U.S. v. Braks

• Decision Date: 07 October 1987
• Docket Number: No. 87-1363,87-1363
• Citation: 842 F.2d 509
• Parties: UNITED STATES of America, Appellee, v. Georgette BRAKS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 509

842 F.2d 509

UNITED STATES of America, Appellee, v. Georgette BRAKS, Defendant, Appellant.

No. 87-1363.

United States Court of Appeals, First Circuit.

Heard Oct. 7, 1987.

Decided March 11, 1988.

Stephen Hrones, by appointment of the Court, with whom Hrones & Harwood, Boston, Mass., was on brief for defendant, appellant.

William H. Kettlewell, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., was on brief for appellee.

Before COFFIN, Circuit Judge, BROWN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

JOHN R. BROWN, Senior Circuit Judge.

Georgette Braks attempted to enter the United States with heroin concealed on her person. Customs inspectors became suspicious and undertook a search of Braks' person, during which the heroin was discovered. After her subsequent arrest and indictment, Braks filed a motion to suppress the heroin that had been seized by Customs. That motion was denied by the District Court. Braks then pleaded guilty but preserved for appeal to this court the ruling on her motion to suppress. We hold that the District Court properly denied the motion to suppress, and affirm the conviction.

The Exposition

Braks is a Lebanese citizen who sought to enter the United States through Boston's Logan Airport on October 2, 1986. She was arriving from Beirut, a city known to the Customs Service as a source for narcotics. The Customs inspectors on duty at Logan had been alerted in advance to be on the lookout for Braks. Upon arrival Braks presented her Customs declaration to Inspector Robert Burke, and simultaneously informed him that she did not speak English. ¹ Upon ascertaining that Braks did speak French, Burke summoned Inspector Mary Lou Gilman, who had greater proficiency with that language than did Burke. ²

Burke remained present while Gilman conducted a routine interrogation of Braks. Gilman learned that (i) Braks intended to stay in the United States for ten days; (ii) the purpose of Braks' visit was to obtain medical treatment in Boston; (iii) Braks had not arranged in advance to consult with any particular doctor in Boston or elsewhere; (iv) after her business in Boston, Braks would be proceeding to New York City to visit her brother; and (v) Braks had not given her brother advance notice of her arrival, but instead intended to surprise him.

Gilman then asked Braks to open her luggage. Burke proceeded to examine the contents, but Gilman remained present and continued to observe Braks during the five minutes or so that that examination took. Gilman noticed that Braks was wearing a loose-fitting, tent-type dress that Gilman knew was suitable for concealing contraband. Gilman also noticed that Braks appeared bulky about the midsection significantly out of proportion to Braks' thin face, hands, wrists and arms. To Gilman, this anomaly indicated that Braks was concealing some item underneath her dress.

Meanwhile, Burke had completed his inspection of the contents of Braks' two suitcases and two carry-on bags. Burke later testified that that amount of luggage had at the outset struck him as "excessive" for a ten-day stay. The amount of clothing that that luggage proved actually to contain, however, seemed to him sufficient for only a two- or three-day stay.

Braks' several inconsistent and anamolous assertions, when coupled with the observations Gilman and Burke had made, led the two Customs inspectors to conclude that a secondary search was appropriate. Gilman so informed Braks and explained to her that she would be physically searched and that the search would include searching under her dress.

A second female Customs inspector was summoned, and she and Gilman escorted Braks into a private room. Gilman said, in French, "I want to find out if you are carrying anything under your clothing," while simultaneously making an upward-sweeping gesture with her hands. The District Court credited Gilman's later testimony to the effect that she did not intend that Braks raise her skirt at that time. Gilman testified that she planned instead to conduct a "pat-down" search of Braks' person, and was just about to do so when Braks raised her own skirt. But this response--perhaps even a voluntary reflex--was not the end of it. For the trial court concluded that Braks reasonably interpreted the words and the gesture together as an instruction to raise her dress. Whether it was voluntary or involuntary, whether reflex or response to authoritative instruction, Braks had lifted her skirt. Gilman observed an abnormal bulge in Braks' girdle.

Gilman then left to attempt to secure a more capable French interpreter, but returned a few minutes later without finding one. At that time, Braks in essence admitted that she was carrying contraband. ³ Inspector Gilman asked to see the contraband and Braks removed two packages from her girdle that were found to contain a total of approximately one kilogram of heroin.

Braks was then arrested, read her Miranda rights, and charged with importation of heroin into the United States. ⁴ After indictment, Braks filed a motion to suppress the heroin that had been seized which, following a hearing, was denied. Braks then entered a conditional plea of guilty under Fed.R.Crim.P. 11(a)(2), which was accepted by the court. Braks was sentenced to three years' incarceration. Braks now appeals the District Court's ruling on the motion to suppress.

Routine or Not Routine?--That's the Question

It is routine law that courts routinely hold that Customs officials may conduct "routine searches of the persons and effects of entrants ... [at international borders without being] subject to any requirement of reasonable suspicion, probable cause, or warrant." ⁵ The degree of invasiveness or intrusiveness associated with any particular type of search determines whether or not that search qualifies as routine. ⁶ The Supreme Court and several Courts of Appeals have highlighted the following factors for determining the degree of invasiveness that accompanies any particular search:

(i) whether the search results in the exposure of intimate body parts or requires the suspect to disrobe; ⁷

(ii) whether physical contact between Customs officials and the suspect occurs during the search; ⁸

(iii) whether force is used to effect the search; ⁹

(iv) whether the type of search exposes the suspect to pain or danger; ¹⁰

(v) the overall manner in which the search is conducted; ¹¹ and

(vi) whether the suspect's reasonable expectations of privacy, if any, are abrogated by the search; ¹²

In light of these several factors the only types of border search of an individual's person that have been consistently held to be non-routine are strip-searches and body-cavity searches. In Braks' case, we are not dealing with either of these two types of searches. ¹³ Therefore, it is necessary to look to the particular facts of the instant case in order to determine whether the search of Braks came within the broad latitude of a routine border search.

Braks was not required actually to remove any portion of her clothing, nor even to expose herself. After she lifted her skirt, only her undergarments were exposed to view. No physical contact between Braks and the Customs inspectors occurred during the search. Force was not used to effect the search. The search entailed no pain or danger for Braks. The search was conducted in a private room, by female Customs inspectors, and in an overall manner which was not insensitive to the dignity of a human being when confronted with well-grounded concern by lawful authorities at an international border. Nor is our conclusion influenced by the pat-down search that the Customs inspectors contemplated but which never took place.

We do not suggest that the categorization of a border search as routine or non-routine can be accomplished merely by stacking up and comparing the several factors favoring each of the two classifications. The enumeration above is neither intended to be, nor can it be, an exhaustive list of equally-weighted concerns. Ultimately each case must turn upon its own particularized facts.

We are convinced, however, that the search at issue in the instant case was a permissible border search. Searches quite similar to that which transpired here have been held to be routine searches in other courts. For instance, in United States v. Wilmot, 563 F.2d 1298 (9th Cir.1977), the court held that a Customs agent's order to the suspect to drop his pants was a permissible border search. Pat-down searches have also been held to be routine. United States v. Oyekan, 786 F.2d 832, 835 (8th Cir.1986); United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir.1981).

The Applicable Standard for This Search

In United States v. Wardlaw, 576 F.2d 932 (1st Cir.1978), this court applied the Fifth Circuit's "reasonable suspicion" standard to a search of an individual's person at an international border. The defendants in that case, Wardlaw and Randell, were females who had been traveling companions on a flight arriving at San Juan International Airport. Customs inspectors reasonably became suspicious of the pair upon their arrival. Wardlaw was led to a secondary inspection room and ordered to raise her skirt. Wardlaw refused, and was subsequently ordered to undress. Randell was taken to a different private room and ordered to undress without an intervening demand that she partially expose some portion of her body normally concealed by her clothing. In assessing the standard applicable to "these searches," the court stated:

The standard that has emerged, described by the Fifth Circuit as a "reasonable suspicion" test, United States v. Afanador, 567 F.2d 1325, 1328 (1978), requires the Government to demonstrate some objective, articulable facts that justify the intrusion as to the particular person and place searched. Id., at 1328-29 & n. 4; United States v. Himmelwright, 551 F.2d 991, 995 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54...