Kaniff v. U.S., 02-2184.

• Citation: 351 F.3d 780
• Decision Date: 11 December 2003
• Docket Number: No. 02-2184.,02-2184.
• Parties: Kathryn KANIFF, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

351 F.3d 780

Kathryn KANIFF, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 02-2184.

United States Court of Appeals, Seventh Circuit.

Argued February 18, 2003.

Decided December 11, 2003.

Paul R. Shuldiner, Deidre Baumann (argued), Baumann, Shuldiner & Lee, Chicago, IL, for Plaintiff-Appellant.

Jonathan C. Haile (argued), Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.

Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Kathryn Kaniff was singled out for further inspection as a suspected drug smuggler at O'Hare International Airport when she returned from a four-day trip to Jamaica over the Christmas holiday in 1997. After a pat-down search, a visual inspection of her body cavities, and an x-ray of Kaniff's abdomen failed to yield evidence of contraband, Customs officials allowed her to leave the airport. Understandably distressed by her ordeal, Kaniff sued the inspectors in their individual capacities, alleging common law tort and constitutional violations. The court later substituted the United States as the defendant, and Kaniff dismissed her suit against the individual officers with prejudice. After a full trial an advisory jury recommended judgment in Kaniff's favor. The district judge, however, disagreed with the recommendation and entered judgment for the United States. Kaniff now appeals. We affirm, in essence because the Customs officials had sufficient grounds for their actions, even though their suspicions ultimately proved to be unfounded.

I

As she had done for several years, Kaniff traveled to Jamaica for a four-day vacation over the Christmas holiday. She paid for her plane ticket in cash, and the price she paid was higher than it might have been because she made her arrangements less than two weeks before the trip. Notwithstanding the latter fact, the price was not considerably greater than she had paid for the same trip in years past. For lodgings, she chose to camp at the Silver Point Resort in Negril, as she had done on all but one of her prior trips to Jamaica. The "resort" is actually a modest campground and several rustic cabins located in the owner's backyard.

Before Kaniff's return flight to Chicago, the U.S. Customs Service Passenger Analysis Unit (PAU) reviewed information about her. The PAU is responsible for screening incoming passengers for indicia of possible drug smuggling. In Kaniff's case, this review prompted Customs inspectors at O'Hare to pre-select her for further questioning upon her arrival. It did so for a number of reasons. At trial, Guadalupe Whyte (at the time Guadalupe Corona), the Customs inspector who was working in the PAU and who created a "lookout" in the Customs database for Kaniff, testified that the red flags were raised because Kaniff was traveling from Jamaica, a known narcotics source country from which drug traffickers frequently smuggle drugs using body cavities, and because Kaniff was returning after a short trip. In addition, after the government was permitted to show Whyte a printout of the computer screens that she had consulted when she ran the computer check in the PAU, Whyte recalled that she would also have considered the fact that narcotics arrests had been made at Kaniff's address and the fact that Kaniff had been referred for a secondary Customs examination (that yielded no evidence of contraband) upon her return from an earlier trip to Jamaica. With the "lookout" in the computer, Kaniff was immediately singled out for special treatment when she deplaned at O'Hare. She was routed to a secondary inspection area after a trained dog independently alerted to the odor of narcotics from her person or from a box that she was carrying (when Kaniff walked down the jet-way past the dog, he pulled away from his handler, began to "work the air" behind Kaniff trying to trace the source of the scent of narcotics he detected, and eventually circled her body before hitting a box that she was carrying with his nose).

After the dog alert (which Kaniff has challenged, as we discuss below), Customs inspector Olga Martinez took Kaniff to the Customs inspection area to ask her some questions and to inspect her luggage and the box. Although a search of Kaniff's luggage and the box did not yield any contraband, Martinez was unsatisfied with Kaniff's answers to several questions. She accordingly sought and obtained permission from her supervisor, Mark Woods, to subject Kaniff to a pat-down search. Kaniff complains about the questioning process itself, claiming that Martinez repeatedly cut her off and did not allow her to give complete answers to questions about the details of her trip to Jamaica, her income and employment.

The pat-down search took place in a private room with Customs inspector Whyte observing Martinez's work. Claiming to have felt a thickness in Kaniff's crotch, Martinez asked Kaniff if she was wearing a sanitary pad or menstruating; Kaniff answered no to both questions. Martinez, now concerned that Kaniff may have hidden contraband in her pants or a body cavity, consulted a second time with Woods. She obtained permission to conduct a partial strip search during which Kaniff was told to lower her pants and underpants so that both could be inspected, and to spread her legs and buttocks with her hands so that inspector Martinez could visually inspect her anus. There was still no sign of contraband, and so Martinez consulted her supervisor once again. This time they were joined by inspector Whyte, and the three discussed all known information about Kaniff. That information included a number of facts that appeared suspicious, including the fact that heroin was seized from an apartment in the building in which she had lived the prior year, the dog alert to narcotics odor from Kaniff or her possessions, Kaniff's responses to various questions, an inconsistency between her driver's license address (in Wisconsin) and the address that she gave the Customs inspectors (in Illinois), and her last minute and unusual travel arrangements, including the fact that she told the inspectors that she was going to page a friend to pick her up at the airport, but that she did not know exactly where this friend lived.

Concerned that Kaniff might be an "internal" drug smuggler (that is, someone who conceals the drugs somewhere inside her body), Woods advised her that she could: (1) wait and pass a bowel movement naturally; (2) take a laxative and wait to pass a bowel movement; or (3) consent to an x-ray. All three options involved a trip to a nearby hospital because it is Customs policy to take individuals suspected of smuggling drugs by ingesting them to a medical facility in case the package in which the drugs are sealed ruptures and leaks internally before the drugs are passed (a possibility that could be lethal). Woods also explained to Kaniff that if she chose to wait or refused to consent to an x-ray, Customs could seek a warrant to require her to have an x-ray. Kaniff then apparently signed a consent form, although the evidence of her consent was not as clear as it might have been. The government could not produce the original signed form, because it was lost or destroyed. Instead, it offered a copy that it had obtained from the hospital. The reproduced copy of the form contained Martinez's and Whyte's signatures, but Kaniff's signature was not visible because the copy was poor. After hearing testimony from Kaniff, Woods, Whyte and Martinez, the district court concluded that Woods credibly testified that he informed Kaniff of her right to refuse to consent to the x-ray and that Kaniff knowingly and voluntarily signed the consent form and thus agreed to submit to the procedure.

Before taking Kaniff to a nearby hospital for the x-ray, Woods obtained permission to take this step from the Chief Customs inspector at O'Hare Airport. The Chief Customs inspector agreed that there were reasonable grounds to suspect Kaniff of internally smuggling narcotics. Kaniff was then handcuffed and taken by Woods, Martinez and Whyte to Resurrection Medical Center. The hospital was given a copy of Kaniff's signed consent form and, as was its policy, required her to take a pregnancy test before administering the x-ray. The pregnancy test necessitated a urine sample, which Kaniff was required to produce in the presence of inspectors Martinez and Whyte to ensure that contraband was not destroyed or lost in the process. After the pregnancy test came back negative, Kaniff's abdomen was x-rayed. The x-ray revealed no contraband. Her ordeal over, Kaniff was taken back to O'Hare, allowed to retrieve her belongings, and released.

In June 1999, Kaniff filed a Bivens lawsuit against several named Customs inspectors alleging violation of various constitutional rights. She amended the suit to add supervisor Woods and several common law tort claims, including intentional infliction of emotional distress, false imprisonment, assault and battery. The United States moved to be substituted as the defendant for the tort counts, and the named defendants filed a motion for summary judgment asserting qualified immunity as a defense. The defendants' motion was denied and then reinstated by the district court upon the defendants' motion for reconsideration. Before the district court could rule on the motion for summary judgment, the parties agreed to dismiss the claims against the individual defendants with prejudice, and to proceed before an advisory jury against the United States alone on the non-constitutional tort claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. See also FED. R. CIV. P. 39(c). Following a full trial, as we have noted, the advisory jury found for Kaniff. The district court evaluated the case differently and entered judgment for the United States.

II

O'Hare Airport is a major international port of entry into the United States. At all such entry points, Customs...