United States v. Rosemary Ruiz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 11 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50270
Plaintiff - Appellee, D.C. No. 3:13-cr-03651-LAB-1
v.
MEMORANDUM*
ROSEMARY RUIZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted August 7, 2015**
Pasadena, California
Before: SILVERMAN, SACK***, and WARDLAW, Circuit Judges.
Rosemary Ruiz appeals the district court’s denial of her motion to suppress,
after which she pleaded guilty to and was convicted of violating 21 U.S.C. §§ 952,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
-2-
960 for her importation of methamphetamine. We have jurisdiction under 28
U.S.C. § 1291. Reviewing the district court’s denial of Ms. Ruiz’s motion to
suppress de novo and its factual determinations for clear error, United States v.
Fowlkes, 770 F.3d 748, 756 (9th Cir. 2014), we affirm.
To conduct a pat-down search at the border, “minimal suspicion” is required.
United States v. Vance, 62 F.3d 1152, 1156 (9th Cir. 1995). Such suspicion was
present here. The Customs and Border Protection Officer (CBPO) who saw Ms.
Ruiz when she was diverted to secondary inspection ran a background check on
her at the request of the officer who diverted her. He found that Ms. Ruiz had a
record of arrests for drug possession and other crimes, as well as a conviction for
bringing a controlled substance into a prison. The secondary officer’s knowledge
that another officer had enough concern to request the running of a criminal history
check, combined with the nature of Ms. Ruiz’s prior arrests and convictions, and
the fact that Ms. Ruiz was crossing from Mexico, a major source of narcotics,
constituted “minimal suspicion” sufficient to warrant a pat-down search.
Further, that search, when conducted, was not so intrusive as to put it in the
category of strip searches or body cavity searches for which reasonable suspicion is
required. See United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994). The
search may have been more thorough than those Ms. Ruiz was used to, but it was
-3-
no more thorough than necessary for a CBPO to be able to detect contraband being
smuggled on a private part of a person’s body. Further, because the pat-down
search was properly conducted, and revealed a hard object in the area of Ms.
Ruiz’s groin that was inconsistent, in the CBPO’s experience, with the feeling of
either flesh or a sanitary pad, the subsequent events – from the partial strip search,
when the CBPO saw a package protruding from Ms. Ruiz’s vagina, to the ultimate
warrant for x-rays and a body cavity search – were based on the requisite
reasonable suspicion, Ramos-Saenz, 36 F.3d at 61, and were not, as Ruiz argues,
fruit of the poisonous tree. Therefore, the district court correctly denied Ms. Ruiz’s
motion to suppress.
AFFIRMED.