574 F.3d 1318 (11th Cir. 2009), 05-15572, Denson v. United States

Docket Nº:05-15572.
Citation:574 F.3d 1318
Opinion Judge:TJOFLAT, Circuit Judge
Party Name:Janneral DENSON, Jordan L. Taylor, a minor, Janneral Denson, Guardian, Plaintiffs-Appellants, v. UNITED STATES of America, John & Jane Does, certain unnamed United States Customs Agents, individually and in their official capacities as United States Customs Agents, Public Health Trust of Miami-Dade County, d.b.a. Jackson Memorial Hospital, Ira Clar
Attorney:Barbara Ann Heyer, Heyer & Associates, P.A., Ft. Lauderdale, FL, for Plaintiffs-Appellants. Tesal Luthy Miller, Barbara L. Herwig, U.S. Dept. of Justice, App. Staff, Civ. Div., Washington, DC, James J. Allen, Miami, FL, for Defendants-Appellees.
Judge Panel:Before TJOFLAT, CARNES and HILL, Circuit Judges.
Case Date:July 15, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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574 F.3d 1318 (11th Cir. 2009)

Janneral DENSON, Jordan L. Taylor, a minor, Janneral Denson, Guardian, Plaintiffs-Appellants,

v.

UNITED STATES of America, John & Jane Does, certain unnamed United States Customs Agents, individually and in their official capacities as United States Customs Agents, Public Health Trust of Miami-Dade County, d.b.a. Jackson Memorial Hospital, Ira Clark, individually and as President/Director of Jackson Memorial Hospital, John & Jane Does, Drs., certain unnamed Doctors and Nurses employed by Jackson Memorial Hospital, individually and in their official capacities as Doctors and Nurses employed by Jackson Memorial Hospital, et al., Defendants-Appellees.

No. 05-15572.

United States Court of Appeals, Eleventh Circuit.

July 15, 2009

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Barbara Ann Heyer, Heyer & Associates, P.A., Ft. Lauderdale, FL, for Plaintiffs-Appellants.

Tesal Luthy Miller, Barbara L. Herwig, U.S. Dept. of Justice, App. Staff, Civ. Div., Washington, DC, James J. Allen, Miami, FL, for Defendants-Appellees.

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

Before TJOFLAT, CARNES and HILL, Circuit Judges.

TJOFLAT, Circuit Judge

This case arose when Janneral Denson and Jordan L. Taylor sued the U.S. Customs Service, Customs Inspectors Cheryl Friedland and Lee Lavenka, and several members of the Jackson Memorial Hospital medical staff under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act.1 Denson claimed that the Customs inspectors violated her rights under the U.S. Constitution and Florida tort law by searching her at the Fort Lauderdale International Airport after she arrived aboard a flight from Jamaica on the purported suspicion that she was attempting to smuggle narcotics into the United States inside her alimentary canal.2 She also claimed that the inspectors and the hospital's medical staff violated the same rights by utilizing certain invasive procedures at the hospital in an effort to determine whether she was carrying drugs internally. The United States District Court for the Southern District of Florida entered judgment in favor of the defendants in both actions and Denson and Taylor appeal. We affirm.

I.

A.

South Florida is a notorious entry point for narcotics smugglers from source countries, such as Jamaica. To maximize its ability to detect these smugglers, the U.S. Customs Service employs a dyadic checkpoint configuration at South Florida airports. This system requires each deplaning passenger to first pass through a primary checkpoint, located just past the baggage carousel, where inspectors perform

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inspections of passenger documents and ask routine questions concerning the purpose of the passenger's trip. If nothing appears out of the ordinary, the inspector clears the passenger for entry into the United States. On the opposite end of the room, between the primary checkpoint and the main terminal, Customs inspectors operate a secondary Customs station to scan the entire concourse and note any unusual or suspicious activities or behaviors that might warrant further investigation. For instance, Customs trains its inspectors to mind when a passenger is traveling without checked baggage because internal narcotics couriers commonly travel without luggage to minimize the amount of time they have to remain in Customs.

At 6:00 p.m. on Wednesday, February 12, 1997, Janneral Denson, a six-months' pregnant American citizen residing in Boynton Beach, Florida, traveled on Air Jamaica flight 36 from Miami, Florida to Kingston, Jamaica. The nonstop flight lasted one hour and forty minutes and landed at 7:40 p.m. Less than two days later, on the afternoon of February 14, 1997, Denson returned to the United States via Air Jamaica flight 89, arriving at the Fort Lauderdale International Airport around 3:30 p.m. Denson had originally been scheduled to arrive at the Miami International Airport at 1:25 p.m., but Air Jamaica canceled her original flight and rerouted her to Fort Lauderdale, where it planned to provide her ground transportation to her car in Miami.

Because of its point of departure, Customs inspectors in Fort Lauderdale were on high alert when Air Jamaica flight 89 arrived. Consistent with Customs procedures and directives, after deplaning and clearing immigration, Denson provided her declaration form to a Customs inspector stationed at the airport's primary checkpoint and answered several standard questions about her trip. Satisfied with Denson's responses, the inspector cleared her for entry into the United States. From the vantage point of the secondary inspection area, Senior Customs Inspector Cheryl Friedland noticed Denson, a single traveler carrying no checked luggage, quickly exiting the Customs area and avoiding her eye contact. Her suspicions peaked, Friedland hurriedly walked toward Denson and called out to her. Though Denson stood no more than five feet away from Friedland, she did not respond and appeared to ignore Friedland's efforts to stop her. After catching up with Denson, Friedland escorted her to the secondary Customs station for questioning.3

Once at the examination area, the obviously pregnant Denson had trouble answering Friedland's routine questions and exhibited signs of nervousness-Denson held tightly to the x-ray machine to avoid shaking,4 avoided eye contact, was breathing heavily, and sweating profusely. Based on her training and experience, Friedland identified Denson's behaviors and general demeanor as indications that Denson was attempting to hide contraband. Friedland also took into account the infamous fact that drug dealers frequently recruit pregnant women as internal drug couriers (" mules" ) because x-ray examinations may not be performed on a pregnant woman for fear of harming the unborn child.

Friedland began interviewing Denson by asking her about the purpose of her trip to Jamaica. Denson responded that she had flown to Jamaica to visit her husband,

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Richard Scott, but she was initially unable to recall where he lived. After pausing for a few moments, Denson simply stated that her husband lived in a parish in Jamaica. Friedland next asked Denson how she contacted her husband. Denson replied that she contacted him by telephone, but she could not remember his phone number. Friedland next examined Denson's tickets and took note that they had been purchased only four days prior to Denson's departure and that the duration of her trip to Jamaica was extremely brief, approximately one and a half days. Friedland considered this factor significant because internal narcotics smugglers often take short trips to limit expenses and increase the overall profitability of their trip.

Friedland then asked Denson how she acquired her plane ticket and who paid for it; she replied that she did not know. When asked again, Denson, after some hesitation, stated that a man named Osmond purchased her ticket, but she did not know his last name. When asked about her employment, Denson said that she worked for Office Depot. She then gave Friedland a telephone number that she claimed was her work number. Friedland called only to discover that the number had been disconnected. These responses significantly heightened Friedland's suspicions that Denson was attempting to smuggle drugs into the United States. Among other things, third-party booking, like that provided for Denson, is a familiar method smugglers employ to avoid revealing their identity; additionally, Customs trains its inspectors to take note when persons provide unverifiable employment information, as narcotics smugglers are often unable to provide such specific information.

Friedland proceeded to search through Denson's belongings-a manila folder, a purse, and a small carry-on bag. Of note, Denson had in her possession two new $100 bills and six $1 bills,5 a marriage register of the marriage between herself and Scott, an affidavit of citizenship in lieu of a passport, 6 and a tablet of paper containing the following hand-written information about her husband that appeared to be a cover story written for Denson by a third party:7

Richard Scott-Poultry Farmer Since 1994

Lives @ Belfast Near Morant Bay in the Parish of Saint Thomas

His birthday is: Feb. 17th (Born 1972)

How you met.

Dec. 1995 A friend invited you to Jamaica while there went to the beach Dunns River met him there

Dec. 1996 He visited you at your friends Saint Anne home you invited him at his Saint Thomas home

*You had no prior knowledge of him

You returned home to Florida-Telephone Exchange

*Always used calling cards-Price Reasons

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March 1996 You went down to visit him in Jamaica.

Oct. 1996 You went back to marry him

*His phone number written down at home 809 something

You are not good with remembering numbers.

*NOT HIS PHONE ANYWAY Neighbors' Phone.

ANY OTHER Questions Just answer something in that case try to remember what you were asked and what you answered.

*DOES HE HAVE RELATIVES OR FRIENDS IN THE U.S. THAT YOU KNOW OF-NO


When asked who wrote the document, Denson said that she did not know. 8

As part of the inspection process, Friedland queried the Treasury Enforcement Communications System (TECS)9 computer data base for any information concerning Denson. The query returned a TECS alert stating the following:

REFER TO CUSTOMS FOR ENFORCEMENT EXAM. ACQUIRED TRAVEL DOCUMENTS SHORTLY BEFORE DEPARTURE. MATCHES HI RISK NARCO-TARGETING INDICATORS. (IF ARRIVING FROM A SOURCE COUNTRY).

Customs Inspector...

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