U.S. v. D'Allerman, 83-3014

• Decision Date: 18 July 1983
• Docket Number: No. 83-3014,83-3014
• Citation: 712 F.2d 100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Constanza D'ALLERMAN, a/k/a Reyna Maria Murcia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 100

712 F.2d 100

UNITED STATES of America, Plaintiff-Appellee, v. Constanza D'ALLERMAN, a/k/a Reyna Maria Murcia, Defendant-Appellant.

No. 83-3014.

United States Court of Appeals, Fifth Circuit.

July 18, 1983.

Herbert V. Larson, Jr., New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., Robert T. Myers, Harry W. McSherry, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GEE and POLITZ, Circuit Judges.

PER CURIAM:

This appeal evolves from a jury verdict finding appellant guilty of the importation of cocaine hydrochloride, 21 U.S.C. § 952(a), and possession of cocaine hydrochloride with intent to distribute, 21 U.S.C. § 960(a)(1). The present case is somewhat novel in that appellant claims that her Fourth Amendment rights were violated by virtue of an unconsented X-ray examination of her abdomen, an issue of first impression

                within this circuit.   Prior to submitting the present case to the jury, the district court determined that appellant had voluntarily consented to the examination and therefore the evidence of the cocaine was admissible.   On appeal, appellant challenges this finding as well as contending that custom officials lacked reasonable suspicion to conduct this type of search in light of its degree of intrusiveness.   Concluding that appellant voluntarily consented to the examination, we affirm the district court's judgment
                

FACTUAL BACKGROUND

The facts of the present case are largely undisputed. In mid-September of 1982, D'Allerman, a citizen of Colombia, arrived at the New Orleans International Airport on a flight originating in Paraguay. The flight had intermediate stops in Bolivia, Peru, Colombia, and Panama with a final destination of Houston, Texas. After clearing immigration, appellant was directed to the inspection counter of customs. Because D'Allerman indicated that she could not speak English, she was referred to a secondary inspection station. The secondary station is designed to relieve congestion at the primary stations by handling those passengers who require more than routine questioning or who do not speak English. At this secondary station appellant was asked a series of routine questions concerning her travel plans and reasons for entering the country. D'Allerman's answers were found to be extremely similar to the answers from two other persons on board her flight. This suspicion was compounded by the fact that all three had boarded the flight in Bogota, Colombia. More, the custom official discovered that each of the three had almost exactly $2,000 in United States currency, each was going to Houston, each said she was staying at the Holiday Inn, each ticket had been paid for in cash, and each of the tickets had a 30-day restriction. Although their answers were strikingly similar, each claimed to be traveling alone. The custom official conducting this interview notified his supervisor that he believed further examination warranted.

The supervisor, Chief Inspector Vaughan, was called at his home and arrived at the airport a short time later. Upon his arrival, Vaughan spoke to all of the inspectors who were involved in the initial examination and compared the information. After receiving the additional information that D'Allerman's ticket was sequentially numbered with that of a fellow traveler whom she claimed not to know, and that both tickets had been purchased from the same travel agency, Vaughan questioned appellant, in her native Spanish, to verify the information that he had already received. Further questioning elicited contradictory and evasive responses, the essence of which we set forth in the margin. ¹ After separately D'Allerman orally agreed to the examination. At this time she signed a written consent form indicating that consent was voluntary. The form was written in both English and Spanish. Appellant was also informed that the X-ray picture to be taken would be one of the inside of her stomach area. After this explanation, appellant again gave her oral consent.

questioning each of the suspected parties, and comparing their stories, a decision was made to ask D'Allerman if an X-ray examination could be taken to determine whether she was carrying drugs within her body.

Appellant, along with the other two individuals who had also consented to the examination, was transported to the East Jefferson Hospital. While at East Jefferson appellant was questioned by medical personnel regarding her health and whether she had undergone X-ray examination before. Her answers indicated that there were no health risks in conducting the examination and X-rays of her abdomen were taken. The X-rays revealed the presence of numerous foreign objects in D'Allerman's abdomen. Appellant was then placed under arrest and transported to another hospital. While under observation, appellant passed 80 balloon-like objects, each containing cocaine hydrochloride. In consequence, appellant was indicted for the importation of that drug and for possession of it with intent to distribute.

Before trial, a motion was filed to suppress the cocaine. After two evidentiary hearings, the district court denied the motion. In so doing, the district court concluded that appellant had voluntarily consented to the X-ray examination. Alternatively, the district court reasoned that the search was reasonable even absent consent. A jury returned a verdict of guilty as to both counts of the indictment. Appellant now appeals.

CONSENT

Because there can be no denial that appellant actually possessed the cocaine in issue, the sole question on appeal is its admissibility. We conclude that because appellant voluntarily consented to an X-ray examination, the fruits of that examination were properly admitted. So doing, we recognize the validity of appellant's argument that consent must be a knowing and intelligent waiver of rights. However, on the present facts the argument is simply without merit.

As a general proposition, "a search conducted pursuant to consent is excepted from the requirements of both probable cause and a warrant." United States v. Garcia, 496 F.2d 670, 673 (5th Cir.1974). Because consent implicates the relinquishment of constitutional guarantees, it is incumbent upon the government to demonstrate that consent was free and voluntary "and not simply acquiescence to a claim of lawful authority." United States v. Horton, 488 F.2d 374, 380 (5th Cir.1973) (quoting Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968)). Because the issue of consent is one of fact, Id., the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure is applicable. Under that standard we have no hesitation in affirming the trial court's finding that appellant voluntarily submitted to the examination.

At bottom, the issue in this case reflects no more than a credibility choice between witnesses. The government presented evidence that appellant was informed, in her native language of Spanish, of the...