U.S. v. Himmelwright, 76-1295

Citation551 F.2d 991
Decision Date09 May 1977
Docket NumberNo. 76-1295,76-1295
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mary Ann HIMMELWRIGHT, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Theodore J. Sakowitz, Federal Public Defender (Court-appointed), Michael J. Rosen, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Charles A. Intriago, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

The sole issue in this case is whether the appellant, Mary Ann Himmelwright, was subjected to an illegal search at the hands of customs officials at the Miami International Airport. This issue was resolved against the appellant in the proceedings below. United States v. Himmelwright, 406 F.Supp. 889 (S.D.Fla.1975). The search in question revealed that Ms. Himmelwright was attempting to smuggle some 105 grams of cocaine into this country by hiding the contraband in her vagina. Thus, this case draws our attention to a genre of border search considerably more sensitive, and admittedly more intrusive, than the garden variety customs inspection.

I

The material facts of this case are not in dispute. On June 7, 1975, Mary Ann Himmelwright arrived at Miami International Airport aboard a flight from Colombia. She was wearing platform shoes and her clothing was not bulky or loose-fitting. She went through customs, where the matter-of-course search of her baggage produced no evidence of any crime. Himmelwright declared a few items and appeared calm throughout this routine phase of the customs investigation.

After Himmelwright's baggage had been searched, two customs patrol officers approached her. In the experience of these customs officials, a young woman traveling alone, especially on a short excursion to Colombia, was a somewhat suspicious circumstance. Additionally, the officers knew from their experience that platform shoes were often used as a cache for smuggled contraband. Because of these facts, and because Himmelwright appeared unusually calm, 1 the officials asked to see her passport. The passport revealed that Himmelwright had been out of this country for seven days. The customs patrol officers asked what Himmelwright's occupation was and she told them that she was a secretary to an insurance company. As the discussion progressed, however, Himmelwright's story changed. She first altered her response by saying that she was an agent for an insurance company, and later told the officers that she was an insurance broker. Throughout this colloquy, Himmelwright continued to appear excessively calm to the customs officers.

Because of Himmelwright's excessive calmness and evasive answers to the queries about her occupation, the officers determined that a further investigation was warranted and decided to summon two female customs inspectors who were on duty at the time. After one officer had left to find the female officers, the remaining officer commented on certain matchbooks in Himmelwright's purse. Himmelwright then explained that she worked as a cocktail waitress in a bar. This last change in Himmelwright's description of her occupation led the officer in charge to the conclusion that a "100% search" 2 was in order.

When the two female customs inspectors arrived, they took Himmelwright to a "secondary search" room. This room was completely enclosed and removed from the view of those outside. The inspectresses asked Himmelwright to remove her platform shoes, and these were handed to an officer outside the room for X-ray examination. Himmelwright was next requested to remove her blouse. A thorough search of the blouse revealed no contraband. Himmelwright replaced her blouse and was then asked to remove her slacks and stand with her legs spread apart. She wore no undergarments. An inspectress crouched in front of Himmelwright and noticed a one-quarter inch tab protruding from Himmelwright's vagina. In response to the inspectress's inquiry, Himmelwright stated that the object was a tampon. She soon changed her mind, however, and told the inspectress that the protruding object was a tissue. The inspectress did not believe that the protruding object resembled either a tampon or a tissue, and requested that Himmelwright remove the object. Himmelwright did so, and the object in question turned out to be one of six rubber condoms secreted in Himmelwright's vagina. Altogether, the six condoms contained a total of 105 grams of cocaine. At this point, Himmelwright was placed under arrest.

At no point during their examination of Himmelwright did the female customs inspectors touch her body. Of course, neither was Himmelwright ever subjected to a probing search of her orifices.

When Himmelwright's case came to trial, she moved to suppress the fruits of the search on fourth amendment grounds. The trial court conducted an evidentiary hearing and then denied the motion. A bench trial ensued, and Himmelwright was convicted of importing cocaine 3 and of possessing cocaine with intent to distribute. 4 The district court sentenced her to serve concurrent three-year prison terms for these violations.

The only issue which Himmelwright asserts before us is whether the search which led to the discovery of the contraband violated the fourth amendment. For the reasons set forth below, we conclude that it did not, and accordingly affirm Himmelwright's conviction.

II

To begin, we note that there is no dispute in this case over whether Himmelwright was searched under circumstances constituting the "functional equivalent of the border." See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2335, 37 L.Ed.2d 596 (1973). The search was conducted at Miami International Airport, and Himmelwright had just disembarked from a flight originating in Colombia. Thus, it was constitutionally permissible for the customs officials initially to stop Himmelwright, to examine her visa, and to search her luggage and personal effects for contraband regardless of whether the officials had any articulable suspicion that actual criminal activity was afoot. 5 The proposition that such stops and searches need not be grounded in any particularized and articulable suspicion ultimately stems from policy considerations. As this court stated in Brennan, "(t)he national interests in self-protection and protection of tariff revenue authorize a requirement that persons crossing the border identify themselves and their belongings as entitled to enter and be subject to search." United States v. Brennan, 538 F.2d 711, 715 (5th Cir. 1976).

All that this means is that "reasonableness" in the fourth amendment sense always depends upon a balance which must be struck between, on the one hand, the level of official intrusion into individual privacy and, on the other hand, the public interest to be served by such an intrusion. 6 Our constitution of course demands that most "searches" or "seizures" be predicated upon probable cause. However, it is equally clear that certain genres of search or seizure based upon less than probable cause are constitutionally legitimate. The matter-of-course search of luggage at the border typifies one such genre; other examples are the "stop-and-frisk" situation involved in Terry and at least the early phases of automobile stops accomplished at permanent checkpoints which operate some distance from our national border or the "functional equivalent" thereof. 7 In each of these instances, it is the weighing of the public interest against the level of personal intrusion which leads to the conclusion that fourth amendment reasonableness allows such searches or seizures to be based upon less than probable cause.

This same weighing process convinces us that not all searches at the border can be constitutionally justified regardless of whether the government officials had any reason to suspect that criminal activity might be afoot. The level of intrusion occasioned by a strip search is significantly greater than the intrusion involved when customs officials search a person's luggage or stop a person to examine a visa. For this reason, several courts have adopted a "real" or "reasonable" suspicion standard to govern strip searches at the border. The most recent example in this circuit is Perel v. Vanderford, 547 F.2d 278 (5th Cir. 1977), a Bivens -type civil action alleging an unconstitutional strip search at the El Paso, Texas, border station. In that case, we upheld a district court's refusal to charge a jury that the lawfulness of a strip search at the border depended upon the existence of probable cause. Instead, the panel stated, a "real or reasonable suspicion" is all that the fourth amendment requires. 8

The Perel panel also pointed out in a footnote that "there may be substantive differences between the 'real suspicion' standard and the 'reasonable suspicion' standard." Id. at 280, n.1. This observation stems from an examination of the Ninth Circuit's experience with border search cases involving greater than average degrees of intrusion. That court has attempted, it seems, to establish standards of fourth amendment reasonableness which demand some degree of articulable suspicion without requiring full-blown probable cause. In a strip search case, the court requires a "real suspicion" of criminal activity as a condition precedent to a valid strip search. 9 In cases involving "body cavity" searches, the court looks to whether there was a "clear indication" of criminal conduct justifying the search. 10

As the Ninth Circuit's experience demonstrates, however, the application of these variegated tests is not without its problems as a matter of case-by-case analysis. Aside from the inherent indefiniteness of the terms "real suspicion" and "clear indication," it is not always apparent where one should draw the...

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