592 F.2d 909 (5th Cir. 1979), 78-5177, United States v. Klein

Docket Nº:78-5177.
Citation:592 F.2d 909
Party Name:UNITED STATES of America, Appellee, v. Tim Joseph KLEIN, Appellant.
Case Date:April 09, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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592 F.2d 909 (5th Cir. 1979)

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.

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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

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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

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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...

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