USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1096

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN DOE, a/k/a GERONIMO PIZARRO-CALDERON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

___________________

____________________

Torruella, Chief Judge,

___________

Aldrich, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

____________________

Rafael D. Castro Lang for appellant.

_____________________
Jos
A. Quiles-Espinosa, Senior
_________________________
Guillermo Gil,
_____________

United States

Litigation Counsel,

with w

Attorney, and Ernesto Hern ndez-Mil

______________________

Assistant United States Attorney, were on brief for appellee.

____________________

August 4, 1995
____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________

eron

("Pizarro")

refusing

opaque

to

contends

suppress six

beige and

conviction for

brown

Appellant Geronimo

that

the district

block-like

tape

possessing cocaine

violation of 21 U.S.C.

court

articles

which

Pizarro-Cald-

erred

in

packaged

in

ultimately led

with intent to

841(a)(1) (1993).

to

his

distribute in

We reverse.

I
I

BACKGROUND
BACKGROUND
__________

The

district court adopted the findings recommended by

the magistrate judge who

January

8,

conducted the suppression hearing.

1993, Security

Officer

Gladys

Martinez del

On

Valle

("Martinez") was screening passengers and monitoring their carry-

on luggage for weapons and explosives at a security checkpoint in

the Isla

Verde Airport terminal.

See
___

14 C.F.R.

(Federal Aeronautics Administration ("FAA")

screening requirements for

unauthorized possession

or

dangerous weapons"

signs forewarned

107.20 (1995)

regulation mandating

carry-on luggage),

107.21 (banning

of any "explosive, incendiary, or deadly

beyond airport

checkpoints).

passengers, in English and

Prominent

Spanish, that their

persons and carry-on luggage were subject to screening and search

for weapons and

ray machines

explosives.

to scan all

Security screeners normally

carry-on luggage; metal

use x-

detectors and

hand scanners to screen passengers.

While

carry-on

tending the

x-ray monitor,

Martinez

bag containing an unidentifiable dark

object.

noticed a

She had

been

trained

to regard

such

dense,

nonreflective objects

as

possible camouflage for weapons

by

Martinez,

belonged

boxes

or explosives.

appellant Pizarro

stated

to him, and the nonreflective

containing

"figurines."

reflected

no distinguishable

Martinez

asked Pizarro to open

that

the carry-on

bag

objects inside were gift

Concerned

silhouette

Upon questioning

that the

on the

the carry-on bag.

figurines

x-ray monitor,

When Pizarro

"sort

of

hesitated,"

Inspector Jos

United States

Department

of Agriculture

Mercado, working beside Martinez, directed Pizarro

to open the carry-on

bag, then summoned a local

law enforcement

officer, Juan Avil s, to the security checkpoint.1

Pizarro

opened the

Martinez, Officer Avil s, and

wrapped

in Christmas paper.

carry-on

bag in

the presence

of

Inspector Mercado, revealing a box

The box

contained a layer of sani-

tary napkins, a layer of dark blue paper and, finally, six blocks

wrapped

of the

in opaque beige and brown tape.

Puerto Rico Police, Officer

A nineteen-year veteran

Avil s immediately suspected

that the concealed blocks contained cocaine.

the carry-on bag

Pizarro.2

and its contents, then

Whereupon he seized

arrested and handcuffed

____________________

1Officer Avil s was

to

employed by the airport

patrol the security checkpoint area

encountered by
regulations
official.

and respond to incidents

screeners and inspectors, in

requiring the
See 14 C.F.R.
___

presence of

administration

accordance with FAA

a local

law enforcement

107.15.

2At about the same time, Martinez noticed another nonreflective object on the
Pizarro's

x-ray monitor, similar to the one observed in

carry-on bag.

Ariel Figueroa-Cruz

The passenger in line behind Pizarro

claimed ownership of the second bag, which

was found to contain two Christmas gift boxes similar to

Pizarro had

been

carrying.

Without

opening the

gift

the one

boxes,

Officer Avil s placed Figueroa under arrest, and transported both

After

placing Pizarro

cell, Avil s contacted the

istration

("DEA").

blocks by

piercing their

positive

in

an

police-station

United States Drug Enforcement Admin-

Shortly thereafter,

for cocaine.

airport

In

DEA agents

tested the

opaque wrappings; the

contents tested

due course, Pizarro

was indicted for

possessing six kilograms of cocaine with intent to distribute, in

violation of 21 U.S.C.

Pizarro

cocaine,

on the

carry-on bag and

841(a)(1), (b)(1)(A).

moved to

ground

that the

the test

results and

the

warrantless

searches of

the

the containers inside

box and the blocks enclosed

the

suppress

Fourth Amendment

to

it (i.e., the

Christmas

in intact, opaque wrapping) violated

the United

States Constitution.

The

government successfully defended the

mere continuation of the

airline security.

Supp.

challenged DEA testing as a

administrative search aimed at ensuring

See United States v. Pizarro-Calderon, 829 F.

___ _____________
________________

511, 515 (D.P.R. 1993).

Following a

jury trial, Pizarro

was convicted and sentenced.

II
II

DISCUSSION
DISCUSSION
__________

The

DEA

testing of

government must

the enclosed

Amendment search or came within

warrant requirement.

____________________

demonstrate that

blocks

the warrantless

either entailed

no Fourth

some recognized exception to the

See, e.g., United States v. Doward, 41 F.3d

___ ____ _____________
______

suspects to the

airport police

Figueroa-Cruz, 822 F. Supp.

_____________

station.

See
___

United States
_____________

853 (D.P.R. 1993); infra note

_____

v.

9 and

accompanying text.

789,

791 (1st

carry-on bag

Cir. 1994).3

initially was

security checkpoint pursuant

for

weapons and explosives.

The

government contends

opened and

to a

searched at

the airport

lawful administrative

See, e.g., United

that the

search

States v. Skip-

___

with,
____

482

F.2d

1272,

____

1277-78 (5th

inadvertent discovery of evidence

violate Fourth

Amendment).

Cir.

1973)

_____

(holding that

of criminal activity in course

of lawful security search for weapons

not

______________

at airport checkpoint does

Further,

it argues,

once Pi-

zarro's carry-on bag and the Christmas gift box lawfully had been

opened for security purposes, it was proper to seize and open the

packaged blocks

thereby exposed

to Avil s'

"plain view."

See
___

Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971).

________
_____________

Pizarro

carry-on

protests

luggage screenings

on both

must be

counts.

First, he

confined to

says,

ferreting out

threats to airline security (i.e., weapons and explosives used in

air piracy), whereas the customary presence

of Officer Avil s at

the

security

concerns

posing no

were

checkpoint permitted

mere

threat to

probable cause to

was required

an

subterfuge

airline

inference

for intercepting

security.

contraband

Second, even

seize the suspicious blocks,

before the

that security

assuming

a search warrant

intact, opaque packaging

enclosing the

blocks could be pierced to test for cocaine.

____________________

3The
security
since the

Fourth

Amendment is

checkpoints are
FAA

implicated

manned

even though

by nongovernmental

prescribes extensive

administrative

airport

personnel,

directives.

See United States v. Davis, 482 F.2d 893, 896-97 (9th Cir. 1973);
___ _____________
_____
see also Air
___ ____
93-366,

Transportation Security

Act of 1974,

Pub. L.

88 Stat. 415 (1974) (codified as amended at 49 U.S.C.

1356, 1357, 1371, 1372, 1472, 1516); 14 C.F.R.

108.9.

No.

A.
A.

The Searches and Seizure at the Security Checkpoint4

The Searches and Seizure at the Security Checkpoint
___________________________________________________

Pizarro

carry-on

argues

bag violated

that

the warrantless

his Fourth

search

Amendment rights,

of

the

ab initio,
__ ______

since the customary presence of Avil s at the checkpoint subvert-

ed an otherwise lawful airline security screening into a warrant-

less general

search for contraband (viz.,

airline security.

The district court found that

the search was conducted

at

cocaine) unrelated to

the airport,

and

by a security agent

that the

local police

officer
search

was

summoned

to the

site

of

the

only after the initial X-ray scan did

_____

not rule out

the presence of either

weapons

or explosives in defendant's luggage, requiring the presence of additional security.

Pizarro-Calderon, 829 F. Supp. at 514 (emphasis added).

________________

Routine security searches

constitutional muster because the

at airport checkpoints

compelling public interest

curbing air

piracy generally outweighs their

ness.

e.g., United States v.

____ ______________

See,
___

899,

902 (9th Cir. 1986); cf.

___

7, 9

(1st Cir.

luggage

on

government's

diminishes

ground

limited intrusive-

Pulido-Baquerizo, 800
________________

of

warrantless search

"abandonment,"

"falling-domino approach,

privacy

in

F.2d

United States v. Ferrer, 999 F.2d

_____________
______

1993) (upholding

alternate

pass

expectations

by which

enough to

of checked

but

faulting

each intrusion

permit

further in-

fringements").

jected

Consequently, all
___

to initial

x-ray

carry-on luggage can

screening for

weapons and

be sub-

explosives

____________________

4The factual

findings underlying

a suppression ruling

reviewed for clear error.

United States v.
_____________

1332-33 (1st Cir. 1994).

Related rulings of law,

are

Lewis, 40 F.3d 1325,

_____

including the

"reasonableness" of a particular warrantless search, are accorded

plenary review.

Id.
___

without offending the Fourth Amendment.

x-ray

In the event the initial

screening is inconclusive as to the presence of weapons or

explosives,

the

required to rule

luggage

may

be

hand-searched

out their presence.

as

reasonably

Pulido-Baquerizo, 800 F.2d

________________

at 902.

Other

routine

seized

contraband

checkpoint

search for

weapons

discovered

and

during

explosives may

be

and introduced in evidence at trial even though unrelated

to airline security.

On the

inadvertently

See, e.g., Skipwith, 482 F.2d

___ ____ ________

other hand, lawful airline security

luggage may

not be enlarged

at 1277-78.

searches of carry-on

or tailored systemically

to detect

contraband (e.g., narcotics) unrelated to airline security.

____

See,
___

e.g., United States v.

____ ______________

1243-45

(9th

unrelated

to

monetarily

Cir.

1989) (upholding

airline

by law

$124,570 U.S. Currency, 873 F.2d

_______________________

suppression

security where

enforcement

screeners

authorities

1240,

of contraband

were

rewarded

for detecting

such

contraband in carry-on luggage).

As

strate

we conclude

that the

that the

government failed

subsequent warrantless
__________

search of

to demon-

the packaged

blocks by the DEA satisfied the Fourth Amendment warrant require-

ment,

see infra
___ _____

assume

Section

II.B, for

present purposes

arguendo that the carry-on bag and the Christmas box were
________

subjected to lawful airport administrative searches.

B.
B.

we simply

The Subsequent DEA Searches of the Seized Blocks

The Subsequent DEA Searches of the Seized Blocks
________________________________________________

The district court

upheld the warrantless

penetration

of the opaque packaging enclosing the seized blocks on the ground

that the DEA tests

"more thorough

been lawfully

were "not . . . search[es] per se" but merely

___ __

examination[s] of

seized."

We cannot agree.

the objects which

Pizarro-Calderon,
________________

had already

829 F. Supp.

at 515.

The uncontroverted evidence reveals that until the

agents conducted their field

ing the six blocks

of

the absence of

v.

Miller,
______

through

opaque

tests, the opaque packaging enclos-

remained intact, precluding any

their contents such as

might permit a

exigent circumstances.

769 F.2d

plastic bag

fiberglass

DEA

554, 558

(9th

containing

container

warrantless search in

See,
___

e.g., United States

____ _____________

Cir. 1985)

white powder,

inside

"plain view"

plastic

(poking finger

or cutting

bag,

into

constitutes

"search" requiring warrant, where both "containers were original-

ly

packed

inside

packaged blocks

suitcase").

Thus,

regardless

could have been subjected

whether

the

to lawful warrantless

search at the security checkpoint, the question with which we are

__ ___ ________ __________

presented

is whether a warrant was required before the packaging

enclosing

the blocks could be

pierced once the

seized and removed from the security checkpoint.

_______ ____ ___ ________ __________

neither cites, nor have

The

government

we found, any case upholding

a warrant-

less administrative

search for

security

absent

concerns,

finding of

blocks had been

contraband unrelated to

exigent

circumstances,

"virtual certainty," or some

airline

consent,

other recognized excep-

tion to the warrant requirement.5

____________________

5The government
once removed from
less

search

does not contend that

the packaged blocks,

the checkpoint area, were subject

for explosives.

See
___

Skipwith,
________

to warrant-

482 F.2d

at 1277

Although

stances,

opaque

may

probable cause,

support the

warrantless

container, see Texas v.

___ _____

(involving

sarily sufficient to

wick, 433
____

seizure
_______

seizure of
_______

of an

circum-

enclosed

730, 743 (1983)

tied-off balloon

probable-cause showing is not neces-

justify its subsequent

Id. at 749-51 (Stevens,

___

as exigent

Brown, 460 U.S.

_____

validity of warrantless

containing drugs), the same

____

as well

warrantless search.
______

J., concurring); United States

_____________

v. Chad_____

U.S. 1, 13-14 n.8 (1977); Miller, 769 F.2d at 558; cf.

______
___

____________________

(noting

that

plastic

explosives

tube).

Moreover, any exigency adequate to support a warrantless

search

modern

technology

permits

in container

no

for explosives lapsed at

arrest,

the airport

finding

of

belief

to

than a

totally

an aircraft.
belied

that the blocks contained

conceal

toothpaste

time of Pizarro's

not be permitted

or to board

exigency is

larger

or about the

since he obviously would

large in

hijacker

to remain at
Likewise,

by Aviles'

any

subjective

cocaine and by their unhurried

removal to the police station for DEA field-testing.

There is no evidence

or contention that screeners, pursuant

to practice or regulation, customarily open packages of this type

or size to check
prior
_____

for weapons or explosives, notwithstanding

_______________

arrest of the passenger,

______ __ ___ _________

luggage and its contents,

_______ ___ ___ ________
security.
doctrine

of

"inevitable

or inevitably

from

whereby

"prosecution can

preponderance of the evidence that the [evidence]

Hernandez-Cano, 808
______________

testimony

to airline

U.S. 431, 444 (1984) (noting

discovery,"

would have

means" even if unlawful search

v.

of the carry-on
__ ___ ________

based on conduct unrelated

Cf. Nix v. Williams, 467

___ ___
________

establish by a
ultimately

and the seizure

___ ___ _______

the
___

party

been discovered

by lawful

had not occurred); United States

______________

F.2d 779, 783

conducting

(11th Cir.

lawful search

1987) (noting
that

but

for

intervention of unlawful search procedure, she would have continued search of luggage until she found suspicious package).
Finally, the
testing

evidence precluded

a contention that

the DEA

was incident to Pizarro's arrest, see Chimel v. Califor___ ______

________

nia, 395 U.S. 752 (1969), since the

___
the arrest

scene and from

United States v.
_____________
"[e]ven

though .

officer

was

invalidating

the presence

Chadwick, 433
________
. . the

reasonably

blocks had been removed from

of the

U.S. 1, 15

issuance of
predictable,

foot-locker search

arrestee.

See
___

(1977) (noting

that

a warrant
a line

remote in

by a judicial

must

be

time and

drawn";

place from

arrest); United States v. $639,558, 955 F.2d 712 (D.C. Cir. 1992)
_____________
________
(same). But cf. United States v. Johns, 469 U.S. 478,
___ ___ _____________
_____
(finding no comparable contemporaneity requirement
bile exception to warrant requirement).

483 (1985)

under automo-

United States v.
_____________

Jacobsen, 466 U.S.

________

seizure to prevent loss or

that

"Fourth

Amendment

warrant before examining

discrete

treatments

stem

109, 114 (1984)

(upholding

destruction of contraband, but noting

requires

that [the

contents of such

from

the

police]

obtain

a package").6

recognition

that

These

seizure

temporarily deprives the defendant of a possessory interest only,

__________

whereas a search entails

well.

(1984).

See
___

an intrusion upon privacy

_______

generally Segura v. United States, 468

_________ ______
_____________

Normally,

therefore, once

arrest or the seizure

interests as

U.S. 796, 806

an exigency ends,

and custodial retention of a

as by

an

container by

the police, a neutral judicial

_______ ________

quent search on a

Soule,
_____

officer must authorize any subse_______

showing of probable

908 F.2d 1032, 1040

cause.

(1st Cir. 1990)

United States
_____________

v.

(citing Shadwick v.
________

City of Tampa, 407 U.S. 345, 350 (1972)).

_____________

Although the

warrantless search was

requirement, see
___

government was required to

valid under an

Doward,
______

41

F.3d

at

show that any

exception to the

791;

warrant

United States
______________

v.

Rutkowski, 877 F.2d 139, 141 (1st Cir. 1989), it has not attempt_________

ed to

blocks

demonstrate that the warrantless piercing

was either

an integral

part of

of the packaged

the security-checkpoint

search or came within any other exception to the warrant require-

ment.

The

government

instead simply

concludes,

as

did

the

district

court, see Pizarro-Calderon,

___ ________________

829 F. Supp.

at 515, and

without argumentation or citation to authority, that the warrant____________________

6Chadwick has
________

been overruled

seized from inside an automobile.

__________

only as to

closed containers

See California v. Acevedo, 500

___ __________
_______

U.S. 565 (1991).

10

less

piercing of the packaged

blocks at the

police station was

simply an

point.

extension of the

But see supra note

___ ___ _____

pretend that the DEA

purpose

hand-search initiated at

5.

the check-

Moreover, the government does not

agents pierced the packaged blocks

other than to test

for illicit drugs.7

for any

Thus, although

____________________

7The

cases

cited

in

the

recommendation are inapposite

case.

v.

to the DEA

See Pizarro-Calderon,
___ ________________

States
______

magistrate-judge's

report

search in the

829 F. Supp. at 616

and

present

(citing United
______

v. Herzbrun, 723 F.2d 773 (11th Cir. 1984); United States

________
_____________

Wehrli, 637 F.2d

______
46

408 (5th Cir.

(4th Cir.),

1981); United States v. De______________

___

Angelo,
______

584 F.2d

cert.
_____

(1978);

United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976);

_____________
_______
516 F.2d 11

denied, 440
______

U.S.

(2d Cir. 1975)).

935

United States
_____________

v. Williams,
________

Even

assuming that

airport security checkpoint searches are justified

on the ground that the passenger's "implied consent" is irrevocable,

but see Wayne R. Lafave,

___ ___

the Fourth Amendment

____________________

Search and Seizure: A Treatise on

_________________________________

10.6(c), 10.6(g), at 16-17, 31-33 (2d ed.

1987), thus permitting screeners

to search throughout the carry-

on

bag

and all

implied

"consent"

searches
See
___

closed

containers within

nonetheless would

for the purpose

___ ___ _______

Florida v.
_______

be

U.S. 248,

not

to permitting

and explosives.
___ __________

(noting that

limited in scope by the

_____

consent); see also, e.g.,

___ ____ ____

409 (noting that screener's

rli's

limited
_______

252 (1991)

warrantless "consent"-based searches are

at

the passenger's

of detecting weapons
__ _________ _______

Jimeno, 500
______

terms of defendant's
_____

it,

Wehrli, 637 F.2d

______

"task [was] to

insure that Weh-

bag was devoid of skyjacking weapons," and the search "did

range

dangers

beyond

an

to air safety") (emphasis

47-48 (holding

the safety of

Williams,
________
implied
alongside

to it

F.2d at

a metal

to full search

12 (inquiring

canister, so

think white powder was

to assure

[the passenger] should

for that purpose")

___ ____ _______

but noting

discover

added); DeAngelo, 584 F.2d at

________

the travelling public,

consent,"

to

it "should be considered necessary

to submit
516

calculated
__________

that passenger impliedly consents

of luggage, and if

required

area reasonably
__________

into

that bags

be

(emphasis added);
"the bounds
______

of cocaine

that screener

of any

were found

might reasonably

explosive, rather than cocaine) (emphasis

added).

By contrast, Avil s admitted that he delivered the blocks to

the DEA for the
circumstances

very purpose of
once the focus

detection of weapons to

detecting narcotics.
of the search

In

these

shifted from the

the detection of narcotics

a warrant

was required unless the ensuing search came within another recognized exception to

the warrant requirement.

U.S. at 118-22 (noting that DEA

open

closed container

because the
_______

contents

had

Cf. Jacobsen,
___ ________

466

did not need a search warrant to

to perform

already been

field test
disclosed

on contents
by

prior

11

we may affirm the

denial of a

suppression motion on any

ground

supported by the record, see, e.g., Soule, 908 F.2d at 1036 n. 7,

___ ____ _____

the

legal theories relied

on by

the government

have led

to a

dearth of record evidence

not to mention argumentation

to

support such an exercise of discretion.8

____________________

"private party" search of that

775

(noting

that

warrant for

law

bag after

though

their search

weapons

which might

container); Herzbrun, 723 F.2d at

________

enforcement

officials

obtained

defendant withdrew from

followed an
have

checkpoint, even

aborted checkpoint
_______

uncovered same

search

search for

evidence (i.e.,

coc-

aine)).

8Avil s conceded at the

trate

suppression hearing, and the magis-

judge later found, that

the contents of

the blocks could

not have been "known" from their outward appearance.

the undisputed evidence that
in

opaque

packaging which

Thus, given

the blocks were completely enclosed

had to

be

pierced even
_______

for field-

testing, the government's unexplicated statement that the cocaine

was in Avil s' "plain view" at the checkpoint must be premised on

something
Nor

more illuminating

has

the

appearance

of

government

so "clearly

that it

was a "virtual

its rose-colored

attempted to

the blocks,

seized,

than

or the

argue

context

announce[d]" the

that
in which

nature of

certainty" that they

perception.

the outward

they were

their contents

contained cocaine.

See
___

Arkansas v. Sanders, 442

________
_______

also Texas,
____ _____
States
______

460 U.S. at

U.S. 753, 764-65

761 (Stevens,

v. Corral, 970 F.2d

______

61 (squarely

J., concurring);

719, 725 (10th

must be "foregone conclusion").

n.13 (1979); see

___

Cir. 1992) (contents

But see Miller, 769 F.2d at 560___ ___ ______

rejecting prosecution argument that

needed

to search

opaque

fiberglass vial

United
______

lawfully-seized plastic

no warrant was

bag containing

filled with cocaine,

both of

an

which had

been lawfully seized from defendant's suitcase); United States v.

_____________
Donnes, 947
______

F.2d 1430,

1439 (10th

Cir. 1991)

(adopting Miller
______

approach); accord United States v. Cardona-Rivera, 904 F.2d 1149,

______ _____________
______________
1155 (7th
F.2d

Cir. 1990); cf.

___

United States
_____________

v. Prandy-Binett,
_____________

995

1069 (D.C. Cir. 1993) (upholding seizure of package wrapped

_______

in opaque duct tape

based on probable cause), cert.

_____

denied, 114
______

S. Ct. 1196 (1994); United States v. Barrios-Moriera, 872 F.2d 12

_____________
_______________
(2d Cir.) (same), cert. denied, 493 U.S. 953 (1989).
_____ ______
would be imprudent
reject

for the

in the

present vacuum either

first time

a "virtual

We think it

to embrace

or

certainty" exception

to the warrant requirement.

Nor has the government suggested that the DEA testing should
be

upheld under the "inventory search"

requirement.

Compare,
_______

exception to the warrant

e.g., Colorado v. Bertine, 479

____ ________
_______

U.S. 367,

371

(1987) (even

closed containers

may be

opened

pursuant to

12

The litigation strategy adopted by the government seems

especially

remarkable considering the

opinion previously

v.

portentous district court

entered in the companion

_________

case, United States

_____________

Figueroa-Cruz, 822 F. Supp. 853 (D.P.R. 1993); see supra note

_____________
___ _____

2, wherein the

government elected

not to appeal

from an

order

suppressing virtually identical

next in

line to

companion

gueroa

Pizarro at

case, the

initial
_______

in

at

obtaining a warrant.

the

view during

bag, were

permitted the DEA

airport police

so similar to

station

cocaine Fi-

without

his

first

arrested Figueroa

boxes, exposed

search of

Pizarro's gift box

the

to conduct the

to believe that the gift

the security-checkpoint

In

packages inside
________

Avil s testified that he

based on probable cause

to

suppressed the

Christmas gift
_________ ____

because Avil s had

search

the person

the security checkpoint.9

district court

was carrying

luggage

evidence seized from

his carry-on

that it was

likely

that they too contained blocks of cocaine.

The government's attempt

misses the

mark.

The carry-on

to distinguish the two

bags, the gift

boxes, and

cases

the

blocks enclosed

in opaque packaging

all
___

were discrete closed

____________________

inventory search exception)

13 F.3d 498, 504
as

inventory

with United States v.

____ _____________

(1st Cir. 1994) (to justify

search,

government

must

Infante-Ruiz,
____________

warrantless search

introduce

evidence

of

"established procedures and standard criteria" governing inventory process).

In

addition to the government's failure

to evince

an established inventory procedure or policy, such a rationale is

effectively

disavowed by Avil s' testimony expressly predicating

the DEA searches on

the need to field-test

the contents of

the

enclosed blocks for cocaine.

9The

government

separately due

apparently

to insufficient

decided to

try

evidence that the

traveling in tandem.

13

Figueroa-Cruz
two men

were

containers.

conducted

Even assuming

on the carry-on bags

the government

blocks enclosed

to

DEA

penetration of

in opaque

the

warrant

warrantless search at

had ceased

and the gift

checkpoint searches

boxes were lawful,

nevertheless failed to establish

quent warrantless

exception

the warrantless

the

previously

packaging came within

requirement.

the police station

violated the Fourth amendment.

III
III

CONCLUSION
CONCLUSION
__________

that the subse-

unopened

any recognized

Consequently,

after any

their

exigency

As

the government

demonstrating either that its

packaged blocks

that

failed to

shoulder its

burden, by

warrantless searches of the opaque

were permissible under the

Fourth Amendment, or

the admission of the tainted evidence was harmless beyond a

reasonable

doubt, see United States v. Modarressi, 886 F.2d 6, 8

___ _____________
__________

(1st Cir. 1989), appellant's conviction must be reversed.

The district court judgment is reversed.

The district court judgment is reversed.
_______________________________________

14