U.S. v. Wardlaw

Decision Date16 May 1978
Docket Number77-1295,Nos. 77-1294,s. 77-1294
Citation576 F.2d 932
PartiesUNITED STATES of America, Appellee, v. Wendy Jean WARDLAW, etc., Defendant, Appellant. UNITED STATES of America, Appellee, v. Beverly Deanne RANDELL, etc., Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Michael D. Nasatir and Donald M. Re, Los Angeles, Cal., with whom Mark V. Kaplan and Alvin S. Michaelson, Beverly Hills, Cal., were on briefs, for defendants, appellants.

Joseph S. Davies, Jr., Atty., Dept. of Justice, Washington, D. C., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., and Jerome M. Feit, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Wardlaw and Randell 1 appeal from their convictions and sentences on charges of importing cocaine into the United States in violation of 21 U.S.C. § 952(a) and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). After moving unsuccessfully to suppress the cocaine found on their persons, defendants waived trial by jury, stipulated that the substance seized from them was cocaine, and submitted the question of their guilt on the basis of the evidence presented at the suppression hearing. The court found both guilty and sentenced each to two ten year terms of imprisonment, to be served concurrently. It further imposed a concurrent special parole term of three years on each count. For the reasons discussed below, we affirm the convictions but remand the cases for resentencing.

I. Motions to Suppress

Appellants challenge their convictions on the ground that the district court erred in refusing to suppress the cocaine seized as a result of searches of their persons at the San Juan International Airport. The Government presented the testimony of three United States Customs Service personnel who together singled out defendants for special searches and discovered the cocaine they were carrying. Their testimony, taken in the light most favorable to the Government, established that Wardlaw and Randell arrived at the airport about 5:00 p. m. on August 29, 1976, on a flight from St. Thomas. Luis Andino, a supervisor, became suspicious of the defendants when, talking together, they came into the customs enclosure wearing raincoats. None of the other passengers wore rain gear, and as far as Andino could tell it had not been raining outside. Andino gave a nonverbal signal to Carlos Flores, an inspector, indicating the two women bore watching. Meanwhile the defendants had joined a line of persons being processed by Inspector Velez. Inspector Giovanna Buono had no passengers at her line and asked Wardlaw to come over from Velez's line. Wardlaw said something to Randell and then came over to Buono. Wardlaw appeared very nervous, and her tension increased when Buono asked her whether she had a passport. 2 Although Wardlaw was wearing a loose-fitting dress underneath her raincoat, Buono detected an apparent bulge around her midsection. Inspector Flores came over to Buono, and Buono asked permission to perform a secondary search on Wardlaw. Flores agreed, as he had noted Wardlaw's unusual dress and nervousness as well as Andino's signal.

In the secondary inspection room, Wardlaw refused to obey Buono's command to raise her skirts and instead demanded a lawyer. Buono came out, told Flores what had happened, and then saw Randell leave the customs enclosure. Buono told Flores that Wardlaw and Randell were together, and Flores ordered her to take an armed customs officer and follow Randell. While other women inspectors remained with Wardlaw, Buono observed Randell sit in a seat in front of the airport where the taxis embarked. After waiting a few minutes to see if anyone approached Randell, Buono went up to her. She told Randell her friend was not feeling well and needed help. Randell at first refused to come back inside the airport, but when Buono insisted she reluctantly agreed. Once inside, Buono took Randell into an area for secondary inspection and asked her to undress. Plastic bags containing a white powder were found taped to her legs. A field test established that the substance was cocaine, and Randell was placed under arrest.

As Randell was being led to the office where the cocaine was to be field tested, she broke free momentarily and managed to reach Wardlaw and to whisper something in her ear. After leaving Randell with the other inspectors, Buono returned to Wardlaw and again asked her to undress. After some delay, Wardlaw permitted Buono to remove her clothes. Bags of white powder, which subsequently turned out to be cocaine, were taped to her body.

Inasmuch as these searches occurred at an international border, the standards applicable to them are considerably more relaxed than those applicable to ordinary searches. In United States v. Kallevig, 534 F.2d 411 (1st Cir. 1976), we noted the existence of different approaches to test the appropriateness of particular border searches. We did not decide which approach to follow, as the search there met even the most stringent of the proposed tests, but we did quote with approval the observation of the Seventh Circuit that "(w)hat is required to be balanced in any particular case is the level of suspicion of the agent against the level of indignity perpetrated upon the traveler." Id. at 413 n. 5 (quoting United States v. Brown, 499 F.2d 829, 833 (7th Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974)). Since we decided Kallevig the Fifth Circuit has developed and applied the principle stated in Brown in a variety of cases. The standard that has emerged, described by the Fifth Circuit as a "reasonable suspicion" test, United States v. Afanador, 567 F.2d 1325, 1328 (1978), requires the Government to demonstrate some objective, articulable facts that justify the intrusion as to the particular person and place searched. Id. at 1328-29 & n. 4; United States v. Himmelwright, 551 F.2d 991, 995 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). The quantum of facts necessary to justify a search is related to the degree of the intrusion: "what constitutes 'reasonable suspicion' to justify a particular search may not suffice to justify a more intrusive or demeaning search." Afanador, supra at 1328. We recognize the indefiniteness of this test and the need for its development on a case-by-case basis, but we feel it provides the starting point for analyzing the particular facts of individual border searches. Applying the "reasonable suspicion" mode of analysis here, we hold that sufficient objective, articulable facts existed to have led an experienced, prudent customs official reasonably to suspect defendants of concealing contraband on their persons.

As to Wardlaw, her raincoat and obvious tension initially attracted the inspectors' attention. Although a raincoat might not be considered outlandish apparel for a visitor to Puerto Rico, the inspectors believed the weather to be dry that afternoon and noted both that defendants alone wore raincoats and that the coats were dry. Furthermore, Buono, who the district court found to have proposed the search on her own initiative, observed a suspicious bulge around Wardlaw's abdomen. In United States v. Brown, 499 F.2d 829 (7th Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974), unusual clothing that could facilitate concealment of contraband and a bulge at the waist were held to justify an initial demand for a young woman to raise her skirts. Here Buono based her demand on these factors as well as Wardlaw's tense appearance. As in Brown, the female inspector asked Wardlaw only to lift her skirt, a less substantial intrusion than a demand to undress fully. When Wardlaw responded to this request, which we think was clearly reasonable in these circumstances, by refusing to cooperate and asking for a lawyer Buono acquired new grounds for pressing her search and, as in Brown, then ordering Wardlaw to disrobe completely.

The circumstances supporting the inspectors' suspicion with respect to Randell are different, but they also justify the search made. As an initial matter, the customs officials were justified in assuming Randell and Wardlaw were companions. Adino and Flores spotted the defendants come in to the customs enclosure together, line up for inspection together, and talk together while awaiting processing. Both were wearing raincoats, as the other passengers were not. Perhaps more significantly, Buono observed Wardlaw and Randell confer briefly before Wardlaw came over at Buono's request to be inspected. Once she went outside the inspection area, Randell made no effort to leave the airport but seemed to be waiting for Wardlaw. These factors distinguish this case from Afanador, supra, where government officials had been told by an informant that a specific stewardess would be carrying cocaine on her person, and conducted a strip search of all six members of the crew. Here there was no specific information indicating that the suspects were chance companions, and the officials were justified in treating them as voluntary associates. It is true that the evidence of companionship was not as strong as in United States v. Wilson, 488 F.2d 400 (5th Cir. 1973), cert. denied, 416 U.S. 989, 94 S.Ct. 2397, 40 L.Ed.2d 767 (1974), where the suspects admitted to travelling together, or Brown, supra, where the suspects were sisters, but evidence did exist in sufficient amount. As the officials had reasonable grounds to believe Randell was associated with Wardlaw, the suspicious appearance and behavior of the latter culminating in her refusal to lift her skirt at Buono's request and her demand for a lawyer, constituted objective, articulable facts that justified the search of her similarly attired travelling companion. Brown, supra ; Wilson, supra ...

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