U.S. v. Chase

• Decision Date: 03 May 1974
• Docket Number: No. 73-2490,73-2490
• Citation: 503 F.2d 571
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christina Marie CHASE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 571

503 F.2d 571

UNITED STATES of America, Plaintiff-Appellee, v. Christina Marie CHASE, Defendant-Appellant.

No. 73-2490.

United States Court of Appeals, Ninth Circuit.

May 3, 1974.

Joseph A. Milchen (argued), of McInerney, Milchen & Frank, San Diego, Cal., for defendant-appellant.

Thomas M. Coffin, Asst. U.S. Atty. (argued), Harry D. Steward, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Before CHOY and WALLACE, Circuit Judges, and WILLIAMS, ^* District judge.

CHOY, Circuit Judge:

The appellant, Christine Chase, was convicted of illegally importing three pounds of cocaine. ¹ She contends on appeal that the narcotics were discovered as the result of an unlawful strip search conducted at the border. We affirm.

On December 13, 1972 appellant, upon entering the United States from Mexico, was halted at the Calexico, California point of entry. After preliminary questioning, a search of her car and luggage, and a Customs Bureau computer check all revealed reason to be suspicious of her, she was taken to a secondary inspection room to be personally searched by a matron.

What happened there is the subject of much dispute. Appellant contends that a strip search was conducted for which the requisite 'real suspicion,' see, e.g., United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970), was lacking. The government counters that contraband was initially discovered in her right sock, before any of her other clothing had been shed, when one of appellant's boots was removed. This, the government urges, was not a strip search, but merely a conventional border search for which no particular showing of cause is required. ² The trial court agreed that the first batch of cocaine was found in appellant's sock, prior to her undressing, after her boot was taken off, and that this was not a strip search.

We must first determine if the factual finding that the boot was initially removed is clearly erroneous. ³ At the suppression hearing the matron, Linda Jiminez, testified on direct examination that Chase had first taken off her right boot, revealing a package of cocaine in her sock, following which she removed her left boot disclosing two more packets of cocaine. Then, Jiminez said, she pulled off her sweater and pulled up an 'undergarment' (apparently a body suit) revealing packages of cocaine taped around her waist. On cross-examination and again on redirect, however, Jiminez became confused and stated she could not recall whether Chase's sweater was removed-- and thus whether she was partially undressed-- before the boots were removed or whether her clothing was intact when the cocaine was found in the boots. Jiminez continued to insist, though, that the first packages of cocaine were discovered in appellant's boots and not underneath her sweater.

Appellant contradicted Jiminez's story. Chase averred that she had, at the outset of the search, partially disrobed by pulling both her sweater and her body suit up to her shoulders. At that time, appellant claimed, the matron had discovered the packages taped around her waist. Only after that, she testified, were her boots removed.

We cannot say that the district court clearly erred in finding that the search commenced with the removal of appellant's boots. First, while the matron's testimony is somewhat contradictory, her testimony on direct does provide support for the trial judge's conclusion.

Second, in certain restricted circumstances-- where, for example, a witness' story is implausible-- disbelief of testimony on a certain point can support the truth of what the witness denies. See, e.g., United States v. Castro, 476 F.2d 750, 753 (9th Cir. 1973); United States v. Barham, 466 F.2d 1138, 1140-1141 (9th Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1356, 35 L.Ed.2d 587 (1973); Anderson v. Knox, 297 F.2d 702, 726 (9th Cir. 1961), cert. denied, 370 U.S. 915, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); Ege v. United States, 242 F.2d 879, 881 (9th Cir. 1957).

A trier of fact is not compelled to accept and believe the self serving stories of vitally interested defendants. Their evidence may not only be disbelieved, but from the totality of the circumstances, including the manner in which they testify, a contrary conclusion may be properly drawn.

United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971); see also, United States v. Hood, 493 F.2d 677 (9th Cir. 1974). We think this is one of those situations. ⁴ Appellant had an obvious motive to falsify. Moreover, her story contrasted with that of the matron not only with respect to appellant's state of undress when she took off her boots, but also as to which items of contraband were discovered first. From the latter conflict the district judge could have concluded other portions of her narrative were the opposite of what she claimed as well. Finally, the record shows appellant to have been undergoing methadone treatment for narcotics addiction and to have been a frequent user of tranquilizers at the time of the suppression hearing. The trial judge, who was very concerned with the effect of these conditions upon the guilty plea she entered on the same day as the suppression hearing, could well have concluded they affected her ability to recall the search.

Accepting the trial judge's finding, we simply cannot say that the mere removal of a boot is the type of 'serious invasion of privacy' which the real suspicion standard, applicable to strip searches, was designed to limit. See United States v. Guadalupe-Garza, 421 F.2d at 879. The origin of the real suspicion test is, of course, in the fourth amendment's proscription of unreasonable searches. Since a strip search involves an embarrassing imposition upon the victim, we have reasoned, it would be unreasonable to conduct such searches without real suspicion. See, e.g., Henderson v. United States, 390 F.2d 805, 807-808 (9th Cir. 1967). Real suspicion should, therefore, limit searches only when there is a similar danger of embarrassment: where, in short, the suspect is forced to disrobe to a state which would be offensive to the average person. Judged by this standard, the removal of a boot is surely not a 'strip.' Rather, it is like one removing an overcoat or a suit jacket-- relatively innocuous. See Shorter v. United States, 469 F.2d 61 (9th Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1555, 36 L.Ed.2d 310 (1973); Murray v. United States, 403 F.2d 694, 697 (9th Cir. 1968) (both: removing a coat not a strip search).

Nor can we say that a strip search commences with the order to a suspect to remove her clothing. While the record is not entirely clear on this point, it is possible that the matron first ordered Chase to remove all her clothing, not merely her boots. ⁵ Assuming this is true, it should not vitiate the search. Cf. United States v. Stornini, 443 F.2d 833 (1st Cir.), cert. denied, 404 U.S. 861, 92 S.Ct. 162, 30 L.Ed.2d 104 (1971) (appellant stripped, but contraband found independently in coat; since it was proper to search the suspect's clothing, evidence was not discovered via a strip search). ⁶ The reason real suspicion is required to conduct a strip search is not because the command to strip is intrusive but because the actual search of a stripped person is. It is, after all, the stripping which is offensive to privacy, not the words which order the strip search. Thus, whether a strip search occurred should be measured by what the subject objectively did.

There was, then, no strip search in this case when the initial batch of cocaine was found. The subsequent strip search was supported by probable cause-- that initial batch of contraband.

Affirmed.

WALLACE, Circuit Judge (specially concurring):

I concur with my Brother Choy except for the restrictions I believe he places on our language in United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971). In that case we indicated that the trier of fact's disbelief of a defendant's testimony may, in part, provide the basis for a finding contrary to that which the defendant has stated. See opinion of Judge Choy, page 573 and n. 4. I would go no further than to state what was held in United States v. Hood, 493 F.2d 677 (9th Cir. 1974):

Further, both Hoods testified, denying any knowledge of the heroin. Disbelief of their sworn testimony, along with other evidence, can be the basis of a finding that they in fact possessed the requisite knowledge. See United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971).

Whether the testimony of a defendant or any other witness has a ring of genuineness or not often becomes most significant in finding where the truth lies. That this touchstone is difficult to review on appeal does not militate against its fundamental importance in ascertaining what the actual facts are. I would, therefore, not restrict the applicability of Cisneros as I feel Judge Choy has.

As this difference does not affect the outcome of this particular case and as I am in harmony with the remainder of Judge Choy's opinion, I concur.

DAVID W. WILLIAMS, District Judge (dissenting):

In the face of confusing and contradictory testimony as to where the contraband was first discovered about the body of appellant, I will agree that the trial court finding that the first batch of cocaine was found in appellant's sock, prior to her completely undressing is not clearly erroneous. However, irrespective of the sequence of disrobing, I respectfully disagree with the conclusion of the majority that the facts of the search indicate that a mere border search occurred. To the contrary, I would characterize the instant search as a strip search, thus requiring the government to provide a more stringent justification therefor. I do not believe that this has been shown.

The record clearly shows that Chase was ordered to take off all her clothing by a customs inspectress, and that contraband was discovered shortly after she began to carry out the order. This Court has previously held that...