U.S. v. Smith, 76-3430

• Decision Date: 22 August 1977
• Docket Number: No. 76-3430,76-3430
• Citation: 557 F.2d 1206
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1206

557 F.2d 1206

UNITED STATES of America, Plaintiff-Appellee, v. Steven SMITH, Defendant-Appellant.

No. 76-3430.

United States Court of Appeals, Fifth Circuit.

Aug. 22, 1977.

Richard B. Marx, Miama, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Barbara D. Schwartz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before THORNBERRY, GODBOLD and FAY, Circuit Judges.

THORNBERRY, Circuit Judge:

Conducting a strip search at the Miami International Airport, Customs Agents found a large quantity of cocaine strapped to appellant's ankles. After a bench trial in the Southern District of Florida, the trial judge found appellant, Steven Smith, guilty of one count each of importation and possession with the intent to distribute 300 grams of cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 841(a)(1). The court sentenced appellant to concurrent terms of two years plus a three year special parole term on each count. The thrust of the appeal is whether the trial court erred in denying Smith's motion to suppress the cocaine on the basis of his holding that reasonable suspicion supported the strip search. We affirm.

Appellant Smith arrived in Miami on a Braniff Airlines flight from Bogota, Colombia on April 15, 1976. He entered the customs line, as did the other passengers, and presented his one suitcase for inspection. The customs inspector examined the luggage and began asking the routine questions. In response to these questions, appellant stated that he had been in Colombia on a four day vacation, and that he was an unemployed truck driver with a wife and child. The inspector testified that appellant by now had become "very, very nervous" and so "very pale" that he appeared to be sick. (R. 58-59).

As a result of the nervous appearance and the responses to the questions, the inspector requested that his supervisor conduct a secondary examination. ¹ They escorted appellant to a small, private room and required him to remove his clothes. The officers spotted two packets strapped to his ankles, and ordered the contents field tested. At that point they informed the defendant of his Miranda rights and placed him under arrest. Upon questioning by Drug Enforcement Administration Agents, appellant admitted that he purchased the cocaine in Colombia, that he was going to distribute it in the Peoria, Illinois, area, and that he had been involved with handling narcotics for some time.

Appellant raises three points. First, he claims that the trial court erred in concluding that the customs inspector had the requisite suspicion to order a strip search, and that therefore the trial court erred in denying the motion to suppress the evidence. Second, appellant insists that the trial court erred in denying suppression of statements he made before the officers advised him of his right against self-incrimination. Finally, Smith maintains that the trial court erred in not requiring the government to produce, pursuant to the court's Standing Discovery Order, the substance of his own oral statements.

I.

Appellant relies on Ninth Circuit cases for his proposition that officers must base a strip search, even at a border, on "real suspicion" and not the "mere suspicion" of border searches in general. In United States v. Guadalupe-Garza, 421 F.2d 876 (9 Cir. 1970), for example, the court found the strip search illegal because the objective facts did not warrant "real suspicion". The only basis for the strip search was defendant's nervousness in answering routine questions, as well as his tendency to "shy away" and "tilt his head" when he got near the customs agent. In Henderson v. United States, 390 F.2d 805 (9 Cir. 1967), the Ninth Circuit threw out a strip search, which included an examination of the suspect's vagina. The customs official erroneously recollected that he had once before requested a search of this same suspect, which allegedly uncovered a gun, narcotic drugs, and marijuana. Despite the fact that a female official conducted the search in private, the court held that the search was illegal because the officers lacked the "real suspicion" required before they could order a suspect to remove her clothing. ²

This Circuit expressly rejects the Ninth Circuit rule. Instead, we hold that a "reasonable suspicion" standard affords sufficient fourth amendment protection. United States v. Himmelwright, 551 F.2d 991, 995 (5 Cir. 1977). Both Himmelwright and the other leading Fifth Circuit strip search case, ³ United States v. Forbicetta 484 F.2d 645 (5 Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2404, 40 L.Ed.2d 772 (1974), where the court likewise admitted the contraband, involved the Miami International Airport and flights arriving from Bogota. The similarities to the instant case do not end there though Forbicetta is perhaps the closer of the two. ⁴ Like Smith, Ms. Forbicetta was unemployed, was flying into Miami from Bogota after an alleged vacation, was travelling alone, ⁵ and was carrying only one suitcase. A further factor present in Forbicetta is that the young woman was wearing very loose fitting clothes that did not show her body contours even when she bent to pick up her suitcase. Past experience had indicated that this was common when a woman is carrying narcotics strapped around her waist, which is indeed precisely where Ms. Forbicetta was carrying cocaine. On the other hand, the Customs Agents reported that Smith appeared very nervous, which was apparently not the case with Ms. Forbicetta. In sum, the cases are strikingly similar and we find that the trial court tried the case on the appropriate theory: the "reasonable suspicion" standard of Forbicetta. ⁶

II.

Appellant insists that he should have received Miranda warnings before the officers began their routine questioning, instead of after the arrest. The only case he cites, however, Chavez-Martinez v. United States, 407 F.2d 535 (9 Cir. 1969), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969), destroys his argument. Chavez-Martinez held that when a customs inspector asked the suspect to go into the office under the supervision of the chief inspector while he searched her car, the suspect was not "in custody" and statements made prior to discovery of the contraband were admissible even though no Miranda warnings had been given.

Appellant's only possible use of Chavez-Martinez also weakens his "reasonable suspicion" argument. Appellant claims that as soon as the customs inspector had probable cause to arrest (equivalent to finding the contraband in Chavez-Martinez, we have to assume), then he should have given Smith the Miranda warning. Yet Smith claims that "common sense" tells us that the customs inspector must have become suspicious of him even before questioning began. Thus, he should have given the Miranda warning before beginning even the routine questioning. Appellant lists for us the factors that allegedly created the officer's suspicions even before routine questioning began: the smuggling profile and appellant's pale and nervous appearance. Since appellant admits that he fit the smuggling profile so closely, and was so pale and nervous, that the inspector became suspicious when he first saw him, we have not the slightest problem with affirming the trial court's determination (under any conceivable standard Ninth Circuit or Fifth) that the customs inspector had the requisite suspicion to order a strip search.

In any case, customs agents need not read Miranda rights at the beginning of every routine questioning session. In the instant case, there simply was no occasion to issue the Miranda warning until the actual office interrogation of Smith began. There was no investigation focusing on the appellant, any more than on the literally hundreds of other people who go through customs each day. See, e. g., Alberti v. Estelle, 524 F.2d 1265 (5 Cir. 1975); United States v. Carollo, 507 F.2d 50 (5 Cir. 1975). It is a telling fact that only after twice receiving the Miranda warning did appellant make the damaging admissions: that he purchased the cocaine from an unknown individual in Colombia; that he intended to distribute it in Peoria, Illinois; and that he had been involved with handling narcotics for several years.

III.

Finally, the appellant insists that the trial court erred in admitting his responses to the initial questions of the customs inspector, asked while appellant was still in the routine entry line, because the government did not give appellant the content of the responses as a Standing Discovery Order required it to do. ⁷ Although we disapprove of the government's failure to submit defendant's responses to the routine questioning, we find no prejudice whatsoever to the defendant. Thus, it was not reversible error to admit the responses.

In United States v. Arcentales, 532 F.2d 1046 (5 Cir. 1976), the court declined to grant a new trial where the defendant failed to demonstrate significant prejudice. There, defendant's counsel became aware of an inculpatory statement during the government's case-in-chief, and counsel had ample time to approach the witness and hear for himself defendant's alleged statements. The court stated that this was not a case where the government secretes statements that could impeach the defendant if he decides to testify. Instead, the defense became aware of the incriminating admissions well before counsel had begun to present the defense.

That situation exists in the instant case. The government in its Memorandum of Law in Opposition to the Defendant's Motion to Suppress set forth, inter alia, all three of the responses appellant wanted suppressed: his occupation, his marital/parental status, and his purpose in going to Colombia. The government filed this Memorandum on July 1, 1976, and mailed a copy to...