729 F.2d 1341 (11th Cir. 1984), 82-5957, United States v. Vega-Barvo

Docket Nº:82-5957.
Citation:729 F.2d 1341
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Maria VEGA-BARVO, Defendant-Appellant.
Case Date:April 16, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1341

729 F.2d 1341 (11th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,


Maria VEGA-BARVO, Defendant-Appellant.

No. 82-5957.

United States Court of Appeals, Eleventh Circuit

April 16, 1984

Page 1342

Kenneth E. Cohen, Charles G. White, Asst. Federal Public Defenders, Miami, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Michael W. Burnbaum, Linda Collins Hertz, James G. McAdams, III, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

RONEY, Circuit Judge:

This case and other cases decided this day raise the question as to what standard should be applied in deciding the Fourth Amendment constitutionality of x-ray searches of the stomach, manual body cavity probes, and detention to determine if persons entering the United States are carrying contraband narcotics in their bodies. 1 During a border search, an x-ray revealed that defendant Maria Victoria Vega-Barvo had swallowed 135 cocaine-filled condoms. The sole issue on this appeal from her convictions of importation and possession with intent to distribute, 21 U.S.C.A. Secs. 952(a) and 841(a)(1), is whether the discovery that her body contained contraband was the result of an unconstitutional search. Holding that an x-ray is no more intrusive than a strip search, and that the facts in this case created a level of suspicion sufficient to justify a strip search under the reasonable suspicion test set forth in our decided cases, we affirm.

The Search

Shortly after she arrived at Miami International Airport from Bogota, Colombia, Vega-Barvo was noticed by a customs inspector. His suspicions were initially aroused because she was a South American woman traveling alone and although she was conservatively dressed, she was carrying only one piece of poor-quality luggage. Based on these observations, the inspector detained Vega-Barvo at a secondary inspection area for questioning. Upon inquiry into the reason for her trip, Vega-Barvo explained that she was a tourism promoter and she had come to Miami with the intention of putting together tours to the area. She added that she owned a travel agency. Vega-Barvo's credibility was damaged, however, by her responses to more specific questions and an examination of her passport, customs declaration, and airline ticket. The inspector noted a number of inconsistencies with her claim to be a businesswoman. First, her poor handwriting on the customs declaration evidenced a lack of education and her passport showed no other trips. Second, her ticket had not been obtained through her travel agency but had been purchased for cash from a travel agency she had never heard of and she did not know the price or the date of purchase of the ticket. Third, she had no business cards, little or no cash, and no credit cards or checks. Finally, she could name no hotels or persons in Miami she planned to contact in arranging her tours. Throughout the questioning Vega-Barvo exhibited signs of extreme nervousness, such as handwringing and a rapidly pulsating carotid artery.

On the basis of these circumstances, Vega-Barvo was taken to a search room where she was patted down by a female agent with negative results. Meanwhile, the inspector searched Vega-Barvo's one bag and discovered it "contained mainly rags." He also attempted unsuccessfully to verify her claim to have reservations at the Hotel Presidente. When Vega-Barvo returned, she was asked how she planned to get to her hotel. She responded she would take a cab but was unable to explain how she would pay for the ride when it was pointed out that she had no money.

At this point the customs inspector concluded Vega-Barvo was carrying drugs internally and read the Miranda rights to her. A Drug Enforcement Agent then intervened and repeated the Miranda rights, obtaining a waiver from her. He requestioned

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her concerning the purpose of her trip and received the same inconclusive answers. After obtaining a second waiver of her rights, the DEA Agent asked Vega-Barvo if she was carrying drugs internally. When she denied that she was, the agent asked if she would consent to an abdominal x-ray. She did.

Vega-Barvo was transported to a local hospital where she signed the necessary consent forms and was x-rayed. The x-ray revealed foreign objects in her stomach. When advised of this she confessed to swallowing 135 cocaine-filled condoms. These condoms were eventually retrieved from her fecal matter. They did indeed contain cocaine.

Prior to trial, Vega-Barvo moved to suppress the cocaine on the grounds that the x-ray search violated her Fourth Amendment rights. The trial court denied the motion finding that Vega-Barvo consented to the search. Vega-Barvo renews her Fourth Amendment challenge in this Court arguing that her consent was not voluntary and that the search was unreasonable. Because we hold this was a reasonable border search, we need not address the consent issue. Whether the consent was valid or not, this was not a physically forced procedure.

The Standards

Border searches have a unique status in constitutional law. The Supreme Court has consistently held that border searches are not subject to the probable cause and warrant requirements of the Fourth Amendment. United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977). Congress has given customs inspectors virtually unlimited authority to search and detain persons entering the United States from a foreign country. 19 U.S.C.A. Sec. 1582. Although this authority is limited by the reasonableness requirement of the Fourth Amendment, United States v. Villamonte-Marquez, --- U.S. ----, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), the Supreme Court has never decided what standard of reasonableness should be applied to body searches. In Ramsey, the Court explicitly reserved the question of "whether, and under what circumstances, a border search might be deemed 'unreasonable' because of the particularly offensive manner in which it is carried out." 431 U.S. at 618, n. 13, 97 S.Ct. at 1979 n. 13.

This Court has applied this reasonableness requirement by adopting a flexible test which adjusts the strength of suspicion required for a particular search to the intrusiveness of that search. As intrusiveness increases, the amount of suspicion necessary to justify the search correspondingly increases. This approach attempts to balance the privacy interests of the international traveler and the Government's interest in controlling the flow of contraband. See United States v. Sandler, 644 F.2d 1163, 1165 (5th Cir.1981) (en banc); United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978); United States v. Himmelwright, 551 F.2d 991, 994, (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). The Supreme Court has used a similarly flexible approach to near-the-border vehicular searches for illegal aliens, balancing governmental interests against the intrusiveness of the search to determine the amount of suspicion required to justify the search. Compare United States v. Brignoni-Ponce, 422 U.S. 873, 883, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975) (reasonable suspicion required for random stops) with United States v. Martinez-Fuerte, 428 U.S. 543, 562, 96 S.Ct. 3074, 3085, 49 L.Ed.2d 1116 (1976) (no individualized suspicion needed for checkpoint stops). There is no reason to believe that this same flexible approach would not apply to body searches. See Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).

Fifth Circuit cases prior to October 1, 1981, see Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), together with Eleventh Circuit cases, establish a hierarchy of intrusiveness of searches. Although "[e]ach case must turn on the totality of the particular circumstances," United

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States v. Brignoni-Ponce, 422 U.S. at 885 n. 10, 95 S.Ct. at 2582 n. 10, some general categorizations can be made.

No articulable suspicion is required for routine border searches which only intrude slightly on a person's privacy. Himmelwright, 551 F.2d at 994. Both a luggage search and a pat-down or frisk fall within this category and these searches can be legitimately carried out on no more than a generalized "mere suspicion" or "subjective response" of the customs inspector. A person's decision to cross our national boundary is justification enough for such a search. Sandler, 644 F.2d at 1167, 1169. A more intrusive search, the strip search, requires a particularized "reasonable suspicion." Himmelwright, 551 F.2d at 995. This standard has been held to have been met if a person behaves in an articulably suspicious manner. E.g., United States v. Carter, 590 F.2d 138 (5th Cir.), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979) (suspect fit drug courier profile, was overly helpful in search of luggage, acted extremely nervous, and wore bulky clothing); United States v. Olcott, 568 F.2d 1173 (5th Cir.1978) (suspect fit drug courier profile, was unable to produce business effects though purportedly on business trip, and wore bulky clothing); 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) (suspect fit drug courier profile and gave evasive and contradictory answers).

The arguably greater intrusion involved in internal body searches has never been addressed by this Court in circumstances similar to the cases that were argued together and which are decided today. Several earlier cases approving such searches at the border involved the greater quantum of suspicion provided by an informant's tip. United States v. Briones, 423 F.2d 742 (5th Cir.), cert...

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