U.S. v. Walters, 78-5323

• Citation: 591 F.2d 1195
• Decision Date: 26 March 1979
• Docket Number: No. 78-5323,78-5323
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paulette WALTERS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1195

591 F.2d 1195

UNITED STATES of America, Plaintiff-Appellee, v. Paulette WALTERS, Defendant-Appellant.

No. 78-5323.

United States Court of Appeals Fifth Circuit.

March 26, 1979.

Alan E. Weinstein, Miami Beach, Fla., (Court-Appointed), for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Caridad P. Matthews, Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before GEWIN, HILL and FAY, Circuit Judges.

FAY, Circuit Judge:

Paulette Walters appeals from her conviction for violations of 21 U.S.C. §§ 952, 963 (1976). Appellant raises two grounds for reversal of her conviction. First, she contends that the trial court should have suppressed the drugs found on her person after she entered our country. She argues that the search must be supported by probable cause, since it was not a border search and, alternatively, that even if the search is viewed as a border search, it was not justified by reasonable suspicion. Second, appellant claims that the trial court should have dismissed the case due to violations of the Sixth Amendment and the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1976) (hereinafter "the Act").

Since we will relate the facts more extensively below, we sketch only the basic facts here. On August 2, 1976 appellant arrived at Miami International Airport from Quito, Ecuador. Although her appearance was somewhat suspicious, customs officer Isley allowed appellant to pass through customs after a luggage search and a few questions. One of the questions was whether she knew a group of four people behind her. She replied that she did not. After appellant had entered the general airport area, Isley found out from the group of four that appellant in fact knew them. At this point, Isley called appellant back to the customs enclosure where she was subjected to a search under her garments. Cocaine was found taped to her body. The trial court refused to suppress the cocaine and appellant was convicted. We affirm.

I. THE VALIDITY OF THE SEARCH

A. The Standard

The government characterizes the strip search as a border search ¹ justifiable by reasonable suspicion. However, appellant argues that "once (she) was passed through the enclosure without surveillance, her Fourth Amendment protection attached again," appellant's brief at 11, and she "may not be stripped of the probable cause protection mandated by the Fourth Amendment," Id. at 12. We can discern no such bright line demarcating the border from the rest of the country for Fourth Amendment purposes. The border is a "zone, not a line. . . ." Almeida-Sanchez v. United States, 413 U.S. 266, 294, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1972) (White, J., dissenting). ²

In deciding whether a border search standard applies to a particular search, the courts have attempted to strike a balance between shutting out contraband and illegal aliens on the one hand, and impinging on the individual's interest in being free from governmental intrusion on the other. See, e. g., Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1972); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In striking this balance, we have viewed searches similar to the search here to be border searches requiring a less demanding degree of justification than a domestic search. In United States v. Maggard,451 F.2d 502 (5th Cir. 1971), Cert. denied, 405 U.S. 1045, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972) as a car was allowed through a border checkpoint, the customs agents noticed it was sagging in the rear. The car was followed and searched two miles up the road. The Court refused to suppress the drugs found in the car, reasoning that the search was a valid border search. Similarly, in United States v. Morales, 378 F.2d 187 (5th Cir. 1967), the defendant was passed on foot through a border checkpoint, but he was arrested and searched a short distance away due to his suspicious actions and his connections with a car that followed him through the border and picked him up prior to the arrest. This Court viewed the search as a valid border search. Accord, United States v. Thomas, 372 F.2d 252 (5th Cir. 1967). In the context of airports, our courts have held that the government's authority to administer a border search does not end automatically when a traveler steps out of the customs enclosure. United States v. Martinez, 577 F.2d 960, 962 (5th Cir. 1978) ("Having been under constant surveillance after crossing the border, however, and still being in the airport area, defendants were clearly subject to a customs search for which no warrant is required"); United States v. Wardlaw, 576 F.2d 932 (1st Cir. 1978) (border search conducted after defendant left customs enclosure and was waiting for a cab); United States v. Palmer, 575 F.2d 721 (9th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 212, 58 L.Ed.2d 189 (1979) (border search conducted after defendant left customs enclosure and was returned from baggage area).

Instead of drawing formalistic rules based on how long or how far a person has penetrated into the country, we will 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. . . ." 267 U.S. at 154, 45 S.Ct. 280. See United States v. Fogelman, 586 F.2d 337, 350 (Godbold, J., dissenting in part). The degree to which the traveler has been assimilated into the "mainstream of domestic activity," 576 F.2d at 935, is one measure of such impingement. Likewise, surveillance of the defendant after he or she has crossed the border assures us that the contraband has crossed the border and that the government therefore may exercise increased leeway in searching for it. See United States v. Johnson, 588 F.2d 147, at 154 (5th Cir. 1979) ("A search is not a valid border search unless it appears by a preponderance of the evidence, direct or circumstantial, that a border crossing has occurred.") (footnotes omitted). ³

Under the facts of this case, the integrity of our border has been protected with little more interference with domestic activity than would have been caused if appellant had never left the customs enclosure. In addition, the facts raise little doubt that the drugs found on appellant had in fact crossed the border.

At the suppression hearing appellant recounted her activities from the point when she left the customs enclosure: ⁴ she went upstairs to the end of the airport terminal building; she went into a drugstore where she bought a soda and looked at magazines; and she returned to the airport lobby where she was standing when agent Isley requested her to return to the customs enclosure. A total of fifty-five minutes had elapsed since she had left the enclosure. Thus, appellant was not significantly removed physically or temporally from the border. Moreover, to the extent appellant 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. Compare Montoya v. United States, 392 F.2d 731 (5th Cir. 1968) (search cannot be justified as a border search where the defendants have already checked into a hotel upon arrival into the country). Finally, taking into account the appellant's limited activities during the fifty-five minute hiatus, that her bulky clothing was unchanged when she returned to customs, and that the cocaine was taped to her body under heavy clothes and a girdle, we are satisfied that a fact finder could reasonably conclude that the cocaine was in that same place when appellant entered the country. Accordingly, we hold that the search in this case must be measured by the standards applicable to border searches.

B. Applying the Standard

Having decided that this was a border search, we must determine whether the circumstances raised a reasonable suspicion that contraband might be found where the customs agent decided to search. See, e. g., United States v. Afanador, 567 F.2d 1325 (5th Cir. 1978); United States v. Himmelwright, 551 F.2d 991 (5th Cir. 1977), Cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1978). Appellant relies primarily on Afanador in support of her contention that the search was not based on reasonable suspicion. In Afanador, customs officials received information that a stewardess, Vidal-Garcia, would be carrying cocaine into Miami International Airport from Colombia on a particular flight and date. An examination of the flight crew's luggage revealed nothing suspicious. Customs officials searched under the garments of Afanador, another stewardess on the flight, and found cocaine taped to her body. The officials then similarly searched Vidal-Garcia, the stewardess about whom they received the tip. They found cocaine taped to her body as well.

The government proposed two theories to meet the reasonable suspicion standard and thus to validate the search of Afanador. First, the government argued that Afanador's air line uniform matched a smuggler's profile. However, the Court held that Afanador did not closely resemble the profile and that even a close resemblance would not in itself provide the reasonable suspicion required by Himmelwright. ⁵ Second, the government contended that Afanador's "link" to Vidal-Garcia, a suspicious looking travelling companion, provided the reasonable suspicion necessary to justify its search under her clothing. Other than this connection, there was no particular reason to suspect Afanador of any wrongdoing. Nevertheless, all six members of the crew were routinely strip searched. In holding the government's argument insufficient to establish reasonable suspicion, the Court stated: "Only where reasonable suspicion is specifically directed to the individual to be searched, as the case with appellant Vidal-Garcia, may an intrusive search...