U.S. v. Aman

• Decision Date: 01 August 1980
• Docket Number: No. 80-1045,80-1045
• Citation: 624 F.2d 911
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Paul AMAN, Defendant-Appellant. C.A.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 911

624 F.2d 911

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Paul AMAN, Defendant-Appellant.

C.A. No. 80-1045.

United States Court of Appeals, Ninth Circuit.

Submitted July 9, 1980.

Decided Aug. 1, 1980.

Stephen J. Perelson, Serra, Perelson, Metcalf & Archuleta, San Francisco, Cal., for defendant-appellant.

Eric J. Swenson, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Northern District of California.

Before MERRILL and KENNEDY, Circuit Judges, and SMITH, ^* District Judge.

MERRILL, Circuit Judge:

Appellant Douglas Aman was convicted of importation of a controlled substance and possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 952(a) and 841(a)(1). He appeals, challenging the admission at trial of approximately 42 grams of heroin which he had secreted in his rectal cavity. The presence of foreign objects in Aman's body cavity was first disclosed by an X-ray search; Aman contends that neither the X-ray search nor the strip search which preceded it was proper.

We disagree. The following facts justified both the strip search and the X-ray search. When Aman arrived at San Francisco International Airport from Bangkok, Thailand, Customs inspectors noted that he appeared disoriented, suggesting that he was under the influence of narcotics, and that his body movements seemed restricted, typical of those engaged in body cavity smuggling. The Customs Bureau computer contained entries which indicated that Aman had previously been involved in narcotics smuggling and was currently suspected of smuggling heroin from Thailand in his body cavity. A Customs search of appellant's luggage revealed two types of lubricant and six prophylactics, items typically used in body cavity smuggling, in addition to a quantity of marijuana.

In response to the inspectors' questions regarding his employment, Aman stated that he owned a construction business, but was unable to supply a business address, telephone number, or card; he then stated that he ran the business out of his parents' home. Aman stated, apparently to explain the prophylactics and lubricant in his luggage, that he had married while in Thailand. However, he had returned from Thailand alone. He attributed his stiff body movements to a recent auto accident (his face was scarred and his arm was in a sling).

Aman was then subjected to a strip search, including an external rectal examination, which revealed no indications of body cavity smuggling. He was next taken to the airport medical facility, where a physician conducted an X-ray examination which revealed the presence of foreign objects in his rectal cavity. He was then taken from the airport medical facility to the San Mateo County Hospital, where he was placed under observation. The following day, a telephonic warrant was secured from a magistrate. Aman initially refused to co-operate with the officers in efforts to secure the expulsion of the contraband. However, the day following the securing of the warrant he did agree, and the contraband was expelled and seized by the officers.

Aman first challenges the strip and X-ray searches as not supported by the required degree of suspicion or belief.

"Real suspicion" that the person to be searched is smuggling narcotics is required for a border strip search a search involving visual inspection of body surfaces. See United States v. Rodriguez, 592 F.2d 553, 556 (9th Cir. 1979); United States v. Holtz, 479 F.2d 89, 91-92 (9th Cir. 1973). "Real suspicion" is "subjective suspicion supported by objective, articulable facts." United States v. Rodriguez, supra, 592 F.2d at 556 (citations omitted). The facts recited above clearly satisfied this standard.

More, however, is required for a body cavity search at a border, a search which involves an intrusion "beyond the body's surface." United States v. Holtz, supra, 479 F.2d at 92. A "clear indication" or "plain suggestion" that the suspect is concealing contraband in his body cavity is required for such a search. United States v. Cameron, 538 F.2d 254, 257 (9th Cir. 1976); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967); Rivas v. United States, 368 F.2d 703 (9th Cir. 1966). ¹

It is not clear which of these two standards applies to an X-ray search. Although it does not squarely decide the question, United States v. Caldera, 421 F.2d 152 (9th Cir. 1970), suggests that "clear indication" of body cavity smuggling may be required for an X-ray search. We need not determine which standard should apply, since we conclude that both standards have been met: that appellant's disorientation, his restricted body movements, his uncertain responses to questions regarding his employment, the two computer entries regarding his drug smuggling activities, ² and the items found in his luggage clearly indicated not only that he was engaged in smuggling but that smuggled narcotics might be concealed in his rectal cavity. United States v. Cameron, supra, 538 F.2d at 257; Rivas v. United States, supra, 368 F.2d at 710-11. ³

Appellant next contends that the evidence should be suppressed because the telephonic warrant issued to permit the evidence to be retrieved from Aman's rectal cavity was vague and failed to comply with Rule 41 of the Federal Rules of Criminal Procedure. ⁴ However, there is no per se requirement of a warrant for body cavity searches at a border; a warrant is merely one factor to be considered in determining the reasonableness of the search. United States v. Cameron, supra, 538 F.2d at 258-59. Here, appellant does not contend that the procedures employed were unreasonable, nor could he. ⁵...