U.S. v. Ramos

• Decision Date: 18 May 1981
• Docket Number: No. 79-2647,79-2647
• Citation: 645 F.2d 318
• Parties: UNITED STATES of America, Appellant, v. Raymond Wayne RAMOS, Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 318

645 F.2d 318

UNITED STATES of America, Appellant, v. Raymond Wayne RAMOS, Appellee.

No. 79-2647.

United States Court of Appeals, Fifth Circuit.

Unit B

May 18, 1981.

Linda L. Carroll, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellant.

Neal Sonnett, Benedict Paul Kuehne, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TUTTLE, VANCE and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

Raymond Wayne Ramos, indicted for importing 312.3 grams of cocaine into the United States in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), and for possession of same with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), moved to suppress the cocaine seized at the time of his arrest. The motion was granted and the government appeals pursuant to 18 U.S.C. § 3731, 473 F.Supp. 1109. Concluding that the government could not prove the offenses charged without the suppressed evidence, the district judge dismissed the indictment without prejudice to the government to reindict upon reversal of the suppression order. Finding this case controlled by our recent en banc decision in United States v. Sandler, 644 F.2d 1163 (5th Cir. 1981), we reverse the order granting the motion to suppress, and vacate the order of dismissal.

Operative Facts

Ramos arrived at Miami International Airport shortly before midnight on November 18, 1978, on a flight originating in Bogota, Colombia. Ramos was the first passenger to present himself to Customs Inspector Elizabeth Cocchini. He explained that he had only a briefcase because his luggage had been misdirected to Mexico, declared a ring and was passed through customs. Almost immediately Inspector Cocchini was requested to do a secondary inspection of a female passenger, Sheri Dean Anderson, who had arrived on the same flight. This secondary inspection was occasioned by Miss Anderson's demeanor, responses to certain questions and her bulky appearance. Inspector Cocchini and another female inspector took Miss Anderson to the secondary inspection area and in the ensuing check found several plastic bags taped to her body. The white powdery content of the bags field tested positive for cocaine.

Following discovery of the cocaine on Miss Anderson, Supervisory Inspector Vic Basile was notified; immediately he gathered the Customs Declaration cards from all passengers and examined them. He found that Miss Anderson listed Tampa, Florida as her home city, as did another passenger, one R. Ramos. Inspector Basile examined the contents of Miss Anderson's handbag and found a large sheet of paper listing three names, E. Harwell, S. Anderson and W. Ramos, together with an apparent travel itinerary to New York, Burlington, Vermont with a return to Bogota. Inspector Basile was alerted by the confluence of factors: Ramos and Anderson listed the same home city, both were on the flight, Anderson had drugs secreted on her person and she had a sheet listing the name of Ramos and another and a travel itinerary to New York, Burlington, Vermont and return to Bogota. Basile, aware that drug "mules" frequently are accompanied for security purposes, asked Inspector Cocchini what she recalled about Ramos who only minutes before had passed through the custom's line. Cocchini related that Ramos was the first passenger, that he had no luggage and she was certain she would recognize him.

Inspectors Basile and Cocchini left the customs enclosure and located Ramos, who was wearing the same clothes and carrying the same briefcase, in the airport lobby near the airport hotel. Ramos had registered in the hotel but there is no indication that he had gone into his room. Approximately thirty minutes had elapsed since his passage through customs. The inspectors approached Ramos and asked him to return to the customs enclosure. Ramos consented and was escorted to the secondary inspection room then occupied by Inspector Sigmund Korzenowski. Inspector Korzenowski conducted what he considered to be a routine pat-down and discovered a large bulge on Ramos' left lower leg. A closer examination disclosed that the bulge was caused by a package of cocaine taped to Ramos' leg and covered by an ace bandage. The government suggests that Inspector Korzenowski would testify that a further search revealed another package of cocaine taped to Ramos' abdomen. We do not consider this suggested evidence.

District Court Analysis

The district court referred the motion to suppress to a magistrate who recommended that the motion be denied; Ramos objected to the recommendation. The district court, in reviewing the matter, concluded that three issues were presented: (1) did the search of Ramos occur at the border or its functional equivalent, (2) was it reasonably certain that the contraband found had actually crossed the border, and (3) was the pat-down by the customs inspector justified by a reasonable suspicion that Ramos was carrying either contraband or a weapon. The district judge's analysis resulted in affirmative answers to numbers (1) and (2), however, answering number (3) in the negative the court granted the motion to suppress.

1. The Border, or Beyond?

We repeat the district judge's subtitle for the first inquiry and we find no error in his factual findings or legal conclusions thereunder. In the resolution of this issue the trial judge found controlling our decision in United States v. Walters, 591 F.2d 1195 (5th Cir. 1979), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1979). In Walters we declined to draw formalistic rules based on time and distance of penetration into the country, but rather we held that we would "continue to determine whether a search is at the border based on whether the rationale for border searches is vindicated without impinging the rights of persons" lawfully within the country. Id. at 1198. Two essential criteria were noted: (1) the degree to which the traveler has been assimilated into the mainstream of domestic activity, and (2) whether the evidence preponderates that the contraband seized has actually crossed the border.

We began our analysis in Walters by noting several previous holdings that the customs enclosure at Miami International Airport is the functional equivalent of the border. United States v. Martinez, 577 F.2d 960 (5th Cir.), cert. denied, 439 U.S. 914, 99 S.Ct. 288, 58 L.Ed.2d 262 (1978); United States v. Barger, 574 F.2d 1283 (5th Cir. 1978); United States v. Olcott, 568 F.2d 1173 (5th Cir. 1978). We then examined the activity of Walters and found that she initially had passed through the customs enclosure into the main lobby of the Miami airport. Walters testified that during the ensuing fifty-five minutes she went upstairs to the end of the terminal building, entered a drugstore, purchased a soda, looked at magazines and then returned to the airport lobby. Upon her return she was approached by a customs agent who asked her to return to the customs area where she was required to submit to a strip search. We held that Walters "was not significantly removed physically or temporally from the border. Moreover, to the extent (Walters) was removed from the border, the nature of her activities was not such that would require an intrusion into domestic activities in order to search her." 591 F.2d at 1198.

In the case at bar Ramos was approached by customs officials within thirty minutes after leaving the customs enclosure. Ramos, unlike...