U.S. v. Klein, 78-5177

• Citation: 592 F.2d 909
• Decision Date: 09 April 1979
• Docket Number: No. 78-5177,78-5177
• Parties: UNITED STATES of America, Appellee, v. Tim Joseph KLEIN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 909

592 F.2d 909

UNITED STATES of America, Appellee, v. Tim Joseph KLEIN, Appellant.

No. 78-5177.

United States Court of Appeals, Fifth Circuit.

April 9, 1979.

Rehearing Denied May 4, 1979.

Tim Joseph Klein, pro se, Thomas A. Wills, Philip Carlton, Jr., Miami, Fla., for appellant.

Jack V. Eskenazi, U.S. Atty., Hugh F. Culverhouse, Jr., Asst. U.S. Atty., Miami, Fla., for appellee.

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

Before BROWN, Chief Judge, TUTTLE and HILL, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Tim Joseph Klein was indicted in Count I for importing cocaine into the United States in violation of 21 U.S.C.A. §§ 952(a), 960(a)(1) and in Count II for possessing cocaine with the intent to distribute in violation of 21 U.S.C.A. § 841(a)(1) and (b)(1)(A). On January 23, 1978, Klein was convicted by a jury on Count I and acquitted on Count II. On appeal, Klein claims that the District Court erred in denying his motion to suppress evidence seized pursuant to a patdown search at Miami International Airport. He also argues that the Court erred in refusing to suppress certain incriminatory statements made by Klein to Special Agents of the Drug Enforcement Agency (DEA). We conclude that the Court did not err. Therefore, we affirm.

I. Facts

On October 31, 1977, Klein arrived at Miami International Airport from Bogota, Colombia. Presenting himself for customs inspection, Klein entered the customs line at which United States Customs Service Inspector Norma McMullin was on duty. Following her usual procedure, Inspector McMullin took Klein's customs declaration card and punched it into a computer system, the Treasury Enforcement Capability System (TECS). She received a print-out indicating that Klein was a suspected marijuana smuggler.

McMullin then began her examination of Klein's baggage. She also asked him some routine questions, from which she learned that Klein had just returned from a four day vacation in Colombia. Klein also informed her that he was employed as a repairman/mechanic. McMullin asked him to remove his leather jacket so that she could read its label to determine whether it had been acquired in Colombia. When Klein removed his jacket, McMullin then noticed that his western-style shirt appeared loose and that he was perspiring. McMullin thought it strange that he should be wearing his leather jacket in what she described as a warm room. She also thought that Klein looked nervous. Because of her suspicions, McMullin decided to request a more extended search of Klein.

She signaled to her supervisor, who assigned Customs Inspector John R. Ryan to conduct the search. Ryan accompanied Klein to an adjacent room and instructed him to remove his jacket. Ryan felt along the outside of Klein's shirt, near the armpit area, and discovered what he thought to be packages of material taped to Klein's underarms. Klein thereupon produced an additional package from the arch of his foot. The material was field tested by Ryan and found to be cocaine. Ryan then advised Klein of his rights and arrested him. Klein indicated that he understood his rights. He refused to sign a waiver form.

Shortly thereafter, Klein was turned over to DEA Special Agent Kenneth Goodman who escorted Klein to a DEA office near the Customs enclosure. In the presence of another DEA Special Agent, Gaston Cairo, Goodman read Klein his Miranda rights, and Klein stated that he understood them. Goodman also advised Klein that he was under arrest for importing cocaine.

When asked by Goodman if he, Klein, would like to tell where he got the cocaine, Klein initially replied "not particularly." Subsequently, Klein told Goodman and Cairo that he had purchased the cocaine in Bogota from an individual known as Orlando. Klein also stated that he had paid $2,300 for the cocaine and had acted alone in the financing and importing. Klein further stated that the cocaine was his own and that he intended to sell it in Broward County. During the questioning. there was also some discussion about bonds, the proceedings that would likely ensue, and about possible penalties that Klein might receive if convicted of drug importation.

II. The Patdown Search

In this Circuit, the initiation of a border search ¹ is governed by the test of "reasonable suspicion." ² United States v. Himmelwright, 5 Cir., 1977, 551 F.2d 991, Cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (strip search); United States v. Chiarito, 5 Cir., 1975, 507 F.2d 1098, Cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (frisk search); United States v. Maggard, 5 Cir., 1971, 451 F.2d 502, Cert. denied, 1972, 405 U.S. 1045, 92 S.Ct. 1330, 31 L.Ed.2d 587 (car search). Whether the requisite degree of suspicion exists depends upon the totality of the circumstances of the particular case. United States v. Lilly, 5 Cir., 1978, 576 F.2d 1240, 1245; United States v. Himmelwright, 551 F.2d at 995.

In this case, Inspector McMullin testified that a number of factors led her to request a search of Klein's person. Klein seemed nervous and was perspiring, wore his leather jacket in a warm room, upon removing his jacket was seen to be wearing a loose-fitting western-style shirt, was returning from Colombia after a short vacation, and was listed in the TECS report as a suspected marijuana smuggler.

Several of these factors correspond with those that we have previously recognized as contributing to the constitutional reasonableness of a particular search or seizure. They are significant in that they are associated with drug smuggling activity. ³ United States v. Himmelwright, 551 F.2d at 995-96; United States v. Forbicetta, 5 Cir., 1973, 484 F.2d 645, 646, Cert. denied, 1974, 416 U.S. 993, 94 S.Ct. 2404, 40 L.Ed.2d 772.

A number of these factors are present in this case. Klein was traveling alone, returning from a short trip to Bogota, Colombia. Cf. United States v. Rieves, 5 Cir., 1978, 584 F.2d 740; United States v. Smith, 557 F.2d at 1209; United States v. Himmelwright, 551 F.2d at 996; United States v. Forbicetta, 484 F.2d at 646. He also appeared unusually nervous. Cf. United States v. Smith, 557 F.2d at 1208; United States v. Chiarito, 507 F.2d at 1100. Additionally, McMullin observed that Klein's western-style shirt was unusually loose in the midriff area below the armpit, the Particular place where the contraband was suspected to be, and was, found. Cf. United States v. Himmelwright, 551 F.2d at 995. ⁴ Under the circumstances of this case, the above factors were sufficient to justify a request for a search. ⁵

Of course, in any Fourth Amendment case, we must consider not only the reasons for initiating a search. We must also consider how the search was conducted. See Note, From Bags To Body Cavities: The Law Of Border Search,74 Col.L.Rev. 53 (1974). Here, we find that the relatively unobtrusive nature of the patdown search conducted by Inspector Ryan is an important factor in our finding that the search was constitutional. In this case, Klein was escorted to a private room. Except for his leather jacket, he was not made to remove any of his other clothes. ⁶ Only the outside of his shirt, along the rib area, was frisked. While perhaps a ticklish situation, this is obviously not the sort of experience that one who undergoes a strip search must endure. We need not decide today whether the same factors that justify the patdown search would justify a more intrusive search. Cf. United States v. Lilly, 576 F.2d at 1245 ("The more intrusive is a particular search or seizure, the heavier is the government's burden of proving the reasonableness of that search or seizure.").

Because we find that there was sufficient "reasonable suspicion" to justify the initial search, and because we find that the conduct of the search was also reasonable, we hold that there was no Fourth Amendment violation in this case.

III. The Interrogation

Klein challenges the admission of the incriminating statements made to Special Agent Goodman while at the DEA's airport office. Klein claims that the statements were induced by a promise of reward, I. e., that he would be treated more leniently if he cooperated with the agents. Relying on Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Klein also argues that his statements were illegally obtained through continued interrogation conducted after he had invoked his right to remain silent. Finally, he asserts that he was inadequately advised of his Miranda rights. We have reviewed all the relevant testimony concerning Klein's statements to the DEA agents. From this evidence, we have determined that the District Court did not err in admitting the incriminating statements made by Klein.

A. Alleged Promise Of Reward

In the first place, the statements do not appear to have been induced by a promise of reward. As is so often the case, the evidence is in conflict as to exactly what the government agents said to Klein. The defense claims that the agents suggested to him that the amount of his bond and sentence would be less if he would cooperate with them. ⁷ The government, however, contends that Goodman merely stated that if Klein cooperated with the agents they would so inform the Court and prosecuting officials but that the information would not necessarily affect Klein's case. ⁸ The United States Magistrate and the District Court were entitled to credit Goodman's testimony and reject Klein's, and this credited testimony does not show an illegal promise of reward. See United States v. Rieves, 584 F.2d at 745.

Moreover, although the record is unclear as to exactly when during the questioning period these asserted "inducements" occurred, Klein's own testimony shows that his inculpatory remarks were made prior to the alleged inducements. ⁹ That being so, we would be very hard put to find that Klein's remarks were induced by "promises" that had not yet been made.

B. Alleged Interrogation After...