United States v. Brown

• Decision Date: 03 July 1974
• Docket Number: No. 74-1182.,74-1182.
• Citation: 499 F.2d 829
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul BROWN et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

499 F.2d 829 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Paul BROWN et al., Defendants-Appellants.

No. 74-1182.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1974.

Decided July 3, 1974.

Rehearing Denied July 25, 1974.

Edward M. Genson, Allan A. Ackerman, Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., Michael D. Groark, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CLARK,^* Associate Justice, SPRECHER, Circuit Judge, and BEAMER,^** District Judge.

SPRECHER, Circuit Judge.

This appeal pivots upon the validity of a warrantless "border search" made at Chicago which resulted in the discovery of a large quantity of cocaine.

I

Seven defendants, including three men (Paul Brown, Cometas Dilanjian and Thomas Sheridan) and two sets of sisters (Mary Ann and Susan Prader, and Ellen Sue and Sandra Stewart) were indicted in Count I for conspiracy in violation of 21 U.S.C. § 963 to import cocaine into the United States in violation of 21 U.S.C. § 952(a) and to distribute cocaine outside the United States knowing that it would be imported in violation of 21 U.S.C. § 959. In addition, the Prader sisters were indicted in Count II of importing 1,917.3 grams of cocaine in violation of section 952(a) and the Stewart sisters were indicted in Count III of distributing the same quantity knowing it would be imported, in violation of section 959.

The indictment alleged and all the defendants admitted at the time of pleading guilty to all counts that in March, 1973, the men and the Prader sisters discussed at Chicago, Illinois, the importation of cocaine; that on April 2, 1973, the Praders traveled by airplane from Chicago to Acapulco, Mexico; that on April 5, the Stewarts traveled from Peru, South America, where they received the cocaine, to Acapulco, where they delivered it to the Praders a few days later; and that on April 8, the Praders traveled by airplane from Acapulco to Chicago, carrying the 1,917.3 grams on their persons.

Mary Ann Prader had passed through Customs inspection at O'Hare International Airport on April 8 and was waiting a short distance from the inspection area for her sister. As Susan Prader was going through the Customs line, Customs Patrol Officer Goodson observed that her dress or skirt "fitted rather tightly at the waistline and then sort of flared out to a length to perhaps to her ankles" resulting in a bulge in the area of her stomach. He became suspicious because the clothing did not appear normal on her slender frame. Goodson then escorted Susan to a private search room and sought the assistance of Sharon Holihan and Violet Anderson, two female employees of the Customs Service.

According to Mrs Holihan's testimony at the suppression hearing, "we were told by . . . Goodson that he was suspicious of Susan Prader because of her long clothing and mostly because she appeared to have a bulge on her abdomen below her waist." When the three women were alone, the Customs inspectors advised Susan that they were concerned with the bulge in the area of her waist or midriff, whereupon she voluntarily unzipped her skirt, pushed it four to six inches below her waist to expose her abdomen, then held the skirt at that point for a few seconds and brought it back up.

Because this movement was done without any instructions from the Customs inspectors and because Susan "pushed the skirt down and then stopped . . . and brought it back up," Mrs. Holihan "became suspicious that perhaps she had something underneath her skirt further down on her legs." Without removing any clothing, Mrs. Holihan lifted Susan's skirt up from the bottom to above her knees where she discovered packages bandaged or taped to her legs. One of the inspectors then left the private room and advised Goodson of their discovery. After the contents of the packages were field tested and found positive, Goodson identified himself to Mary Ann and took her back to the inspection room, where similar packages were found taped to her legs.

An evidentiary hearing was held on December 19, 1973 upon the motions of Susan and Mary Prader to suppress the items seized from their persons at O'Hare Airport on April 8. On December 27, the court denied the motions in a written opinion in which it relied in part upon United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

On January 16, 1974 the three male defendants and the Prader sisters pleaded guilty and on the following day the Stewarts also pleaded guilty. In accepting the Praders' pleas, the district judge said that "I think you could preserve your right to appeal on . . . the motion to suppress even if you plead guilty, subject to that condition."

The government did not acquiesce in the "condition" purporting to preserve the right to appeal the suppression question. In fact the prosecutor pointed out that if pleading guilty did not result in the waiver of the right to appeal "every defendant that comes into the building . . . for sentencing to see what they get, and if they don't like what they get . . . then they take it up on appeal."

The three male defendants were each sentenced to three years' imprisonment, Susan Prader and Sandra Stewart each to one year, and Mary Ann Prader and Ellen Sue Stewart each to six months' imprisonment.

All seven defendants appealed. The Praders argued that their motions to suppress should have been granted. The other defendants argued the voluntariness of their guilty pleas and their standing to seek suppression of the evidence found on the persons of the Praders.

The government argued that the Praders waived the suppression question by pleading guilty, that the other defendants had no standing to raise it, that in any event the suppression motions were properly denied, and that the guilty pleas were voluntary and in full compliance with Fed.R.Crim.P. 11.

II

The facts of this case in relation to the suppression question are quite similar to those in United States v. Cox, 464 F.2d 937, 944 (6th Cir. 1972), where the Sixth Circuit observed that "the district court allowed defendants the best of two worlds" in that "they were allowed to plead guilty to reduced charges, while reserving their right to appeal as if they had maintained their innocence through trial." The court concluded that the procedure of allowing an appeal on non-jurisdictional grounds following intelligent and voluntary pleas of guilty violated public and judicial policy and "will not be countenanced in the future in this Circuit." 464 F.2d at 945. Nevertheless the court decided in that case to honor the agreement entered into between the defendants and the prosecutor and accepted by the district court, as being required by the plea bargaining process. In the present case the prosecutor did not consent to the availability of the right of appeal as part of any plea bargaining.

The rationale of Cox appears to find support in Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), where the Supreme Court said:

We thus reaffirm the principle recognized in the Brady trilogy:¹ a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann. (Footnote supplied.)

However, as the Cox court, we hesitate to refuse to consider the merits of the suppression question inasmuch as the district court held out some reason for the defendants to believe that they were pleading guilty "subject to that condition," albeit lacking the consent of the prosecutor to that condition. Cf. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). We proceed therefore to a consideration of the propriety of the district court's denial of the motions for suppression.

III

Although Chicago is more than 1200 miles from the Mexican border, the search of the Prader sisters at O'Hare International Airport upon their arrival on a nonstop flight from Acapulco constituted a border search.²

19 U.S.C. § 482 provides in part as follows:

Any of the officers or persons authorized to board or search vessels may stop, search, and examine . . . any . . . person, on . . . whom he or they shall suspect there is merchandise which . . . shall have been introduced into the United States in any manner contrary to law . . .; and if any such officer or other person so authorized shall find any merchandise on or about any such . . . person . . . which he shall have reasonable cause to believe . . . to have been unlawfully introduced into the United States . . ., he shall seize and secure the same for trial.

"When a person or vehicle is detained at the border just after entering the Country, the agent\'s statutory authority to search is virtually unfettered except perhaps as to due process concerning the manner, not the cause, of the search. . . . Presumably, they are limited only by common standards of decency and propriety." United States v. Storm, 480 F.2d 701, 704 (5th Cir. 1973). "Border searches, absent search warrants or probable cause, have been uniformly upheld by the Courts as long as the customs agents have had a reasonable suspicion of violations of the customs laws." United States v. Thompson, 475 F.2d 1359, 1362 (5th Cir. 1973).

What 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. "Mere suspicion" does not justify a search within body cavities, Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967

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