503 F.2d 571 | 9th Cir. | 1974
Lead Opinion
The appellant, Christine Chase, was convicted of illegally importing three pounds of cocaine.
On December 13, 1972 appellant, upon entering the United States from Mexico, was halted at the Calexico, California point of entry. After preliminary questioning, a search of her car and luggage, and a Customs Bureau computer check all revealed reason to be suspicious of her, she was taken to a secondary inspection room to be personally searched by a matron.
What happened there is the subject of much dispute. Appellant contends that a strip search was conducted for which the requisite “real suspicion,” see, e. g., United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970), was lacking. The government counters that contraband was initially discovered in her right sock, before any of her other clothing had been shed, when one of appellant’s boots was removed. This, the government urges, was not a strip search, but merely a conventional border search for which no particular showing of cause is required.
We must first determine if the factual finding that the boot was initially removed is clearly erroneous.
Appellant contradicted Jiminez’s story. Chase averred that she had, at the outset of the search, partially disrobed by pulling both her sweater and her body suit up to her shoulders. At that time, appellant claimed, the matron had discovered the packages taped around her waist. Only after that, she testified, were her boots removed.
We cannot say that the district court clearly erred in finding that the search commenced with the removal of appellant’s boots. First, while the matron’s testimony is somewhat contradictory, her testimony on direct does provide support for the trial judge’s conclusion.
Second, in certain restricted circumstances — where, for example, a witness’ story is implausible — disbelief of testimony on a certain point can support the truth of what the witness denies. See, e. g., United States v. Castro, 476 F.2d 750, 753 (9th Cir. 1973); United States v. Barham, 466 F.2d 1138, 1140-1141 (9th Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1356, 35 L.Ed.2d 587 (1973); Anderson v. Knox, 297 F.2d 702, 726 (9th Cir. 1961), cert. denied, 370 U.S. 915, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); Ege v. United States, 242 F.2d 879, 881 (9th Cir. 1957).
A trier of fact is not compelled to accept and believe the self serving stories of vitally interested defendants. Their evidence may not only be disbelieved, but from the totality of the circumstances, including the manner in which they testify, a contrary conclusion may be properly drawn.
United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971); see also, United States v. Hood, 493 F.2d 677 (9th Cir. 1974). We think this is one of those situations.
Accepting the trial judge’s finding, we simply cannot say that the mere removal of a boot is the type of “serious invasion of privacy” which the
Nor can we say that a strip search commences with the order to a suspect to remove her clothing. While the record is not entirely clear on this point, it is possible that the matron first ordered Chase to remove all her clothing, not merely her boots.
There was, then, no strip search in this case when the initial batch of cocaine was found. The subsequent strip search was supported by probable cause —that initial batch of contraband.
Affirmed.
. The conviction was for violating 21 U.S.C. §§ 952 and 960.
. Appellant does not dispute that a search short of a strip was justified. See Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967). Nor does appellant dispute that if contraband was first found in other than a strip search, a subsequent full strip search was proper.
. Findings of fact made at a suppression hearing will only be overturned on appeal if clearly erroneous. See, e. g., United States v. Welp, 469 F.2d 688 (9th Cir. 1972); Jackson v. United States, 122 U.S.App.D.C. 324, 353 F.2d 862, 864-865 (1965); United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962).
. We emphasize that the use of denials to support opposite propositions is limited. It could not be used to support a finding of fact where, for example, the only basis for drawing the opposite inference was demean- or. Otherwise, a fact finder’s decision would be unreviewable. See Dyer v. MacDougall, 201 F.2d 265, 268-269 (2d Cir. 1952) (L. Hand, J.) There must be other objective evidence on the record which buttresses the fact finder’s drawing of the opposite inference. See United States v. Cisneros, 448 F.2d 298, 306 n. 10 (9th Cir. 1971) (“It should be noted that Judge Hand [in Dyer] carefully circumscribed the limitations of his quoted statement. We also subscribe to those limitations.”)
. At the suppression hearing, the matron first testified that she initially asked Chase to remove her boots. (Tr. at 9.) Later, she testified she orderd Chase to undress completely. (Tr. at 15.)
. It is true that in both Shorter v. United States, 469 F.2d 61 (9th Cir. 1972) and Murray v. United States, 403 F.2d 694, 697 (9th Cir. 1968), the suspects were not ordered to take off all their clothing. Neither panel, however, regarded the command to remove the clothing as the equivalent of a strip search, as the dissent here intimates, infra, text at p. 575 n. 1, since that question was not before them.
Concurrence Opinion
(specially concurring):
I concur with my Brother Choy except for the restrictions I believe he places on our language in United States v. Cis-neros, 448 F.2d 298, 305 (9th Cir. 1971). In that case we indicated that the trier of fact’s disbelief of a defendant’s testimony may, in part, provide the basis for a finding contrary to that which the defendant has stated. See opinion of Judge Choy, page 573 and n. 4. I would go no further than to state what was held in United States v. Hood, 493 F.2d 677 (9th Cir. 1974) :
Further, both Hoods testified, denying any knowledge of the heroin. Disbelief of their sworn testimony, along with other evidence, can be the basis of a finding that they in fact possessed the requisite knowledge. See United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971).
Whether the testimony of a defendant or any other witness has a ring of genuineness or not often becomes most significant in finding where the truth lies. That this touchstone is difficult to review on appeal does not militate against
As this difference does not affect the outcome of this particular case and as I am in harmony with the remainder of Judge Choy’s opinion, I concur.
Dissenting Opinion
(dissenting) :
In the face of confusing and contradictory testimony as to where the contraband was first discovered about the body of appellant, I will agree that the trial court finding that the first batch of cocaine was found in appellant’s sock, prior to her completely undressing is not clearly erroneous. However, irrespective of the sequence of disrobing, I respectfully disagree with the conclusion of the majority that the facts of the search indicate that a mere border search occurred. To the contrary, I would characterize the instant search as a strip search, thus requiring the government to provide a more stringent justification therefor. I do not believe that this has been shown.
The record clearly shows that Chase was ordered to take off all her clothing by a customs inspectress, and that contraband was discovered shortly after she began to carry out the order. This Court has previously held that “the forced disrobing of a person entering the country violated the Fourth Amendment unless there was ‘at least a real suspicion, directed specifically to that person.’ ” United States v. Johnson, 425 F.2d 630, 632 (9th Cir. 1970), cert. dismissed, 404 U.S. 802, 92 S.Ct. 38, 30 L.Ed.2d 35 (1971). If a party “is to be required to strip,” a strict justification of real suspicion must be demonstrated. Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967).
The facts here are demonstrative of a strip search as we have previously defined the term. Chase was not merely requested to remove a boot or a coat; she was ordered to remove all her clothes. Thus I believe that the majority misplaces reliance upon cases in which a party was merely asked to remove an overcoat, Shorter v. United States, 469 F.2d 61 (9th Cir. 1972), cert. denied, 411 U.S. 918 (1972), and Murray v. United States, 403 F.2d 694 (9th Cir. 1968).
I am of the opinion that the officers had no basis upon which to reach the decision that appellant should be subjected to a strip search or to order her to an enclosure where it could be conducted. There must first be made a determination whether in this case any kind of personal search was called for after the initial search of the car and interrogation of its occupants.
In December, 1972, Special Agent Beaulieu placed appellant’s name and vehicle license number into the Customs CADPIN system because he had received information from an informant that Christine Chase was going to travel to Bogota, Colombia on November 28, 1973 on Avianca Airlines. Beaulieu had also learned that certain suspected cocaine couriers were to be on the same flight and that these couriers had been driven to the airport by a convicted narcotics violator. Colombia is well-known as the point of origin of cocaine. The agent was also aware that appellant’s husband was a convicted narcotics violator (possession of marijuana) and that he had recently been arrested in the Los Angeles area on charges of possession of cocaine. The informant had given information to Beaulieu on two prior occasions, neither of which resulted in an arrest. Neither Chase nor any of the other suspects on the flight had a prior criminal record and there is no evidence of any connection or association between Chase and the other suspected cocaine couriers.
Two weeks later, appellant, her son and a male companion entered the United States from Mexico at Calexico, California. Appellant told the customs inspector that they were coming from Mexico where they had spent four hours. A pat-down of Chase and her companion and a search of her purse proved negative. A search of the car and luggage done with the assistance of a trained dog also failed to turn up contraband. The agent did find a hotel ashtray from Colombia and a Colombian magazine in the automobile which indicated a recent visit to that country, but there is no evidence that the parties were queried about this. Customs Inspector Ward fed the license number of the vehicle into the CADPIN system and a positive response or “hit” was received. Ward then ordered a strip search of appellant
The best that can be said is that Ward had a hunch that appellant had contraband concealed on or in her body despite the fact that the earlier search produced nothing. It is true that his hunch in this ease was correct and contraband was found concealed about her person. But should such a lucky hunch be the guideline in a determination of which females should or should not be
It is settled that even though probable cause is not required to initiate a border search (Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967)), “mere suspicion” of contraband does not justify initiating a strip search. This Court has required that a strip search be supported by real suspicion. Henderson, supra at 808. Such suspicion has been defined as subjective suspicion supported by objective, articulable facts that would lead an experienced, prudent customs official to suspect that a particular person seeking to cross the border is concealing something on his body for the purpose of transporting it into the United States contrary to law. United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970); United States v. Johnson, 425 F.2d 630, 632 (9th Cir. 1970). In addition, the objective arti-culable facts must bear some reasonable relationship to suspicions that something is concealed on the body of the person to be searched; otherwise, the scope of the search is not related to the justification for its initiation as it must be to meet the reasonableness standard of the Fourth Amendment. Guadalupe-Garza at 879.
The “real suspicion” test is not “mere suspicion” or a hunch. It is clear from the record that the search of appellant was based on the computer “hit” which the customs officials received from the CADPIN system and the Colombian artifacts which were found in the car. Although the artifacts may have been some indication that the appellant did not declare the full extent of her foreign travel, Ward did not question appellant concerning these items.
A computer report on an individual can supply the necessary real suspicion to justify a strip search so long as the official originating the report has such information as would have justified him in personally conducting the search. United States v. Williams, 459 F.2d 44 (9th Cir. 1972). When agent Beaulieu placed appellant’s name and vehicle number into the CADPIN system all he knew concerning her was that she intended making a trip to Bogota aboard the same flight that was carrying other persons whom he suspected of being cocaine couriers. He had no information that Chase’s trip was for the purpose of obtaining contraband or that she had any connection whatsoever with the other suspects aboard. Appellant’s relationship to the suspected couriers was not in any respect different from any of the other passenger relationships to those suspects. If the information which Beaulieu possessed at the time he submitted appellant’s name and number into the computer system constitutes the requisite “real suspicion,” then virtually every passenger on the flight to Bogota would legally have been a candidate for a strip search upon their return to the United States.
The very purpose of this Court’s stringent requirements for a strip search is to protect innocent men and women from the degradation and humiliation which such a search entails. There is no question that a vast number of innocent individuals are subjected to strip searches when crossing the border.
I find it difficult to accept the conclusion that Beaulieu’s facts, although objective and articulable, bore some reasonable relationship to a suspicion that contraband would be concealed on the body of appellant. I therefore must conclude that the officer originating the
I would reverse because the denial of appellant’s motion to suppress was erroneous.
. In Shorter the defendant was escorted to a secondary examination room after a customs agent noticed his nervous behavior, as well as the fact that “Shorter’s face was perspiring heavily and that despite the warm humid weather Shorter was bulkily dressed wearing an overcoat, a suit coat, and a dress shirt open at the neck exposing a turtle neck . sweater underneath.” 469 F.2d at 62. Shorter was requested to remove his overcoat and his suit coat and to empty his pockets onto the table, and then asked if he had failed to declare anything. Shorter then claimed, “you got me," and lifted the front of his shirt exposing a waist girdle containing packages of heroin. Shorter was arrested and it was only at this point that a strip search was ordered — revealing additional heroin. The Court noted that the heroin was first discovered before any strip search occurred:
“He was not subjected to either a skin or a body search until after the first packets of heroin were discovered. Therefore, the ‘real suspicion’ test is not applicable and this search comes well within the regular border search standard.” id. at 63-64.
Similarly, in Murray the defendant was merely “told to empty everything from his pockets and to remove his coat.” 403 F.2d at 695. As the defendant removed his coat, a customs agent observed rubber contraceptives containing heroin attached to his arm. No strip search was ordered and thus the Court held that the mere request to remove one’s coat does not constitute a strip search.
. Agent Ward testified that “We went ahead and searched the car, every conceivable place that we could find, all of the compartments. We went through all of the souvenir items which was (sic) in the car, and when we came up with nothing, we went back into the office for a personal search on the passengers of the car, and we requested that Mrs. Chase be searched.” (Tr. 61).
. See Judge Ely’s dissenting opinion in United States v. Holtz, 479 F.2d 89 (9th Cir. 1973).