U.S. v. De Gutierrez, 80-5991

• Decision Date: 08 February 1982
• Docket Number: No. 80-5991,80-5991
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gloria Antelo DE GUTIERREZ, Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 16

667 F.2d 16

UNITED STATES of America, Plaintiff-Appellee, v. Gloria Antelo DE GUTIERREZ, Defendant-Appellant.

No. 80-5991.

United States Court of Appeals Fifth Circuit.

Unit B ^*

Feb. 8, 1982.

Weiner, Robbins, Tunkey & Ross, P.A., Geoffrey C. Fleck, Richard Sharpstein, Miami, Fla., for defendant-appellant.

Ana-Maria Carnesoltas, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before FAY, FRANK M. JOHNSON, Jr. and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

Gloria Antelo De Gutierrez was charged in a two-count indictment with knowingly and intentionally importing cocaine into the United States from a place outside thereof in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 18 U.S.C. § 2 (Count I); and knowingly and intentionally possessing cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count II). De Gutierrez was convicted in a bench trial on both counts and was sentenced to four years imprisonment to be followed by three years special parole as to each count to be served concurrently. She now appeals from her convictions, claiming that contraband evidence should have been suppressed because it was obtained through an unlawful strip search. We affirm.

On August 22, 1980, Customs Inspector Anthony Knapik was conducting primary inspections at the baggage clearance section of the Miami International Airport. At approximately 7:00 a. m., L.A.B. Flight Number 960 (Flight 960) arrived from Santa Cruz, Bolivia. Flight 960 was considered by Customs personnel to be a "high risk" flight for cocaine trafficking because it had a very high incidence of cocaine traffickers traveling aboard as passengers. During the week preceding August 22, 1980, cocaine had been seized three times from passengers arriving at Miami aboard Flight 960.

De Gutierrez was a passenger aboard Flight 960 and thus had to pass through the baggage clearance section where Inspector Knapik was working. Inspector Knapik first observed De Gutierrez at approximately 7:00 a. m. while he was inspecting another passenger. De Gutierrez was the next passenger in Inspector Knapik's line and was standing 10 to 12 feet to his left with her hands clasped across her waist and her purse hanging in front of her body concealing the lower portion of her abdomen.

Inspector Knapik's station consisted of a two-level counter, a podium approximately 46 inches high, 30 inches wide, and 48 inches long, and a table immediately to the right of and lower than the podium. When De Gutierrez approached the station for inspection, she stood very close to and in front of the podium, facing Inspector Knapik. Only the portion of her body from the waist up was visible to Inspector Knapik.

As Inspector Knapik inspected De Gutierrez' documents, he asked her in Spanish several routine questions such as how long she was planning to stay in the United States, what she was bringing in with her, and whether she expected to leave anything in the United States. Inspector Knapik was not fluent in Spanish but knew enough to understand the usual answers given by Spanish-speaking passengers. De Gutierrez responded to Inspector Knapik's questions in such a low voice that he had to repeat each question three or four times, giving him the impression that she was not trying to communicate with him. He finally determined that she had come to the United States to purchase clothes or household items, that she would be in the United States for two weeks, and that she would be staying at the Everglades Hotel in Miami.

De Gutierrez presented one suitcase and her handbag for inspection. As Inspector Knapik took her suitcase and placed it on the table next to the podium, he stepped to his right and stood in front of the table. De Gutierrez then turned about 30 degrees to her right and stood with her left shoulder against the podium, leaving only the left side of her body exposed to Inspector Knapik's view.

The inspection of De Gutierrez' documents and suitcase disclosed the following factors that matched the profile of the cocaine traffickers who had arrived from Bolivia aboard Flight 960 the previous week: her passport reflected a one-entry visa; her Customs Declaration Form indicated that she was traveling alone; her airline ticket had been paid for in cash and had an open return date; and her suitcase contained a very small amount of clothing (only ten percent full) in light of the length of her anticipated two-week visit. Two additional factors correlated with the profile: De Gutierrez was in her thirties, the same age range as the previously discovered traffickers, and she planned to stay at the Everglades Hotel as did the other traffickers.

Inspector Knapik testified that he became suspicious that De Gutierrez might be a drug courier because she fit the profile of previous couriers on Flight 960, because she seemed to be making an obvious attempt to conceal the lower portion of her abdomen from his view, and because she appeared reluctant to answer his questions. On the basis of this suspicion, he went to his supervisor, explained the factors that gave rise to his suspicion, and requested that a personal examination of De Gutierrez' body be conducted by a female inspector.

De Gutierrez was taken to a secondary inspection room. A female Customs inspector (Inspector Clark) then was directed to go to the secondary inspection room and conduct a search of De Gutierrez' body. Also in the room were two other female Customs inspectors, one of whom told Inspector Clark that De Gutierrez was carrying drugs on her body. Inspector Clark asked De Gutierrez in Spanish to remove her dress, and De Gutierrez complied. Underneath her dress De Gutierrez was wearing a body girdle. Inspector Clark asked De Gutierrez to remove the body girdle but De Gutierrez did not comply. Inspector Clark repeated the request and again De Gutierrez did not comply. Inspector Clark thereupon began pulling the top of the body girdle down, at which point De Gutierrez herself finished removing the garment.

As De Gutierrez removed the body girdle, Inspector Clark observed a cloth bag concealed under the girdle between De Gutierrez' legs. When the body girdle was removed completely, the cloth bag fell to the floor. Inspector Clark picked up the bag and placed it on a table. One of the other female inspectors in the room opened the bag and performed a field test on its contents, which tested positive for cocaine. ¹ De Gutierrez was arrested and subsequently was indicted both for importing cocaine into the United States, 21 U.S.C. §§ 952(a), 960(a)(1); 18 U.S.C. § 2, and for possessing cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1).

Prior to trial, De Gutierrez filed a motion to suppress the contraband evidence on the ground that it was obtained through an unreasonable search in violation of the fourth amendment. A suppression hearing was held before a United States magistrate, who recommended that the district court deny the motion to suppress. The district court followed the magistrate's recommendation and denied the motion. The case thereafter proceeded to trial. After the parties waived jury trial and stipulated to all evidence, the trial judge found De Gutierrez guilty on both counts. De Gutierrez now appeals from her convictions. The sole issue before us is whether it was error for the trial court to deny De Gutierrez' motion to suppress the contraband evidence obtained through the strip search of her body.

We begin by noting that De Gutierrez does not, nor could she, dispute that the strip search occurred at the "functional equivalent of the border." ² See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). Because of the need for...