U.S. v. Couch

• Citation: 688 F.2d 599
• Decision Date: 24 September 1982
• Docket Number: No. 80-1524,80-1524
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joseph Mark COUCH, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 599

688 F.2d 599

UNITED STATES of America, Plaintiff-Appellant, v. Joseph Mark COUCH, Defendant-Appellee.

No. 80-1524.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 4, 1981.

Decided May 6, 1982.

As Amended Sept. 24, 1982.

Brad D. Brian, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant.

Andrew H. Parnes, Nolan, Constantinides & Parnes, Palo Alto, Cal., argued, for defendant-appellee; Thomas J. Nolan, Jr., Palo Alto, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before BOOCHEVER and NORRIS, Circuit Judges, and VOORHEES, ^* District Judge.

BOOCHEVER, Circuit Judge.

This case requires us to evaluate the border detention of an individual suspected of carrying illicit drugs within his body. Joseph Mark Couch was indicted for importation and possession of cocaine. Prior to trial, he moved to suppress x-rays of his abdominal region, and the cocaine eventually retrieved from his digestive system. The district court granted his suppression motion, finding that Couch's airport detention of over nine hours was unreasonable, and that the affidavits supporting a court-ordered x-ray examination were insufficient to establish probable cause. The government appeals the suppression order, and we reverse.

FACTS

On March 4, 1980, the Drug Enforcement Administration (DEA) notified agent Donald Souza of the Los Angeles office of the Customs Service that several people would be attempting to smuggle cocaine into the United States from Lima, Peru by concealing the drug in their stomachs. The DEA received its information from a previously reliable confidential informant. One of the individuals mentioned in the scheme was the defendant and appellee, Joseph Couch.

The informant gave a specific description of the smuggling scheme. Couch and the other individuals would take a laxative to clean out their systems, swallow several capsules of cocaine, and then take a drug that inhibited the normal digestive process. Once the smugglers reached their destination, they were to take another laxative and retrieve the cocaine. The informant also stated that the trip reservations were made at a Menlo Park, California travel agency, that the tickets were paid for with cash, and that the individuals would return to the United States during the week of March 3, 1980. Finally, the informant stated that when Couch had been detained by Peruvian customs officials on an earlier trip in December, 1979, he had avoided an x-ray examination by claiming that he had previously been overexposed to x-rays and feared further exposure. The informant did not state how the information was obtained.

Based on this information, Souza notified customs inspectors at Los Angeles International Airport to watch for the individuals, but did not begin to prepare an affidavit or take any steps to secure a warrant. At 7:30 a.m. on March 5, 1980, Couch and his traveling companion Robert Ek arrived at the airport and were detained by DEA agents and customs officials. The officials notified Souza of the detention by radio, and he proceeded to the United States Attorney's office to prepare an affidavit to support a court-ordered x-ray search of Couch and Ek.

The customs agents individually informed Couch and Ek that they were suspected of smuggling narcotics and took them to a secondary area. At this point the suspects Agents detained Couch in the DEA office from approximately 9:00 a.m. until 5:00 p.m., when he was handcuffed and taken to a nearby hospital for x-rays. During this period, the DEA agents informed Couch of his Miranda ¹ rights, but refused several requests for an attorney, informing Couch that he was not entitled to one. ² Couch was kept under constant surveillance, was not permitted to make any phone calls, and knew he was not free to leave. Furthermore, two DEA agents questioned Couch, asking him several routine questions as well as what he was doing in Peru and whether he was carrying drugs. During questioning, Couch explained that his fear of x-rays stemmed from overexposure during his previous employment at General Electric and at a hospital. Later in the afternoon, an investigation indicated that neither employer had any record of Couch's employment, but Couch basically stuck to his story. The agents offered Couch food and water, which he refused.

were separated. The agents searched Couch's baggage and person but did not find narcotics or any indicia of smuggling. Couch refused to consent to a voluntary x-ray examination of his abdominal area, explaining that he had been previously overexposed to x-rays and felt that further exposure would be harmful to his health. Thereafter Couch was taken to the DEA office in another part of the airport, and was told he would be detained until the agents could obtain a court order for an x-ray examination.

During Couch's detention, Souza and a United States Attorney worked from 10:00 a.m. until 3:00 p.m. preparing a three and one-half page affidavit, reciting all of the information provided by the confidential informant. The following additional information, obtained since Couch's arrival, was also included: Couch and Ek had arrived at 7:30 a.m. on a flight from Peru; the initial search proved negative; Couch had refused to submit to an x-ray for alleged health reasons; and at 2:30 p.m. a call to the airport confirmed that Couch had refused any food and had not urinated or defecated since arrival. At 4:30 p.m., a magistrate issued a court order authorizing x-rays of Couch and Ek, conducted "in a reasonable manner" by a doctor at a local hospital.

After Couch was taken from the airport to the hospital, he was shown the court order and told that he would be forced to comply if he did not voluntarily submit to the procedure. Couch again explained his fears about x-ray exposure and requested an attorney, but signed a consent form for the x-rays. Several x-rays were taken, which revealed foreign objects in Couch's stomach. Couch was then formally arrested, and transferred to another hospital for observation. Over the next several days Couch excreted a total of thirty-six capsules, containing 181.2 grams of cocaine.

Couch and Ek were indicted for importing cocaine in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), and possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Separate trials were scheduled for the defendants. ³ Prior to trial, Couch filed a motion to suppress all evidence obtained from the detention, and all evidence from the court order, including the x-rays and the cocaine. Couch argued that the detention was illegal because it was, in effect, an arrest without probable cause, that the affidavit supporting the court order was insufficient, and that the use of an x-ray examination was unreasonable.

After an evidentiary hearing, District Judge Hatter granted Couch's motion in a minute order. The court did not enter written findings of fact, but the transcript of the suppression hearing indicates that the court based its order on the unreasonable length and nature of the detention, and the insufficiency of the affidavit. The government appeals the suppression order to this court pursuant to 18 U.S.C. § 3731.

I. Reasonableness of the Detention

When entering this country, persons are subject to routine searches without probable cause. United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977); United States v. Perez, 644 F.2d 1299, 1302 (9th Cir. 1981). Furthermore, the first United States location at which an international flight lands is considered the "functional equivalent" of the border, and the same standards apply as at the actual border. Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). Couch's flight was non-stop from Lima, Peru to Los Angeles International Airport; thus, the initial detention and search, conducted in a reasonable manner, do not present any constitutional issues.

Couch argues that his extended detention, between the time of the initial search and execution of the court-ordered x-ray examination over nine hours later, was in effect an arrest requiring probable cause, citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Dunaway, a suspect was taken to a police station and questioned about a crime. He made incriminating statements. The Court held that the detention for the purpose of custodial interrogation was illegal where the police did not have probable cause to arrest. 442 U.S. 200 at 212-13, 99 S.Ct. at 2256-2257, 60 L.Ed.2d 824. Dunaway makes it clear that courts must distinguish between brief investigatory stops based on reasonable suspicion, and arrests requiring probable cause. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968).

Although Dunaway is a useful starting point, it does not directly control the instant case. First, Dunaway stressed that the objectional feature of the suspect's detention was custodial interrogation; the Court suppressed the suspects' incriminating statements. 442 U.S. at 216, 99 S.Ct. at 2258. In the instant case, although Couch was asked some questions, the purpose of the detention was to secure a warrant, not to elicit information. Second, the detention in this case occurred at the border. Government agents are given considerably more leeway at the border. United States v. Erwin, 625 F.2d 838, 841 (9th Cir. 1980). We must therefore analyze the nature of Couch's detention in light of the border search standards developed in this circuit.

In United States v. Cameron, 538 F.2d 254 (9th Cir. 1976), this court held a suspect's slurred speech, needlemarks and lubricant in the rectal area provided the necessary "clear indication" for a body cavity search, but nevertheless found that the particular search was conducted in an objectionable manner. Id. at 257-58. In dictum, the court...