United States v. John Christopher Beale , 736 F.2d 1289 ( 1984 )

CHOY, Circuit Judge:

This appeal 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 Pulvano 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 briefly. Pulvano exhibited several signs of abnormal anxiety, and admitted that he had been earlier arrested on a narcotics charge.

The detectives then had “Nick,” a narcotics detection dog, sniff around the suspects’ luggage in the checked baggage 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 pursuant to a warrant, discovering contraband.

Beale unsuccessfully moved to suppress the evidence obtained on the ground that the Fort Lauderdale sniff illegally tainted that evidence. Beale was then convicted of possession of cocaine with intent to distribute, and of conspiracy 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, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), vacated our judgment and remanded the case to us for further consideration in light of that decision. — U.S. —, 103 S.Ct. 3529, 77 L.Ed.2d 1382 (1983). 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). We now affirm the judgment of conviction.

II. Discussion

In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court stated:

We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which the information is obtained through this investigative technique 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 property 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. Therefore, 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 meaning 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 decision, 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 involving 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 subjecting 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, — U.S. —, — - —, 104 S.Ct. 1652, 1662, 80 L.Ed.2d 85 (1984). Whether or not the statement in Place was a holding or dictum, the Supreme Court has clearly directed the lower courts to follow its pronouncement.

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 considered to be a “search” since (1) it discloses only the presence or absence of a contraband item, and (2) its use “ensures that the owner of the property is not subjected to the embarrassment and inconvenience 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 investigative 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 conduct could reveal nothing about noncontraband items.” Jacobsen, — U.S. at — n. 24, 104 S.Ct. at 1662 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, does constitute a search. 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 “reveals, 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 magnetometer scan to detect 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 particular method of using the dog “ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.” 103 S.Ct. at 2644.

In Place, as well as in Jacobsen, the investigative technique did not require any contact with the owner of the property 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,¹ or a sniff of luggage.that a person was carrying at the time.² The investigative 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, — U.S. —, 103 S.Ct. 3543, 77 L.Ed.2d 392 (1983). There is no evidence that Beale himself was detained, even for a moment, due 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 omitted). 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.

In contrast, Beale was not detained or otherwise inconvenienced, 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, — U.S. at — & n. 28, 104 S.Ct. at 1663 & n. 28 (discussing de minimis invasions of Fourth Améndment interests); United States v. Van Leeuwen, 397 U.S. 249, 252, 90 S.Ct. 1029, 1032, 25 L.Ed.2d 282 (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, — U.S. at —, 104 S.Ct. at 1656 (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 evidence 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.

1 . See, e.g., Horton v. Goose Creek Independent School District, 690 F.2d 470, 479 (5th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983) (holding that use of dogs to sniff students in class was a search); Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 Mich.L.Rev. 1229, 1246-47 (1983) ("the very act of being subjected to a body sniff by a German Shepherd may be offensive at best or harrowing at worst to the innocent sniffee”) (footnote omitted).

2 . See Doe v. Renfrow, 451 U.S. 1022, 1026 n. 4, 101 S.Ct. 3015, 3018 n. 4, 69 L.Ed.2d 395 (Brennan, J., dissenting from denial of certiorari) (noting that cases allowing dog sniffs "involved the sniffing of inanimate and unattended objects”) (emphasis 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 objectionable, especially when done in an airport corridor in circumstances amounting to a public accusation of crime.”).