731 F.2d 1369 (9th Cir. 1984), 83-5125, United States v. Montoya de Hernandez

Docket Nº:83-5125.
Citation:731 F.2d 1369
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rosa Elvira MONTOYA de HERNANDEZ, Defendant-Appellant.
Case Date:April 24, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1369

731 F.2d 1369 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rosa Elvira MONTOYA de HERNANDEZ, Defendant-Appellant.

No. 83-5125.

United States Court of Appeals, Ninth Circuit

April 24, 1984

        Argued and Submitted Dec. 8, 1983.

Page 1370

        Janet Levine, Deputy Public Fed. Defender, Los Angeles, Cal., for defendant-appellant.

        Jeffrey S. Niesen, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

        Before GOODWIN and TANG, Circuit Judges, and JAMESON, District Judge. [*]

        PER CURIAM.

        Rosa Montoya de Hernandez appeals her convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and for importation of cocaine in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1). She argues that the district court erred in failing to suppress 88 bags of cocaine that passed through her alimentary canal after a lengthy airport detention following her arrival on a flight from Bogota, Colombia.

        The question in this case is to locate that point on a continuum at which the level of well-founded suspicion on the part of the customs officers justifies the harsh choices which the officers may present to an incoming passenger. It is clear from the cases 1 that a fairly low level of suspicion will permit a moderately intrusive search for contraband. It is equally clear from the cases 2 that the more intrusive and insulting the search, the greater must be the probability, based upon facts known before the search is made, that the search will indeed produce contraband. Bearing these general guidelines in mind, we examine the facts of this case.

        Shortly after midnight on March 5, 1983, Ms. Montoya de Hernandez arrived in Los Angeles aboard a flight from Bogota, Colombia. She presented her passport and visa to immigration officials and proceeded to a customs line.

        Customs officials reviewed her documents and directed her to a secondary area

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for a more thorough examination. There an Inspector Serrato reviewed de Hernandez's documents and questioned her regarding her trip to the United States. Serrato testified that he immediately suspected that de Hernandez was carrying drugs internally because she fit the common profile of an internal-body carrier. 3

        Serrato had de Hernandez taken to another room for a pat down. That search failed to reveal evidence of contraband. The arriving passenger was then asked if she would consent to an x-ray search. She initially indicated that she would consent, but when she was told she would be taken to a hospital in handcuffs for the x-ray, she withdrew her consent. Officer Serrato's supervisors then contacted Special Agent Windes for the purpose of obtaining a court order for an x-ray search. See United States v. Erwin, 625 F.2d 838 (9th Cir.1980).

        Windes decided that the facts then known probably would not support a court ordered x-ray examination. At this time the arriving passenger had not yet been detained for an unusual period of time. Windes told Serrato and his supervisors to give the passenger three choices: She could either consent to an x-ray search, be held in custody until her bowels moved, or depart the United States on the next plane for Colombia. De Hernandez reluctantly consented to leave for Colombia, but the next flight could not be arranged for several more hours. She was therefore left with the "choice" of consenting to an x-ray or remaining in custody until her peristaltic functions produced a monitored bowel movement. She was taken to a room and held under the observation of Serrato and other inspectors for the remainder of the night and most of the next day, a total of some 16 hours.

        A strip search after the 16-hour delay again failed to reveal contraband. Agent Windes decided to seek a court order for an x-ray and body cavity search. The application for the court order contained information gleaned during the 16-hour detention and observation of the passenger. This information included refusal of food and water and symptoms of discomfort suspected to arise out of, or at least to be consistent with, heroic efforts to resist the usual calls of nature. At midnight the order was issued, nearly 24 hours after her plane had landed.

        De Hernandez was taken to a hospital where a rectal examination revealed a balloon containing cocaine. She was given the Miranda warnings and taken to jail. During the next 4 days she passed 88 balloons containing cocaine.

        "As a search becomes more intrusive, it must be justified by a correspondingly higher level of suspicion of wrongdoing." United States v. Ek, 676 F.2d 379, 382 (9th Cir.1982) (citing United States v. Aman, 624 F.2d 911, 912-13 (9th Cir.1980)). Therefore, a "real suspicion" that contraband is concealed on the body of the person to be searched is required for a strip search. United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir.1970). X-ray and body cavity searches are more intrusive than a strip search. Such searches require a " 'clear indication' or 'plain suggestion' that the person is carrying contraband within his body." Ek, 676 F.2d at 382 (citation omitted.) In this case, the officers had a strong suspicion that de Hernandez was carrying drugs in her body, but for more than 16 hours they did not apply for a court order. The officers decided, instead, to wait for nature to provide the stronger evidence that would support an order. This decision necessarily impacted both the comfort and the dignity of a human being.

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        The degree of suspicion necessary to justify a detention for the purpose of having a suspect produce a bowel movement has not been established. In United States v. Couch, 688 F.2d 599 (9th Cir.1982), cert. denied, 459 U.S. 857, 103 S.Ct. 128, 74 L.Ed.2d 110 (1982), we affirmed the conviction. The customs officials in Couch had the usual indications of internal smuggling, plus an informant's tip. The suspect's detention while a court order for an x-ray was sought was therefore reasonable. We did not then have to reach the issue whether the customs officials without a court order, could have detained the suspect on the same level of suspicion until his bodily processes had cleared his digestive tract of its contents. Couch, 688 F.2d at 603 n. 5. In Couch we noted that such a detention could last two or three days. Id.

        What circumstances justify the delay imposed in this case? These cases usually turn upon the sufficiency of the original evidence which establishes in the customs officer's mind the belief that the incoming passenger "fits the drug courier profile". If that evidence is strong, and where it is enhanced by a tip from a reliable informer, we have upheld lengthy delays and highly obtrusive searches. See, e.g., Erwin, Couch, Ek, and cases discussed therein. These cases suggest that when in doubt the customs officers should present their information to a magistrate and permit that judicial officer to exercise judicial discretion in striking the delicate balance between human rights and the practical necessities of border security.

        In the case at bar, there was a justifiably high level of official skepticism about the woman's good faith as a tourist; but at the same time the officers knew that thousands of unusual looking persons cross international borders daily on all sorts of errands, many of which are wholly innocent. At the time the officers offered de Hernandez...

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