United States v. Scott Alan Sandler
625 F.2d 537
5th Cir.
1980
Check Treatment

*2 pat-down inspection search and an of San- WISDOM, Before RONEY and HATCH- legs dler’s were conducted. The search re- ETT, Judges. Circuit taped legs. vealed the cocaine to Sandler’s HATCHETT, Judge: pre-trial evidentiary hearing, After a Sandler, Appellant, appeals Scott his con- United Magistrate denied Sandler’s viction knowingly intentionally im- suppress motion to the fruits of the search. these adopted magistrate’s day standing characteristics The court alone district Id. jury ^ruling. Subsequently, a convicted San- body search.” would justify importing dler of cocaine. which con- In that factor critical finding of reasonable tributed to a Sandler now contends contradictory answers was the evasive and search was unlawful because lacked Ariel questioned. when Himmelwright gave “real to base suspicion” on which *3 for de standard in this circuit The not ques did Ariel Customs Officer a bor validity of warrantless termining the background or the tion Sandler his about United suspicion. der search is reasonable tour.2 With American nature of his South Smith, States (5th v. F.2d 1206 Cir. 557 generalized Ariel’s proper questioning, out denied, 1977), 1073, 98 S.Ct. cert. 434 U.S. graduate suspicion opportunity lacked United States (1978); 1259, 777 55 L.Ed.2d Ariel observed suspicion. into reasonable v. Cir.), Himmelwright, (5th 991 F.2d 551 The a fact for minute. Sandler less than denied, cert. 902, 298, 98 54 434 S.Ct. U.S. gait, with a stiff after that Sandler walked (1977). L.Ed.2d 189 Bolivia, and wore long plane from a ride suspicion more than Reasonable demands new-looking boots full-cut with trousers “generalized suspicion activity a of criminal not these Collectively, factors unusual. fostered, example, such as that which is for suspicion for a support not do a reasonable when closely ‘smuggling one resembles a to the body search. would be antithetical It Himmelwright, United v. profile’.” States carefully law of this circuit articulated Himmelwright, 995. As outlined in rea body allow to conduct customs officers by a suspicion properly sonable created is of any young wearing searches traveler progression through Prior stages. several boots, nlw-looking arriving from South body to even a minimally intrusive America. questioned the be suspected traveler should right of offi- insuring While the background and the na concerning personal in imped- cers to assert the national interest baggage ture searched. trip and protecting tariff facts, ing drugs In court and involving cases this the influx of similar revenue, continually recog- questioning has as a steadfastly required the court must establishing amend- step in reasonable fourth necessary protect nize its duty tó Carter, v. 590 United States suspicion. unreasonable right ment from citizens denied, Cir.), cert. (5th F.2d 138 441 U.S. suspicion stan- searches. The reasonable 908, 2001, (1979); 99 L.Ed.2d S.Ct. 60 378 adequate fourth amend- provide dard will Smith; v. v. United States States United as it not only long so is protection ment Himmelwright.1 suspicion into stan- generalized eroded dard. said,

In Himmelwright, we “Himmel- wright of characteris- pattern fit a known While raises other issues on this Sandler experience tics which with had associated holding necessity eliminates the appeal, our woman, was a trav- smuggling activity: she addressing them. shoes, eling alone, wearing platform hold Customs Accordingly, we that Offi- returning stay from a short in Co- recently suspicion reasonable cer Ariel lacked Himmelwright, The lombia.” 995-996. search Sandler. We reverse. footnote, court how- clarifying inserted ever, said, in this AND which that REVERSED REMANDED. “it is doubtful decision,. appellant’s Supreme 1. A It should noted that tour did recent 2. be Court Mendenhall,-U.S.-, acknowledged include not country a visit to the source 100 S.Ct. 1870, cocaine, (1980), 64 L.Ed.2d 497 is contra to for Given the Colombia. overwhelming predominant Colombia, reasoning holding. either this line of status of our accurately factually distinguishable nor Peru could be is neither Bolivia Mendenhall from Sandler, only it source countries for cocaine. and we mention it because described as airport involves an 540 by named The Court held dissenting: informant. Circuit unlawful, the search of the stewardess respectfully I dissent. the ground a reasonable must majority for The authorities used be before a “dé- directed to the individual area

holding this customs search may be grading strip search” conducted. United States v. Car unconstitutional are noteworthy 567 F.2d at It is denied, Cir.), cert. 441 ter, (5th 590 F.2d 138 search of named in the the crew member 2001, 378 908, 60 L.Ed.2d 99 U.S. S.Ct. by the to be tip found Court informer’s Smith, 557 F.2d v. United States (1979); valid. denied, 434 1977), cert. U.S. (5th 1206 is decided on Believing case way (1978); 1073, 1259, 777 L.Ed.2d 55 S.Ct. prece- important facts should be more Himmelwright, F.2d language purposes dential used in a than denied, 902, cert. Cir.), judicial opinion, I the decision of conclude Signifi (1977). 54 L.Ed.2d this case is law in this contrary to the strip involved cantly, each of those cases guidance provid- contrary to were the searches search and each case *4 ed by the difficult Supreme in this Court opinions those language held valid. The in area of law enforcement. all, to set is precedent, precedent weak if Contrary declaring pat-down a standard for a search to the the cus- suggestion agent toms unlawful. had only generalized a case, in this a of the tran- complete reading cases in this Cir- A of the full discussion script shows the agent suspected that San- cuit would not be Supreme and in the Court dler was carrying something in his boots. say that we fruitful here. it Suffice He suspected it was narcotics. He stated have not been cited to case that revers- any his reasons upon based undisputed facts. It es a in a customs area. pat-down search is hard to imagine particularized a more strip airport Even the searches in customs suspicion. pat-down After the revealed a searches were all held valid in the cases soft under bulge precise suspi- in the area cited. of the 16 border search cases Out cion, no contend there reasonably one can brief, appellant’s only cited in 8 involved probable cause to have him remove customs area. All of airport searches in an his boots. search or strip There was no only those held valid. The searches were body cavity search conducted here. cases invalid were cited which held a search involving a non-airport border searches agree I of the usefulness - strip body Of the 23 cases Mendenhall, cavity search. -, Government, cited the reversed none (1980), L.Ed.2d in decid airport customs area searches. ing this case as far as voluntari is limited ness is Although the defendant concerned. My computer-assisted own research has accompanied private to the of the officer single holding failed to uncover a in- case fice and pat-down did not resist the or the pat-down valid a traveler enter- search of a search, boot the fact that this was a cus ing country through airport the an customs toms area makes this case different from an Indeed, area. I have found only case ordinary who has airport Anyone case. holding any body invalid search such in ever been a customs coming area into the Afanador, traveler is United States States knows that it is best not 1978). In that F.2d 1325 plan to authorities leave until the customs verified partially officials had a compliance you concluded that are in specific mem- tip regarding confidential with the entry country. laws for into the Solely on the ber of the crew. airplane’s do, dó, What they you long tell as as you to searching tip basis of that even before it is authority. within I apparent their tip, every- in the the crew named member doubt if going where failure to resist strip one else in flight crew they go, tell you to or the failure resist searched were found under and narcotics be considered volun could girdle of one of the stewardesses. Nar- legal were also sense. tary any significant cotics found on the crew member majority opin- in the outlined The facts reading

ion, upon as construed properly support the complete transcript, clearly court that search

finding of the district the limits within

here was reasonable and laws. I and the customs Constitution suppress was

would hold that the motion

properly denied. AND REHEARING

ON REHEARING

EN BANC COLEMAN, Chief

Before GODBOLD, AINSWORTH,

BROWN, GEE, CLARK, TJO-

CHARLES VANCE, FAY, RUBIN,

PLAT, HILL, JOHNSON, Jr.,

KRAVITCH, FRANK M. REAVLEY,

GARZA, HENDERSON, POL- ANDERSON,

ITZ, HATCHETT, RAN- JOHNSON,

DALL, TATE, D. THOM- SAM WILLIAMS, CLARK, A.

AS

Judges.

BY THE COURT: *5 in active service of the Court

A member application poll

having on requested majority banc of rehearing en having voted in service

judges active banc, rehearing en granting of

favor cause shall be

IT IS ORDERED on banc briefs

reheard the Court en a date hereafter argument

without oral specify The Clerk will brief-

to be fixed. supplemental filing for the

ing schedule

briefs. America,

UNITED STATES

Plaintiff-Appellee, MARTINEZ-PEREZ,

Lorenzo

Defendant-Appellant.

No. 79-5608

Summary Calendar.* Appeals,

United States Court of

Fifth Circuit.

Sept. R. 18. 34(a); 5th Cir.

* Fed.R.App.P.