*2 PREGERSON, and Before FLETCHER SCHNACKE, Judges, and District Circuit Judge.*
FLETCHER, Judge: Circuit Joseph Mark Robert Karl Ek and Couch Angeles Los Interna- apprehended were at the coun- they tional when entered Airport capsules with of cocaine concealed try were stomachs. Both Ek and Couch their subjected to examina- detained and Ek, in this con- appellant tions. smuggling cocaine after fessed for- presence examination revealed the of objects in his intestinal tract. He eign importation of a controlled convicted to dis- possession and with intent substance that the de- appeal tribute. He violated his fourth tention and rights, that his confession amendment and voluntary. reject We these conten- was not tions and affirm.
FACTS Angeles
Ek and arrived at Los Couch Airport at a. m. on International 7:30 Lima, flight March aboard a customs, them inspector Peru. At told they suspected smuggling were nar- that which took them to an area in cotics and interrogations are conducted. searches and acting upon a confi- The authorities were tip during the dential informant’s Defender, Dunn, James R. Federal Public man Couch and a week March Cal., Angeles, Los argued, for defendant- try smuggle would co- named “Robert” Rizk, appellant; Georgina Ange- Torres Los via caine from Peru to the United States les, Cal., on brief. The in- Angeles Airport. Los International Perez, Atty., Hector C. Asst. U. Los S. how “Robert” formant described in detail Cal., Angeles, argued, plaintiff-appellee; for more up would swallow to 30 or and Couch Ordin, Atty., Andrea Sheridan U. S. Robert one-half capsules, each filled with about Brosio, Atty., Angeles, L. Asst. U. Los S. cocaine, expel them when it ounce of Cal., on brief. said further that was safe. The informant a round- “Billy” and “Dee Dee” had made at a trip plane reservation “Robert” Schnacke, California, by designation. sitting * The Honorable Robert H. United Judge States District for the Northern District Park, California, (1) agency, awaiting Menlo travel detention while paid for the ticket in proba- cash. order was an arrest for which required; ble cause was bags Couch’s searched (2) that even if the detention was not an secondary inspection Nothing area. arrest, delay made the detention was found. The men were asked to submit unreasonable; examinations, voluntarily both but *3 refused. (3) agents that customs not have the requisite suspicion level of of body The customs instructed Ek about cavity smuggling to warrant an rights, his constitutional and at about 9:00 search; and m. Drug a. took him to the Enforcement (4) post-arrest that his airport statements Administration’s to office await a voluntarily not made. authorizing order search. office, The according move to the DEA to agents,
one of the up customs was to free II the customs area to incoming accommodate DETENTION AS ARREST flights. office, at Once the DEA a DEA Ek contends that his detention ten for agent questioned Ek his personal about his- prior twelve being hours placed under tory and his travel itinerary. A second formal arrest was an “arrest” within the search of baggage Ek’s revealed Ek meaning York, v. New 442 and two purchased others had airline tickets 200, 2248, (the from a agency travel record does not (1979), and that since the “arrest” was not indicate whether agency the travel supported by probable cause, all derivative identified) stayed and had in Peru for four suppressed. evidence must be days. one-half
The order detention was a for the incident to bor search was issued der m., at search. The fourth p. about 4:00 amendment and Ek and does Couch were require a probable warrant or X-rayed at cause for hospital a local p. at about 7:00 m. customs X-rays The searches at the border. objects showed See United concealed in Moore, 1171, (9th States v. 638 gastro-intestinal F.2d 1173 tracts of both men. 1980). Cir. This circuit has held that placed Ek was under again arrest and Dunaway analysis does apply to reason advised of rights. his constitutional He purpose able detentions for the of conduct then swallowing admitted to balloons filled ing a v. border search.1 United States Er with cocaine. win, 838, (9th 1980); F.2d 841 625 Cir. see m., At p. 8:30 the two men were taken to also Espericueta-Reyes, United States v. Angeles Los Jail County booking. At 616, (9th (hold 631 1980) F.2d 621-22 Cir. m., they 1:00 a. jail were transferred to the ing, Dunaway, without mention of that de facility medical at nearby hospital. a Ek tentions incident to per border searches are made a full confession at 2:00 a. m. after long they missible so are reasonably re again being rights. advised his A writ- search). lated to the Neither a warrant nor ten statement was prepared, and Ek signed probable cause is persons needed detain the statement at 4:30 a. m. On the follow- border, for a at long so as the ing day, Ek signed reviewed typed a period of detention does not exceed what is version the same statement. reasonably necessary to conduct a valid Ek raises following appeal: issues on search.2 only
1. We Perez-Esparza, address the fact of detention in 2. United States v. 609 F.2d express 1284, (9th 1979), no views about whether Dun- 1286-87 Cir. and United away may application Medina-Verdugo, some to statements v. States (9th 637 F.2d 652 suspect during that are elicited from a contrary. de Cir. are not to the Espericueta- tention. See Perez-Esparza United States v. Dunaway-type court analysis used a Reyes, (9th 1980). 631 Cir. in the context of a San
III “subjective is suspicion suspicion supported objective, articulable facts.” OF DETENTION REASONABLENESS (quoting F.2d at 912 v. United States Rodri- Ek that his ten-to-twelve- (9th guez, 1979)). 592 F.2d Cir. To longer reasonably than hour detention was search, body cavity conduct the authori- A necessary the search. deten to conduct ties must meet the stricter standard hav- sought order is tion at the border while an ing “plain a “clear indication” or sugges- body search is reasonable. to conduct person carrying tion” that the contraband Erwin, v. 625 F.2d body. within his Id. at 912-13. This circuit 1980); see United Camer Cir. States yet has not decided which of these stan- on, 258-59 n.7 538 F.2d & applies dards to an search. Id. at however, contends, 1976). 913. delayed obtaining intentionally Government We hold that the stricter standard re- pressure him confess the order so as to into *4 quired body a cavity applies search also ing consenting X-ray or to an search. The X-ray search, to an An X-ray search. al- support record does not Ek’s claim. The though perhaps not so humiliating strip as a procedures obtaining involved in the order search, nevertheless is more intrusive since time-consuming, and there is no evi the search potentially is harmful to the suggest that the did dence to Government health suspect. goes beyond of the It the expeditiously possible.3 not move as as passive inspection body of surfaces. We IV think that the proce- use of such medical dures should be restricted to situations LEVEL OF SUSPICION where there is a clear indication that the Although neither a warrant nor suspect concealing is contraband within his probable ordinary cause is needed for body. persons searches of things crossing and the border, this circuit has fashioned rules re We find that the in authorities this quiring cause for certain kinds of more case had a clear indication that Ek and intrusive border searches. As a search be body cavity smug Couch were involved in intrusive, justified comes more it must be gling properly seeking and acted in a by a correspondingly higher suspi level of order for examinations. The confi cion of wrongdoing. United v. States tip dential informant on whose the authori 1980). 624 F.2d 912-13 Cir. acting (to ties were had Ek identified the expressed Our court has also strong pref a name) extent of his companion first and his erence that search by warrants be obtained name, by full specified had their itiner customs body cavity before searches ary, given and had a detailed account of Cameron, are made. v. 538 how the men would conceal the cocaine in F.2d at 258-259. tip their stomachs. The informant’s was search, strip
To conduct a
by
the au
corroborated
the men’s
the
arrival on
thorities must
suspicion”
have a “real
same
flight
place
that
Peru at the
and the
person
addition,
is smuggling
approximate
predicted.
time
In
contraband. Real
checkpoint.
Clemente border
such determinations
as reasonableness
of de-
This court has
probable
(or
indication)
checkpoint
held that
the Sari
tention or
cause
clear
Clemente
is not
adequate
equivalent
support
the border or its functional
a warrant. We need not
and that
that,
applies
by
searches conducted there
here
in
are not
decide
which standard
controlled
principles applied
apply
to border
whether we
searches.
make a de novo review or
United
Morgan,
standard,
States
1974).
authority compels which obtaining order, V such an or explains which its nature erroneous. eaten or finding cause at the made him susceptible to arrest statements were not been VOLUNTARINESS OF CONFESSION [6] in detained for although Finally, any must be sustained unless slept. way time Ek contends that his Ek’s condition could coerced long period he made Cir.), district to confess. This coercion, cert. voluntary them Glover, denied, had he was he had found post- be strip basis X-ray examination is less intrusive than a The resolution of that adds to the for its dure. or appropriate p. effect, concede that I have no factual search; (and issuance, but, the fact that no or which sets the conclude, similarly, the majority has no reasonableness need) case. to find to the contrary. as I issue should await it was issued here in believe, prerequisites basis, that an proce- supra, in 857, 860, 117, 124, 62 L.Ed.2d (1979). finding sup The court’s ported by Accordingly, the record. we will requisite
5. The latter cause customs had “clear fact was included officials affidavit magistrate. argues, challenged submitted we indication” before the detention. persuasively, think that if the had authorities detained him until sufficient evidence that the 6. The affidavit included statement order, support the deten- obtained provided information informant had reliable implicate might tion restrictions. prior occasions. question We need not address this here be-