United States v. Scott Alan Sandler , 644 F.2d 1163 ( 1981 )

VANCE, Circuit Judge:

On April 4, 1979 Scott Alan Sandler was convicted in the United States District Court for the Southern District of Florida of importation into the United States of approximately 888 grams of cocaine in violation of 21 U.S.C. § 952(a). Sandler’s conviction followed his arrest on the morning of September 30, 1978 by Customs Control Officer Joel Ariel at the Miami International Airport after a pat-down search and search of Sandler’s boots revealed packages of cocaine taped to each of his legs. The events leading up to the search as accurately described in the opinion of a panel of this court, 625 F.2d 537, are set forth in the margin.¹

Sandler moved to suppress the evidence seized from him, and statements made by him following his arrest. His motion was denied by the U.S. Magistrate. The ruling was appealed to the district court and affirmed. Following his conviction Sandler challenged the district court’s ruling in his appeal to this court.² A divided panel of this court concluded that the standard for determining the validity of a body search conducted at the border is reasonable suspicion. It reversed Sandler’s conviction because of its holding that the facts in this case do not support the required reasonable suspicion. We vacated the panel opinion and sitting en banc now review the applicable standard.³

I

From the outset Congress recognized the unique character of a border situation. In the first revenue act the same Congress that proposed the fourth amendment asserted the plenary power of customs officials to search any ship for concealed goods, wares and merchandise. Act of July 31, 1789, ch. 5, § 24, 1 Stat. 43.⁴

19 U.S.C. § 1582 now provides that “all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under [Treasury] regulations.” The authority to conduct searches at the border is granted to customs officers by 19 U.S.C. § 482 which provides that such officers “may stop, search and examine, any vehicle, beast or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law .... ” This broad grant of authority, subject to no express limitations, places border searches in a category apart from other searches. The statute is, of course, subject to the constitutional test of reasonableness. United States v. Poindexter, 429 F.2d 510, 512 (5th Cir. 1970); Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967). However, “[t]hese searches . .. are deemed reasonable simply by virtue of the fact that they occur at the border.” United States v. Richards, 638 F.2d 765, 770 (5th Cir. 1981). We have thus held with respect to vehicle searches made pursuant to this statutory authority that “mere” suspicion alone is sufficient to meet the constitutional standard, Morales v. United States, 378 F.2d 187, 189 (5th Cir. 1967). Indeed, in United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974) we stated that “At the border itself, the search of an incoming person or vehicle .may be initiated on little or no suspicion. ‘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.’ United States v. Storm, 5 Cir. 1973, 480 F.2d 701, 704.” 502 F.2d at 1218-19.

Other circuits have taken the same view. “Searches made at the border . . . are reasonable simply by virtue of the fact that they occur at the border.” United States v. Carter, 592 F.2d 402, 404 (7th Cir.), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). “ ‘[T]here is reasonable and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone.’ ” United States v. Rivera-Marquez, 519 F.2d 1227, 1228 (9th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 369, 46 L.Ed.2d 285 (1975), (quoting Witt v. United States, 287 F.2d 389, 391 (9th Cir.), cert. denied, 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242 (1961)). “Typically, mere suspicion of possible illegal activity within their jurisdiction is enough ‘cause’ to permit a customs officer to stop and search a person.” United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969).

The policy behind this principle was stated by the Supreme Court in Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925) as follows:

Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.

The Court has explicitly recognized that searches of persons as well as searches of packages at our national boundaries rest on different rules of constitutional law than do domestic regulations. “The Constitution gives Congress broad, comprehensive powers ‘[t]o regulate Commerce with foreign Nations.’ Art. 1, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry.” United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 125, 93 S.Ct. 2665, 2667, 37 L.Ed.2d 500 (1973). Although it has not squarely confronted the question now before us, dicta in several Supreme Court decisions recognize the federal power to routinely inspect and search packages and persons crossing the borders of this country. In Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973) the Court in considering the constitutionality of a search opined that the federal power to exclude aliens from the country “can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross over borders.” Subsequently, in United States v. Brignoni-Ponce, 422 U.S. 873, 887, 95 S.Ct. 2574, 2583, 45 L.Ed.2d 607 (1975) Justice Rehnquist in his concurring opinion explained that “travelers entering the country may be stopped and searched without probable cause and without founded suspicion, because of ‘national self protection

In United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) the Court was dealing with searches of international mail that has reached our borders. In doing so, however, it reviewed the constitutional and historical foundation of border searches beginning in 1789. The Court recognized that the fourth amendment denounces only those searches that are unreasonable. Id. at 617, 618, 97 S.Ct. at 1979. It expressly reaffirmed the principle that

Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside.

Id. at 619, 97 S.Ct. at 1980.

While holding that the customs “agents’ ‘mere suspicion’ of possible illegal activity is enough cause to justify a border search,” United States v. Warner, 441 F.2d 821, 832 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971), we have insisted that limits exist on the scope of a routine search. Development of this point in the circuit has largely centered on searches commonly referred to as strip searches: examination of the person after removal of inner clothing but not including a search of body cavities. The rule which has become well established is that requirements of the fourth amendment are met if the search is supported by “reasonable suspicion” on the part of the customs agent. In the formulation of that standard we rejected the contentions that would require either probable cause, Perel v. Vanderford, 547 F.2d 278, 280 (5th Cir. 1977), or the “real suspicion” that has been adopted by the ninth circuit. United States v. Smith, 557 F.2d 1206, 1208 (5th Cir. 1977), cert. denied, 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978).

In United States v. Himmelwright, 551 F.2d 991 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977) the panel noted that

“reasonableness” in the fourth amendment sense always depends upon a balance which must be struck between, on the one hand, the level of official intrusion into individual privacy and, on the other hand, the public interest to be served by such an intrusion.

551 F.2d at 994. The emerging rule, peculiarly applicable to border situations is a reflection of the recognition by this and other courts of our national interests in self-protection and protection of tariff revenue, balanced against the privacy rights of the individual traveler.

The reasonable suspicion test as applied by this court is a flexible one. As we stated in United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir. 1978),

“the greater the intrusion, the greater must be the reason for conducting a search that results in such invasion” .... Thus, what constitutes “reasonable suspicion” to justify a particular search may not suffice to justify a more intrusive or demeaning search, (citations omitted.)

Many of our strip search cases have been largely concerned with the application of this flexible standard under varying facts. See United States v. Walters, 591 F.2d 1195 (5th Cir.), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1979); United States v. Carter, 590 F.2d 138 (5th Cir.), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979); United States v. Rieves, 584 F.2d 740 (5th Cir. 1978); United States v. Barger, 574 F.2d 1283 (5th Cir. 1978); United States v. Olcott, 568 F.2d 1173 (5th Cir. 1978); United States v. Afanador, 567 F.2d 1325 (5th Cir. 1978); United States v. Smith, 557 F.2d 1206 (5th Cir. 1977), cert. denied, 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978); United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974); United States v. Forbicetta, 484 F.2d 645 (5th Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2404, 40 L.Ed.2d 772 (1974).

II

This case presents us with the question of whether a “pat-down” or other less intrusive border search must, like a strip search, rest on reasonable suspicion. In our previous cases on this issue, the court found that reasonable suspicion was present, and therefore did not make a detailed inquiry into the appropriate standard. United States v. Rice, 635 F.2d 409 (5th Cir. 1981); United States v. Klein, 592 F.2d 909 (5th Cir. 1979); United States v. Chiarito, 507 F.2d 1098 (5th Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975). Where an airline passenger was compelled to empty his pockets, disclosing contraband, we “h[e]ld that those who actually present themselves for boarding on an air carrier, like those seeking entrance into the country, are subject to a search based on mere or unsupported suspicion.” United States v. Skipwith, 482 F.2d 1272, 1276 (5th Cir. 1973). We have never, though, specifically addressed the standard to be applied in pat-down searches at the border. We now hold that “mere suspicion” is enough for these searches, that is, that they are a part of routine border inspection.

In applying the balancing test described in Himmelwright and Afanador, we think the key variable is the invasion of the privacy and dignity of the individual. A strip search, and even more a body cavity or stomach search, entails at the very least embarrassment to the person involved. It presents a degree of intrusion which requires more than mere suspicion to justify. However, we do not find a comparable degree of intrusiveness in a simple frisk or pat-down.⁵ A frisk invokes relatively little indignity or embarrassment. It can be conducted on a public street, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is neither painful nor dangerous. Whatever the stigma attached to a pat-down in other contexts, we think that during a border inspection it is no worse than having a stranger rummage through one’s luggage, a practice which is clearly acceptable. Other circuits agree. The second circuit, for instance, adheres to the rule that before an official may insist upon such an extensive invasion of privacy as a strip search he should have a suspicion of illegal concealment that is substantial enough to make the search a reasonable exercise of authority. United States v. Asbury, 586 F.2d 973, 975 (1978). Short of a strip search, however, that court has applied a wholly different standard. Thus, in United States v. Nieves, 609 F.2d 642, 646 (2d Cir. 1979), cert. denied, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d 771 (1980) it upheld a border search in which the defendant was patted down and told to remove his shoe. In its opinion, the court said that,

we have recognized that a number of other Circuits have held that the term “personal effects” includes a person’s outer clothing as well as the contents of pockets, purse or wallet. See Asbury, supra, at 975 n.2. Thus, not every request that a person remove an article of clothing or remove objects from an article of clothing will result in the automatic transformation of a routine search of belongings and effects into a strip search. We also note that several Circuits have held that the removal and search of a person’s shoes at a border checkpoint does not amount to a strip search, but rather is an acceptable procedure in a routine border inspection for which no justification is needed beyond the fact that the person involved has just crossed our national boundary.

We find the reasoning expressed by these Circuits, which analogizes the removal of a shoe to the removal of an outer garment, to be persuasive. We do not believe that the relative degree of embarrassment or indignity that a person is likely to suffer as a result of complying with a request to remove his shoes is sufficient to warrant the imposition of a “reasonable suspicion” requirement as a precondition to such a request in a standard border search context. Accordingly, we hold that the search of Nieves’s shoes was an acceptable routine border inspection procedure, and that this search needed no justification beyond that provided by Nieves’s decision to cross our national boundary.

609 F.2d at 646 (footnotes omitted).

The seventh circuit in United States v. Carter, 592 F.2d at 405, characterized as “routine” a search in which the defendant had been requested to empty his pockets and remove both his overcoat and his suit-coat for inspection. For such an investigation no particular suspicion was required. In United States v. Fitzgibbon, 576 F.2d 279 (10th Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978), the tenth circuit held that requiring defendant to remove his boot was part of the routine duties of the customs inspectors and the search was upheld without seeking any other basis.

The ninth circuit’s application of the more stringent “real suspicion” test has been limited to strip searches. It has not been required for the routine examination of outer clothing, including requiring the removal of a boot. In United States v. Chase, 503 F.2d 571, 574 (9th Cir. 1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d 427 (1975), the court explained

Since a strip search involves an embarrassing imposition upon the victim, we have reasoned, it would be unreasonable to conduct such searches without real suspicion. See, e. g., Henderson v. United States, 390 F.2d 805, 807-808 (9th Cir. 1967). Real suspicion should, therefore, limit searches only when there is a similar danger of embarrassment: where, in short, the suspect is forced to disrobe to a state which would be offensive to the average person. Judged by this standard, the removal of a boot is surely not a “strip.” Rather, it is like one removing an overcoat or a suit jacket — relatively innocuous. See Shorter v. United States, 469 F.2d 61 (9th Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1555, 36 L.Ed.2d 310 (1973); Murray v. United States, 403 F.2d 694, 697 (9th Cir. 1968) (both: removing a coat not a strip search).

In a later case, the court commented that the “claim that the pat-down search should be examined by ‘strip search’ standards is frivolous.” United States v. Rivera-Marquez, 519 F.2d at 1228.

In United States v. Stornini, 443 F.2d 833 (1st Cir.), cert. denied, 404 U.S. 861, 92 S.Ct. 162, 30 L.Ed.2d 104 (1971) the first circuit assumed without deciding that “ ‘real suspicion’, i. e., one ‘supported by objective articulable facts’ ” was required for a strip search. 443 F.2d at 834. That standard was not met. Even so, the search of Stornini was upheld because the contraband was found in his coat. The court held that a customs officer may search an individual’s outer clothing, in a reasonable manner, based on subjective suspicion alone or even on a random basis.

Other courts have reached similar results. In United States v. Yee Ngee How, 105 F.Supp. 517 (N.D.Cal.1952), a search revealed that defendant was carrying a lump of opium in his hip pocket. Although “the search was made without a warrant and was not conducted upon the theory that petitioner was an individual under suspicion of then having opium in his possession,” id. at 518, a motion to suppress was denied, on the grounds that it was a proper border search. The Supreme Court of Maine held that a border search of a person’s pockets could be made on “mere suspicion.” State v. Allard, 313 A.2d 439, 451 (Me.1973).⁶

III

We conclude that examination of a person by ordinary pat-down or frisk, the requirement that outer garments such as coat or jacket, hat or shoes be removed, that pockets, wallet or purse be emptied, are part of the routine examination of a person’s effects which require no justification other than the person’s decision to cross our national boundary. The single fact that such a search occurs at a border makes it reasonable within the meaning of the fourth amendment. We do not read 19 U.S.C. § 482 as requiring any suspicion other than the subjective response of a customs official who considers that the circumstances make such a search appropriate. The facts before us do not raise and our holding should not be read to reach a more intrusive search. The search of Sandler, however, was no more intrusive than the permitted routine examination described above. His motion to suppress was properly denied. His conviction is affirmed.

AFFIRMED.

1 . Ariel was on duty at Miami International Airport observing incoming international passengers in the customs baggage enclosure. He was looking for possible smugglers. He observed Sandler wearing full-cut trousers over new-looking boots and walking in a stiff manner. Ariel first saw Sandler waiting for his baggage and then again while customs inspectors examined his baggage. Ariel noted that Sandler shifted from foot to foot while waiting.

While observing Sandler, Ariel also watched several other persons. Ariel testified that he “floated” around the customs enclosure and actually observed Sandler for only thirty to sixty seconds prior to stopping and detaining him.

As a customs inspector examined Sandler’s baggage, Ariel asked “How does it look?”, to which the inspector replied, “It looks good, coming from South.America and on tour.” Ariel interpreted this reply to mean that San-dler was a good prospect for secondary examination. As Sandler removed his baggage from the inspection belt, Ariel approached him and requested a customs declaration card. Sandler presented both his declaration card and passport. The passport showed that Sandler had travelled to Bolivia and Peru. Ariel then asked Sandler to accompany him to his office where a pat-down search and an inspection of Sandler’s legs were conducted. The search revealed the cocaine taped to Sandler’s legs.

625 F.2d 538.

2 . Sandler raised other issues on appeal which are without merit.

3 . Because of our disposition of this case, we do not review the trial court’s determination that reasonable suspicion was present.

4 . The amount of annual revenue from customs demonstrates the importance of this concern. In United States v. Ingham, 502 F.2d 1287, 1291 n.5 (5th Cir. 1974), cert. denied, 421 U.S. 911, 95 S.Ct. 1566, 43 L.Ed.2d 777 (1975) we noted that in the one fiscal year under consideration the amount exceeded four billion dollars.

5 . We recognize that a non-routine, offensive pat-down of the person could occur. Sandler’s search, however, does not present such a situation and we do not now reach it except to differentiate it from the ordinary type of examination of the person which we approve today.

6 . The scholarly commentators have not focused on the question of frisks. However, leaving aside those who reject the “border search” doctrine altogether, there is substantial agreement on two points: first, routine border searches require at most mere suspicion, and second, that the point at which a higher standard is invoked is at the strip or body cavity search. See 3 W. LaFave, Search and Seizure § 10.5 (1978); Barnett, A Report on Search and Seizure at the Border, 1 Am.Crim.L.Q. 36 (Aug. 1964); Ittig, The Rites of Passage: Border Searches and the Fourth Amendment, 40 Tenn. L.Rev. 329 (1973); Comment, The Reasonableness of Border Searches, 4 Cal.W.L.Rev. 355 (1968); Note, From Bags to Body Cavities: The Law of Border Searches, 74 Colum.L.Rev. 53 (1974); Note, At the Border of Reasonableness: Searches by Customs Officials, 53 Cornell L.Rev. 871 (1968); Note, Search and Seizure at the Border — The Border Search, 21 Rutgers L.Rev. 513 (1967); Comment, Border Searches: An Exception To Probable Cause, 3 St. Mary’s L.J. 87 (1971); Comment, Unwarranted Power at the Border: The Intrusive Body Search, 32 Sw.L.J. 1005 (1978); Note, Intrusive Border Searches — Is Judicial Control Desirable? 115 U.Pa.L.Rev. 276 (1966); Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007 (1968).