PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5753

EARNEST CARTER, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-87-17-A)

Argued: December 5, 1995

Decided: March 24, 1998

Before WILKINSON, Chief Judge, RUSSELL, WIDENER,

MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,

LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Widener wrote the majority

opinion, in which Chief Judge Wilkinson and Judges Wilkins, Niemeyer, Hamilton, Luttig, Williams, and Motz concurred. Judge Ervin

wrote a dissenting opinion, in which Judges Murnaghan and Michael

and Senior Judge Hall concurred.*

_________________________________________________________________

*Judge Russell heard oral argument in this case but died prior to the

time the decision was filed.
COUNSEL

ARGUED: Edward Blair Brown, BROWN & STAMBAUGH, Alexandria, Virginia, for Appellant. William Graham Otis, Assistant

United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen

F. Fahey, United States Attorney, John T. Martin, Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Appellee.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

The defendant, Earnest Carter, Jr., appeals his conviction after a

guilty plea. The only issue is the district court's denial of his motion

to suppress evidence of the cocaine found in his suitcase. We affirm.

Carter was arrested at Washington National Airport at approximately 10:30 p.m. on January 14, 1987 by Federal Aviation Administration police for the theft of a gray-brown Hartman brand suitcase,

the property of one Thompson. The stolen suitcase and two other

bags, a black carry-on bag and a gray Skyway brand suitcase with

tape around it, were in Carter's possession and were taken from him

at the time of his arrest. Carter had a roundtrip airline ticket showing

his route from Miami to Washington on January 14 and returning to

Miami on January 16. He told the police that he was in town to clarify

a case of mistaken identity with the Washington police. Carter

claimed that he had picked up the gray-brown Hartman bag by mistake and refused to give consent to the police to search the two other

bags. The black carry-on bag was opened and inventoried by the

arresting officer at 12:40 a.m. on January 15, but the gray Skyway

bag was not opened. Carter appeared before a magistrate in the afternoon of January 15 and was released on an unsecured bail bond with

penalty of $2500. In the meantime, the officers obtained Carter's

criminal history which showed a prior charge of possession of a controlled substance with intent to distribute.

 2
Following his release on bail Carter returned to the airport at about

4:30 p.m. on January 15 and requested the return of the black bag and

the gray Skyway bag. He again refused consent to search the gray

Skyway bag. The black bag was returned to him but the gray Skyway

bag was held by police. At approximately 12 noon on January 16, a

sniff dog alerted to the gray Skyway suitcase and the FAA police

obtained a warrant to search the bag which was found to contain the

660 grams of cocaine, which form the basis of Carter's conviction.

Carter was indicted in February 1987 for larceny in violation of 18

U.S.C. § 661; possession with intent to distribute cocaine in violation

of 21 U.S.C. § 841(a)(1); interstate travel to promote unlawful activity in violation of 18 U.S.C. § 1952(a)(3); and failure to appear pursuant to conditions of release. He had obviously skipped bail, for he

remained at large until arrested in the summer of 1994. The district

court denied his motion to suppress the cocaine, finding that the property at issue was properly seized incident to a lawful arrest, that the

government had a reasonable continuing investigatory interest in the

property, and that the government did not hold the property for an

unreasonably long time. Carter pleaded guilty to the failure to appear

charge, and to the charge of possession of cocaine with intent to distribute on the condition that the suppression issue would be preserved

for appeal. The government dismissed the remaining charges.

Carter appeals the denial of his motion to suppress, claiming that

his property was held for an unreasonably long period of time without

probable cause in violation of the Fourth Amendment. He asserts that

although the property was lawfully seized at 10:30 p.m. on January

14, at the time he requested its return, 4:30 p.m. on January 15, there

was no longer probable cause to believe that it was connected to the

charge for which he was arrested or any other criminal activity.

We emphasize that there is no question concerning the validity of

the search warrant, which was obtained when the sniff dog alerted.

There is also no question concerning the officers having the sniff dog

examine the gray Skyway suitcase.

At the suppression hearing in the district court, Carter's attorney

stated to the court:

 3
It has to do with only the timeframe--when he sought the

release of his suitcase that I'm concerned.

The warrant, I think, is appropriate. The dog sniff I don't

think is a search for constitutional purposes, and the rest

falls in the place after that. It has to do only with their

refusal to release it when there is no connection and no evidence that that bag, that suitcase, has anything to do with the

criminal activity for which Mr. Carter was charged.

As stated, the only question before us is whether the holding of the

gray Skyway bag from 4:30 p.m. on January 15 until noon on January

16 was unreasonable. Weaver v. Williams, 509 F.2d 884 (4th Cir.

1975) (only unreasonable searches and seizures are prohibited by the

Fourth Amendment). The facts as found by the district court are not

challenged and are for the most part stipulated. The reasonableness of

a search and seizure is a legal conclusion which we review de novo.

United States v. Smith, 30 F.3d 568, 571 (4th Cir.), cert. denied, 513

U.S. 1028 (1994). Carter admits that the bags were seized incident to

a lawful arrest. At the time of his arrest, he had in his possession the

gray-brown Hartman bag, the gray Skyway bag with tape on it, and

the black carry-on bag. He was charged with the theft of the graybrown Hartman bag and claimed that he had picked up the Hartman

suitcase by mistake. So Carter had in his possession the three suitcases and only claimed the ownership of two of them. It is difficult

to imagine more probative evidence of Carter's guilt than the three

suitcases he had in his possession at the time of his arrest when he

only claimed two of them. And the same would apply to evidence

tending to show as false Carter's claim that he possessed the Hartman

suitcase by reason of mistake.

We find no authority, and Carter offers none, that would obligate

the officers to return to a criminal defendant charged with the theft,

admissible evidence seized incident to a lawful arrest for the theft,

prior to the disposition of the pending criminal charge for which the

defendant was arrested. To repeat, the seizure of the bags was incident to a lawful arrest, not part of an investigatory stop.

Because the government had the right to retain Carter's gray Skyway suitcase as evidence in connection with the charge of theft of the

 4
Hartman suitcase, we conclude that the detention of Carter's gray

Skyway suitcase was reasonable. It had been seized incident to Carter's arrest, and the government was entitled to keep it to use as evidence at Carter's trial.

The judgment of the district court is accordingly

AFFIRMED.1, 2

_________________________________________________________________

1 The government argues that it was also entitled to retain possession

of the suitcase for investigatory purposes and that the time the bag was

so kept was reasonable; that there was sufficient reasonable suspicion to

hold the bag until the sniff dog could examine it; and that in all events,

the search was in good faith. Those are questions we need not decide.

2 The position of the dissent, that the government's holding the bag in

question was unnecessary, for a photograph could have been made of it,

in our opinion, does not comport with either logic or practicality.

Coupled with the fact that Carter had both the gray and the Hartman

suitcases in his possession when stopped is the fact that a simple comparison of them would have shown to a fact-finder, either court or jury, that

Carter's stated reason for having the Hartman bag in his possession was

entirely false. Since the government had in its possession the tangible

evidence of the inadequacy of Carter's stated defense, no rule of law that

we know of requires the government to depend on the less effective substituted evidence of a photograph. Anyone who has tried to defend a

moonshiner in the face of the introduction into evidence of Mason jars

of moonshine, rather than photographs, on a table in plain view of the

jury will recognize the futility of such an undertaking.

Not only do reason and practicality compel the conclusion that the

government was quite within its rights in holding on to the gray suitcase

until the theft by Carter had been disposed of, that very point was made

to the district judge at the hearing on the motion to suppress. Although

the dissent quotes, at some length, different reasons advanced by the

government for obtaining and keeping the suitcase, it does not quote that

part of the hearing in the district court in which the very point made in

the majority opinion was put up to the district judge.

Mr. Martin: [an assistant U. S. attorney] . . . .

And I go through those ["other reasons"] at page eight of my

brief when I talk about the fact that down the road for purposes

of a theft case, it may very well have been that we would want

 5
ERVIN, Circuit Judge dissenting:

I respectfully dissent.

In this case, this court is asked to address an aspect of Fourth

Amendment search and seizure jurisprudence that has not previously

been decided in this circuit. Specifically, we must assess the reason-

_________________________________________________________________

to have the other bag because it would help us if the defendant

were to say I took this bag by mistake. It might be helpful to us

to be able to have a grey suitcase to show, wait a minute, ladies

and gentlemen of the jury, he wouldn't take it by mistake by virtue of the fact that this other bag was there. (A.20-21)

This, in our opinion, is not "post hoc rationalization" as the dissent

describes it at p.13, n.4.

Finally, the district court admitted the drugs into evidence because it

believed that the time the suitcase was held was not unreasonable under

the circumstances of this case. The judge said that holding the suitcase

as "a nexus to the crime" of theft was too narrow a restriction on the government. As we have demonstrated, despite such narrow restriction the

government complied with the more stringent standard. So we do not

have to consider whether or not the more lenient standard of reasonableness has been met as a separate matter. What we must consider is

whether the drugs were properly admitted into evidence. And they were,

because the suitcase all the while was in the legitimate possession of the

government.

In the review of judicial proceedings the rule is settled that if the

decision below is correct, it must be affirmed, although the lower

court relied upon a wrong ground or gave a wrong reason.

Helvering v. Gowran, 302 U.S. 238, 245 (1937).

It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground

within the power of the appellate court to formulate.

SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).

Because the drugs were properly admitted into evidence, the decision

of the district court must be affirmed even if it gave a wrong reason, a

question we do not decide.

 6
ableness of the government's continued possession of a person's suitcase that was seized initially pursuant to a lawful arrest, once the

owner has requested the return of his property. Although in this case

I do not dispute the constitutional legitimacy of the initial seizure of

the defendant's suitcase or its eventual search, I believe that the prolonged detention of the suitcase, coupled with the authorities' lack of

diligence in pursuing their investigation, violated the defendant's

Fourth Amendment right to be free from unreasonable seizures. In

light of this constitutional violation, I would reverse the district

court's denial of the motion to suppress.

I.

A.

The events in this case took place within a forty-eight hour period,

beginning on the evening of January 14, 1987. At 10:30 p.m., Officer

Michael Young of the Federal Aviation Administration Police (FAA)

stopped Earnest Carter in a terminal at Washington National Airport

based on the officer's suspicion that Carter had stolen a greyishbrown Hartman suitcase he was carrying. Unable to produce a baggage claim ticket for the suitcase in question, Carter was arrested and

charged with larceny. Carter had in his possession at the time of arrest

two other pieces of luggage--a small black bag and a larger, grey

Skyway suitcase. Officer Young seized those bags, as well as Carter's

round trip ticket from Miami to Washington, D.C. Carter does not

contest the constitutional legitimacy of this initial seizure, which

occurred pursuant to a lawful arrest.

It is most useful to divide the remaining events into two sections.

The first of these periods covers the authorities' actions from the time

of Carter's arrest at 10:30 p.m. on January 14 until 4:30 p.m. the next

day, when Carter requested that his luggage be returned. The second

time period, and the one most critical to Carter's constitutional claim,

is the period between 4:30 p.m. on January 15, and 12:00 noon on

January 16, when officers obtained the probable cause necessary to

conduct a search of Carter's Skyway suitcase. At the time of Carter's

arrest, FAA officers asked Carter to consent to a search of the two

bags that Officer Young had seized during the arrest. FAA authorities

informed Carter that without his consent, a search warrant would be

 7
obtained. Carter refused to consent to a search. Within two hours, and

without a search warrant having been obtained, FAA officers conducted an inventory search of Carter's small black bag. For reasons

unexplained in the record, the officers chose to search the black bag,

but not Carter's larger piece of luggage. The search of the black bag

revealed nothing of any significance.

On January 15, while Carter was attempting to post bond on the

theft charge, the FAA's investigation slowed down. Early in the day,

Officer Young went to the United States Attorney's office to prepare

a complaint on the theft charge. Young had been instructed by Detective Leach, who was heading the investigation, to inquire about

obtaining a search warrant for Carter's Skyway bag. For some unexplained reason, Young never made such an inquiry. At 4:00 p.m.,

Detective Leach learned for the first time that no progress had been

made in obtaining a search warrant. By this point, nearly eighteen

hours had passed since Carter had been arrested.

At 4:30 p.m. on January 15, Carter returned to National Airport

having just posted a $2,500 unsecured bond and sought the return of

his two pieces of luggage. Detective Leach returned the small black

bag to Carter that had been searched the night before. The detective

was unwilling, however, to return the Skyway suitcase. Again, Carter

declined to consent to a search of that piece of luggage. Thirty minutes after Carter's visit to National Airport, Detective Leach placed

a phone call to obtain an application for a search warrant and learned

that it would not be possible to obtain a warrant until the next day,

January 16. Sometime later on the fifteenth, Detective Leach learned

from an Assistant United States Attorney that a warrant would be

issued only if airport authorities brought in narcotics dogs to sniff the

Skyway bag. According to the U.S. Attorney's Office, without a dog

alerting to the piece of luggage, there would not be probable cause to

justify the issuance of a warrant.

Although Detective Leach knew of the dog-sniff requirement by

the end of the day on the fifteenth, agents from the Drug Enforcement

Agency did not bring a narcotics detector dog to the FAA police station to sniff the Skyway suitcase until noon on January 16. Nineteenand-one-half hours after Carter had requested the return of the Skyway suitcase, the narcotics dog alerted to that piece of luggage. Carter

 8
concedes that from then on, the authorities had probable cause to

obtain a search warrant, which was secured three hours later. With

search warrant in hand, authorities opened the Skyway bag and found

637 grams of cocaine.

The following month, in February 1987, Carter was charged in a

four-count indictment, the most substantial charge being possession

with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).1

This case comes to us much later, because Carter managed to evade

authorities for seven years before being apprehended in the summer

of 1994. At that point, pending trial on the four-count indictment,

Carter filed a Motion to Suppress the cocaine found in the Skyway

suitcase on the ground that the government's delay in obtaining a

search warrant constituted an unreasonable seizure of Carter's belongings.

B.

After conducting a hearing on the motion, the district court concluded that the forty-eight hour period between Carter's initial arrest

for theft and the authorities' discovery of cocaine was not an unreasonably long period of time for the government to retain Carter's

property. United States v. Carter, 859 F. Supp. 202 (E.D. Va. 1994).

The court began its analysis by drawing the important distinction

between the challenge leveled by Carter and the more typical constitutional claim that arises under the Fourth Amendment. The court

noted that the issue presented was not whether the eventual search of

the Skyway bag was unconstitutional. Police dogs had detected the

odor of drugs and a search warrant had been properly issued. Even

more important, the district court recognized that whether an uncon-

_________________________________________________________________

1 As part of a plea agreement, Counts I and III of the indictment, which

pertained to larceny (18 U.S.C. § 661) and to travel in interstate commerce with intent to promote, manage, establish, carry on and facilitate

the promotion, management, establishment and carrying on of an unlawful activity (18 U.S.C. § 1952(a)(3)) were eventually dismissed. Carter

pled guilty to Count IV of the indictment, which charged him with failing to appear after having been released on conditions of recognizance

in violation of 18 U.S.C. § 3146(a)(1). This appeal relates solely to Carter's conviction under Count II for illegal possession of cocaine.

 9
stitutional seizure had occurred would not turn on the authorities'

handling of the matter during the first eighteen hours that the Skyway

bag was seized, but rather on the nineteen-plus hours from the time

Carter requested the return of his luggage until the time the dogs were

brought in to sniff the suitcase.

Relying on United States v. Premises Known as 608 Taylor Ave.,

Apartment 302, 584 F.2d 1297 (3d Cir. 1978), and Sovereign News

Co. v. United States, 690 F.2d 569 (6th Cir. 1982), cert. denied, 464

U.S. 814 (1983), the district court attempted to"balance the government's interests in holding the property against the owner's right to

use the property."2 Carter , 859 F. Supp. at 204. According to the district court, where the government has a "continuing interest" in the

property, lawfully seized property need not be returned immediately

to the owner. Id. at 205. The government need only be sure that it

does not hold the property for an "`unreasonable time' without taking

some action with regard to the property." Id. 

Here, the district court defined the government's"continuing interest" in terms of an alleged "ongoing criminal investigation" that was

proceeding as to whether Carter was a drug trafficker. Id. The sum

and substance of the authorities' suspicions regarding possible narcotics violations was the fact that Carter had been arrested previously for

possession of a controlled substance with intent to distribute,3 that

Carter possessed a round-trip ticket from Miami--a known "source

city" for drugs--with only a two day stay in Washington, D.C., and

that the Skyway suitcase was wrapped with several pieces of tape,

even though the suitcase's locking mechanisms were apparently in

working condition. Id. at 204 n.3.

Having concluded that enough suspicion existed to justify a continued investigation on the part of FAA authorities, the district court

_________________________________________________________________

2 Unlike the district court, I do not find the Third and Sixth Circuits'

decisions particularly instructive. Those cases were decided under Rule

41(e) of the Federal Rules of Criminal Procedure, and I have not found

an instance in which either circuit has extended those holdings to a case

similar to the one before us today.

3 Airport authorities never learned whether Carter had been convicted

on that previous charge.

 10
undertook a very brief consideration of the reasonableness of "[t]he

total elapsed time [forty-eight hours] between the time of the initial

seizure of the suitcase and the issuance of the search warrant." Id. at

205. Importantly, the district court never distinguished, for purposes

of its reasonableness analysis, between the period before Carter

requested the return of his luggage and the period after such a request

had been made. An independent inquiry was never made into the reasonableness of the nineteen hours between 4:30 p.m. on January 15

and 12:00 noon on January 16.

In an alternative holding, the district court ruled that even if the seizure were determined to have violated the Fourth Amendment, "the

cocaine found in the suitcase is nonetheless admissible under the

`good faith exception.'" Id. (citing United States v. Leon, 468 U.S.

897 (1984)). The court relied exclusively on the Eighth Circuit's decision in United States v. White, 890 F.2d 1413 (8th Cir. 1989), cert.

denied, 498 U.S. 825 (1990), offering that case as an example in

which the exclusionary rule was not permitted to prevent the admission of evidence where officers had had a good faith basis for seizing

a person's property at an airport. Id. at 1419. The district court reasoned that because it is constitutionally permissible to seize property

in the possession of an arrestee, the officers had acted in good faith

in assuming that their continued holding of the property for "less than

24 hours before Carter's request for the return of the property" did not

contravene the Fourth Amendment. Carter, 859 F. Supp. at 206.

Notably, the district court did not conduct a separate "good faith"

inquiry into the officers' motives for holding the Skyway suitcase for

the additional nineteen hours after Carter had made a formal request

for the return of his luggage.

Facing the prospect of the cocaine being admitted as evidence

against him, Carter entered into a plea of guilty as to the possession

charge. The guilty plea was made on the condition that the suppression issue would be preserved for appeal. Carter received a sixtymonth sentence for his § 841(a)(1) conviction and an additional one

month for having violated 18 U.S.C. § 3146(a)(1). Following sentencing, Carter filed a timely notice of appeal.

II.

Like the district court, I begin by noting that the question presented

in this case is substantially different from the questions typically pres-

 11
ented in Fourth Amendment search and seizure cases. First, Carter is

not claiming that he was unlawfully seized when officers first

approached him on January 14. See Florida v. Royer, 460 U.S. 491,

497 (1983) (plurality opinion) (holding that "law enforcement officers

do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is

willing to answer some questions, by putting questions to him if the

person is willing to listen, or by offering in evidence in a criminal

prosecution his voluntary answers to such questions"). Second, Carter

does not dispute that it was within the powers of FAA authorities to

seize his luggage at the time of his arrest on January 14. Once the

validity of the arrest is established--something in this case that Carter

does not dispute--the subsequent seizure of luggage was "unexceptionable as permissible incidents to a valid arrest." United States v.

Lehmann, 798 F.2d 692, 695 (4th Cir. 1986). Finally, Carter is not

challenging the legitimacy of the January 16 search of the Skyway

suitcase. Once the narcotics dogs alerted to the Skyway bag, probable

cause existed and a search warrant was properly issued. Carter's case

is less common--one in which the sole complaint is that the defendant's property was seized for an unreasonably long period of time,

despite efforts on his part to get it back.

As a final preliminary matter, it must be determined which portion

of the forty-one hours between Carter's arrest and the search of his

Skyway suitcase is subject to constitutional scrutiny. I do not understand Carter as complaining about the initial delay from 10:30 p.m.

on January 14 through 4:30 p.m. on January 15. It was not until late

afternoon on the fifteenth--after he had spent the better part of a day

in custody and in front of a magistrate judge seeking to be released

on bond--that Carter was even in a position to request that his bags

be returned to him. As a result, Fourth Amendment concerns were not

triggered until January 15, at 4:30 p.m., when Carter requested the

return of his luggage. Likewise, Fourth Amendment concerns could

not have extended beyond 12:00 noon on January 16, when the DEA

narcotics dogs sensed an odor of drugs coming from the Skyway bag,

thus providing authorities with probable cause to obtain a search warrant. Hence, the constitutional examination involves the nineteen-andone-half hour period between 4:30 p.m. on the fifteenth and 12:00

noon on the sixteenth.

 12
Carter maintains that the government can only justify holding on

to seized property once an owner has requested its return by demonstrating that its "continuing interest" in the seized property relates to

the crime for which the arrestee was initially arrested. Under such a

theory, unless the FAA officers could have articulated a reason for

detaining the Skyway suitcase that related to their investigation of

Carter's theft,4 Carter would have been entitled to his suitcase as soon

as he requested its return. Like the district court, I find Carter's formulation of the rule too narrow. Carter, 859 F. Supp. at 205 n.6. The

government's "continuing interest" in the luggage need not be directly

related to the crime for which the defendant was arrested. Assuming

that the "continuing interest" is distinct from the initial basis for

arrest, it must then be determined what constitutes a reasonable

amount of time for the authorities to continue to hold on to the seized

property. While the officers need not return the property immediately

_________________________________________________________________

4 I find wholly unavailing the government's admittedly post hoc rationalization that the continued seizure of the Skyway could have proved

useful in undermining Carter's claim that he had picked up the Hartman

suitcase by accident, because it looked like his own Skyway suitcase. At

the suppression hearing, government counsel admitted that Detective

Leach's decision not to give Carter the Skyway had nothing to do with

the perceived value the suitcase might have had in a subsequent prosecution on the theft charge:

"[W]hat he [Detective Leach] had in his mind at the time was

that the defendant had just come in from Miami, a known drug

source for a quick stay, that the defendant had a prior drug arrest,

that the zippered bag looked suspicious, because it had tape on

the outside of it."

Joint Appendix, at 19-20. Counsel further conceded that had FAA authorities only been interested in the Skyway for the purpose of bolstering

their case against Carter on the theft charge, they could just as easily

have taken a photograph of the suitcase and returned the bag to Carter.

Whether producing the Skyway at trial would have been necessary is

doubtful. While it certainly is possible for someone to mistake another

person's suitcase for his own and to walk off accidentally with the wrong

piece of luggage, it strains credulity to believe that Carter had forgotten

how many pieces of luggage he had brought with him on his trip. At the

time he was stopped by Officer Young, Carter was attempting to leave

the airport with his Skyway and the similar Hartman.

 13
upon the arrestee's request, as Carter suggests, I take exception to the

length of time the district court was willing to allow the seizure to

continue without a finding of probable cause.

I will assume, for purposes of discussion, that there existed a reasonable basis for suspecting Carter of illegal activity beyond the theft

of the Hartman suitcase.5 When such suspicion exists, under United

States v. Place, 462 U.S. 696 (1983), authorities may briefly detain

a person's luggage for the purpose of conducting a limited investigation of that person's property.6 In Place, the Court specifically upheld

_________________________________________________________________

5 While Carter's arrest for theft and prior arrest on drug possession

charges may have given the police some basis to suspect further illegal

activity, I am less inclined to read much, if anything, into the fact that

Carter's Skyway was wrapped with several pieces of tape even though

there was apparently no damage to the suitcase's zippers or locking

mechanisms. The notion that reasonable suspicion can be gleaned from

the fact that Carter had flown into Washington, D.C. from Miami and

that he was staying for only two days is even less plausible. I do not dispute the fact that Miami, along with many other major metropolitan centers throughout this country, has substantial drug problems, but the idea

of law enforcement authorities conducting investigations based on the air

travel of a suspect is dubious at best, particularly when the destinations

are in fairly reasonable proximity to one another. Cf. United States v.

Alpert, 816 F.2d 958, 960-61 (4th Cir. 1987) (noting that "[s]mall parts

of the drug courier profile may not always, standing alone, provide the

reasonable, articulable suspicion necessary to justify a Terry-stop"); see

also United States v. Gooding, 695 F.2d 78, 83 (4th Cir. 1982) (rejecting

notion that a drug courier profile alone, which included defendant's

arrival from New York--a source city for drugs--could create a reasonable and articulable suspicion); but cf. United States v. Erwin, 803 F.2d

1505, 1510 (9th Cir. 1986) (including in list of suspicious activity the

fact that defendant had flown 4,000 miles round-trip from Alaska to San

Francisco--"a known drug-source city"--in a two day period).

6 The Supreme Court's decision in Place is far more relevant to the outcome of this case than was suggested by the district court. See Carter,

859 F. Supp. at 204 n.4 (citing Place only for the proposition that a "dog

sniff is not a Fourth Amendment `search'"). I recognize that, on first

glance, there appears to be a substantial distinction between the seizure

in this case and the one in Place, but after careful consideration I find

that Place is appropriately applied in this instance. The government dis-

 14
the constitutional legitimacy of using narcotics detection dogs to

ascertain whether luggage contains contraband. Relying on its decision in Terry v. Ohio, 392 U.S. 1 (1968), the Court carved out another

exception to the probable cause requirement for limited seizures and

held that the detention of personal effects is governed by the same

standards as the seizure of a person in possession of those goods.

_________________________________________________________________

tinguishes Place on the ground that Carter's luggage was initially seized

incident to a lawful arrest, whereas Place--although suspected of illegal

activity--had not been arrested prior to the seizure of his luggage. The

fact that Carter had attracted the attention of airport police by stealing

someone else's suitcase plays a critical role in defining the amount of

time that authorities could hold on to Carter's luggage, but only up until

that point when Carter was released on bond and requested the return of

his luggage. By 4:30 p.m. on January 15, authorities could not articulate

a basis for keeping the Skyway as part of their investigation into the prior

evening's theft. At best, the officers then were only suspicious of other

criminal activity.

The government relies too heavily on the fact that FAA authorities initially seized Carter's property pursuant to a lawful arrest. At the motions

hearing, government counsel argued that "[t]he fact of the lawful seizure

places the reasonable period of time in a much more expansive framework [than would otherwise be the case under a scenario such as the one

in Place]." Joint Appendix, at 24. In front of this court, the government

continued to distance itself from Place by claiming that a reasonable

period for retaining a bag after it has been lawfully seized is longer than

that which constitutes a "reasonable period" under Place. In fact, the

government contends that the seizure of property incident to an arrest

allows the government a certain amount of time to"simply sit back and

think about it." The government ignores the fact that it had eighteen

hours to "sit back and think" about its investigation.

Had Carter claimed that the initial eighteen hour seizure of his property violated the Fourth Amendment, there would be no basis for our

assessing the reasonableness of the officers' actions in light of Place. I

recognize that Place does not address the detention of property seized

incident to a lawful arrest. In this case, however, we are not evaluating

the initial seizure, but the continued seizure of Carter's belongings once

he requested the return of his luggage after having been released on

bond. At that point, I believe that this case fell squarely back within the

parameters of Place.

 15
Place, 462 U.S. at 700-01, 705; United States v. McFarley, 991 F.2d

1188, 1191 (4th Cir.) (recognizing that under Place, the "same reasonable suspicion which must justify a brief stop and search of the

person must also form the basis for a detention of luggage for the purpose of conducting a dog sniff"), cert. denied, 114 S. Ct. 393 (1993).

Place rejected the government's contention that seizures of property are necessarily less intrusive than seizures of the person. A . . .

"detention of luggage within the traveler's immediate possession . . .

intrudes on both the suspect's possessory interest in his luggage as

well as his liberty interest in proceeding with his itinerary." Place,

462 U.S. at 708. The Court analogized the situation involving the seizure of luggage to the situation in which the person himself is seized:

when the police seize luggage from the suspect's custody,

. . . 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.

Id. at 708-09. As in the Terry context, it is possible for officers to

exceed the time limits of an investigatory stop with respect to personal property. As we noted in United States v. Alpert, 816 F.2d 958,

961 (4th Cir. 1987), "[t]he applicable brevity requirements for investigatory seizures of luggage are no different from those for seizures of

persons in many cases."

In analyzing a stop based on reasonable suspicion, the intrusiveness

of the stop is the "critical threshold issue," Place, 462 U.S. at 722, and

we have held that the "duration or brevity of the stop is a key consideration in determining . . . [the stop's] intrusiveness." Alpert, 816 F.2d

at 961. In Place, ninety minutes elapsed between the officers' initial

detention of the defendant and his luggage and the"sniff test" by

trained narcotics dogs. The detention of the defendant's luggage for

that amount of time, when the defendant had not been arrested, but

had been stopped based only on the officer's suspicion that he may

have been involved in criminal activity, was ruled excessive. Id. at

709-10. In making such a determination, the Place Court took into

account "whether the police diligently pursue[d] their investigation,"

and thereby minimized any intrusion on the traveler's Fourth Amend-

 16
ment rights. Id. at 709; Alpert, 816 F.2d at 962. In arriving at the conclusion that the ninety-minute detention of Place's luggage

constituted an unreasonable seizure, the Court expressly noted the

lack of diligence on the part of the officers in securing the necessary

narcotics dogs. Place, 462 U.S. at 709. The fact that ninety minutes

had transpired before the dogs were brought to sniff the luggage was

less critical than the fact that the officers had not made a sufficient

effort to minimize the intrusiveness of the detention. Id. at 703.

Two years after its decision in Place, the Court reiterated the

importance of police diligence in the investigatory process. United

States v. Sharpe, 470 U.S. 675 (1985). The Sharpe Court construed

Place as follows:

[T]he rationale underlying that conclusion[that the detention was unreasonable] was premised on the fact that the

police knew of respondent's arrival time for several hours

beforehand, and the Court assumed that the police could

have arranged for a trained narcotics dog in advance and

thus avoided the necessity of holding respondent's luggage

for 90 minutes.

Sharpe, 470 U.S. at 684-85. In contrast to the lack of prompt police

action in Place, the twenty minute detention in Sharpe was justified

in light of the fact that police had been acting"in a swiftly developing

situation." Id. at 686. Furthermore, the twenty minute detention was

primarily the fault of the suspect, whose "actions contribute[d] to the

added delay about which he complains." Id. at 687-88.

Against the backdrop of Place and Sharpe , we articulated a list of

circumstances to be considered when evaluating the intrusiveness of

a seizure for Fourth Amendment purposes. In Alpert, we included

among those circumstances (1) the duration of time the suspect is

delayed by the stop; (2) whether the police acted diligently; (3)

whether the detention of the subject of the search was unnecessarily

prolonged; (4) whether the authorities made it absolutely clear that

they planned to reunite the suspect and his possessions at some future

time, and how they planned to do it; and (5) the importance of the

governmental interest alleged to justify the intrusion. 816 F.2d at 964

(citations to Place and Sharpe omitted). When considered in light of

 17
these criterion, the officers' actions--specifically those taken beyond

the point at which Carter requested that his luggage be returned to

him--were not reasonable.7

With respect to the first of the Alpert criteria, I reject Carter's intimation that the court need only determine whether his belongings

were detained for longer than the ninety minute period held excessive

in Place. The Place Court "decline[d] to adopt any outside time limitation for a permissible Terry stop," id. at 709, focusing instead on

whether the seizure was "so minimally intrusive as to be justifiable

on reasonable suspicion." Place, 462 U.S. at 709; see also Royer, 460

U.S. at 500 (holding that "the investigative methods employed should

be the least intrusive means reasonably available to verify or dispel

the officer's suspicion in a short period of time"). While the Court had

"never approved a seizure of the person for the prolonged 90-minute

period involved here," Place, 462 U.S. at 709-10, I recognize that it

is possible for officers to act with due diligence, yet exceed ninety

minutes in conducting an investigation. I note, however, that virtually

all courts upholding seizures of property have done so where the

detention lasted for less than ninety minutes. See, e.g., Frost, 999 F.2d

at 741 (80-minute detention of suitcase for sniff test reasonable when

police acted diligently); McFarley, 991 F.2d at 1194 (38-minute

detention of luggage reasonable when taken directly to dog sniff testing and investigation conducted diligently); United States v. Withers,

_________________________________________________________________

7 Although my attention in this case focuses on the time period beginning at 4:30 p.m. on January 15, when Carter first requested the return

of his luggage, I cannot ignore that earlier that day Detective Leach had

asked Officer Young to inquire about obtaining a search warrant for the

Skyway bag. It is reasonable to assume that had Officer Young made

such an inquiry, he would have discovered what Detective Leach was

eventually told at the end of the day on the fifteenth--that a warrant

would not be issued unless narcotics detection dogs were brought in to

sniff the suitcase. In making my evaluation, I must also consider briefly

one other aspect of the officers' conduct prior to Carter's 4:30 p.m.

request. Although I believe Carter overemphasizes the importance of the

officers not finding any contraband in the black bag that had been inventoried at 12:40 a.m. on January 15, the fact that the bag was cleared

should have had some impact on the diligence with which the officers

continued their investigation, since it was certainly possible that the Skyway suitcase also would fail to produce any contraband.

 18
972 F.2d 837, 843 (7th Cir. 1992) (15- to 20-minute detention of suspect's luggage for sniff test reasonable); United States v. Glover, 957

F.2d 1004, 1012 (2d Cir. 1992) (30-minute detention of luggage reasonable); United States v. Cooper, 873 F.2d 269, 275 (11th Cir.) (per

curiam) (35-minute detention of luggage reasonable when officers

diligently pursued investigation, found dog to perform sniff test, and

obtained search warrant as soon as practicable), cert. denied, 493 U.S.

837 (1989); United States v. Quinn, 815 F.2d 153, 157-58 (1st Cir.

1987) (20-minute delay reasonable given diligence of police); Erwin,

803 F.2d at 1509 (45-minute delay from time defendant stepped off

flight until police-trained dog detected drug odor from defendant's

day pack was not unreasonable for constitutional purposes); but see

Respress, 9 F.3d at 488 (10-hour detention of luggage reasonable considering late hour and time needed to prepare affidavit and have it

reviewed in order to obtain search warrant). Similarly, when the

detention of luggage has equalled or exceeded 90-minutes, courts

have generally held such seizures unconstitutional without probable

cause. See, e.g., United States v. Scales, 903 F.2d 765, 769 (10th Cir.

1990) (seven hour delay found to have gone beyond the "brevity"

required for a Place seizure); United States v. Cagle, 849 F.2d 924,

927 (5th Cir. 1988) (90-minute detention rendered seizure sufficiently

intrusive); Moya v. United States, 761 F.2d 322, 327 (7th Cir. 1984)

(three hour seizure of shoulder bag unreasonable); United States v.

Puglisi, 723 F.2d 779, 790-91 (11th Cir. 1984) (two hour and twenty

minute detention of luggage rendered seizure unreasonable). The few

instances in which courts have upheld seizures far exceeding ninety

minutes are readily distinguishable from the present case. See Segura

v. United States, 468 U.S. 796 (1984) (19-hour seizure of contents of

apartment based on probable cause, rather than mere reasonable suspicion); United States v. Van Leeuwen, 397 U.S. 249 (1970) (26-1/2

hour seizure of mailed package allegedly containing gold coins did

not trigger type of possessory and liberty interests attached to personal luggage of a traveler).

In each of the cases cited above, the degree of diligence with which

the officers proceeded was as or more important than the number of

minutes taken to complete the sniff tests. See Place, 462 U.S. at 709

(instructing that courts must "take into account whether the police

diligently pursue[d] their investigation"); Alpert, 816 F.2d at 964

(including "diligence" as second of five bases for evaluating reason-

 19
ableness of prolonged seizure). In the instant case, Detective Leach

learned of the "sniff test" requirement by the end of the day on January 15, yet dogs were not brought in until noon on January 16. Importantly, the government concedes that dogs could have been brought

in more quickly. At no point, however, has the government offered

an explanation as to why it took nineteen hours for narcotics detection

dogs to be brought to FAA offices to sniff Carter's Skyway bag.

Under the third prong of Alpert, I believe that the detention of the

Skyway was unnecessarily prolonged.

Nothing about the handling of Carter's luggage from the time he

requested its return strikes me as reasonable. On its face, a nineteenand-one-half hour delay triggers substantial suspicions about the efficacy with which the officers conducted their investigation. The government has provided no basis for concluding that FAA authorities

acted in a diligent fashion or to believe that the sniff test could not

have been conducted twelve to eighteen hours sooner. Therefore, I

believe that the prolonged detention of Carter's belongings constituted an unreasonable seizure under the Fourth Amendment.

III.

I do not accept the argument that the cocaine found in Carter's

Skyway bag is nonetheless admissible under the "good faith exception" to the exclusionary rule first articulated in United States v. Leon,

468 U.S. 897 (1984). Leon is simply not applicable to this case. The

Leon Court substantially modified the Fourth Amendment's exclusionary rule by holding that the rule should not be applied to bar the

use in the prosecution's case-in-chief of evidence obtained by officers

acting in reasonable reliance on a search warrant issued by a detached

and neutral magistrate, but ultimately found to be invalid. Leon, 468

U.S. at 905-25. The practical effect of Leon has been to enable prosecutors to preserve cases that would have otherwise failed for lack of

evidence. I refuse to extend Leon's "good faith exception" beyond its

limited holding. According to the Leon Court, the exclusionary rule

was designed to "deter police misconduct rather than to punish the

errors of judges and magistrates." Id. at 916. As such, the Court found

that "[p]enalizing the officer for the magistrate's error, rather than his

own, cannot logically contribute to the deterrence of Fourth Amendment violations." Id. at 921. Other circuits have rejected the govern-

 20
ment's attempt to extend Leon beyond the context of defective search

warrants. Scales, 903 F.2d at 768-69; United States v. Vasey, 834 F.2d

782, 789-90 (9th Cir. 1987). In Scales, the Tenth Circuit confronted

a similar misapplication of Leon by a district court:

 The specific holding of Leon does not apply to the facts

of this case, nor is the rationale behind it present here. When

the DEA agents seized the suitcase and held it for more than

twenty-four hours before obtaining a search warrant, they

were not acting pursuant to a warrant subsequently deemed

invalid. The "illegality" which arguably existed here was not

a function of the agents' good faith reliance on a presumptively valid warrant. Moreover, the search of the suitcase

after the search warrant was issued does not prevent us from

evaluating the agents' behavior prior to that time.

903 F.2d at 768. As in Scales, the prolonged detention of Carter's

Skyway bag was not based on the issuance of a warrant. In fact, it was

not until after the dogs had alerted to the Skyway that FAA authorities

attempted to obtain a warrant. The errors made by FAA authorities

cannot be blamed on a defective warrant, and Leon is reserved for

cases in which search warrants are later determined to have been

invalid. See, e.g., United States v. White, 890 F.2d 1413 (8th Cir.

1989).

IV.

An individual's Fourth Amendment right to be free from unreasonable seizures cannot be eviscerated by the fact that the detention of

his property began as a legitimate seizure incident to a lawful arrest.

There is nothing reasonable about the nineteen-and-one-half hour

delay from the time Carter requested the return of his property until

FAA authorities finally conducted a sniff test of his luggage. The government, in effect, has asked that we overlook Place, so that it can be

given a greater length of time to investigate other possible crimes

wholly unconnected to the one for which Carter was arrested. Sanctioning such a theory would denigrate the meaning of the Fourth

Amendment. Unwilling to subvert further an amendment once

regarded as a bedrock of our civil liberties, I would hold that the

cocaine found in Carter's luggage was the fruit of an unconstitutional

 21
seizure. As such, I believe that the district court committed reversible

error by denying Carter's motion to suppress and that the plea agreement Carter entered is invalid.

For these reasons, I respectfully dissent from the majority opinion

affirming the judgment of the district court.

I am authorized to state that Judge Hall, Judge Murnaghan and

Judge Michael join in this dissent.

 22