Unpublished Disposition, 855 F.2d 864 (9th Cir. 1988)

MEMORANDUM^** 

Pursuant to a conditional plea of guilty for possession and possession with intent to distribute cocaine, appellant Zavala-Serra appeals the district court's denial of his motion to suppress evidence found after his arrest. We affirm the district court's order denying the motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

Honolulu Drug Enforcement Administration ("DEA") agents received an anonymous tip that appellant was traveling to Honolulu carrying cocaine. The tip specifically named appellant, his flight number and route, and the day of travel. DEA agents observed defendant board in Miami, change planes in Atlanta and deplane in Honolulu. When defendant arrived, Hawaii DEA agents had a physical description of defendant and his carry-on bags, and they had a narcotics detector dog ready for a contraband sniff. DEA agents also located a DEA profile on appellant's trafficking history and a Treasury Department computer ("TECS") report of suspected smugglers, listing appellant.

Upon deplaning, the appellant repeatedly looked over his shoulder, stopped to let the DEA agents pass him, headed toward the baggage area, made a U-turn and exited the terminal. The DEA agents followed appellant's circuitous route through the airport and approached him at his car. The agents identified themselves, asked for his ticket and identification, asked questions about the purpose of appellant's trip to Hawaii, and asked whether appellant had any checked luggage. Appellant replied that he did not have his ticket and did not check any baggage. The agents then told appellant that his carry-on items would be detained for a sniff search and they asked him to accompany them to the airport DEA office. Twenty minutes after the initial approach, the DEA dog "Angel" identified the presence of narcotics in appellant's hand-carried shopping bag.

The agents arrested appellant and searched his person. This search produced a baggage claim stub attached to appellant's plane ticket. The agents retrieved the bag and the dog alerted on the checked suitcase. DEA agent Lawrence then applied for a search warrant to search both the carry-on bags and the checked suitcase; based on the warrant application and supporting affidavits, the warrant issued four hours after the last sniff alert. No contraband was found in the two carry-on items; three kilograms of cocaine were found in the suitcase.

Appellant was indicted and charged with possession of and possession with intent to distribute cocaine. Appellant entered a conditional guilty plea pursuant to Fed. R. Crim. P. 11(a) (2). Zavala-Serra appeals the denial of his suppression motion claiming that the airport detention was equivalent to an arrest for which probable cause was lacking.

The question presented for this court is whether the investigatory detention of appellant from the time he accompanied the agents to the DEA office to the time the dog alerted to the presence of drugs rose to the level of a de facto warrantless arrest. We conclude that the officers diligently pursued their investigation and used the least intrusive means available to confirm or deny their suspicions. United States v. Place, 462 U.S. 696, 709 (1983); Florida v. Royer, 460 U.S. 491, 500 (1983). Upon consideration of the law enforcement purposes furthered by the detention as well as the time reasonably needed to confirm the officers' founded suspicions we conclude that the detention did not ripen into an arrest for which probable cause is required. United States v. Sharpe, 470 U.S. 675, 685 (1985). Therefore, we affirm the district court's denial of appellant's motion to suppress the evidence found in his suitcase.

DISCUSSION

I. Standard of Review.

This court reviews the district court's findings of fact at a suppression hearing for clear error. United States v. Attardi, 796 F.2d 257, 259 (9th Cir. 1986). The question of the lawfulness of a search is reviewed de novo as a mixed question of law and fact. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986). The determination that a detention rises to the level of an arrest is reviewed de novo. United States v. Sokolow, 831 F.2d 1413, 1416 (9th Cir. 1987). The issuance of a warrant is reviewed to determine if the magistrate had a substantial basis on which to decide that probable cause existed. United States v. Calabrese, 825 F.2d 1342 (9th Cir. 1987); United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986).

II. The Airport Detention did not Require Probable Cause.

Appellant admits that the agents had a reasonable suspicion based on articulable facts that Zavala-Serra had committed or was about to commit a crime. Royer, 460 U.S. at 498; cf. Sokolow, 831 F.2d at 1418 (reliance on the drug courier profile provides insufficient evidence of criminal activity on which to base reasonable suspicion). Appellants contend, however, that while founded suspicion is sufficient to detain luggage, see Place, 462 U.S. at 706, probable cause is needed to detain the owner of the luggage during the investigation.

Supreme Court precedent permits certain temporary detentions when supported by reasonable suspicion. See Sharpe, 470 U.S. at 685; Royer, 460 U.S. at 502. Royer requires, however, that probable cause be present during a luggage search and detention if the length of the stop and the investigatory method used turn a brief detention into an arrest. Id. To determine whether the detention in this case ripened into an arrest before the dog sniff was conducted, we must balance the nature of the seizure against the importance of the governmental interests involved. "When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause." Place, 462 U.S. at 705. Thus, the inquiry for this court involves determining whether the intrusiveness of the investigative method used or the length of the detention triggered a requirement of probable cause.

As a threshold matter, the agents possessed strong, articulable reasons to suspect appellant of smuggling which equaled or exceeded the information possessed by the officers in Royer. The agents received a detailed tip specifically identifying appellant, they obtained a physical description of appellant from other DEA agents, and they garnered information from DEA smuggling profiles and TECS computer tips that supported the anonymous tip. The agents could properly rely on information contained within law enforcement computer tracking records because such information is presumed to be reliable. Angulo-Lopez, 791 F.2d at 1394. Finally, they personally observed appellant displaying nervous and evasive action while in the airport and upon deplaning. Thus there is no question that the agents could reasonably detain appellant while they continued their investigation.

However, such a detention must be limited in scope and after time an extended detention becomes a de facto arrest. Supreme Court precedent provides hazy guidance regarding the point at which a permissible investigatory detention crosses the line into an impermissible seizure. See Sharpe, 470 U.S. at 685 ("Admittedly, Terry, Dunaway, Royer, and Place ... create difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest.") First we must examine "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Sharpe, 470 U.S. at 686. Additionally we review whether the officers used the least intrusive means reasonably available to confirm or deny their suspicions. Guam v. Ichiyasu, 838 F.2d 353 (9th Cir. 1988). Finally, we examine the law enforcement interests to determine if they are of sufficient weight to offset a minimally intrusive investigatory detention. Sharpe, 470 U.S. at 691 (Marshall, J., concurring in judgment).

Here the agents did not disrupt appellant's travel. They waited until appellant had completed his trip and had left the airport before stopping him, although they conducted surveillance in three airports for the length of his trip. Appellant was held for the minimal amount of time necessary to conduct the dog sniff and the dog was readied before appellant arrived at the terminal. See, Royer, 460 U.S. at 505-05 & n. 10 (noting that a less intrusive and less prolonged method of investigation would have been to use a narcotics detection dog ready at the airport). See also, United States v. Knox, 839 F.2d 285, 291 & n. 3 (6th Cir. 1988) (airport narcotics investigation expedited through use of trained narcotics dog available at time of detention); United States v. Rodriguez, 835 F.2d 1090, (5th Cir. 1988); United States v. Quinn, 815 F.2d 153 (1st Cir. 1987). The detention encompassed less than twenty minutes, no search of the appellant was conducted before arrest, and the officers did not conduct the search in circumstances amounting to a public accusation of criminal activity. Cf. United States v. Beale, 736 F.2d 1289, 1291, n. 2 (9th Cir.) (en banc) cert. denied, 469 U.S. 1072 (1974).

Detaining appellant to conduct a dog sniff of his carry-on items constitutes a minimally intrusive investigative procedure. This type of seizure does not trigger probable cause requirements under recent Supreme Court and Ninth Circuit rulings.

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, ... 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.

Place, 462 U.S. at 707. This circuit has affirmed that dog sniffs are the least intrusive investigative method available. Beale, 736 F.2d at 1291-92. In Beale, the owner of the luggage was not detained while the luggage was sniffed and his travel plans were not disrupted. However, under airport detention circumstances similar to the present case, we have concluded that the detention of luggage owners for the short period necessary to conduct a dog sniff for narcotics does not rise to the level of an arrest. Attardi, 796 F.2d at 259. Therefore, probable cause to suspect smuggling was not necessary to detain appellant and to search his luggage.

Appellant's reliance on United States v. Erwin, 803 F.2d 1505 (9th Cir. 1986) and Sokolow is misplaced. In Sokolow, the detention was invalidated because the agents did not possess a reasonable suspicion to approach, seize and detain the defendant. Sokolow, 831 F.2d at 1417. Unlike the knowledge possessed by the agents here and conceded by the appellant, the Sokolow agents only developed articulable facts supporting a reasonable suspicion after the seizure and during the detention. Id. at 1417, n. 4.

In Erwin, the court upheld a 45 minute seizure of defendant's backpack prior to a dog sniff. The officers initially stopped Erwin in reliance on less specific factors indicating criminal activity than those present in this case. Erwin, 803 F.2d at 1510. The agents in Erwin knew only that the appellant conformed to the general drug courier profile, that he suspiciously existed the airport, and that he had taken a recent short trip. Id. at 1507. While the Erwin court did discuss the factors identified as important when determining the permissibility of seizing and sniffing luggage, the court did not disapprove of a luggage sniff and temporary detention of the owner. Erwin, 808 F.2d at 1509 (considerations for permissible stops include the length of detention, diligent law enforcement investigation, and communication to the traveler regarding the actions about to be taken). Thus, appellant's contention that Erwin would not permit this detention is incorrect; the court in Erwin simply did not address the permissibility of a luggage sniff coupled with the detention of the owner of the luggage.

In both Erwin and Sokolow this court focused on the facts known upon the initial seizure. The court presumed that "the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause." Erwin, 803 F.2d at 1509 (quoting United States v. Place, 462 U.S. at 708-09). Applying this standard to the facts of this case results in a permissible sniff and short detention based on a reasonable suspicion of criminal activity. The DEA agents possessed reasonable suspicion to stop, detain and dog sniff the appellant's carry-on items. The nature of the intrusion was minimal and the governmental interest in stopping drug smuggling was great, resulting in a Fourth Amendment balance which required only a reasonable suspicion in order to detain and sniff in this situation. Sharpe, 470 U.S. at 686.

III. Probable Cause to Arrest Appellant.

The verified informant's tip provided sufficient probable cause to arrest appellant after the dog alerted to the presence of narcotics in his luggage. Probable cause exists when, at the time of arrest, the agents know reasonably trustworthy information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense. United States v. Pinion, 800 F.2d 976, 979 (9th Cir. 1986) cert. denied 107 S. Ct. 1587 (1987); United States v. Howard, 758 F.2d 1318 (9th Cir. 1985). We review whether probable cause for a warrantless arrest exists by examining the totality of the facts and circumstances surrounding the arrest. United States v. Fixen, 780 F.2d 1434, 1436 (9th Cir. 1986).

This was not the typical airport detention where an agent acts solely on the basis of observed airport behavior in conjunction with matching a suspect to the drug carrier profile characteristics. See e.g., Sokolow, 831 F.2d at 1418-19. The officers here were acting on the basis of an informant's tip which they independently verified by matching police data on the suspect with the tip; by surveilling appellant in various airports; and by the use of a narcotics detection dog. Therefore, the proper focus of analysis concerns whether the tip was corroborated to establish reliability, rather than whether the dog correctly alerted to the presence of cocaine in a specific bag.

The Supreme Court upheld a magistrate's finding of probable cause on the basis of an independently corroborated anonymous tip. Gates, 462 U.S. at 245-46. Here, as in Gates, the officers conducted substantial surveillance of a specific suspect and independently verified the information that appellant was a drug smuggler through police records. Independent verification of an informant's tip was dispositive in holding the search permissible in Gates, 462 U.S. at 244.

While the officers here did not know the basis of knowledge of the informant's tip in order to assess the tip's reliability, they engaged in police work which confirmed the details of the tip. Moreover, the independent corroboration did not consist merely of an accumulation of innocent details. Angulo-Lopez, 791 F.2d at 1397; United States v. Freitas, 716 F.2d 1216 (9th Cir. 1983). " [A] deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233. Here the various steps taken by the police to corroborate the tip " 'reduced the chances of a reckless or prevaricating tale,' thus providing 'a substantial basis for crediting the hearsay.' " Gates, 462 U.S. at 245 (quoting Jones v. United States, 362 U.S. 257, 269 & 271 (1960) rev'd on other grounds sub. nom. United States v. Salvucci, 448 U.S. 83 (1980)). Thus, the tip was sufficiently corroborated to establish probable cause to arrest appellant.

Because we hold that the officers possessed probable cause at the time of arrest, the evidence found pursuant to the search of appellant's person and baggage is admissible. Wong Sun v. United States, 371 U.S. 471, 484-88 (1963) (evidence obtained as fruits of illegal arrest is tainted by the arrest and may not be used against the defendant). Therefore, we need not reach the issues raised by the appellant regarding the sufficiency of the warrant affidavit.

AFFIRMED.