine

sniff investigation requires no articulable suspicion in cir-

cumstances in which the luggage is not detained, even

briefly, in order that the investigation be performed,

would be to encourage the indiscriminate use of roving

trained dogs at public airports. We decline to reach this

result.'!

9See, e.g., United States v. Klein, 626 F.2d 22, 27 (7th Cir. 1980);

United States v. Bronstein, 521 F.2d 499, 463 (2d Cir. 1975), cert.

denied, 424 U.S. 918 (1976).

10The Fifth Circuit, in Horton v. Goose Creek Independent School

District, 690 F.2d 470 (Sth Cir. 1982), cert. denied, 103 S.Ct. 3536

(1983), held that the sniffing of students constituted a “search” requir-

ing prior individualized suspicion. /d. at 479. In so holding, Horton

implicitly disapproved Doe v. Renfrow, 631 F.2d 91, 92 (7th Cir.

1980), cert. denied, 451 U.S. 1022 (1981), in which the Seventh Circuit

held that the sniffing of students was not a “search” under the Fourth

Amendment. The Horton court noted that Renfrow has been univer-

sally criticized by the commentators. 690 F.2d at 478 & n.14. In

establishing a requirement of prior suspicion, Horton stressed the in-

trusive manner in which the dogs sniffed the students: “sniffing

around each child, putting [the dog’s] nose on the child and scratching

and manifesting other signs of excitement in the case of an alert... .”

Id. at 479 (emphasis in original). See also United States v. Bronstein,

§21 F.2d 459, 462 n.5 (2d Cir. 1975) (observing that the court was not

presented with the issue of a personal search but upheld only a canine

search of luggage), cert. denied, 424 U.S. 918 (1976).

11As we stated in Beale J, we do not intend any dilution of Fourth

Amendment rights through application of a “sliding-scale” of Fourth

Amendment protections. 674 F.2d at 1335-36 n.20, quoting Amster-

dam, supra, at 393. We approve a reduced standard of Fourth

Amendment protection as an eminently justifiable preference to the

“all or nothing” alternatives: The imposition of probable cause and

warrant requirements to the kind of canine investigation at issue

46a

The selectivity and other unintrusive aspects of canine

investigations of luggage do not exempt the process from

Fourth Amendment scrutiny but, rather, make application

of the traditional probable cause and warrant require-

ments unnecessary to protect the privacy rights of those

travelers whose luggage is under investigation. The ma-

jority of courts that have addressed the dog sniffing ques-

tion have confused the relative unintrusiveness of the in-

vestigation with its eligibililty for inclusion within the

scope of the Fourth Amendment. The unintrusiveness of a

search does not reduce, or have any effect on, the basic ex-

pectation of privacy in the thing searched. In Beale I, we

held simply that articulable, individual suspicion renders

the sniffing of personal luggage, located in an airport,

reasonable under the Fourth Amendment. It may be that,

although the expectation of privacy in luggage is one of

the highest order, see generally United States v. Chadwick,

433 U.S. 1 (1977), the greater intrusiveness occasioned by

the sniffing of human beings calls for a higher degree of

antecedent suspicion than that necessary for a sniff of lug-

gage.

We adhere to our position in Beale J in the belief that it

fresents a coherent framework for judicial oversight of

canine investigations. Rather than follow an illogical ap-

proach of ignoring the source of the judicial authority to

establish reasonable restraints on canine investigations, we

think it infinitely more sensible to recogniz- hat the scope

of the Fourth Amendment encompasses this investigative

technique. Moreover, the restraint adopted here is the

would far exceed the protection warranted by the intrusion, while

“[njothing would invoke the spectre of a totalitarian police state as

much as the indiscriminate, blanket use of trained dogs at roadbiocks,

airports, and train stations.” Jd.

finnasineate

47a

eminently reasonable one of simply requiring that before

using a trained dog to investigate the very private contents

of personal luggage for evidence of crime, the police have

some articulable reason, not necessarily amounting to pro-

bable cause, to suspect that the luggage may contain con-

traband.

Because the district court concluded that no showing of

prior suspicion was required to validate the sniff of Beale’s

luggage, we remand to the district court to make the neces-

sary factual determination. If the district court finds that

the Fort Lauderdale investigation was supported by arti-

culable, founded suspicion, then the district court would

be correct in its prior ruling that “probable cause for

[Beale’s] arrest was established by the narcotic dog’s ac-

tions in Florida, followed up by the narcotic dog alerting

again in San Diego.” Reporter’s Transcript at 77.

If, however, the district court finds that the Fort Lau-

derdale intrusion was based on a constitutionally deficient

level of suspicion, it must revise its probable cause deter-

mination concerning Beale’s arrest and the issuance of the

search warrant in San Diego, excluding evidence tainted

by the Florida dog sniffing. '?

The judgment of conviction is therefore

VACATED AND REMANDED, WITH DIRECTIONS

'2See Wong Sun v. United States, 371 U.S. 471 (1063).

48a

UNITED STATES V. BEALE, NO. 80-1652

REINHARDT, Circuit Judge, dissenting:

I dissent most reluctantly. I do so only because I believe

that United States v. Place, 462 U.S. ___., 103 S.Ct. 2637

(1983), leaves me no alternative.

Prior to Place, Judge Ely wrote an excellent, well-

reasoned, and scholarly opinion, in which I readily con-

curred, holding that a dog sniff of luggage constitutes a

Fourth Amendment intrusion. United States v. Beale, 674

F.2d 1327 (9th Cir. 1982). I agreed with Judge Ely that

under our Constitution, law enforcement officials could

not simply, without any justification, use dogs to sniff lug-

gage or other containers designed to hold personal and

private articles. Accordingly, we adopted a standard re-

quiring “founded” or “articulable” suspicion before such

an invasion of constitutionally protected interests could

occur. Since then, however, it seems to me that the Su-

preme Court has made it clear in Place that it does not

agree that the Constitution affords citizens as much pro-

tection as we thought it did.

I agree with the majority that we should follow the

Supreme Court’s statements in Place regarding dog sniff-

ing, even though they may be dictum. I also agree that the

critical language is the following:

[W]e conclude that the particular course of in-.

vestigation that the agents intended to pursue

here — exposure of respondent’s luggage, which

was located in a public place, to a trained canine

— did not constitute a “search” within the mean-

ing of the Fourth Amendment.

103 S.Ct. at 2644-45.

49a

My only disagreement with the majority is over the ef-

fect of the Supreme Court’s language. I think it leaves no

room for application of the Fourth Amendment to dog

sniffs of luggage located in a public place.'! While the term

“search” is flexible and may refer to a “full blown search”

or a “limited search”, i.e., a simple pat down, there still

must be a “search” or a “seizure” before a Fourth Amend-

ment violation can occur. See Terry v. Ohio, 392 U.S. 1,

19, 24-25 (1968). Thus, I believe that we cannot require

“founded” or “articulable” suspicion before a dog sniff of

luggage located in a public place may be conducted.

FILED

Oct 24 1983

PHILLIP B. WINBERRY

Clerk, U.S. Court of Appeals

'Certainly Place does not authorize the use by law enforcement of-

ficials of dogs to sniff persons. As we said in our earlier Beale opinion,

such use of dogs “is normally inconsistent with the concepts embodied

in our Constitution.” 074 F.2d at 1336 n.20. I do not believe that Place

in any way requires us to change that view.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.