586 F.2d 973 (2nd Cir. 1978), 1189, United States v. Asbury

Docket Nº:1189, 1225, Dockets 78-1149, 78-1152.
Citation:586 F.2d 973
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carol ASBURY and John Bruce, Defendants-Appellants.
Case Date:November 13, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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586 F.2d 973 (2nd Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Carol ASBURY and John Bruce, Defendants-Appellants.

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

United States Court of Appeals, Second Circuit

November 13, 1978

Submitted Aug. 14, 1978.

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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. [**]


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

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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

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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...

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