U.S. v. Afanador, 77-5303

• Citation: 567 F.2d 1325
• Decision Date: 17 February 1978
• Docket Number: No. 77-5303,77-5303
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonor Amanda AFANADOR and Blanca Nubia Vidal-Garcia, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1325

567 F.2d 1325

UNITED STATES of America, Plaintiff-Appellee, v. Leonor Amanda AFANADOR and Blanca Nubia Vidal-Garcia,

Defendants-Appellants.

No. 77-5303.

United States Court of Appeals, Fifth Circuit.

Feb. 17, 1978.

Shava Estrumsa, Miami, Fla., for defendants-appellants.

Jack V. Eskenazi, U. S. Atty., Richard A. Woolf, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before GOLDBERG, AINSWORTH and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

Appellants Blanca Nuba Vidal-Garcia (Vidal-Garcia) and Leonor Amanda Afanador De Cabrera (Afanador) were charged in the Southern District of Florida with importation of cocaine, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 2, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. An evidentiary hearing on a motion to suppress the cocaine seized from both appellants was held on February 17, 1977. The U.S. Magistrate, on the basis of the facts developed at that hearing, denied the motion to suppress. On March 7, 1977, the district judge, after argument, reaffirmed his earlier adoption of the magistrate's ruling and, in a joint bench trial, adjudicated the defendants guilty on all counts. The sole question presented on appeal is whether the cocaine, discovered in the course of "strip searches" of the appellants conducted by customs officers on appellants' entry into the United States, should have been suppressed as the product of an illegal search. ¹

I. Facts

The facts are largely undisputed. Appellants Vidal-Garcia and Afanador were stewardesses for Aerocondor Airlines. On either the first or second day of January, 1977, Gaston Cairo, a special agent for the Drug Enforcement Administration (DEA) in Miami, received information that appellant Vidal-Garcia would be coming into the country carrying an unknown quantity of cocaine. While Agent Cairo apparently had not had prior contact with the informant, Cairo did determine that the informant had no criminal record. The informant had not previously supplied information to the DEA and was not paid for the information regarding Vidal-Garcia. The confidential source stated that Vidal-Garcia would be bringing in the contraband; that she would be traveling as a stewardess for Aerocondor Airlines; that she would be arriving in Miami from a foreign country (Colombia) on a particular flight (Aerocondor 204) and date (January 3, 1977); and that she would be "carrying" ² a particular type of contraband, cocaine.

Upon the Aerocondor flight's arrival from Bogota at Miami International Airport, the information received by DEA was partially verified by customs authorities: Vidal-Garcia indeed arrived as a stewardess on the specified flight and date. A primary examination of the crew's luggage was conducted at the customs enclosure. There is nothing in the record to suggest that this examination revealed anything suspicious. Nor is there any suggestion that Vidal-Garcia or other members of the crew were subjected to questioning on their arrival by the customs authorities. Solely on the basis of the partially verified confidential tip regarding Vidal-Garcia, customs inspectors were instructed by their supervisor, Senior Inspector Anthony Hopkins, to search all six members of the Aerocondor crew.

A body search was first performed on appellant Afanador. After determining that nothing was concealed on the upper portion of Afanador's body, the female customs inspectors directed Afanador to lift her skirt and lower her girdle. After some confusion resulting from language difficulties, Afanador did so, revealing two packages, later determined to contain cocaine, one located on the body surface in the crotch area and one taped slightly below the waist. Afanador then removed the packages and handed them to the customs inspector. A similar strip search of Vidal-Garcia, conducted somewhat later, revealed two packages carried in the same manner. These packages were also determined to contain cocaine. Customs inspectors failed to discover contraband in their searches of the other four crew members.

II. The Legal Standard

Appellants contend that they were searched illegally in that the customs inspectors lacked the requisite degree of suspicion to conduct strip searches. Appellants recognize "that certain genres of search or seizure based upon less than probable cause are constitutionally legitimate," United States v. Himmelwright, 551 F.2d 991, 994 (5th Cir. 1977), and that the "matter-of-course search of luggage at the border typifies one such genre(.)" Id. Appellants also recognize that this court has upheld more intrusive strip searches at the border when based on "real or reasonable suspicion," a standard falling short of probable cause. Perel v. Vanderford, 547 F.2d 278 (5th Cir. 1977). The primary thrust of appellants' argument on this appeal is that this court should adopt the "real suspicion" standard and the accompanying jurisprudence developed by the Ninth Circuit to govern cases involving intrusive border searches. See, e. g., United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. 1970); see also United States v. Williams, 459 F.2d 44 (9th Cir. 1972). This path has already been considered and rejected by this circuit in United States v. Smith, 557 F.2d 1206 (5th Cir. 1977), a case decided subsequent to the submission of appellants' brief in this case. See also United States v. Himmelwright, supra, 551 F.2d 991. Smith and Himmelwright review the experience of the Ninth Circuit in its attempt "to establish standards of fourth amendment reasonableness which demand some degree of articulable suspicion without requiring full-blown probable cause," Himmelwright, supra, 551 F.2d at 994, and conclude that "the 'reasonable suspicion' standard is flexible enough to afford the full measure of protection which the fourth amendment commands." Id. at 995; Smith, supra, 557 F.2d at 1208. In rejecting the highly taxonomic approach adopted by the Ninth Circuit in favor of this more flexible standard, we of course recognize that "the greater the intrusion, the greater must be the reason for conducting a search that results in such invasion." United States v. Love, 413 F.Supp. 1122, 1127 (S.D.Tex.), aff'd, 538 F.2d 898 (5th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 628 (1976); see Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542, 37 L.Ed.2d 596 (1973) (Powell, J., concurring); Himmelwright, supra, 551 F.2d at 994. Thus, what constitutes "reasonable suspicion" to justify a particular search may not suffice to justify a more intrusive or demeaning search. Our task in this appeal is to continue the case-by-case analysis which infuses the "reasonable suspicion" standard with more specific content. While we cannot rubricate any general rule, in finding that one of the challenged strip searches passes constitutional muster while the other does not, we begin at least to set the parameters of "thou shalt and thou shalt not" in this delicate area.

III. The Standard Applied: Vidal-Garcia

The government does not, nor could it, contend that the confidential tip received here meets the twin tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States,393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). As this court recently stated, the

two-prong Aguilar-Spinelli standard requires that before probable cause for a search with or without a warrant can be said to exist, based on information acquired from a tip, the reliability both of the informant and of his information must be indicated. If the tip itself combined with the officer's knowledge of the informant cannot provide probable cause, a search may still be sustainable if the information supplied consists of such detail or is corroborated from independent sources as to remove the doubt that it is worthy of reliance."

United States v. Montgomery, 554 F.2d 754, 756-57 (5th Cir.), clarified on petition for rehearing, 558 F.2d 311 (5th Cir. 1977), cert. denied, --- U.S. ----, 98 S.Ct. 409, 54 L.Ed.2d 285 (1977); see United States v. Colon, 559 F.2d 1380 (5th Cir. 1977). But as our cases make clear, probable cause is not required to justify the type of search to which Vidal-Garcia was subjected. We believe the applicable standard of "reasonable suspicion" is met in a strip search case ³ where the authorities have received information as detailed as that received in this case, specifying that a named individual traveling in a specified capacity will be body carrying a particular type of contraband on a particular date and flight, where the identifying portion of that information has been verified by the authorities on the flight's arrival, and where the authorities have no reason to believe the informant is unreliable and have taken affirmative steps to insure that the informant is not being paid for the information and has no criminal record. ⁴ To hold otherwise would, we believe, be tantamount to requiring probable cause to justify a strip search at the border. We therefore affirm the conviction of appellant Vidal-Garcia.

IV. The Standard Applied: Afanador

As we have stated, despite the fact that the informant's tip related solely to illegal activity by Vidal-Garcia, ⁵ the customs authorities in Miami ordered strip searches of all six Aerocondor crew members. Nothing was found on four; however, a quantity of cocaine was discovered under the girdle of appellant Afanador. We conclude that the reasonable suspicion standard was not satisfied as to Afanador and that her motion to suppress should have been granted.

The government advances two theories to justify the strip search of appellant Afanador. First, the government maintains that Afanador matched the "smuggling profile" discussed by this court in United States v. Forbicetta, 484 F.2d 645 (...