Perel v. Vanderford, 76-1606

• Decision Date: 18 February 1977
• Docket Number: No. 76-1606,76-1606
• Parties: Bobby PEREL and Steven Bercu, Plaintiffs-Appellants, v. Donald E. VANDERFORD and Homer J. Fiegel, Agents of the United States Customs Agency of the Treasury Dept., Defendants-Appellees. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 278

547 F.2d 278

Bobby PEREL and Steven Bercu, Plaintiffs-Appellants, v. Donald E. VANDERFORD and Homer J. Fiegel, Agents of the United States Customs Agency of the Treasury Dept., Defendants-Appellees.

No. 76-1606

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Feb. 18, 1977.

Mark F. Howell, El Paso, Tex., for plaintiffs-appellants.

Wm. B. Hardie, Jr., Asst. U. S. Atty., El Paso, Tex., John E. Clark, U. S. Atty., San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Alleging that their constitutional rights had been violated by being required to submit to a strip search at the El Paso, Texas Border Station, plaintiffs-appellants, Bobby Perel and Steven Bercu, instituted a suit for damages. From the adverse jury verdict and judgment entered thereon, comes this appeal from the District Court for the Western District of Texas.

On January 9, 1975, appellants upon entering into the United States were detained by defendants-appellees Donald Vanderford and Homer Fiegel, United States Customs Agents.

Acting upon a computer printout which stated that Bercu was suspected of smuggling drugs and Perel was an associate of Bercu, combined with their observation that appellants were acting suspiciously and evasively, the officers searched the car driven by appellants and then ordered them into a building where they were strip searched. The results were negative, the appellants allegedly were humiliated, and this suit followed.

Appellants contend that the District Court erred when it failed to charge the jury that probable cause was necessary to justify the search. We agree with the District Court. It has been held in this circuit and others that real or reasonable suspicion is the proper standard governing strip searches at the border. ¹ United States v. Forbicetta, 484 F.2d 645 (5th Cir. 1973), cert. denied 416 U.S. 993, 94 S.Ct. 2404, 40 L.Ed.2d 772 (1974); United States v. Diaz, 503 F.2d 1025 (3d Cir. 1974); United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. 1970). See United States v. Kallevig, 534 F.2d 411 (1st Cir. 1976). Therefore, it was not error for the trial judge to fail to give the requested instruction.

Appellants next contend that the trial judge committed error in limiting the scope of discovery available to the appellants. The proper standard to test this contention is to ascertain whether or not the trial judge abused his discretion. ² We find no abuse.

Prior to trial, the appellants sought to discover from the individual defendants, the source of each specific item of information contained in the computer printout. It appears that appellants sought to assail the truthfulness of the information and the reliability of its sources. Appellants then hoped to prove that the officers, relying on defective information, had not acted with justifiable cause in conducting the search.

While the trial court apparently held the requested information to be irrelevant and privileged, 5 U.S.C.A. § 552(a)(4)(B) and (b)(7)(E), we find it unnecessary to determine whether a privilege existed since we agree that the information was irrelevant.

Initially we observe that the United States, whose system the officers relied upon, was not a party to the suit. The accuracy of the computer system in creating the requisite reasonable suspicion might be an issue if the United States were a party to this damage action or the prosecution in a criminal case. See United States v. Williams, 459 F.2d 44 (9th Cir. 1972). However, in the instant case, the appellants, to prevail, had to establish that the officers either acted subjectively in bad faith or unreasonably relied, objectively measured, on the computer printout. The officers clearly had the duty to act upon the information provided by their employer. Neither the time nor the means were present quickly to ascertain the basis of the printout so as not unnecessarily to detain the appellants. To require a customs officer, at his peril, instantaneously to ascertain the validity of a printout, or, to detain the traveler until an investigation of the printout is concluded, would quickly transform the customs system into an unwieldly and unworkable operation. The officers were not required in the exercise of their duties to view the report as would an impartial magistrate determining whether to issue a search or arrest warrant. The officers were clearly justified in relying upon the information received indirectly from their fellow officers. As the Supreme Court stated in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. . . . A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.

386 U.S. at 555, 87 S.Ct. at 1218.

Mindful that the United States was not a party to the suit, we agree that the officers acted reasonably in relying upon the printout. Thus, under the principle expressed in Pierson, supra, these officers are entitled to like protection and there was no error in refusing to allow the requested discovery.

Appellants assert that the trial judge erred in allowing the appellees to cross-examine, for impeachment purposes, appellant Bercu about a letter advising a third party as to the availability of drugs in Europe. The trial judge determined that the appellant had "opened the door" by his denial of ever having promoted criminal activity and that the letter was relevant to the impeachment of Bercu's veracity. Although the letter to the trial judge no doubt had...