U.S. v. Asbury

• Citation: 586 F.2d 973
• Decision Date: 13 November 1978
• Docket Number: Nos. 1189,D,1225,s. 1189
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carol ASBURY and John Bruce, Defendants-Appellants. ockets 78-1149, 78-1152.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 973

586 F.2d 973

UNITED STATES of America, Plaintiff-Appellee, v. Carol ASBURY and John Bruce, Defendants-Appellants.

Nos. 1189, 1225, Dockets 78-1149, 78-1152.

United States Court of Appeals Second Circuit.

Submitted Aug. 14, 1978.

Decided Nov. 13, 1978.

Benjamin Sneed, New York City, filed brief for appellant Asbury.

Nathan H. Mitchell, New York City, filed brief for appellant Bruce.

Carol C. White, Buffalo, N.Y., Asst. U.S. Atty. (Richard J. Arcara, U.S. Atty., W.D.N.Y., Buffalo, N.Y., of counsel), filed brief for appellee.

Before VAN GRAAFEILAND, Circuit Judge, MARKEY, Chief Judge, U.S. Court of Customs and Patent Appeals, ^* and DOOLING, District Judge. ^**

VAN GRAAFEILAND, Circuit Judge:

On September 3, 1977, appellants, upon reentering the United States at the Niagara Falls International Airport following a flight from Hong Kong, were found by United States Customs officials to be in possession of counterfeit currency. Appellant Bruce had twenty-nine counterfeit twenty-dollar bills concealed in his underwear. Asbury had eight counterfeit twenty-dollar bills concealed in her brassiere. Appellants were arrested and charged with possession of counterfeit federal reserve notes in violation of 18 U.S.C. § 472 and with importation of the notes in violation of 18 U.S.C. § 545. Following a jury trial in the United States District Court for the Western District of New York, Bruce was convicted on the first count and acquitted on the second. Asbury was convicted on both counts.

Prior to trial, both defendants moved to suppress all evidence relating to the counterfeit notes, on the ground that it was secured as the result of illegal "strip" searches. Our review of the law in this and other Circuits satisfies us that the district court did not err in denying these motions. ¹

From our nation's earliest days, the government has exercised the right to control the movement of people and goods across our national boundaries. United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), Cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969); Landau v. United States Attorney for Southern District of New York, 82 F.2d 285, 286 (2d Cir.), Cert. denied, 298 U.S. 665, 56 S.Ct. 747, 80 L.Ed. 1389 (1936). Moreover, the Supreme Court has established, in an unbroken line of cases, that routine border inspections to effectuate this control do not violate the Fourth Amendment's prohibition against unreasonable searches. See, e. g., Boyd v. United States, 116 U.S. 616, 623-24, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Carroll v. United States, 267 U.S. 132, 151-52, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Ramsey, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). In expressing adherence to this doctrine, the Court has used phrases as broad as "routine inspection and searches of individuals". See Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). It appears, however, that the phrase "routine inspection", as used by the Court, contemplates only the search of luggage, United States v. Thirty-Seven Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), or other "belongings and effects." California Bankers Ass'n V. Schultz, 416 U.S. 21, 63, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Carroll v. United States, supra, 267 U.S. at 153, 45 S.Ct. 280. ² The Court has specifically refrained from deciding under what circumstances more personally offensive searches may be conducted. United States v. Ramsey, supra, 431 U.S. at 618 n. 1, 97 S.Ct. 1972.

The standard, as in every Fourth Amendment case, must be that of reasonableness. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Routine searches of a person's belongings and effects are made reasonable by his decision to cross the border. United States v. Ramsey, supra, 431 U.S. at 619, 45 S.Ct. 280. To this extent, the person involved has no expectation of privacy that society is prepared to recognize as reasonable. United States v. Head, 546 F.2d 6, 8 (2d Cir. 1976), Cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977). However, although anyone entering or leaving the country may expect to have his luggage and personal effects examined, he does not expect that his entry or departure, standing alone, will cause him to be subjected to a strip search. Before a border official may insist upon such an extensive invasion of privacy, he should have a suspicion of illegal concealment that is based upon something more than the border crossing, and the suspicion should be substantial enough to make the search a reasonable exercise of authority.

The Ninth Circuit says that this must be a "real suspicion". United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970); Henderson v. United States, supra, 390 F.2d at 808. The Fifth Circuit rejects the Ninth Circuit rule, adhering to what it calls a "reasonable suspicion" standard. United States v. Smith, 557 F.2d 1206, 1208 (5th Cir. 1977), Cert. denied,434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978). Under that standard, the issue is simply whether the border official has a reasonable basis on which to conduct the search. United States v. Chiarito, 507 F.2d 1098, 1100 (5th Cir.), Cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975). Like the Fifth Circuit, we prefer to avoid the use of the term "real suspicion". The use of that term suggests the alternative possibility of an "unreal suspicion," a state of mind that is difficult to conceptualize. Accordingly, even though the Ninth Circuit defines "real suspicion" in terms of reasonableness, ³ we think that the use of the word "real" adds an unnecessarily confusing factor to the Fourth Amendment standard, which is simply that of reasonableness.

We have said that border stops and searches must be reasonable, and that what is reasonable will depend on all the facts of a particular case. United States v. Glaziou, supra, 402 F.2d at 12. Although, in Glaziou the defendant was required only to pull up his shirt so that a concealed belt containing heroin could be removed, the rule we there announced is equally applicable to a complete strip search. In each case, reasonableness is determined by weighing the warranted suspicion of the border official against the offensiveness of the intrusion. ⁴

Although the circuits may articulate different standards of reasonableness, they are substantially in accord concerning the factors which may be taken into account in determining the issue of reasonableness. Among these factors are the following:

(1) Excessive nervousness. See United States v. Chiarito, supra, 507 F.2d at 1100; United States v. Mastberg, 503 F.2d 465, 468 (9th Cir. 1974); United States v. Diaz, 503 F.2d 1025, 1026 n. 1 (3d Cir. 1974).

(2) Unusual conduct. See United States v. Diaz, supra, 503 F.2d at 1026 n. 1; United States v. Shields, 453 F.2d 1235, 1236 (9th Cir.), Cert. denied, 406 U.S. 910, 92 S.Ct. 1615, 31 L.Ed.2d 821 (1972).

(3) An informant's tip. See United States v. Afanador, 567 F.2d 1325 (5th Cir. 1978); United States v. Castle, 409 F.2d 1347 (9th Cir.), Cert. denied, 396 U.S. 975, 90 S.Ct. 443, 24 L.Ed.2d 443 (1969).

(4) Computerized information showing pertinent criminal propensities. See United States v. Kallevig, 534 F.2d 411, 412, 414 (1st Cir. 1976).

(5) Loose-fitting or bulky clothing. See United States v. Kallevig, supra, 534 F.2d at 412, 414; United States v. Chiarito, supra, 507 F.2d at 1099; United States v. Diaz, Supra, 503 F.2d at 1026 n. 1.

(6) An itinerary suggestive of wrongdoing. See United States v. Kallevig, supra, 534 F.2d at 412, 414; United States v. Chiarito, supra, 507 F.2d at 1100; United States v. Diaz, supra, 503 F.2d at 1026 n. 1; United States v. Shields, supra, 453 F.2d at 1236.

(7) Discovery of incriminating matter during routine searches. See United States v. Wilson, 488 F.2d 400, 401-02 (5th Cir. 1973), Cert. denied, 416 U.S. 989, 94 S.Ct. 2397, 46 L.Ed.2d 767 (1974); United States v. Flores, 477 F.2d 608, 609 (1st Cir.), Cert. denied, 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973); United States v. Summerfield, 421 F.2d 684, 685 (9th Cir. 1970).

(8) Lack of employment or a claim of self-employment. See United States v. Smith, 557 F.2d 1206, 1209 (5th Cir. 1977), Cert. denied, 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978).

(9) Needle marks or other indications of drug addiction. See United States v. Shields, supra, 453 F.2d at 1236.

(10) Information derived from the search or conduct of a traveling companion. See United States v. Wilson, supra, 488 F.2d at 402; United States v. Gil de Avila, 468 F.2d 184, 186-87 (9th Cir. 1972), Cert. denied, 410 U.S. 958, 93 S.Ct. 1428, 35 L.Ed.2d 692 (1973).

(11) Inadequate luggage. See United States v. Smith, supra, 557 F.2d at 1209; United States v. Diaz, supra, 503 F.2d at 1026 n. 1; United States v. Holtz, 479 F.2d 89, 91 (9th Cir. 1973).

(12) Evasive or contradictory answers. See United States v. Himmelwright, 551 F.2d 991, 996 (5th Cir.), Cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977).

In most of the cases upholding the legality of a strip search, the courts have relied upon a combination of the foregoing factors rather than upon any of them standing alone. See, e. g., United States v. Diaz, supra,453 F.2d at 1026 n. 1. There was such a combination of factors in the instant case. Prior to appellants' arrival, border officials had received word from a source previously found to be reliable that a couple answering appellants' descriptions was suspected of carrying contraband. Upon arrival, appellant Bruce was one of the first to leave the plane but one of the last to present himself for customs inspection. He changed inspection lanes while awaiting inspection. He wore loose-fitting clothing. He had made a side trip to Thailand, a well-known narcotics source. He had shipped several suitcases back to the United States prior to his return. His...