U.S. v. Rieves

• Decision Date: 22 November 1978
• Docket Number: No. 78-5028,78-5028
• Citation: 584 F.2d 740
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Thomas RIEVES and Virginia Gayle Berry, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 740

584 F.2d 740

UNITED STATES of America, Plaintiff-Appellee, v. Gary Thomas RIEVES and Virginia Gayle Berry, Defendants-Appellants.

No. 78-5028.

United States Court of Appeals Fifth Circuit.

Nov. 22, 1978.

Charles I. Poole, Miami, Fla. (Court-appointed), for Rieves.

Theodore J. Sakowitz, Federal Public Defender, Joel Kaplan, Asst. Federal Public Defender, Miami, Fla., for Berry.

Jack V. Eskenazi, U. S. Atty., Hugh F. Culverhouse, Jr., Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before BROWN, Chief Judge, GODBOLD and FAY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Gary Thomas Rieves and Virginia Gayle Berry were arrested and indicted on charges of importing cocaine into the United States ¹ and of possession with intent to distribute cocaine. ² The Court without a jury convicted them as charged, ³ and this appeal followed. We affirm.

On June 11, 1977, at approximately 4:20 p. m., appellant Berry arrived at the Miami International Airport on a flight from Bogota, Colombia. ⁴ She claimed her baggage and awaited routine custom inspection ⁵ in Inspector Christine Hinton's line. Although Hinton found no contraband in Berry's luggage, she noticed that Berry was wearing a very large, loose-fitting pantsuit. She questioned appellant generally about her trip and was told that Berry was a housewife from Hawaii, traveling alone on vacation to Mexico and Colombia.

Believing that she should investigate Mrs. Berry further, Inspector Hinton called for her supervisor, Sigmund Korzeniowski, and requested that he approve a secondary search. Korzeniowski then questioned Berry, who told him that her daughter's husband or boyfriend had paid for her trip. As they were talking, Korzeniowski noticed that Berry's clothing appeared to be several sizes too large for her and that there were "unnatural contours" in the leg, crotch, and bosom areas of her body. ⁶

During this conversation, another customs inspector, Edward Archer, requested Korzeniowski's attention. He had examined the luggage of appellant Rieves, who had just arrived from Bogota, Colombia. ⁷ Although he had found no contraband, he had received a "positive" TECS read-out, ⁸ indicating that Rieves was suspected of smuggling cocaine. Korzeniowski noticed that Rieves was wearing a shirt with a Hawaiian insignia and, upon examining his passport, discovered that Rieves and Berry had gone through the same Colombian customs examiner on the same day. This additional information, along with his observation that Rieves was nervously watching the "exceptionally calm" Mrs. Berry, led Korzeniowski to order a personal search of Berry.

Inspector Hinton and another female customs official escorted Mrs. Berry to a closed room. There the conducted a secondary search, which produced ten condoms and two plastic bags of cocaine that appellant had secreted in her bra and between her girdle and panty hose. ⁹ Hinton officially arrested Mrs. Berry at approximately 4:30 p. m. and immediately read the Miranda rights to her from an official customs form. After Mrs. Berry read the form herself and stated that she understood her rights, Inspector Hinton notified the Drug Enforcement Administration of the arrest. ¹⁰

While Hinton was searching Berry, or shortly thereafter, a further search of Rieves' luggage produced condoms of the same type that Berry had used to carry cocaine. It also revealed the same type of tape that she had used to attach the cocaine to her body. A subsequent secondary search of Rieves failed to produce any contraband.

At approximately 4:50 p. m. DEA agent Charles Martinez arrived at the Miami airport. After identifying himself to Mrs. Berry, advising her of her rights, and obtaining her assurance that she understood those rights, he spoke briefly with Rieves and read him the Miranda warnings. ¹¹ Martinez and another DEA agent, Kenneth Goodman, began questioning Berry at approximately 5:00 p. m. During the subsequent interrogation, which lasted until 5:45 p. m., Berry admitted that a man known to her as G.T. had solicited her aid in importing cocaine. She gave a physical description that fit Rieves and then identified his passport photograph as "G.T." ¹²

Agent Martinez looked through Mrs. Berry's purse as he and Agent Goodman were questioning her and found hotel receipts from the Hotel Tequendama in Bogota, Colombia. He also seized a note pad, on which Mrs. Berry had written the number "1602." She told the agents that this was Rieves' room number. Customs also found Rieves' receipt for room 1602 at the Hotel Tequendama among his personal effects.

Rieves was arrested at approximately 5:45 p. m. ¹³ in Korzeniowski's office. After Agent Martinez again advised him of his Miranda rights, Rieves denied knowing Berry and stated that he thought he should speak to an attorney. Martinez asked no further questions. Although he walked in and out of the customs inspector's office several times during the next few hours, and told Rieves that any cooperation would be made known to the Court at the time of sentencing, he elicited no statements from Rieves. At 8:30 p. m., despite his earlier expression of desire to remain silent, Rieves asked to speak with Agent Martinez. He then said that Berry was not "involved," but was merely "bringing it in." ¹⁴ After having given their oral statements, both appellants gave extensive written statements detailing their activities.

Appellant Berry now claims that reasonable suspicion ¹⁵ did not support the strip search of her person. Since, she argues, the resulting seizure of cocaine was therefore illegal, the Court should have granted her motion to suppress. We, however, do not agree that Mrs. Berry's appearance and demeanor did not raise suspicions reasonably sufficient to warrant the search. First, she fit several of the characteristics of the "smuggling profile" ¹⁶ a woman, traveling alone, returning from a short stay in Colombia where she had no relatives, and wearing overly large clothing. Although she presented more than one bag for customs inspection and calmly declared over $100 worth of merchandise, ¹⁷ these factors were outweighed by Customs Supervisor Korzeniowski's observation of unnatural contours in the bust, leg and crotch areas. ¹⁸ He had constitutionally sufficient reason to believe that a search of Mrs. Berry's body would produce contraband.

Our prior decisions support the result we reach in this case. In Forbicetta, supra, a young, unemployed woman returned from vacation in Colombia wearing a loose-fitting dress. She carried only one bag and declared no purchases. Based upon this evidence, we upheld a strip search, which revealed two and one-half pounds of cocaine attached to her body. Similarly, in United States v. Smith, supra, we upheld a strip search conducted on a "very, very nervous," "very pale," unemployed man who was returning from Colombia after "vacationing" alone there. Finally, in United States v. Himmelwright, supra, we considered the search of a young woman who was traveling alone after a short stay in Colombia. She wore platform shoes ¹⁹ and, more significantly, gave evasive answers when questioned about her employment. We affirmed her resulting conviction, finding that the decision to search her was reasonable. Applying the results of those cases to the present facts, we find that Berry's unnatural contours, like Smith's nervousness and Himmelwright's evasiveness, supported Korzeniowski's decision to authorize the secondary search.

We now turn to appellant Rieves' claim that his oral and written statements were coerced. To support his position, he maintains first that custom officials should have released him after thorough searches of his body and luggage produced no contraband. His continued detention, he argues, was not based upon probable cause. He further contends that during this detention, customs officials continually interrogated him despite his consistent invocation of his right to remain silent and his request for an attorney.

A re-examination of the magistrate's report reveals that the facts as she found them do not support Rieves' contentions. In claiming that customs officials detained him merely on the basis of (1) the TECS "hit" and (2) the fact that he and Mrs. Berry had gone through the same Colombian customs inspector, he ignores the discovery of the tape and condoms in his luggage. He disregards Supervisor Korzeniowski's observations that Rieves nervously watched Mrs. Berry and that the inscription on his shirt indicated that, even though he claimed to reside in Michigan, he had been in Hawaii. ²⁰ Finally, he does not even mention that customs officials, while searching Rieves' personal effects, found a receipt from the same hotel Mrs. Berry had stayed in in Colombia. ²¹ In light of all of these factors, we cannot say that the customs and DEA officials acted without probable cause in holding Rieves. ²² We acknowledge that the Government's case against Rieves grew stronger as he was detained. We point out, however, that although arrest (and detention) must stand upon more than reasonable suspicion, the arresting officer need not have in hand evidence sufficient to convict. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

The magistrate's findings similarly do not support Rieves' claim that customs and DEA officials continued to interrogate him after he invoked his right to remain silent and asked to see an attorney. According to the magistrate, Agent Martinez did go in and out of the room in which Rieves was sitting and did mention that he would make known to the Court any cooperation on Rieves' part. These comments, however, constituted neither interrogation nor coercion. Rieves admitted that his rights had been read to him and that he understood them. When he reinitiated unprompted by further interrogation the dialogue with...