On Remand from the United States Supreme Court
Before CUDAHY and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.
SWYGERT, Senior Circuit Judge. Cesar Moya was convicted in the United States District Court for the Northern District of Illinois for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). United States v. Moya, 561 F. Supp. 1 (N.D. Ill. 1981), aff'd, 704 F.2d 337 (7th Cir.), vacated and remanded, 464 U.S. 979, 104 S. Ct. 418, 78 L. Ed. 2d 355 (1983). On appeal, a majority of this court held that the three hour detention of Moya's luggage based upon the law enforcement agents' reasonable suspicion that the bag contained contraband did not violate the fourth amendment prohibition against unreasonable searches and seizures. United States v. Moya, 704 F.2d 337 (7th Cir.), vacated and remanded, 104 S. Ct. 418 (1983). The Supreme Court vacated and remanded the decision for further consideration in light of United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). In Place, the Court held that a ninety minute detention of luggage while awaiting the arrival of a trained narcotics detecting dog based upon less than probable cause violated the fourth amendment. Id. at 2645-46.
This court then sought additional briefing from the parties on the following points:
(1) Whether there was probable cause for the seizure of Moya's shoulder bag?
(2) Whether there was any legal justification for the warrantless seizure of the clear plastic bag from Moya's shoulder bag, in particular whether the plastic bag fit within the "plain view" exception to the warrant clause?
(3) Whether the three hour detention in Moya's should bag could be persuasively distinguished from the ninety minute detention that occurred in Place?
We now hold that the government waived the issue of probable cause by failing to rise it either at trial or on appeal, and that, in any event, the prolonged detention of Moya's shoulder bag violated the fourth amendment.
The rule is well established that an appellate court will not review an issue raised for the first time on appeal unless the trial court has committed plain error. See United States v. Spears, 671 F.2d 991, 992 (7th Cir. 1981); Fed.R.Crim.P. 52(b). In Steagald v. United States, 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642 (1981), the Supreme Court addressed the issue of waiver where, as here, the government failed to raise an alternative ground for the admission of evidence and the ground on which the lower court admitted the evidence was later rejected. The Court held that the government waived the alternative ground: "The Government . . . may lose its right to raise factual issues . . . when it made contrary assertions in the courts below, when it was acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation." Id. at 209; Cf. United States v. Duckworth, 699 F.2d 424, 425 (7th Cir. 1983) (raising of issue by government for the first time on petition for rehearing deprived defendant of right to fully and fairly litigate the claim). The Court rejected the government's assertion that the alternative ground for admitting the evidence had become viable only after a Supreme Court decision issued posttrial which changed forth amendment law. The Court found that the government could and should have anticipated the change. Steagald v. United States, supra, 451 U.S. at 210 n.5; cf. Reed v. Ross, 468 U.S. 1, 82 L. Ed. 2d 1, 104 S. Ct. 2901, 52 U.S.L.W. 4905, 4909-10 (1984) (habeas petitioner establishes cause for failure to raise constitutional claim in state court only where "claim is so novel that its legal basis is not reasonably available to counsel").
At least one circuit court used a similar analysis and refused to review a probable cause claim raised by the government on remand from the Supreme Court. United States v. West, 723 F.2d 1 (1st Cir. 1983). In West, the government conceded at trial that there was no probable cause and argued only that the officers had reasonable suspicion to detain the defendant's luggage. The district court found that the detention of the luggage, while awaiting examination by a narcotics detecting dog was proper; the First Circuit affirmed. United States v. West, 651 F.2d 71 (1st Cir.), vacated and remanded, 463 U.S. 1201, 103 S. Ct. 3528, 77 L. Ed. 2d 1382 (1983). On remand for reconsideration in light of Place, supra, the court held: "Given this concession by the government at trial, the issue of probable cause cannot be resurrected on appeal. . . . Although we might consider the argument where it "so compelling as virtually to insure the government's success' . . . this is scarcely such a case." United States v. West, supra, 723 F.2d at 2 n.1 (citations omitted).
In the instant case, the government not only failed to raise the issue of probable cause, but effectively conceded that no probable cause existed. In a motion to suppress the contents of his shoulder bag, Moya argued that the bag was seized without probable cause, thus tainting the later-obtained search warrant and ultimate search of the bag. Defendant's Motion to Suppress at 3, United States v. Moya, supra, 561 F. Supp. 1. The government responded that only "reasonable suspicion" was required to justify the detention of Moya's bag. Government's Response to Defendant's Motion to Suppress at 5, United States v. Moya, supra, 561 F. Supp. 1. At no time did the government argue that the officers had probable cause to detain the bag, see id., and the government expressly conceded that the seizure of the clear plastic bag was unlawful, id. at 4 n.2, 6. On appeal to this court, Moya again argued that the officers needed probable cause to justify the detention of his shoulder bag. Brief of Defendant/Appellant at 7, 9-20, United States v. Moya, supra, 704 F.2d 337. The government again argued only that the officers had reasonable suspicion to detain the bag. Brief for the United States, United States v. Moya, supra, 704 F.2d 337. The government acknowledged the Second Circuit's opinion in United States v. Place, supra, 660 F.2d 44 (2d Cir. 1981), aff'd, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), which held that probable cause is required to detain luggage for a prolonged period of time. The government responded that Place was not the law of this circuit. Brief for the United States, supra, at 19 n.15. The government again conceded the illegality of the seizure of the clear plastic bag. See id. at 21 n.16.
The Supreme Court's decision in United States v. Place, supra, 103 S. Ct. 2637, did not work a dramatic change in the law. Litigation of the issue of detaining luggage while waiting the arrival of a trained narcotics detecting dog was of recent vintage when the government presented its arguments in the district court. The circuits split on the issue. Compare United States v. Klein, 626 F.2d 22, 26 (7th Cir. 1980) (first applying reasonable suspicion standard to detention of luggage) with United States v. Place, supra, 660 F.2d at 50-52 (requiring probable cause for a prolonged detention of luggage). The Supreme Court had not yet addressed the issue. When the Court did address the issue in United States v. Place, supra, 103 S. Ct. at 2645-46, the Court's holding was based on long-established fourth amendment principles. We conclude that under these circumstances the government should reasonably have anticipated the Court's decision. Cf. United States v. Johnson, 457 U.S. 537, 551, 73 L. Ed. 2d 202, 102 S. Ct. 2579 (1982) ("the Court has not . . . read a decision to work "a sharp break in the web of the law," . . . unless that ruling . . . explicitly overrules a past precedent of this Court, . . . or disapproves a practice this Court arguably has sanctioned in prior cases, . . . or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved."); Steagald v. United States, supra, 451 U.S. at 210 n.5 (government should have raised issue in trial court where subsequent Supreme Court decision "altered Fourth Amendment jurisprudence to some extent, [but] the rationale of that decision was in large part simply an extension of this Court's earlier reasoning").
The district court, of course, was not asked by the government to make a specific finding of probable cause. As a result, there is no "finding" for us to review. The government has not offered any persuasive reason for its failure to raise the issue of probable cause until this late stage in the proceedings. If the existence of probable cause was as apparent as the government now contends, we fail to see why the government failed to raise the issue before the district court. We now hold that the government waived its claims that the officers had probable cause and that the seizure of the clear plastic bag fits within the "plain view" exception to the warrant requirement. See also United States v. West, supra, 723 F.2d at 2 n.1; cf. United States v. Hoffman, 607 F.2d 280, 285-86 (9th Cir. 1979) (refusing to consider whether "inevitable discovery" doctrine justified warrantless seizure where issue was not raised in the district court).
Even if the government had not waived its probable cause claim, we do not believe that the evidence seized from Moya's shoulder bag was admissible. After examining the merits of the government's claim, we conclude that no probable cause existed prior to the positive reaction to Moya's shoulder bag by the narcotics detecting dog.*fn1
The implications for personal privacy resulting from a finding of probable cause require that the standard be rigorously enforced. Probable cause requires sufficient evidence to lead a reasonable and prudent person to believe, not merely suspect, that a crime has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). We must be especially cautious when the evidence that is alleged to establish probable cause is entirely consistent with innocent behavior. See Reid v. Georgia, 448 U.S. 438, 441, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980) (per curiam); United States v. Saperstein, supra, 723 F.2d at 1229. We find that the evidence available to the officers in this case was insufficient to lead a reasonable person to believe that a crime was being committed.
It is clear that the officers did not have probable cause at the time that they approached Moya in the taxicab line outside the airport. At that time the officers knew that Moya was arriving from Miami, had only carry-on luggage, scanned the crowd repeatedly, looked back over his shoulder, and "sought the privacy of a washroom stall for some reason other than a desire to relieve himself." United States v. Moya, supra, 561 F. Supp. at 4. Indeed, this information was insufficient to establish even reasonable grounds for suspecting that Moya was carrying contraband. Id.; see Reid v. Georgia, supra, 448 U.S. at 441 (reasonable suspicion not established by observations that suspects deplaned from a principal place of origin of ...