UNITED STATES OF AMERICA, PETITIONER v. JOHN CHRISTOPHER BEALE No. 82-674 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinion below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINION BELOW The opinion of the court of appeals (App. A, infra, 1a-7a) is reported at 674 F.2d 1327. /1/ JURISDICTION The judgment of the court of appeals (App. A, infra, 17a) was entered on April 22, 1982. A petition for rehearing was denied on August 5, 1982 (App. C, infra, 19a). On September 20, 1982, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including October 18, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Fourth Amendment requires that law enforcement officials have a reasonable suspicion that luggage contains contraband before exposing it to a sniff test by a trained narcotics detection dog. STATEMENT Following the denial of his suppression motion, respondent was convicted at a bench trial on stipulated facts in the United States District Court for the Southern District of California of conspiracy to distribute cocaine, in violation 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, 1a, 4a). 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. 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 interdiction detail at the Fort Lauderdale Airport. /2/ While watching passengers in the vicinity of the National Airlines terminal, Detective Berks observed respondent and co-defendant Joseph Pulvano /3/ 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 independently approached the ticket counter, but then sat together in the boarding area. After observing this behavior, Detective Berks determined that the two men had obtained separate seating assignments on a National Airlines flight to San Diego, California, with a change of planes in Houston, Texas. Detective Berks also examined the labels on the defendants' luggage and noticed that Pulvano was watching him while he examined the bags (App. A, infra, 2a; Tr. 6-7; Stip. 2-3). Detective Berks then approached the two men, identified himself, and asked whether they objected to answering 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 extremely nervous, stated that his identification was in his suitcase and that he had been arrested on a narcotics charge six years earlier. Detective Berks then thanked them for their cooperation and walked to the other side of the boarding area. Approximately five minutes later, Pulvano approached Detective Berks and inquired whether anything was wrong. The officer responded that there was no problem at that time (App. A, infra, 2a-3a; 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 concluded his conversation with the defendants, the officers went to the baggage loading ramp adjacent to the National Airlines ticket counter, which contained the baggage that respondent and Pulvano had checked. The dog immediately "alerted" to respondent's large maroon suitcase, indicating that it contained narcotics (App. A, infra, 3a; 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 transpired (App. A, infra, 3a; Tr. 12-13; Stip. 3-4). Police officers in Houston kept respondent and Pulvano under surveillance as they changed planes there, observing that the two men acted as though they were traveling separately (App. A, infra, 3a; 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 behaved as though they feared surveillance. As they reached the front of the terminal, Pulvano stopped at a telephone; respondent walked directly to a taxi without making any effort to retrieve his luggage (App. A, infra, 3a; Tr. 49-50; Stip. 5). Police officers then approached respondent and asked him about his luggage. In response, he stated falsely that he was traveling alone and that he had lost his claim ticket. Thereupon the officers advised him that he was under arrest and escorted him back to the terminal (App. A, infra, 3a; Tr. 50-53; Stip. 5-6). While respondent and Pulvano were under surveillance, other officers took a trained narcotics detection dog to the baggage claim area, and this dog also alerted to respondent's large maroon suitcase (App. A, infra, 3a; 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 (App. A, infra, 4a; Tr. 30-32; Stip. 7). Subsequently, when respondent arrived at the Narcotics Task Force Office, the dog also alerted to the shoulder bag that respondent had been carrying (App. A, infra, 4a; 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 respondent's shoulder bag contained approximately one kilogram of cocaine and that the maroon suitcase contained approximately 137 grams of marijuana (App. A, infra, 4a; Tr. 35; Stip. 8). 2. The district court denied the motions of respondent and Pulvano to suppress the evidence obtained as the result of these searches (Tr. 72-78). The court rejected the contention that probable cause 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 a search under the Fourth Amendment" (App. A, infra, 5a n.4; Tr. 72). 3. The court of appeals vacated the conviction and remanded (App. A, infra, 1a-17a). The court held that "the use of a canine's keen sense of smell to detect the presence of contraband within personal 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" (id. at 15a; footnote omitted; emphasis deleted). /4/ Accordingly, the court of appeals remanded to the district court for a determination whether the officers who exposed respondent's luggage to a trained dog at the Fort Lauderdale airport possessed the requisite suspicion that it contained contraband (id. at 16a-17a). The court explained that the Fourth Amendment "'protects people from unreasonable government intrusions into their legitimate expectations of privacy'" (App. A, infra, 7a, quoting United States v. Chadwick, 433 U.S. 1, 7 (1977)). The use of a trained dog to detect contraband within personal luggage, the court stated, violated such an expectation of privacy. The court acknowledged that if the odor of drugs emanating from a suitcase were detectable by the human nose, there would be no Fourth Amendment intrusion (App. A, infra, 10a), but it held that the use of a trained dog did constitute such an intrusion. The court explained (id. at 12a-13a; footnote omitted): The molecules of contraband emanating from the interior 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. * * * To paraphrase Katz (v. United States, 389 U.S. 347 (1967)), what (respondent) 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. Hence, the court concluded that the Fourth Amendment requires a threshold of reasonable suspicion /5/ before law enforcement officers may employ a dog to determine whether or not a suitcase contains contraband (id. at 15a). /6/ REASONS FOR GRANTING THE PETITION This case presents an important and recurring question concerning the restrictions, if any, that the Fourth Amendment imposes upon the use of specially trained dogs to assist in the detection of illegal narcotics traffic. The court of appeals' holding that the use of a trained dog to detect the presence of narcotics contained in personal luggage constitutes a "search" within the meaning of the Fourth Amendment that must be predicated upon reasonable suspicion directly conflicts with the decisions of six other courts of appeals and the highest courts of four States. Moreover, it is contrary to well established principles of Fourth Amendment law. If permitted to stand, it will have a substantial adverse impact upon the efforts of law enforcement authorities to reduce the illicit drug traffic at major airports and elsewhere. 1. Other courts of appeals have long recognized that the use of dogs trained to detect contraband by sniffing the airspace surrounding luggage does not constitute a search within the meaning of the Fourth Amendment. For example, in United States v. Fulero, 498 F.2d 748, 749 (D.C. Cir. 1974), the court dismissed as "frivolous" the defendant's argument that the sniffing by a trained dog of footlockers at a bus terminal constituted an unconstitutional intrusion into the lockers. In United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918 (1976), the court likewise held that the use of a trained dog to detect the odor of marijuana emanating from luggage on an airport baggage carousel did not constitute a search within the meaning of the Fourth Amendment. The court reasoned (521 F.2d at 461): If the police officers here had detected the aroma of the drug through their own olfactory senses, there could be no serious contention that their sniffing in the area of the bags would be tantamount to an unlawful search. * * * We fail to understand how the detection of the odoriferous drug by the use of the sensitive and schooled canine senses here employed alters the situation and renders the police procedures constitutionally suspect. Accord, United States v. Johnson, 660 F.2d 21, 22 (2d Cir. 1981). In United States v. Goldstein, 635 F.2d 356 (5th Cir.), cert. denied, 452 U.S. 962 (1981), the court specifically rejected the contention that reasonable suspicion is a prerequisite to a dog sniff. The court explained that the sniffing of the exterior of the defendant's bags "was not an intrusion into an area protected by the Fourth Amendment" because it did not expose the contents of the luggage. 635 F.2d at 360-361. Accord, United States v. Viera, 644 F.2d 509, 510 (5th Cir.), cert. denied, 454 U.S. 867 (1981). /7/ Three other circuits have reached the same result. See United States v. Klein, 626 F.2d, 22, 26-27 (7th Cir. 1980); United States v. Sullivan, 625 F.2d 9, 13 (4th Cir. 1980), cert. denied, 450 U.S. 923 (1981); United States v. Burns, 624 F.2d 95, 100-101 (10th Cir.), cert. denied, 449 U.S. 954 (1980); United States v. Venema, 563 F.2d 1003, 1005-1006 (10th Cir. 1977). See also United States v. Race, 529 F.2d 12, 14 n.2 (1st Cir. 1976) (asserting that there is no Fourth Amendment question raised by the use of a sniffing dog for a routine check of freight in an airport warehouse). /8/ The court of appeals' view that the above cases are inconsistent with this Court's decisions in Arkansas v. Sanders, 442 U.S. 753 (1979), and United States v. Chadwick, 433 U.S. 1 (1977), plainly cannot withstand analysis. Those cases were concerned solely with the question whether probable cause searches of luggage could be valid in the absence of resort to the warrant procedure -- an issue not present here. While Chadwick and Sanders recognize the existence of a privacy interest in the contents of personal luggage, a proposition that was hardly in doubt before, they do not suggest in any way that a dog sniff of the airspace surrounding the luggage intrudes on that privacy interest. See United States v. Waltzer, 682 F.2d 370, 373 (2d Cir. 1982), in which the court specifically rejected the decision below on this ground, stressing that the limited information revealed by the dog sniff, which discloses only the presence or absence of contraband, makes the procedure entirely different from the opening of luggage and consequent visual inspection of its contents. /9/ Unless the conflict in the circuits engendered by the decision below is resolved, there will be a serious adverse effect on the enforcement of the narcotics laws. Both state and federal law enforcement officials use trained narcotics detection dogs to examine luggage arriving at airports and other passenger terminals, particularly luggage arriving from cities known as major sources of drug traffic. Because an "alert" to a particular bag generally establishes probable cause to believe that the bag contains contraband (see, e.g., United States v. Waltzer, supra, 682 F.2d at 372), the use of these dogs results in the seizure of substantial amounts of contraband. In many cases, narcotics agents may wish to spot check a particular shipment of luggage or to check a particular piece of luggage that they suspect may contain contraband, although the basis for their suspicion does not rise to the level of reasonable suspicion. Thus, if the decision below is followed, some of the most effective law enforcement uses of these trained dogs would be eliminated. The conflict here is exacerbated by the decision of the California Supreme Court in People v. Mayberry, 644 P.2d 810, 182 Cal. Rptr. 617 (1982). The court there specifically rejected the decision below and held that a dog sniff is not a search, explaining that "one who secrets illegal narcotics in his suitcase has no protectible privacy interest in those narcotics, nor any legitimate objection to an unintrusive method of detection which reacts only to such contraband." 644 P.2d at 813, 182 Cal. Rptr. at 620; emphasis in original. /10/ The combination of Mayberry and the decision below places law enforcement officials in California -- where there is a very substantial drug traffic problem -- in a difficult position. Unless they decide to forego a valid law enforcement tool that has been approved by the highest court of the State, they will be unable to proceed with a federal prosecution and may be subject to personal damage liability for their actions. /11/ By the same token, many defendants who succeed in having evidence suppressed in federal court may find themselves facing a state prosecution based on the suppressed evidence. Moreover, while the impact of the decision below in the Ninth Circuit alone will be severe, the effect of the decision cannot be so limited. Because of the mobility of air travelers, law enforcement officials outside the Ninth Circuit will have to take account of the decision below or else risk the suppression of vital evidence. In the instant case, for example, the challenged dog sniff took place in Florida, but respondent continued on to California and was arrested and tried in the Ninth Circuit; hence, the officers in Florida could not, as a practical matter, rely on the fact that the Fifth Circuit has held that reasonable suspicion is not required for a dog sniff of checked luggage (a holding also having precedential force in the Eleventh Circuit). Thus, it is important that the Court resolve the conflict created here and establish a uniform rule to govern the use of trained narcotics detection dogs nationwide. /12/ 2. The decision below is unsupported by any accepted principles of Fourth Amendment jurisprudence. It is true, of course, that an individual has a privacy interest in the contents of his personal luggage (see App. A, infra, 6a-7a) and therefore that an exposure of those contents would be a search within the meaning of the Fourth Amendment. But a dog sniff does not expose those contents nor physically invade the luggage. Rather, a dog sniff simply involves an examination of the public airspace surrounding the luggage (which is being stored in a public place), and the suspicion that the luggage itself contains contraband is simply an inference drawn from the dog's reaction to the odor extant in that public airspace. When the odor escapes from the luggage into the air, the owner of the luggage has no right to exclude the public or the police from examining that odor. See, e.g., United States v. Waltzer, supra, 682 F.2d at 373; People v. Mayberry, supra, 644 P.2d at 814, 182 Cal. Rptr. at 621. /13/ The court of appeals relied on Katz v. United States, 389 U.S. 347 (1967), which held that a warrantless bugging of a public telephone booth violated the Fourth Amendment, for its conclusion that "a canine's detection of (molecules of contraband in the air surrounding luggage) constitutes an intrusion into the owner's privacy interest in the contents of the (luggage)" (App. A, infra, 12a). Katz establishes, of course, that a surveillance technique may implicate Fourth Amendment concerns even if there is no physical invasion of a private area. But the rationale of Katz does not extend to the situation here. 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. The Court held that an individual who uses a telephone booth "is surely entitled to assume that the words he utters into the mouth piece will not be broadcast to the world" (id. at 352), i.e., that an individual has a legitimate expectation of privacy in the contents of his conversations. Here, by contrast, an individual has no legitimate expectation of privacy in the odors that inevitably escape his luggage when he leaves it in a public place; those odors are not inherently private like the contents of telephone conversations and they have been "knowingly expose(d) to the public" (see id. at 351). Moreover, as the court below acknowledged (App. A, infra, 14a), "(u)nlike wiretapping, which is almost inherently indiscriminate, the intruding canine nose is highly discriminate." A sniff test by a trained narcotics detection dog reveals no information other than the presence or absence of narcotics. Thus, the situation here is sharply distinguishable from that in Katz in terms of the individual's legitimate need for Fourth Amendment protection. The monitoring of a private conversation is obviously a substantial intrusion into an individual's privacy because it reveals the contents of his conversations, whether related to criminal activity or wholly innocent. But the dog sniff does not expose the contents of an individual's luggage. An individual who is not smuggling narcotics will suffer no intrusion whatsoever from a dog sniff. The only information the sniff test reveals is whether the luggage contains narcotics. While a drug smuggler obviously desires to keep that information private, that is not a privacy interest "that society is prepared to recognize as 'reasonable.'" Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978), quoting Katz v. United States, supra, 389 U.S. at 361 (Harlan, J., concurring). In short, it is untenable to maintain that, when an individual leaves his luggage in a public place such as an airport baggage terminal, the Fourth Amendment is violated if a dog trained to detect contraband walks close enough to the luggage to sniff it. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General ALAN I. HOROWITZ Assistant to the Solicitor General JOHN F. DE PUE Attorney OCTOBER 1982 /1/ The opinion as reported does not contain the modifications made by the court of appeals in its July 21, 1982, amendment to the decision. See App. B, infra, 18a. /2/ Respondent's trial consisted of the filing of a stipulation ("Stip.") by the parties to certain facts developed during the suppression hearing, which was made a part of the trial record, and the entry of a guilty verdict by the court on the basis of the stipulated facts (Tr. 80-82). /3/ Pulvano pled guilty to a conspiracy charge following the denial of his suppression motion (Tr. 80) and was not a party on appeal. /4/ The court rejected respondent's contention that the officers' approach to him in Fort Lauderdale violated the Fourth Amendment. The court held that the situation was "non-coercive" and that respondent and Pulvano answered the questions "'in a spirit of apparent cooperation'"; hence, the encounter was not a "seizure" under the Fourth Amendment. See App. A, infra, 4a-5a. /5/ The court of appeals rejected respondent's contention that dog sniffs are indistinguishable from the use of a magnetometer or an x-ray machine and hence unlawful in the absence of probable cause. Finding that the use of narcotics detection dogs is less intrusive than such techniques because a dog detects only the presence or absence of contraband, the court held that a less rigorous standard than probable cause was appropriate. See App. A, infra, 13a-14a. /6/ The court of appeals recognized that its decision was contrary to decisions in several other courts of appeals (App. A, infra, 6a-7a, 15a n.20). The court stated that, in its view, those decisions holding dog sniff tests of luggage to be permissible in the absence of reasonable suspicion were no longer sound in light of this Court's decision in United States v. Chadwick, supra, which recognized the importance of an individual's privacy interest in personal luggage (App. A, infra, 6a-8a, 10a). With respect to those contrary court of appeals decisions rendered subsequent to Chadwick, the court below announced that it "decline(d) to follow them" (App. A, infra, at 15a n.20). /7/ But cf. Horton v. Goose Creek Independent School District, 677 F.2d 471, 478-482 (5th Cir. 1982), where the court distinguished cases involving checked luggage and held that the use of trained drug detection dogs to sniff school students, their lockers, and their automobiles constituted a search within the meaning of the Fourth Amendment that required individualized suspicion. /8/ Indeed, even the Ninth Circuit in a prior decision had rejected the view that a dog sniff of the outside of a truck trailer was a search, stating rather that it was simply a "monitoring of the air in an area open to the public." United States v. Solis, 536 F.2d 880, 881 (1976). /9/ Waltzer also demonstrates the error of the suggestion of the court below (App. A, infra, 14a-15a) that its decision is "consistent with the unarticulated reasoning" of Bronstein, supra. While it is true that in some of the decisions holding a dog sniff not to be a search it appears that the police did have reasonable suspicion of criminal activity, that was not the basis of those decisions, which flatly held that the dog sniff was not a search. Indeed, the court below itself recognized that there was no reasonable suspicion in several of the other contrary decisions (see App. A, infra, 15a n.20). Thus, it is clear that the decision below conflicts with decisions in most of the other courts of appeals. /10/ Several other state courts have also reached this result. See People v. Price, 54 N.Y.2d 557, 431 N.E.2d 267 (1981); State v. Morrow, 128 Ariz. 309, 312-313, 625 P.2d 898, 901-902 (1981); State v. Wolohan, 23 Wash. App. 813, 598 P.2d 421 (1979). /11/ While Mayberry was decided after the decision below, the conflict with Mayberry was brought to the attention of the court below in the government's petition for rehearing. /12/ Because the court of appeals remanded for further findings on the question of the existence of reasonable suspicion, it is possible that the government will prevail in this case on remand. In that event, however, the decision below will remain on the books and presumably will be binding precedent on district courts and law enforcement officials in the Ninth Circuit. Unlike a private party, our concern is not solely with the outcome of this particular case, but also with ascertainment of the proper rule to govern law enforcement activities throughout the Nation. Because of the confusion and problems described above that would result from that situation, it is our view that it is appropriate for the Court to grant certiorari here even though the case is at an interlocutory stage. /13/ Nor is there any constitutional violation simply because the odor is detectable by dogs and not humans; surveillance techniques that improve on the human senses do not necessarily implicate Fourth Amendment concerns. See, e.g., Smith v. Maryland, 442 U.S. 735 (1979); United States v. Lee, 274 U.S. 559, 563 (1927). Appendix Omitted