USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1175
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO INFANTE-RUIZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Stahl, Circuit Judge,
_____________
Aldrich and Campbell, Senior Circuit Judges.
_____________________
____________________

Laura Maldonado Rodriguez, Assistant Federal Public Defend

___________________________
with whom Benicio Sanchez Rivera, Federal Public Defender, was
_______________________
brief for appellant.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with w
_________________________

Charles E. Fitzwilliam,
______________________
United States.

United States Attorney, was on

brief for

____________________
January 25, 1994
____________________

CAMPBELL, Senior Circuit Judge.

____________________
appellant
States

Pedro

Infante

District Court

having knowingly

After

in

of Puerto

a fugitive

in interstate

and 924(a).

indicted

for the District

received while

firearm transported
922(g)(2)

Ruiz was

Defendant-

commerce.

the district

the United
Rico for

from justice

18 U.S.C.
court

denied a

motion in limine to suppress evidence, Infante entered a plea

of guilty, with his plea
an appeal of

being conditioned on the outcome of

the court's evidentiary

ruling.

Infante

duly

appealed, and we now reverse the district court's denial of a

motion to suppress and vacate appellant's conviction.

I.
On October 8, 1991, Infante and two associates were
driving a rented 1991 Mazda
Lajas,
eatery.

Puerto Rico, when they stopped to buy food at a local

Officers of

the car, looking

outstanding
charges.
vehicle
but

626 in the vicinity of Parguera,

the Puerto Rico

police were following

for an opportunity to arrest

warrant

from

Florida

on

Infante on an

federal

narcotics

After the car stopped, the officers surrounded the

and placed Infante

was eventually

under arrest.

restrained and

Infante resisted

placed

inside a

nearby

unmarked squad car.

One

of

the

Padilla Velez, asked the

arresting

officers,

driver of the car,

Sergeant

David

a Felipe de

la

-2-

Paz, for consent

to search the vehicle.

De la Paz verbally

gave his
consent, and Sgt. Padilla searched the passenger compartment.

Sgt. Padilla then

trunk.
la

asked de la Paz

Although

for the key to

the car's

Sgt. Padilla did not explicitly

Paz's consent to search the

ask for de

trunk, de la Paz handed over

the key to the trunk in response to the request and

stood by

without objection as the trunk was being searched.

Two

briefcases,

inside the trunk.

said that he

De la

was the

Padilla opened and

one

brown

and one

black,

Paz, upon inquiry by Sgt.

owner of

the brown

searched the brown

were

Padilla,

briefcase.

Sgt.

briefcase, apparently

without objection by de la Paz.

Sgt. Padilla
black

briefcase.

Infante.

then asked de

De la

la Paz

Paz answered

Without expressly asking

who owned

that it

the

belonged to

for de la Paz's

consent,

but without any express objection from him, Sgt. Padilla then
opened the unlocked

briefcase belonging to Infante.

Inside

were various documents belonging to Infante, as well as items

belonging to de

la Paz and others.

Also inside was a loaded

.22 caliber Derringer pistol.

Infante was later
while

a fugitive

from

interstate commerce.

charged with knowingly receiving

justice

De la

firearm

transported

in

Paz and the other passenger were

not arrested.

-3-

Infante

moved to suppress the gun, arguing that it

had been seized in

oral

ruling,

suppress.

violation of the Fourth Amendment.

the

district

court

The defendant later

the

motion

to

pleaded guilty to the charge,

reserving his right to appeal

motion to suppress.

denied

In an

from the court's denial of his

We now hold that the search of Infante's

briefcase was unlawful and that

the pistol should have

been

suppressed.
II.
The district court upheld the warrantless search of
Infante's briefcase on
privacy interest
finding

that

its

the

weapon

would

(4) the drivers'

court's denial of

findings

(1)

Infante's lack of

in the suitcase; (2) probable

discovered; and
district

four grounds:

of

been

consent.

they

are

inevitably

In reviewing

a suppression motion,

fact unless

United States v. Sanchez, 943

_____________
_______

have

cause; (3) a

we uphold

clearly erroneous.

F.2d 110, 112 (1st Cir. 1991);

United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir. 1990).

_____________
____________
The court's

ultimate

plenary review,
Curzi, 867
_____

conclusion,

Sanchez, 943 F.2d

_______

F.2d 36,

42 (1st Cir.

however,

is

subject

to

at 112; United States v.

______________
1989), as

"[f]indings of

reasonableness . . . are respected only insofar as consistent

with federal constitutional guarantees."
374 U.S. 23,

33 (1963).

determination of

We will,

Ker v. California,
___
__________

"where necessary to

constitutional rights, make

the

an independent

-4-

examination of

the facts,

that

determine

[we] can

decision

as

to

constitutional

the findings, and

for

reasonableness
criteria

[ourselves]
the

the record
whether

in

fundamental

. . . have been

so
the

i.e.,
____

respected."

Id.
___

at 34.
Applying these
of

the

grounds

for

principles, we discuss in turn each

upholding the

search

offered

by the

district court.
A.

Infante's Privacy Interest in the Briefcase

___________________________________________
The

district

court

found

that

Infante

had

no

privacy interest in the briefcase and concluded that the lack

of such an

interest provided a sufficient basis

to deny the

suppression

motion.

The

district court found

that Infante

had left the unlocked briefcase in the trunk of the Mazda for
a period of some days, even when
that he allowed de la Paz
their

own inside

it.

briefcase "was not

that

he was not a passenger, and

and others to place possessions of

The

district court

under the control

Infante had

no Fourth

Amendment

found that

the

of the defendant"

and

privacy rights

that

could have been violated by its search.

While the

district court

cited no

authority, the

best analogy we could find for the district court's reasoning

is California v.
__________
police searched
bags

left at

Greenwood, 486 U.S. 35 (1988).

_________
without a

the curb

warrant the

outside the

There, the

contents of

garbage

defendants' home.

The

-5-

Court

held that the defendants "exposed their garbage to the

public sufficiently to defeat their claim to Fourth Amendment

protection."

Id. at 40.
___

Court,

garbage bags

that

It was "common knowledge," said the

left

for

pick up

are

"readily

accessible to

animals,

children,

other members of the public."

scavengers,

snoops,

and

Id. (footnotes omitted).

___

The

defendants were considered to have

area particularly

suited for

left their refuse "in

public inspection

and

. .

an
.

consumption, for the express purpose of having strangers take

it."

Id. at 40-41 (internal quotation omitted).

___
The

facts

distinguishable from

in

this

Greenwood.
_________

closed briefcase inside

that

Infante

Storing

had

items

the

briefcase,

not reveal a

relinquished

indicated that, among his

friends, the
While there is

Infante's confederates felt entitled

to the

an intention

exclude those

De la Paz's identification of the briefcase as

items of their own within it, he

betray

inside

it open to "public inspection and

case was still believed to belong to Infante.

availability

clearly

Infante to "expose" such items to

abandoned

belonging to Infante

evidence that

are

Moreover, nothing in the circumstances indicated

authority over it, or left

consumption."

however,

a locked car trunk did

willingness on the part of

the public.

case,

he

did nothing to indicate its

public generally
to forego

wished to

nor

an owner's

exclude.

-6-

to place

did his

actions

normal

right to

By the

time of

the

search, Infante

himself was once more a passenger in the car

carrying his briefcase.

We think it
not

repudiate his

is clear, therefore, that

privacy

placing it in the trunk of

interest

in

the Mazda.

the

Infante did
briefcase

While he indicated

by
a

willingness to share access with a few friends, he

in no way

opened the

hold that

case to

public access.

Infante had a privacy interest

We therefore

in the briefcase and that the

district court's finding to the contrary was in error.

B.

Probable Cause
______________
The district

court also concluded

was justified by probable cause.

if the
vehicle
evidence
seized,
open and

police have probable

It is now established that

cause to believe that

either a

or a container within a vehicle contains contraband,

of

crime, or

other

matter that

may

lawfully be

no Fourth Amendment violation occurs when the police

search the

States v. Ross, 456

______
____
111 S.

that the search

container without

occupants were

warrant.

United
______

U.S. 798 (1982); California v. Acevedo,

______________________

Ct. 1982 (1991).

because Infante

was a

The district court found

federal fugitive

and that

allegedly under suspicion for

here that
the other

trafficking in

drugs,

the police

that the

officers could

car's occupants

contraband or

weapons

have reasonably

were "dangerous

would

be in

believed

people" and

the

automobile.

that
The

-7-

district

court

supported

its

finding

by

saying

it

was

"conventional wisdom" that "drug traffickers carry weapons."

But in order for probable cause to search to exist,
the officer

must have reasonably

supporting facts and

person

of

reasonable

justified.

required.
officer's

Id.
___

that

caution

to

the

persuade a
search

is

Practice and

Certainty is not

absence of supporting facts, the

Id. at
___

suspected

the

Federal

662 at 579 (1982).

But in the

enough.

believe

Wright,

suspicion or personal

exists is not
here

circumstances such as would

Charles Alan

Procedure: Criminal 2d

trustworthy information of

belief that
582.

vehicle

serious drug trafficking records.

Thus it
contained

probable cause
was not enough
persons

with

There had to be particular

facts indicating that, at the

a

time of search, the vehicle or

container within it carried contraband, evidence of crime,

or other seizable matter.

The
police

government conceded at

officers who

information

Id. at 2664.
___

conducted the

that Infante

oral argument that the

search

and his friends

drugs or weapons at the time of the stop.

standard

could

"conventional
Infante and

not

be satisfied

wisdom" or

by the

his associates.1

merely

had no

concrete

were transporting
The probable cause
by

dependence on

"dangerous" reputation

See United States

___ _____________

of

v. Harris,
______

____________________
1. A related argument for upholding the search, which the
government did not press below and waived on appeal, was that
the search was justified as incident to Infante's lawful
-8-

403

U.S. 573,

582

(1971)

(suspect's reputation,

alone, is insufficient to support probable cause).

standing

____________________
arrest under the warrant.

New York v. Belton, 453 U.S. 454,

_________
______
457, 460 (1981). Under Belton, when a police officer makes a
______
lawful custodial arrest of the occupant of an automobile, the
officer may, "as a contemporaneous incident of that arrest,"
search the car's passenger compartment and any containers
found within it.
Id. at 460-61 & n.4.
The "passenger
___
compartment"
has been interpreted to mean those areas
reachable without exiting the vehicle and without dismantling
door panels or other parts of the car. See Wayne R. LaFave &
___
Jerold H. Israel, Criminal Procedure
3.7 at 277 (1984).
___________________
The Belton doctrine
has thus been extended
to allow
______
warrantless searches of the rear section of a station wagon
and the trunk area of a hatchback, when these areas are
accessible from inside the vehicle. United States v. Pino,
_____________
____
855 F.2d 357, 364 (6th Cir. 1988) (station wagon), cert.
_____
denied, 493 U.S. 1090 (1990); United States v. Russell, 670
______
_____________
_______
F.2d 323, 327 (D.C. Cir.) (hatchback), cert. denied, 457 U.S.
____________
1108 (1982).
The Supreme

Court in

Belton expressly excluded trunks

______
from its holding, 453 U.S. at 460-61 n.4, as the Court may
have assumed that all car designs were such as to prevent
passengers from reaching into the trunk from the back seat
and seizing a weapon or evidence there. In the instant case,
however, the vehicle was a 1991 Mazda 626 sedan, which
appears to have had a divided rear seat permitting one or
both segments to be lowered, allowing direct access to the
trunk from the passenger compartment. See Road Test: Sedans,
___ _________________
56 Consumer Reports 475 (1991).
If this was the design,
there may have been little difference for purposes of the
Belton doctrine between a trunk of the Mazda and the rear
______
portion of a station wagon or the rear compartment of a
hatchback.
But as the government failed to make this
argument either below or on appeal, and as the record is
entirely without evidence as to how accessible the Mazda's
trunk may have been to persons seated within the car, we do
not reach the novel question of whether Belton should be

______
extended in this way.
-9-

C.

Inevitable Discovery
____________________
As

motion,

third

ground

the district court

for denying

found that the

would have been inevitably found.

the

suppression

Derringer pistol

According to the district

court, because the Mazda was a rental car, the officers would
have taken custody of the car, and
be

inspected

inevitably
vehicle.

before

would have
On

the

the car would have had to

vehicle was

been found

the present record,

returned.

in the inspection

The gun
of the

however, this argument

is

The inevitable discovery doctrine, an exception

to

unsupported and must be rejected.

the exclusionary rule, applies when "the government can prove

that the evidence would have
overreaching."
The

been admitted regardless of any

Nix v. Williams, 467 U.S. 431, 447-48 (1984).

___
________

government bears the burden

of showing, by reference to

"demonstrated historical facts" and by a preponderance of the

evidence,

that the information or item would inevitably have

been discovered by lawful means.

Furthermore,

to be

Amendment, warrantless
according

to

Id. at 444-45 & n.5.

___

permissible

under the

inventory searches must

standardized

procedures.

364, 372-75 (1976); Colorado

________

479

n. 6, 375

U.S.

1, 4-5

(1990).

be conducted

South Dakota
_____________

Opperman, 428 U.S.

________
U.S. 367, 374

according to standard criteria and on the

[must

v.

v. Bertine,
_______

(1987); Florida v.
_______

Any "discretion

Fourth

Wells, 495
_____

be] exercised

basis of something

-10-

other than

suspicion of

criminal activity."

Bertine,
_______

479

U.S. at 375.
The

government

cites

Londo o, 912 F.2d 373, 375-77

_______
its argument

here.

United States v.
______________

Mancera________

(9th Cir. 1990), in support of

In Mancera-Londo o,
_______________

the Ninth

Circuit

upheld

a warrantless search of

rented

station wagon, after

the arrest of

using the car to

transport drugs.

had been

that it was

several suitcases found in a

two suspects who

"legitimate" for the DEA agents

The

court held

involved in the

arrest to take custody of the vehicle after the arrest of the

two

suspects, as

apparently no

one else

return the car to the rental company.

The agents in

the

car to

to

Id. at 376.
___

Mancera-Londo o testified that after

_______________

a rented vehicle is seized,

return

was available

the

the DEA's standard policy was to

rental

agency

after

complete

inventory of

the car."

according to

testimony, identical to the policy found in the

DEA

regarding

Manual

forfeiture.

The policy, though oral

"a

the

search

Id. at 375-76.
___

searching
officers

cars

seized

for

Also, the agents testified that

DEA policy required searching of

at 376.

of

only, was,

all closed containers.

Id.
___

See also Wells, 495 U.S. at 4-5 (in order to justify

________ _____
closed
must

be

containers
acting

during

pursuant

regarding closed containers).

-11-

an
to

inventory
a

specific

search,
policy

In

the present case, however, the record is barren

of evidence that
that the

would support the district

discovery of

government

has

not

the gun was

met

court's finding

inevitable.

its burden

of

First, the

showing

that

the

officers could have taken "legitimate custody" of the vehicle

but

for the

discovery

Jenkins, 876
_______
officers

F.2d 1085,

indeed would

See United States

___ _____________
1986)

the gun,

see
___

1089 (2d Cir.

have taken

United States
_____________

1989), and

such custody

v. Silvestri, 787 F.2d 736,

_________

v.

that the

inevitably.
744 (1st Cir.

(noting that a "basic concern" in inevitable discovery

cases is

whether both the

the use of
487

of

U.S.

that means are

1233

connected with
only

(1988).

discovery of the legal

truly inevitable), cert. denied,

_____________
In

the vehicle

Infante

Mancera-Londo o,
_______________
were arrested.

a passenger

was

riding

of Infante to

and return

Here,

however,
Insofar as

the mere discovery

seize the car within

it to the

both persons

arrested.

appears, the police were not compelled by

and arrest

means and

rental company.

which he was
There was no

testimony, and no evidence otherwise, that the car would have

been impounded or

seized if the

gun had not been

found, or

that

without

impoundment

the

car

would

have

otherwise

remained on the side of a public highway or city street.

United States v. Ramos-Morales, 981 F.2d
______________
_____________

See
___

625, 626 (1st Cir.

1992), cert. denied, 113 S. Ct. 2384 (1993).

____________

-12-

Second,

the

evidence that their

procedures
Opperman,
________
that a
contents
rental

and

government

actions were

standardized

Bertine, and Wells,

_______
_____

policy dictated that

failed to

controlled by

The

any

established

criteria,

as

supra.
_____

officer testified

No

required

they seize the car,

including closed containers,

agency.

introduce

government

search its

and return it

did

not

by

introduce

to the
into

evidence a written policy to that effect, nor did any officer

testify that an oral policy or established routine existed.
Though

no

directed the making

officer

testified

of an inventory search,

that

regulations

one officer did

testify

that

searches

were

certain
to

regulations

be

conducted

performed.

The

required the

officers to

from

the

officer

vehicle.

governed
when

testified
keep a

When

asked

how

they
that

inventory

in
the

fact

regulations

list of everything
if

he had

were

seized

followed

such

regulations in this case, however, the officer testified that

he had

not.

The inventory list that was introduced at trial

did not list the gun.

In the absence of specific evidence of standardized
procedures

making inevitable

the seizure

of

the car,

the

search of the trunk, and the opening of the closed briefcase,

and

in light

failed

of the

fact

to comply with

that the

officers on

the established regulations

the scene
that did

exist, we hold that the government failed to carry its burden

-13-

of

showing

that

the

gun

would

have

been

inevitably

discovered.
D.

Consent
_______
The government

argues on appeal

that the evidence

and

the court's

Mazda, de

la

briefcase.

findings

Paz,
While

consented to

indicate that

consented to
there

a search

was

the

the driver

search

no evidence

of Infante's

of

that

of the

Infante's
de la

Paz

briefcase specifically,

the district court felt it "a reasonable conclusion that when

the

police searched the trunk or asked permission to Freddie

[de la Paz] to open the trunk . . . there was consent to open

the trunk .
infer

de

. . ."
la

From this the government would

Paz's

briefcase located

consent

to

search

within the trunk.

close, we are unable to find that

Infante's

While the

have us
closed

question is

de la Paz consented to the

briefcase search.
The evidence shows that de la Paz had access to the
briefcase for several days and
co-mingled

that de la Paz's property was

with Infante's inside the briefcase.

therefore, that de

la Paz had sufficient

briefcase to consent to its search

to do so.
duffel

authority over the

if he in fact had

chosen

See Frazier v. Cupp, 394 U.S. 731 (1969) (owner of

___ _______
____

bag, in

leaving it at
consent

It appears,

allowing friend

to use

bag jointly

and in

friend's house, assumed risk that friend would

to its search);

United States v.
_____________

-14-

Matlock, 415 U.S.

_______

164

(1974)

permissible

(search
when

authority over

based

where

diaper
on

bag

consent

in
of

bedroom
one

bedroom); cf. United States v.

___ _____________

761, 764 (9th Cir.

authority

of

search of another

no evidence

of joint

common

Welch, 4 F.3d
_____

1993) (one occupant of rental

to consent to

there was

with

closet

car had no

occupant's purse

access to

or shared

control over the purse).

It

was not

reasonable,

however,

for the

officers to have believed that de la Paz gave his

the

search of Infante's briefcase.

500 U.S. 248,

Amendment

___, 111 S.

violation

reasonable" under the

when

that the scope of a

officer

to open

Jimeno,
______

the driver's general

officer to

a car.

In

the vehicle

to authorize the search of

a paper bag

the suspect's general consent to

to search

"objectively

consent to search

objectively reasonable for

consent

not

container within

on the floorboard containing cocaine.

was

is

Fourth

suspect's consent permitted the

a particular

was found sufficient

it

1803 (1991), a

circumstances for a police

believe

consent to

Under Florida v. Jimeno,

_______
______

Ct. 1801,

occurs

police

containers

The Court held that it

the officer to

believe that

search the car included his

within

the

car

that

might

contain

drugs.

Id.
___

at

1804.

The Court

officer had informed the suspect that he was

for

carrying narcotics, and that

noted

that the

under suspicion

the suspect had not placed

any explicit limitation on the scope of the search.

Id.
___

-15-

The instant
from Jimeno.
______

case is

distinguishable on

Unlike Jimeno, Sgt. Padilla did

______

its facts

not notify de

la Paz that he was looking for drugs, making it somewhat more

difficult

to impute

to de

la Paz

consent to

search every

container within the car that might contain drugs.

Infante's

briefcase was

secured

inside

rather than lying on the floorboard.

very

likely

consenting

unreasonable

to the

to

search of

breaking open of a locked

think

the

Moreover,

locked

trunk

Cf. id. at 1804 ("It is

___ ___
that

his trunk,

suspect,

has agreed

by

to the

briefcase within the trunk, but it

is otherwise with respect to a closed paper bag.").

Still, were the above the sole distinctions, Jimeno
______

would seem to

allow a finding of consent.

Infante's arrest

warrant related to drug-dealing and de la Paz'

the keys to
to search
scope of

the trunk is consistent with granting permission

within the trunk.

de la

to the

searched

the

Infante.

Even

did

us to hold that the

not include
___

defendant's

la Paz's general permission

and its trunk was

statement

What leads

Paz's consent

briefcase, is that de
the car

furnishing of

qualified by de la

officer,

briefcase,

before
that

the

the

Paz's further

latter

briefcase

though Infante was nearby,

to search

opened

and

belonged

to

handcuffed in the

squad car, the police officers never sought his permission to

search

his

"objectively

briefcase.

We

reasonable," in

do
these

not

think

that

it

was

circumstances, for

the

-16-

officer to believe

that de la Paz's prior

consent to search

the vehicle and its trunk encompassed opening that particular

briefcase, later clearly identified by de la Paz as belonging
solely

to

another

nearby

passenger.

De

la

Paz's

identification of
nearby

he

briefcase

passenger suggested

Jimeno, 111
______
as

the

was ambiguous
not clarified

belonging

precisely

the

to

another

contrary.

See
___

S. Ct. at 1804 ("A suspect may of course delimit

chooses

consents.").

as

the

scope

of

the

search

to

which

he

At very least, the scope of de la Paz's consent

an ambiguity
by further

that could have been

inquiry of de

both.

-17-

la Paz,

but was

Infante or

III.
As none of the grounds offered to uphold the search
of the

briefcase

survives analysis,

suppress the fruits

appellant's motion

of the search should

to

have been granted.

The district court's denial of appellant's motion to suppress

is

reversed and

the judgment

vacated.

withdraw his plea of guilty below.

So ordered.
__________

The

defendant may

-18-