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    United States v. Navedo Colon, 1st Cir. (1993)

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    1. The US Court of Appeals for the First Circuit upholds Jorge Navedo-Colon's conviction for drug possession with intent to distribute. 2. At an airport, a drug dog alerted to Navedo-Colon's suitcases which were found to contain cocaine after being x-rayed and searched. Navedo-Colon argued the search violated his rights and any evidence found should be suppressed. 3. The court found that while the x-ray may have been unlawful, Navedo-Colon consented to the search and his consent was not coerced. Information from the dog sniff alone provided grounds to seek his consent, so any evidence found was not fruit of an unlawful search

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    United States v. Navedo Colon, 1st Cir. (1993)

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    1. The US Court of Appeals for the First Circuit upholds Jorge Navedo-Colon's conviction for drug possession with intent to distribute. 2. At an airport, a drug dog alerted to Navedo-Colon's suitcases which were found to contain cocaine after being x-rayed and searched. Navedo-Colon argued the search violated his rights and any evidence found should be suppressed. 3. The court found that while the x-ray may have been unlawful, Navedo-Colon consented to the search and his consent was not coerced. Information from the dog sniff alone provided grounds to seek his consent, so any evidence found was not fruit of an unlawful search

    Original Description:

    Filed: 1993-07-02 Precedential Status: Precedential Docket: 92-1236

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    1. The US Court of Appeals for the First Circuit upholds Jorge Navedo-Colon's conviction for drug possession with intent to distribute. 2. At an airport, a drug dog alerted to Navedo-Colon's suitcases which were found to contain cocaine after being x-rayed and searched. Navedo-Colon argued the search violated his rights and any evidence found should be suppressed. 3. The court found that while the x-ray may have been unlawful, Navedo-Colon consented to the search and his consent was not coerced. Information from the dog sniff alone provided grounds to seek his consent, so any evidence found was not fruit of an unlawful search

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    10 views10 pages

    United States v. Navedo Colon, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    1. The US Court of Appeals for the First Circuit upholds Jorge Navedo-Colon's conviction for drug possession with intent to distribute. 2. At an airport, a drug dog alerted to Navedo-Colon's suitcases which were found to contain cocaine after being x-rayed and searched. Navedo-Colon argued the search violated his rights and any evidence found should be suppressed. 3. The court found that while the x-ray may have been unlawful, Navedo-Colon consented to the search and his consent was not coerced. Information from the dog sniff alone provided grounds to seek his consent, so any evidence found was not fruit of an unlawful search

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    USCA1 Opinion

    UNITED STATES COURT OF APPEALS


    FOR THE FIRST CIRCUIT
    ____________________

    No. 92-1236
    UNITED STATES,
    Appellee,
    v.
    JORGE M. NAVEDO-COLON,
    Defendant, Appellant.
    ____________________
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
    ___________________
    ____________________
    Before
    Breyer, Chief Judge,
    ___________
    Torruella and Selya, Circuit Judges.
    ______________
    ____________________
    Juan R. Acevedo Cruz for appellant.
    ____________________

    Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom


    _______________________
    Daniel F. Lopez-Romo, United States Attorney, was on brief for
    _____________________
    appellee.
    ____________________
    June 30, 1993
    ____________________

    BREYER,
    appeals from

    Chief Judge.
    ____________

    Jorge

    M.

    Navedo

    Col n

    his conviction for unlawfully possessing drugs

    with intent to distribute

    them. 21 U.S.C.

    841(a)(1).

    He

    argues that the district court should not have permitted the
    government to

    introduce as

    evidence about 26

    kilograms of

    cocaine that government agents took from his suitcase at San


    Juan's

    airport.

    He says

    that the

    agents' search

    suitcases was warrantless and without his consent.


    that,

    in any

    "poisonous

    event,

    the

    tree," namely

    search

    was

    an earlier

    the

    "fruit"

    illegal x-ray

    of his
    He adds
    of

    of the

    suitcases.
    (1963).

    Wong Sun v. United States, 371 U.S. 471, 484-86


    ________
    _____________

    We find neither argument convincing.


    The basic facts are the following:
    1.

    On March 20, 1991, a trained drug-sniffing


    dog alerted customs agents at the San Juan
    airport to the likely presence of illegal
    drugs in several suitcases tagged for a
    flight to New York.

    2.

    The agents put the suitcases


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

    3.

    Using the suitcase's luggage tags (bearing


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

    -22

    4.

    One of the agents brought appellant to a


    special customs room, about nine feet by nine
    feet in
    size.
    He handcuffed one
    of

    appellant's
    door open.

    hands to a chair, and left the


    He gave
    appellant Miranda
    _______
    warnings, and then began to question him.
    5.

    Appellant consented to a search of his hand


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

    6.

    After some time had passed (perhaps a few


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

    Appellant does
    the

    suitcase search;

    rather, he

    "coerced" this consent.


    to the contrary, and
    is

    he consented to

    says that

    the government

    The district court, however, found

    we must affirm this finding

    clearly erroneous.

    Jim nez, 894 F.2d


    _______

    not now deny that

    See, e.g.,
    ___ ____

    1, 7 (1st Cir.

    United States
    _____________

    1990).

    unless it
    v. Cruz
    ____

    According to

    the

    record, the appellant was simply questioned by one agent for


    less

    than

    an

    hour,

    after

    approximately eighty square foot


    -33

    Miranda
    _______

    warnings,

    room with an open

    in

    an

    door --

    albeit while appellant was

    sitting with one hand handcuffed

    to

    the

    chair.

    Despite

    circumstances
    deemed

    fall within

    valid and

    States v.
    ______

    States
    ______

    the bounds

    demonstrate

    coerced consent

    Miranda
    _______

    warnings

    questioning

    by

    demonstrate

    coerced

    search). Cf.
    ___

    consent

    detention,
    does

    e.g., United
    ____ ______

    warnings

    given,

    including five

    (custody alone
    search);

    normal

    over
    to

    to

    five

    search,

    Shriner v. Wainwright, 715


    _______
    __________

    (11th Cir. 1983), cert. denied,


    ____________
    Miranda
    _______

    See,
    ___

    United
    ______

    54, 57-58 (2d Cir. 1988)

    given,

    several agents

    these

    courts have

    411, 424 (1976)

    v. Arango-Correa, 851 F.2d


    _____________

    (where

    however,

    of what

    "voluntary" consent.

    Watson, 423 U.S.


    ______

    does not

    handcuff,

    tone-of-voice
    hours does
    despite

    not
    strip

    F.2d 1452, 1455-56

    465 U.S. 1051 (1984) (where

    handcuffs
    hours of

    and

    ten

    hours

    of

    intensive questioning,

    not demonstrate that confession was coerced); Stawicki


    ________

    v. Israel, 778 F.2d


    ______
    U.S.

    380 (7th Cir. 1985), cert. denied, 479


    _____________

    842 (1986) (where

    Miranda warnings given,


    _______

    detention including 1 1/2

    5 1/2 hour

    hour interrogation did not render

    confession coerced).
    Appellant's
    poisonous tree"

    second argument --

    -- presents

    fact, though not

    of law.

    the "fruit of the

    a somewhat closer
    As in the

    United States v. Maldonado-Espinosa,


    _____________
    __________________

    question of

    very similar case

    of

    968 F.2d 101, 103 (1st

    -44

    Cir. 1992), cert. denied, 113


    _____________

    S.Ct. 1579

    (1993), we

    will

    assume without deciding (as did the district court) that the
    luggage x-ray was unlawful.

    If

    the cocaine proves to be

    "fruit" of

    that x-ray (i.e., if the


    ____

    to consent

    to the

    search), then,

    x-ray caused appellant


    given the

    assumption we

    have indulged, the law requires its suppression.

    Wong Sun,
    ________

    371 U.S. at 484-86.


    We

    concede that the district court's opinion does

    not explicitly
    __________

    deny a

    causal connection between

    and appellant's consent.


    this

    consent

    was

    Furthermore, the

    Yet that

    the

    "fruit

    opinion found

    lawful

    act"

    which

    provided

    reason"

    for seeking

    consent.

    government cannot use


    for obtaining . .

    correct

    causal

    the dog

    poisonous

    tree."

    sniffing to

    be "a

    independent

    Lastly, it

    the x-ray evidence .

    . consent," and that the

    ray "results must be suppressed


    opinion indicates

    opinion does ask whether


    of

    "an

    that the
    question in

    the x-ray

    . . . ."

    says that

    "the

    . . as a

    basis

    ("unlawful") xFairly

    court asked, and


    deciding

    legitimate

    whether

    read, the

    answered, the
    to suppress

    evidence of consent.
    We also
    close one.

    concede that

    the factual question

    was a

    On one hand, the agent's telling appellant about

    the x-ray suggests that the x-ray might have played a causal
    -55

    role in producing consent.


    alone

    provided

    the

    obtaining a search

    On the other hand, the dog sniff

    agents

    with

    sufficient

    warrant (had they found

    grounds

    for

    it necessary to

    do so), and for seeking appellant's consent.

    United States
    ______________

    v. Sokolow, 490 U.S. 1, 5 (1989); United States v. Race, 529


    _______
    _____________
    ____
    F.2d 12, 15

    (1st Cir.

    1976).

    combined factors apart

    consent

    was

    the

    reaction, the baggage tags linking

    appellant to the suitcases,


    might well

    this legal fact,

    from the x-ray search -- the agent's

    description of the dog's

    name --

    Given

    and the discovery of the

    have convinced appellant

    pointless,

    for

    the

    bags

    false

    that refusing

    would

    be

    opened

    eventually anyway.
    While the factual question on appeal is close, the
    legal

    question is

    district

    court,

    determinations.
    whether

    or

    decision to

    not

    not.
    not

    How

    Here again,
    this

    court,

    the law
    to

    directs the

    make

    factual

    appellant's mind worked at the time --

    the

    consent --

    x-ray

    significantly

    is one such

    influenced

    his

    factual determination.

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


    cannot

    find

    its

    conclusion

    to

    be

    "clearly

    erroneous."

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


    aside

    unless clearly

    erroneous,

    and due

    regard shall

    be

    given

    to the opportunity of the district court to judge the


    -66

    credibility of the witnesses").


    legal conclusion

    We therefore reach the same

    we reached in Maldonado,
    _________

    district court's determination that


    did

    not play

    consent

    a significant

    role in

    to search his luggage.

    appellant

    about a

    dog

    an illegal x-ray search


    obtaining appellant's

    There, as here, agents told

    sniff, which

    by itself

    induced appellant to accede to the search.


    a district court's determination
    968 F.2d at 103-04.
    14-15
    to

    which affirmed a

    could have

    And, we affirmed

    that it did so. Maldonado,


    _________

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


    ___ _____________
    ____

    (1st Cir. 1976) (consent to search of air cargo found

    contain marijuana was

    not tainted by

    arguably illegal inspection of

    agent's prior and

    cargo, where dog sniff alone

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

    In

    light of the findings

    of fact and the legal

    district court judgment is


    Affirmed.
    ________

    -77

    precedent, the

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