United States v. Holtz

• Decision Date: 18 April 1973
• Docket Number: No. 72-1965.,72-1965.
• Citation: 479 F.2d 89
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Judi Ann HOLTZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.2d 89 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Judi Ann HOLTZ, Defendant-Appellant.

No. 72-1965.

United States Court of Appeals, Ninth Circuit.

April 18, 1973.

James E. Dalzell (argued), Tucson, Ariz., for defendant-appellant.

Sarah Ann Bailey, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before ELY and WALLACE, Circuit Judges, and SOLOMON,^* District Judge.

WALLACE, Circuit Judge:

Judi Ann Holtz appeals her conviction for smuggling merchandise in violation of 18 U.S.C. § 545. After her not-guilty plea and denial of her motion to suppress evidence, she waived a jury and, subsequent to trial, the court found her guilty. We affirm.

On February 2, 1972, Holtz crossed the border at Nogales, Arizona, in an automobile with two male companions. At the port of entry, an inspector questioned the three, noticed they were unkempt, anxious and uneasy and directed them to the secondary area of inspection.

At secondary, another inspector noticed that one of the men was very nervous and "strung out" and that he kept blinking his eyes. He observed that the driver was suspicious-looking and subdued and that Holtz also seemed nervous. He became more suspicious when he noted that the car had New Mexico license plates, yet the occupants had no luggage and had declared no purchases. He ordered all three out of the car and commenced to search it. Although he found nothing, he thought he could smell marijuana. He then searched Holtz's purse and found a contraceptive. Concurrently, he noticed that one of the men was increasingly nervous.

He next asked all three for identification. The men had none, but all three gave a name and address. He entered this information into a Bureau of Customs computer which identified one of the men as a known associate of a heroin dealer in New Mexico. At this point, the inspector called for assistance from another inspector. They examined the arms of both men and found fresh needle marks. A strip search of the two men was then conducted, but no contraband was found. During the strip search, one of the men became so sick that he vomited.

The officers then ordered a strip search of Holtz. The inspectress conducting the search required Holtz to take off her clothes. As part of the search, she asked Holtz to bend over and spread her buttocks; then she saw part of a rubber prophylactic hanging down from Holtz's vaginal area. The inspectress stated that the prophylactic was readily viewable and that she finished removing it from Holtz's vagina.

Tests later determined that the prophylactic contained heroin. This heroin was the basis of the merchandise count. Holtz's motion to suppress was denied and the heroin was introduced into evidence against her.

In her appeal, Holtz raises two issues. First she asserts that there were no objective, articulable facts, derived from her actions and appearance which produced a real suspicion justifying a strip or skin search. Second, and alternatively, she argues that this was in fact a body cavity search and that, even if there were such a real suspicion, there was not the required clear indication that she was carrying contraband.

Her first contention misconstrues the effect of our prior cases. Admittedly, objective articulable facts are required for a strip search. United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967). Further, the required real suspicion must be directed specifically at the person to be searched. Henderson, supra at 808. However, we have not limited the perimeters from which the objective articulable facts may be taken. Indistinguishable from this case is our holding that those facts derived from "the companions of the subject of the strip search can be considered in determining when such a search may be justified." United States v. Gil de Avila, 468 F.2d 184, 186 (9th Cir. 1972). See United States v. Shields, 453 F.2d 1235, 1236 (9th Cir.), cert. denied, 406 U.S. 910, 92 S.Ct. 1615, 31 L.Ed.2d 821 (1972). Here, the nervousness of Holtz and her companions, the fact that one was a known associate of a heroin dealer in New Mexico, the New Mexico car without luggage or purchases, and the fresh needle marks on the companions' arms are objective facts to be considered by an experienced customs inspector. Suspicion further focused on Holtz when a strip search demonstrated that her companions were not carrying contraband. When coupled with the inspector's personal knowledge that male users or addicts commonly use a female companion as a carrier, there existed the necessary real suspicion which permitted a strip search of Holtz.¹

Consequently, we consider her alternative contention. Its resolution turns on the question of where a strip search ends and a body cavity search begins. She argues that the search was in fact a vaginal or body cavity search, that a mere real suspicion will not support such a search and that the required clear indication was absent. See Henderson, supra, 390 F.2d at 808. The government asserts that the inspectress searched no more than the skin area near the vagina, that there was no body cavity search and that a real suspicion was sufficient. At first blush, the arguments of both parties appear to find support in our prior decisions. However, a close reading of those cases indicates that the search in this case was not a body cavity search and, therefore, this search must be upheld.

One of the first important cases which touches upon the demarcation between the two types of searches was Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967). Customs officers conducted a strip search of Rivas, but he refused to spread the cheeks of his buttocks to permit an observation of his rectum. Later officers restrained Rivas while a doctor conducted a rectal examination with gentle probing. The doctor found and extracted from Rivas's rectum a rubber-enclosed packet of Percodan tablets, a narcotic. This court upheld the search. In defining the test to be applied, we held that "a search involving an intrusion beyond the body's surface" required a clear indication or plain suggestion. Id. at 710 (emphasis added).

Our next significant case, and upon which Holtz primarily relies, was Henderson v. United States, supra. Mrs. Henderson was stopped at the border, taken to the customs office and then to a room, and required to take off her clothes. An inspectress "made a visual examination of her body and demanded that she bend over and, with her hands pull her buttocks apart and up to permit inspection of her vagina." 390 F.2d at 809 (emphasis added). Mrs. Henderson refused to do so and the inspectress concluded she was hiding something. She was then taken to a doctor who forcefully extracted about three ounces of heroin from her vagina.

This court overturned the search by the inspectress finding that it violated the Fourth Amendment. We held that "if in the course of the search of a woman there is to be a requirement that she manually open her vagina for visual inspection to see if she has something concealed there, we think that we should require more than a mere suspicion." 390 F.2d at 808 (emphasis added). That the decision turned upon the requirement of a manual opening of the vagina is clear from its reliance upon Rivas, supra, and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed.2d 908 (1966). Each of those cases involved an intrusion into the body, and each required a clear indication as a justification. Furthermore, in Henderson we noted that the inspectress had not found "anything, such as vaseline, around her vagina." 390 F.2d at 809. Thus Henderson did not rule invalid a visual inspection of the surface of the vaginal area. Only an examination by means of a manual or visual intrusion into the cavity itself was forbidden, absent a clear indication.²

The pattern of our subsequent cases has maintained the differentiation between the two types of searches developed in Rivas and Henderson. For example, cases involving anal searches have consistently allowed inspection of the area around the rectum as part of a strip search, yet have required satisfaction of the clear indication test for a probe of the cavity itself. See United States v. Sosa, 469 F.2d 271 (9th Cir. 1972); United States v. Velasquez, 469 F.2d 264 (9th Cir. 1972); United States v. Summerfield, 421 F.2d 684 (9th Cir. 1970); United States v. Castle, 409 F.2d 1347 (9th Cir.), cert. denied, 396 U.S. 975, 90 S.Ct. 443, 24 L.Ed.2d 443 (1969). In Sosa the strip search included a request that the defendant spread his buttocks and there was a subsequent observation of grease on them. 469 F. 2d at 272. We specifically held that "inspection of the surface of the body in the anal area is permissible in a skin search." Id. at 273. In Velasquez we reached the same result. 469 F.2d at 266. In Summerfield we noted that certain evidence of narcotics usage "plus the sight of foreign material in appellant's rectum during the skin search constituted the `clear indication' necessary" for a later rectal probe. 421 F.2d at 685. Finally, in Castle, during the strip search, an agent "wiped the area of the defendant's rectum" and detected "an oily substance which resembled vaseline." 409 F.2d at 1348. This evidence, together with other reliable information, provided the necessary clear indication for a doctor's rectal examination.

In these cases, we have allowed, as part of the strip search, a spreading of the buttocks and a visual observation of the area of the rectum. Furthermore, we have allowed the evidence gained while viewing the rectal area during the strip search to assist in providing the clear indication required for a subsequent body cavity search or probe.³ These cases clearly indicate that requiring Holtz to bend over and spread her buttocks...