U.S. v. Sandler

• Decision Date: 15 May 1981
• Docket Number: No. 79-5314,79-5314
• Citation: 644 F.2d 1163
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott Alan SANDLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1163

644 F.2d 1163

UNITED STATES of America, Plaintiff-Appellee, v. Scott Alan SANDLER, Defendant-Appellant.

No. 79-5314.

United States Court of Appeals Fifth Circuit.

May 15, 1981.

Gene P. Hines, Washington, D. C., for defendant-appellant.

Atlee W. Wampler, III, U. S. Atty., Joel N. Rosenthal, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, JR., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges. ^*

VANCE, Circuit Judge:

On April 4, 1979 Scott Alan Sandler was convicted in the United States District Court for the Southern District of Florida of importation into the United States of approximately 888 grams of cocaine in violation of 21 U.S.C. § 952(a). Sandler's conviction followed his arrest on the morning of September 30, 1978 by Customs Control Officer Joel Ariel at the Miami International Airport after a pat-down search and search of Sandler's boots revealed packages of cocaine taped to each of his legs. The events leading up to the search as accurately described in the opinion of a panel of this court, 625 F.2d 537, are set forth in the margin. ¹

Sandler moved to suppress the evidence seized from him, and statements made by him following his arrest. His motion was denied by the U.S. Magistrate. The ruling was appealed to the district court and affirmed. Following his conviction Sandler challenged the district court's ruling in his appeal to this court. ² A divided panel of this court concluded that the standard for determining the validity of a body search conducted at the border is reasonable suspicion. It reversed Sandler's conviction because of its holding that the facts in this case do not support the required reasonable suspicion. We vacated the panel opinion and sitting en banc now review the applicable standard. ³

I

From the outset Congress recognized the unique character of a border situation. In the first revenue act the same Congress that proposed the fourth amendment asserted the plenary power of customs officials to search any ship for concealed goods, wares and merchandise. Act of July 31, 1789, ch. 5, § 24, 1 Stat. 43. ⁴

19 U.S.C. § 1582 now provides that "all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under (Treasury) regulations." The authority to conduct searches at the border is granted to customs officers by 19 U.S.C. § 482 which provides that such officers "may stop, search and examine, any vehicle, beast or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law ...." This broad grant of authority, subject to no express limitations, places border searches in a category apart from other searches. The statute is, of course, subject to the constitutional test of reasonableness. United States v. Poindexter, 429 F.2d 510, 512 (5th Cir. 1970); Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967). However, "(t)hese searches ... are deemed reasonable simply by virtue of the fact that they occur at the border." United States v. Richards, 638 F.2d 765, 770 (5th Cir. 1981). We have thus held with respect to vehicle searches made pursuant to this statutory authority that "mere" suspicion alone is sufficient to meet the constitutional standard, Morales v. United States, 378 F.2d 18, 89 (5th Cir. 1967). Indeed, in United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974) we stated that "At the border itself, the search of an incoming person or vehicle may be initiated on little or no suspicion. 'The agent's statutory authority to search is virtually unfettered except perhaps as to due process concerning the manner, not the cause of the search.' United States v. Storm, 5 Cir. 1973, 480 F.2d 701, 704." 502 F.2d at 1218-19.

Other circuits have taken the same view. "Searches made at the border ... are reasonable simply by virtue of the fact that they occur at the border." United States v. Carter, 592 F.2d 402, 404 (7th Cir.), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). " '(T)here is reasonable and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone.' " United States v. Rivera-Marquez, 519 F.2d 1227, 1228 (9th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 369, 46 L.Ed.2d 285 (1975), (quoting Witt v. United States, 287 F.2d 389, 391 (9th Cir.), cert. denied, 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242 (1961)). "Typically, mere suspicion of possible illegal activity within their jurisdiction is enough 'cause' to permit a customs officer to stop and search a person." 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).

The policy behind this principle was stated by the Supreme Court in Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925) as follows:

Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.

The Court has explicitly recognized that searches of persons as well as searches of packages at our national boundaries rest on different rules of constitutional law than do domestic regulations. "The Constitution gives Congress broad, comprehensive powers '(t)o regulate Commerce with foreign Nations.' Art. 1, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry." United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 125, 93 S.Ct. 2665, 2667, 37 L.Ed.2d 500 (1973). Although it has not squarely confronted the question now before us, dicta in several Supreme Court decisions recognize the federal power to routinely inspect and search packages and persons crossing the borders of this country. In Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973) the Court in considering the constitutionality of a search opined that the federal power to exclude aliens from the country "can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross over borders." Subsequently, in United States v. Brignoni-Ponce, 422 U.S. 873, 887, 95 S.Ct. 2574, 2583, 45 L.Ed.2d 607 (1975) Justice Rehnquist in his concurring opinion explained that "travelers entering the country may be stopped and searched without probable cause and without founded suspicion, because of 'national self protection ....' "

In United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) the Court was dealing with searches of international mail that has reached our borders. In doing so, however, it reviewed the constitutional and historical foundation of border searches beginning in 1789. The Court recognized that the fourth amendment denounces only those searches that are unreasonable. Id. at 617, 618, 97 S.Ct. at 1979. It expressly reaffirmed the principle that

Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be 'reasonable' by the single fact that the person or item in question had entered into our country from outside.

Id. at 619, 97 S.Ct. at 1980.

While holding that the customs "agents' 'mere suspicion' of possible illegal activity is enough cause to justify a border search," United States v. Warner, 441 F.2d 821, 832 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971), we have insisted that limits exist on the scope of a routine search. Development of this point in the circuit has largely centered on searches commonly referred to as strip searches: examination of the person after removal of inner clothing but not including a search of body cavities. The rule which has become well established is that requirements of the fourth amendment are met if the search is supported by "reasonable suspicion" on the part of the customs agent. In the formulation of that standard we rejected the contentions that would require either probable cause, Perel v. Vanderford, 547 F.2d 278, 280 (5th Cir. 1977), or the "real suspicion" that has been adopted by the ninth circuit. 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).

In United States v. Himmelwright, 551 F.2d 991 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977) the panel noted that

"reasonableness" in the fourth amendment sense always depends upon a balance which must be struck between, on the one hand, the level of official intrusion into individual privacy and, on the other hand, the public interest to be served by such an intrusion.

551 F.2d at 994. The emerging rule, peculiarly applicable to border situations is a reflection of the recognition by this and other courts of our national interests in self-protection and protection of tariff revenue, balanced against the privacy rights of the individual traveler.

The reasonable suspicion test as applied by this court is a flexible one. As we stated in United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir. 1978),

"the greater the intrusion, the greater must be the reason for conducting a search that results in such invasion" .... Thus, what constitutes "reasonable suspicion" to justify a particular search may not suffice to justify a more intrusive or demeaning search. (citations omitted.)

Many of our strip search cases have been largely concerned with the application of...