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United States of America v. David Fulgham

July 5, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DAVID FULGHAM, DEFENDANT.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS (Docket No. 15)

United States District Court For the Northern District of California

Defendant David Fulgham moves to suppress all evidence obtained as a result of the warrantless search of his luggage and its contents on October 22, 2010, and post-arrest statements he 13 made to law enforcement officers. Plaintiff United States of 14 America opposes the motion. Having considered the papers and 15 evidence presented by the parties and their oral arguments at the 16 hearings, the Court GRANTS Defendant's motion. 17

BACKGROUND

On October 22, 2010, Steve Arreguin, a supervising officer 19 with the Transportation Security Administration (TSA), was 20 informed that TSA Officers Michael Cole and Robert Johnson had 21 identified a suspicious bag in the TSA baggage screening room at 22 the Oakland Airport. Arreguin Decl. ¶ 3. Officer Arreguin went 23 to the baggage screening room and met Officers Cole and Johnson. 24

Id. at ¶ 4. They told Officer Arreguin that "they had identified 25 a suspicious bag and that an X-ray of the bag revealed a solid 26 mass which resembled explosives." Id. Officer Johnson removed 27 two DVD player boxes from the bag and handed them to Officer 28 Arreguin. Id. at ¶ 5. Officer Arreguin removed one of the DVD players from its box and looked inside of it through slots on the 2 back of the player. Id. Officer Arreguin saw "small circular 3 objects." Id. Officer Arreguin then had the DVD player 4 rescreened with the X-ray machine, which "confirmed that the DVD 5 player contained a solid mass with small shapes in the sizes of 6 pills." Id. at ¶ 6. He subsequently called Alameda County Deputy 7 Sheriff Robert Covington, who was assigned to work at the Oakland 8 Airport at the time. Id.; Docket No. 21, June 15, 2012 9

Evidentiary Hearing Transcript (Transcript) 16:14-17:25. 10 Deputy Covington arrived at the bag screening area at about 5:25 p.m. and met with Officer Arreguin, who related the prior events to him. Covington Incident Report, at DF00009. Deputy 13 Covington viewed an X-ray of the DVD player and saw "a solid mass 14 of tiny cylindrical shapes" inside of it. Id. He requested that 15 the DVD boxes and players be re-screened again using the X-ray 16 machine. Id.*fn1 He again "could clearly see a solid mass of tiny 17 cylindrical shapes in both DVD boxes and inside both DVD players." 18

Id. He also saw that "the DVD players did not contain any 19 internal electrical components that should be inside a functional 20 DVD player." Covington Decl. ¶ 5. 21

Deputy Covington wrote in his incident report that the shapes 22 he saw on the X-ray were "consistent with the size and shape of 23 multiple pills." Covington Incident Report, at DF00009. He also 24 clearly stated, "From my training and experience, I recognized 2 that the solid mass was not an explosive but possibly some type of 3 contraband being concealed." Id. 4

In contrast, in his declaration, Deputy Covington stated, "Based on the x-ray, I did not believe the solid mass was an 6 explosive but could not draw a definitive conclusion." Covington 7 Decl. ¶ 5. He testified at the evidentiary hearing that he did 8 not recognize at the time of the incident that the shapes were 9 consistent with pills and added that detail when he wrote his 10 report later on. Transcript, at 11:7-19. He also did not recall if Officer Arreguin told him that the shapes were consistent with pills. Id. at 22:15-19. In his declaration, in contrast to his 13 earlier investigative report, he stated, "I concluded that I 14 needed to conduct a physical inspection of the inside of the DVD 15 players to ensure that the concealed contraband did not pose a 16 threat to airline safety." Covington Decl. ¶ 5. Deputy Covington 17 testified that, based on the X-ray, he "had no idea" what was 18 inside of the DVD players and that he "did not recognize it to be 19 an explosive from anything" that he previously seen, but that he 20 "had not ruled out that it could be an explosive" at that point. 21

Transcript, at 7:7-8:3; 11:24-12:2. Deputy Covington further 22 testified that, in his training and experience, he had never 23 encountered objects in the shape of pills that were consistent 24 with an explosive or that turned out to be an explosive, but that 25 "explosives and the ability to carry out explosives are 26 consistently are [sic] changing." Id. at 8:19-21, 15:3-7. He 27 gave as examples "previous cases of someone trying to deliver 28 explosives in their shoes" and "through your undergarments or 2 underwear." Id. at 8:23-9:1. 3

After the further X-rays were completed, Deputy Covington "looked in the vents of the DVD player and saw a mass of circular 5 objects." Covington Decl. ¶ 5. He "unscrewed the top of the DVD 6 player and found four heat-sealed, clear, medium sized plastic 7 bags each filled with a mass of circular objects," which were 8 "consistent with the shapes of pills." Covington Incident Report, 9 at DF00009. "Based on the size, shape, color and packaging of the 10 pills," he "believed them to possibly be Ecstasy, a controlled substance." Id. Deputy Covington then "took possession of the pills in order to test them for being a controlled substance." 13

Id. 14

Deputy Covington learned that the bag belonged to a passenger 15 named Andres Torres III, who was scheduled to fly from Oakland to 16 Denver. Covington Decl. ΒΆ 7. Deputy Covington directed Southwest 17 Airlines to page Torres and ask him ...


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