U.S. v. McCain, 76-2628

• Citation: 556 F.2d 253
• Decision Date: 20 July 1977
• Docket Number: No. 76-2628,76-2628
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deborah Ann McCAIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 253

556 F.2d 253

UNITED STATES of America, Plaintiff-Appellee, v. Deborah Ann McCAIN, Defendant-Appellant.

No. 76-2628.

United States Court of Appeals,

Fifth Circuit.

July 20, 1977.

Theodore J. Sakowitz, Federal Public Defender, Michael Doddo, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Barbara D. Schwartz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before WISDOM, GEE and FAY, Circuit Judges.

FAY, Circuit Judge:

Deborah Ann McCain was convicted, following a non-jury trial, of importation of 178 grams of cocaine and possession with intent to distribute cocaine. ¹ The only issue the defendant raises on appeal is whether the trial court erred in refusing to suppress a statement she made and the physical evidence obtained therefrom, because they were obtained in violation of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree with the defendant's contention, and, therefore, reverse.

I

The defendant, Deborah Ann McCain, flew into Miami International Airport on January 27, 1976 from Colombia. Upon deplaning, she proceeded to Customs and presented herself and her luggage to Customs Inspector Rollins. Rollins noticed that she appeared very nervous and that her voice cracked. The defendant was wearing tight fitting clothes which revealed a bulge in her abdominal area. Further, the defendant was a young, single female traveling alone, and her duration of stay in Colombia was short. These characteristics are traits which customs inspectors have found to be indicative of drug smugglers. Based upon these indicia, Rollins believed a secondary search was warranted. Rollins informed his supervisor, Inspector Korzeniowski, of the circumstances and Korzeniowski concurred. The defendant was taken to the secondary search room where two female customs inspectors conducted a strip search. This search produced no incriminating evidence. Upon being informed of the unproductive search, Agent Korzeniowski entered the secondary search room and handed the defendant a booklet made up of newspaper clippings reflecting a number of tragedies which had occurred when people had attempted to hide narcotics in their body cavities. ² After reading this booklet, the defendant's bags were removed to a customs enclosure where Inspector Rollins re-inspected the luggage. The defendant was taken into the supervisor's office, and Inspector Korzeniowski talked to the defendant for some seven or eight minutes while her luggage was being searched. Korzeniowski testified, and the trial court found in its findings of facts, that the inspector talked to the defendant as "a father might talk to a daughter, and he told her that these were very serious matters, that she could harm herself seriously, perhaps even cause her death, if she was in fact carrying contraband in her body and if any of these containers ruptured and this narcotic substance was in immediate contact with her body or her internal organs". (T 116). Following this, Agent Korzeniowski testified that the defendant turned white, hung her head down and blurted out that, "Yes, I do have narcotics in my body." (T 71). The defendant was then allowed to remove the narcotics from her body. After removing the cocaine, the defendant was placed under arrest and for the first time advised of her rights.

II

Ms. McCain argues that the trial court erred in denying her motion to suppress her admission that she had cocaine on her body, and the physical evidence that was obtained as a result of that admission. The defendant's argument rests solely on the fact that the customs officers failed to advise the defendant of her Miranda rights until after the statements and evidence were obtained.

Miranda declared that warnings are required whenever the person being interrogated is in custody or otherwise deprived of his or her freedom of action in any significant way. This Court uses a case by case approach in determining whether there has occurred a custodial investigation. United States v. Montos, 421 F.2d 215 (5th Cir. 1970); cert. denied 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. This determination is often a difficult one, and this is especially true in border control situations since it is totally impractical to provide every person who crosses the border the right to a lawyer, etc., before asking that person routine questions. ³

This Court has previously examined border situations which were held to be sufficiently custodial so as to require Miranda warnings. In United States v. Salinas, 439 F.2d 376 (5 Cir. 1971) we explained that pursuant to 19 U.S.C. § 1582, customs agents are given the power to search out and intercept contraband items and smugglers at the border. Thousands of persons enter the country daily and are subject to some degree of detention while their luggage is searched, and they are asked routine questions concerning citizenship, destination, whether they have items to declare, questions regarding contraband and the like. As to these types of situations we held that it would utterly distort Miranda if these circumstances would place a person "in custody" for Miranda purposes. However, we further explained that when the border search or detention becomes more than routine, such as when a person is discovered to be concealing suspicious materials, or "when a person is taken to a private room and strip searched as here, a different outcome obtains." 439 F.2d at 380.

In United States v. Garcia, 496 F.2d 670 (5th Cir. 1974), rehearing denied, 5th Cir., 502 F.2d 1168, cert. denied 420 U.S. 960, 95 S.Ct. 1347, 43 L.Ed.2d 436, rehearing denied 420 U.S. 1009, 95 S.Ct. 1455, 43 L.Ed.2d 768, we reaffirmed our holding in Salinas and stated:

It is obvious that the government activity revealed here was more than "routine". Mrs. Garcia was subject to a complete strip search and detained for at least an hour. . . . Under the Salinas standard, she was subjected to a custodial interrogation . . .

Id. at 672.

There is no doubt that during the strip search Ms. McCain was "in custody" for Miranda purposes. This situation, however, has an added twist. Since the statement which was allegedly obtained in violation of Miranda was made after the strip search, it is necessary to determine whether the defendant was still in custody at the time the statement was made. From the facts presented, we hold that Ms. McCain was still in custody. Inspector Korzeniowski testified that after the strip search he took Ms. McCain into the supervisor's room and talked to her while her luggage was being reexamined. While we recognize that Inspector Korzeniowski's motives were beyond reproach, it is nevertheless true that it was during this seven or eight minute period that Ms. McCain admitted she was carrying cocaine. The government offered no testimony to the effect that Ms. McCain was free to leave after the initial strip search. In fact, all the evidence is to the contrary. However, if we were to assume Ms. McCain was not being physically restrained from leaving after the strip search, she was obviously able to leave only if she was willing to abandon her luggage, and this itself is a sufficient restriction on one's freedom of action so as to trigger the giving of Miranda warnings before proceeding with any interrogation.

The Government argues in the alternative that even if the defendant was in custody, the statement made by her was voluntary and not in response to any investigation or interrogation, and consequently, Miranda warnings were not required. We do not agree. The whole purpose of the talk given to the defendant was to persuade the...