As а result of a strip search of Herminia Gil de Avila (Herminia), two rubber prophylactics containing one and three quarters ounces of heroin were *185 discovered as she “lowered her undergarments to her ankles.” Despite this discovery, the district court granted Herminia’s motion to suppress on the ground “that there were [no] facts to support the search of [Herminia].”
For purposes of the motion to suppress, the parties stipulated to the following: On August 22, 1971, a 1964 Chevrolet station wagon еntered the United States from Mexico at the San Ysidro, California Port of Entry. Jose Avila was driving. Juana Avila was a front seat passenger. Regino Marquez and Herminia were the back seat passengers.
Other than a loaf of bread, all four occupants of the car declared they brought nothing from Mexico. As he questioned the occupants, Customs Inspector Driscoll observed that Marquez’ “carotid artery was pulsating and [that] he was sweating.” At the same time, Driscoll noticed that Josе Avila “was getting nervous.” When Jose complied with Driscoll’s request to open the rear portion of the station wagon, his throat could be seen “pulsating.” Suspeсting that “contraband was • hidden either in the vehicle or on the persons of the” car’s occupants, Driscoll directed Jose to drive to the secondary insрection area.
At the secondary inspection area, the four went to the Customs office. There the men emptied their pockets and the women put their purses on the counter. ■Jose’s heart was pounding so hard that Driscoll felt it as he conducted a pat down search for weapons. According to thе Customs Inspector, Marquez’ heart beat so hard he could “see the body motion against Marquez’ shirt.” Driscoll also noted needle marks on both of Marquez’ arms. The inspector believed these “tracks” to be “two or three days old.” In light of these observations, Driscoll believed that Jose and Marquez were concealing contraband on their persons.
Although a search of Marquez proved negative, this suspect continued to manifest signs of nervousness. Jose displayed the same manifestations after a search of his person also proved negative.
Thereafter, Driscoll asked Juana Avila to hold out her arms. As she complied, her hаnds trembled and “her demeanor reflected that she was quite nervous and frightened.” Inspector Driscoll observed Herminia to be apprehensive. Suspecting that one or both of the women was concealing contraband, Driscoll requested an inspectress to search the suspects. He believed such a seаrch was necessary because “narcotics addicts [often use] people accompanying them across the border to carry their contrаband.”
The matron’s search of Juana proved negative. Although no contraband was discovered, Juana remained nervous as she answered questions listed on thе personal search report. As Juana left the room, she was observed by the matron to be visibly nervous.
When Herminia was brought to the search room, she refused tо disrobe as requested. When the matron again asked that she disrobe, Herminia turned her back and began to undress. As Herminia undressed, the matron “heard some papеr rattling — like a paper towel being crumpled.” The matron heard the same sound when Herminia “lowered her undergarments to her ankles.” When Herminia refused to turn ovеr the package, the matron “reached into the clothing and seized a coarsely weaved green paper towel containing” the two rubber prophylactics.
In Henderson v. United States,
“ ‘Real suspicion’ justifying the initiation of a strip search is subjective suspicion supported by objective, articulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law.”421 F.2d at 879 .
In applying this definition to the facts of Guadalupe-Garza, the court held that the following did not constitute “real suspicion”: The defendant entered the United States from Mexico at Calexico, California. He was stopped at the primary inspection area, answered routine questions and was sent on his way. A customs inspectоr at the secondary inspection point observed the defendant passing through the pedestrian inspection line. The defendant came within five feet of this insрector and then “tilted his head” and “shied away from” him. At the inspector’s request, the defendant went to the customs office. There, the defendant appeared nervous as he answered routine questions. The inspector then ordered a strip search of the defendant. In the words of Judge Hufstedler:
“There was no evidence that appellant appeared to be under the influence of drugs when he attempted to cross the border. Customs officials had no information about him frоm anyone before he was searched. Observation of appellant’s arms showing marks and appellant’s evasive answers were not made and elicited until after appellant had been stripped.
“We conclude that the objective facts did not warrant a real suspicion that appellant was concealing something on his person. Inspector Baker had a hunch about appellant based upon appellant’s skittish demeanor as he was passing through customs.”421 F.2d at 879 .
Pursuant to the definition announced in
Guadalupe-Garza,
a divided panel of this circuit has recently invalidated a strip search. In United States v. Johnson,
By contrast in United States v. Shields,
In our view, the strip search in question was clearly within the definition of “real suspicion” as formulated in Guadalupe-Garza. As indicated from Shields, evidence relating to the companions of the subject of the strip search can be considered in determining when such a search mаy be justified. Here, the extreme nervous manifestations of Herminia’s three companions as well as the presence of needle marks on the arms of onе of the men coupled with Herminia’s uncontrolled expressions of *187 apprehension clearly are facts to be considered in determining the presence of “real suspicion” as to each member of the group including Herminia. The trial court erred in granting the motion to suppress.
Reversed.