U.S. v. Rodriguez, No. 78-2569

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WRIGHT and GOODWIN; EUGENE A. WRIGHT
• Citation: 592 F.2d 553
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Albert RODRIGUEZ, Defendant-Appellant.
• Docket Number: No. 78-2569
• Decision Date: 05 March 1979

Page 553

592 F.2d 553 UNITED STATES of America, Plaintiff-Appellee,
v.
Carlos Albert RODRIGUEZ, Defendant-Appellant. No. 78-2569. United States Court of Appeals,
Ninth Circuit. March 5, 1979.

Page 554

Richard M. Gale (argued), Seattle, Wash., for defendant-appellant.

Marie Creson, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

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

Before WRIGHT and GOODWIN, Circuit Judges, and SPENCER WILLIAMS, ^* District Judge.

Page 555

EUGENE A. WRIGHT, Circuit Judge:

Rodriguez was convicted of transporting $11,104.00 into the United States without complying with the reporting requirements of 31 U.S.C. §§ 1058 and 1101. He appeals, challenging the legality of the strip search during customs inspection and asserting that the government failed to give him adequate notice of the statutory requirements. Both contentions are without merit.

FACTS

Rodriguez landed at the Seattle-Tacoma International Airport after a flight from Tokyo. Upon deplaning, he was directed to the customs inspection area where he presented a completed customs form. Question 11 on that form asked:

Are you or any family member carrying over $5,000.00 in monetary instruments such as coin, currency, traveler's checks, money orders, or negotiable instruments in bearer form? (If yes, you must file a report on Form 4790, as required by law.)

Rodriguez had checked the "No" box.

He was sent to a secondary area for further questioning. Inspector Lick, who conducted that part of the inspection, had observed Rodriguez change from one line to another several times while waiting in the secondary area. During the initial baggage check, Lick asked Rodriguez again whether he was carrying currency in excess of $5,000, and Rodriguez apparently replied he was not.

In Rodriguez's luggage, Lick discovered three items which aroused his suspicion: rectal pain reliever ointment, rubber prophylactics, and adhesive sealant. Lick, an experienced customs agent, recognized these as items commonly associated with narcotics smuggling activities. ¹

When questioned about them Rodriguez failed to allay the inspector's suspicions. He said that the sealant was used for scuba diving equipment, but only after being prodded by Lick. Nor was the purpose of the rectal ointment explained and Lick learned from Rodriguez that he did not have hemorrhoids.

Lick's suspicions were aroused by further details. He noted that Rodriguez's plane tickets were broken into three sections, with only one section showing trips to narcotics source countries. This suggested that Rodriguez was attempting to conceal his travel to those countries. Further, Rodriguez's alien reentry permit did not bear enough "chop marks" for the kind of traveling Rodriguez had done. ²

Lick was dissatisfied with Rodriguez's responses to some questions. Although he told Lick that he had only recently finished school and had a job as an accountant, Rodriguez did not know what a CPA was. Lick also found it unusual that Rodriguez could finance an extended trip when he had said that he had not been employed for a long time before entering school.

Lick and two DEA agents then took Rodriguez into a private room for a pat-down search, telling him that the search was only for weapons. Lick found it notable that Rodriguez then asked whether he would have to remove his trousers.

Nothing was discovered in his outer clothing but in his wallet was a copy of a bank draft receipt in Rodriguez's name for $10,000 drawn on a Tokyo Bank and payable to another person. When questioned about that, Rodriguez said that he had taken the money with him when he left the United States but no longer had it.

While Lick left the room briefly to speak to his supervisor, one of the DEA agents told Rodriguez to unfasten his trousers. He did so and removed from his underwear two packets of money, each containing $5,000 in

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currency. Lick returned and conducted a full strip search.

I.

THE SEARCH

Rodriguez contends that his Fourth Amendment privacy rights were violated by the search.

This court has enunciated at least three standards applicable to border searches, depending on the degree of intrusiveness. See United States v. Palmer, 575 F.2d 721, 723 (9th Cir. 1978); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967). While anyone at a border may be stopped for questioning and subject to an inspection of luggage, handbags, pockets, wallets, without any suspicion at...