Unpublished Disposition, 849 F.2d 1477 (9th Cir. 1988)

MEMORANDUM^** 

McManus entered a conditional guilty plea to possession of a controlled substance with intent to distribute. 21 U.S.C. §§ 841(a) (1), (b) (1) (A). He alleges error in denying a motion to suppress evidence found during the search of his shoulder bag.

A confidential informant told DEA agents that McManus flew to Nebraska to obtain two kilograms of cocaine. Agents tracked McManus to a flight arriving from Omaha, and approached him as he was about to leave the Seattle-Tacoma Airport. After he produced false identification, they took him to the airport police office. The government concedes that he was then under arrest.

At the office, McManus refused to consent to a search of his shoulder bag. An agent took the bag to a nearby room where Akko, a narcotics detection dog, alerted to it.

The agents then submitted an affidavit and obtained a search warrant for the bag. They found approximately two kilograms of a substance alleged to be cocaine.

Judge Rothstein denied McManus's motion to suppress, and ruled: (1) there was probable cause to arrest McManus; (2) the detention of McManus's shoulder bag did not violate the Fourth Amendment; and (3) there was probable cause to issue the search warrant.

The sole issue on appeal is whether the court erred by refusing to suppress evidence found in McManus's bag. He argues that evidence obtained during the search must be suppressed because the search and seizure stemmed from an unlawful arrest. He characterizes the seizure of his bag as the fruit of an unlawful arrest.

His argument rests on the faulty premise that the lawfulness of the search and seizure depended upon a lawful arrest. The lawfulness of some warrantless seizures does depend upon a lawful arrest; for example seizures to conduct a search incidental to an arrest or to conduct an inventory search. But fourth amendment jurisprudence recognizes other circumstances which justify warrantless detentions and seizures independent of an arrest. Here the DEA agents had a basis, independent of arrest, for the lawful detention, seizure and search of McManus's bag.

Where law enforcement officers have reasonable, articulable suspicion that a traveler is carrying narcotics, they may detain a traveler's personal effects for inspection by a narcotics detection dog. United States v. Place, 462 U.S. 696, 706 (1983). Place recognized that personal effects may be detained although the traveler is not. Id. at 708. The standard for this type of detention is less than probable cause. See id. at 702. McManus does not contest Judge Rothstein's ruling that the DEA agents had the requisite suspicion for detaining the bag, and that the investigation was conducted in a lawful manner.

The authority for a brief investigative detention under Place does not justify continued possession of property for the purpose of obtaining a search warrant. See United States v. Licata, 761 F.2d 537, 540 (9th Cir. 1985). Law enforcement authorities may, however, make a warrantless seizure pending issuance of a search warrant "if they have probable cause to believe that a container holds contraband and the exigencies of the circumstances demand the seizure." Id. at 542-43 (citing Arkansas v. Sanders, 442 U.S. 753, 761 (1979)). Objects may be seized, absent a lawful arrest, when these factors are present.

Assuming that the investigative detention of the bag ripened into a warrantless fourth amendment seizure, the proper inquiry focuses on probable cause to believe that it contained contraband, not probable cause to arrest. The motion to suppress did not allege lack of probable cause for the seizure. Nor has McManus raised that issue here.

The agents obtained a warrant to search the bag. McManus challenged the validity of the warrant on these grounds: lack of probable cause, use of the narcotics detection dog, and his warrantless arrest. Judge Rothstein rejected his arguments and concluded that probable cause existed on the basis of Akko's alert. We are not certain whether McManus now challenges the validity of the warrant on the basis of lack of probable cause to arrest. If he does, however, he gets no relief because he certainly does not challenge the basis of Judge Rothstein's finding of probable cause to search: Akko's alert.

We do not consider the validity of McManus's arrest because it is not relevant to our analysis of the question raised. There is no challenge to the grounds, independent of arrest, for seizure and search of his bag. On the basis of the limited question presented to us, the judgment is AFFIRMED.