*2 WALLACE, Jiminez, direct examination Before CHOY and Cir right Judges, WILLIAMS,* that boot, revealing first District Chase had taken off cuit package Judge. of cocaine * subsequent strip search, David United full The Honorable IV. proper. Dis- the Central sitting by designation. California, trict of Findings suppression 3. fact made at violating 21 U.S.C. 1. The conviction was appeal hearing if will be overturned on 952 and 960. §§ See, g., erroneous. e. United 1972) ; Welp, dispute does that a search U.S.App.D.C. States, justified. Jackson v. 324, 122 See Hender- United short of 862, ; (1965) 805, States, 353 864-865 son 808 Page, 81, appellant dispute 85 Nor does if in other than contraband was first found
573
following
sock,
removed
410
35 L.Ed.2d
U.S.
S.Ct.
she
93
(1973);
disclosing
packets
Knox,
F.
two more
Anderson
her left boot
said,
Then,
2d
of cocaine.
pulled
pulled
370 U.S.
8 L.Ed.2d
sweater and
S.Ct.
off her
(1962); Ege
“undergarment”
(apparently
suit)
revealing
packages
cocaine
*3
taped
cross-exam-
around her waist. On
compelled
A trier of fact
to ac-
however,
redirect,
again
ination and
cept
serving
and believe the self
sto-
and stated she
Jiminez became confused
vitally
ries of
interested
defendants.
sweat-
whether Chase’s
could not recall
may
only
Their evidence
be disbe-
she
er
removed —and thus whether
lieved,
totality
but from the
of the cir-
partially
the
undressed —before
including
cumstances,
the
in
manner
her
removed or whether
boots were
they
contrary
testify,
which
conclu-
clothing
the cocaine
was intact when
may
properly
sion
be
drawn.
contin-
was found
the boots.
Cisneros,
v.
448 F.2d
States
insist,
though,
the first
ued to
1971);
also,
see
packages
of cocaine were
Hood,
(9th Cir.
States
appellant’s
not underneath her
boots
1974). We
is
of
think this
one
those
sweater.
situations.4
had an obvious
story.
Appellant contradicted Jiminez’s
story
falsify. Moreover,
motive to
had,
the
Chase
she
averred
contrasted
with that
matron
search, partially
outset of the
disrobed
only
respect
of
state
by pulling
and her
both her
sweater
boots,
undress when she took off her
At that
suit
to her shoulders.
also
to which items of contraband
as
time, appellant claimed,
the matron
were discovered
From
latter
first.
the
packages
taped around
discovered the
judge
conflict
have
the district
could
Only
that,
her waist.
after
testi-
she
portions
concluded other
of her narra-
fied,
boots removed.
opposite
tive
of what
she
say
We cannot
the district court
Finally,
claimed as
well.
finding
undergoing
erred in
the search
shows
been
appel-
commenced with the removal of
for
ad-
methadone
treatment
narcotics
First,
lant’s boots.
while the matron’s
frequent
diction and to have
user
been
testimony
contradictory,
is
somewhat
tranquilizers
sup-
at the time of the
testimony
hearing.
on direct does
pression
judge, who
The trial
support
judge’s
for the trial
conclusion.
very
concerned
effect
guilty plea
upon the
these conditions
Second,
in certain restricted
day
suppres-
on the same
entered
where,
example,
for
circumstances —
hearing,
sion
well
could
have concluded
story
implausible
witness’
—disbelief
ability
to recall
affected
testimony
sup
aon
certain
can
search.
port
truth of
what
the witness de
Castro,
judge’s
g.,
Accepting
See, e.
trial
nies.
1973);
say
finding,
simply
476 F.2d
we
cannot
type
Barham,
mere removal of a boot
is the
privacy”
1140-1141
“serious invasion
emphasize
the record which buttresses
We
the use of denials
support opposite
opposite
propositions
drawing
infer-
It
limited.
fact
finder’s
Cisneros,
support
could not
be used to
ence.
See United States
(“It
1971)
only
where,
example,
fact
basis
306 n. 10
Dyer]
drawing
opposite
Hand [in
inference was demean-
should be noted that
Otherwise,
carefully
limitations of
or.
a fact finder’s decision would
circumscribed
Dyer
MacDougall,
quoted
be
subscribe
We
also
unreviewable.
statement.
1952)
(L.
limitations.”)
(2d
those
268-269
Hand,
J.)
There
be other
must
standard, applicable
suspicion
to search is not because the command
real
designed
searches,
to limit.
actual
is intrusive but because
is,
stripped person
search of a
is.
See United
all,
stripping
origin
is offen-
of the real
after
575
country
importance
its fundamental
ascertain-
violated the Fourth Amend
ing
would,
what
actual
I
ment
facts are.
there
unless
was ‘at least a real
therefore,
applicability
suspicion,
specifically
not restrict
directed
to that
”
Judge Choy
person.’
Johnson,
of Cisneros
Ias
feel
has.
1970),
F.2d
cert. dis
As this difference
not affect
does
missed,
404 U.S.
92 S.Ct.
L.
particular
outcome of
I
case and as
(1971).
party
Ed.2d 35
If a
“is to be
harmony
am
with the remainder of
required
strip,”
justification
a strict
Judge Choy’s opinion, I concur.
of real
must be demonstrated.
States,
Henderson v. United
WILLIAMS,
DAVID W.
Judge (dissenting)
:
here
are demonstrative of a
confusing
In the
face
and contra-
previously
search as we have
de
dictory testimony
to where
the con-
merely
fined
term.
Chase was not
traband
first
about
coat;
to remove a boot or a
agree
appellant,
I will
she was ordered to remove
all her
trial court
the first batch
majori
clothes. Thus I believe that
of cocaine
found
ty misplaces
reliance
cases
undressing
sock, prior
completely
to her
party
merely
which a
asked to re
However,
erroneous.
irre-
move
overcoat,
Shorter
spective
sequence
disrobing,
respectfully disagree with the conclusion
Murray
(1972),
the contraband couriers. or her boot removed her Chase when sequence of is irrelevant. blouse disrobing later, appellant, her son Two weeks determinative not be should companion and male the Unit entered point in privacy. At the Calexico, invasion ed States from Mexico at Cali began undress when Chase time fornia. told the customs all her “take off an order coming obedience to clothing,” inspector they from were expect privacy right spent four hours. Mexico where The instant invaded. pat-down companion A of Chase and disrob- precisely “forced nega search is purse proved and a search of ing” referred luggage A of the car and tive. search Johnson, supra. done with dog of a trained the assistance also failed to turn contraband. opinion the officers I am ashtray agent from did find a hotel the de- to reach had no basis magazine in subjected Colombia a Colombian should cision a recent the automobile which indicated an order her to or to search country, evi visit to that but there is no be conducted. could enclosure where queried parties dence that made a determina- first be There must Inspector fed about this. Customs Ward kind case tion whether the vehicle into the license number of after the personal called positive interroga- and a re CADPIN of the car initial search sponse or “hit” received. Ward occupants. tion of its then appellant2 ordered Agent 1972, Special December, to an en and she taken ve- placed name Beaulieu inspectress performed closure where an the Customs into number hicle license given the search. The reasons he had system because discovery informant from information ceived the two items Colombia going travel Chase that Christine *6 system. “hit” Ward on the CADPIN Bogota, November on to Colombia he not believe that testified that did had Beaulieu Airlines. on Avianca concealing anything or Mrs. Chase was suspected co- that certain also learned anything lying that or she was about same to be couriers were caine trying told to him. When she mislead flight couriers that these coming Mexico, he him she airport nar- a convicted driven to questions asked no further about her well-known violator. Colombia cotics (Tr. travels. origin The of cocaine. of as the agent appellant’s that can is that best be said that aware was also appellant had Ward had a hunch that narcotics viola- a convicted husband was body marijuana) or in (possession that contraband concealed on tor of despite earlier recently the Los the fact that the had arrested he been produced nothing. charges possession true Angeles of It is area on given in- hunch in correct and con- had this ease was The informant cocaine. prior occa- traband was found concealed about to on two formation Beaulieu person. lucky hunch sions, in an ar- But a resulted should such neither which guideline any oth- be the determination rest. Neither Chase nor prior flight or should not be suspects had a females should on the er nothing, Agent ahead came into “We went we went back testified that Ward place passen- every personal car, office for a search on the conceivable and searched the compartments. gers car, find, Mrs. and we all of the that we could (Tr. 61). through items the souvenir Chase be searched.” all of We went car, (sic) when we in the which was yield appellant upon to some indication that the did not undress and called Admittedly cavity foreign declare the full extent of travel, skin search? and/or approach detec- Ward did not would frustrate the concerning person of these items. tion of contraband on weigh many couriers, we but when computer report A on an individual damage psychologically that can be done supply necessary suspicion can real many innocent to hundreds of justify long to search so as the against amount of search victims originating report official has such may enter the United contraband that justified information as would have him cavity body strapping con- via or personally conducting the search. cealment, I a rule that would favor F.2d 44 require great than deal more would agent When Beaulieu hunch. placed appellant’s name and num- vehicle though ber into the all probable he is settled even concerning knew in- was that she required to initiate a border cause is making trip Bogota tended aboard (Henderson flight carrying 1967)), same that was “mere persons suspected being whom justi- he co- suspicion” of contraband does not caine fy initiating couriers. He no information search. This Court trip purpose sup- Chase’s was for the required that a search be has obtaining Henderson, contraband or that ported by suspicion. she had any connection whatsoever with the oth- supra been at 808. Such suspects Appellant’s er aboard. rela- subjective suspicion support- defined as tionship suspected to the by objective, couriers was ed articulable facts any respect not in experienced, prudent different from would cus- lead passenger relationships the other particular suspect toms that a official suspects. person those If seeking the information cross the border possessed concealing something Beaulieu he body the time on his submitted purpose transporting name and number Unit- into the computer system into the contrary ed constitutes the to law. United suspicion,” virtually “real then passenger every flight Bogota 1970); United States legally been Johnson, a candidate for their return to addition, arti- United States. culable must bear some reasonable relationship suspicions some- very purpose this Court’s thing is concealed on the stringent requirements person searched; otherwise, to be protect search is to men innocent *7 scope related to degradation women and humili- justification for initiation it must its ation which such search entails. be to meet the reasonableness standard of the Fourth Amendment. is no There number vast Guadalupe- subjected of innocent individuals are Garza 879. crossing searches when border.3 suspicion” The “real not “mere suspicion” or a It is hunch. clear from accept I find it difficult the conclu- that the search of although facts, sion that Beaulieu’s computer was based on “hit” which articulable, bore rea- some the customs received officials from the relationship sonable and the ar- Colombian contraband concealed on the tifacts which were found in Al- appellant. car. I therefore must con- though may the artifacts have been originating clude that the officer Judge Ely’s 3. dissenting opinion See Holtz, United computer report in- did not have “such justified him as would formation conducting personally search”
appellant. precisely the same situa- a conviction reversed
tion this Court procured incident founded triggered by an search which report. computer unreliable Williams, supra. the denial because would reverse suppress was erro-
appellant’s motion to
neous. America,
UNITED STATES Appellee, MALIZIA, Defendant-Appellant.
Ernest 1132, Docket 74-1389.
No. Appeals,
United States Court
Second Circuit.
Argued June 1974. Sept.
Decided 1974. 27, 1975. Jan. Denied
Certiorari 95 S.Ct.