United States v. Christina Marie Chase

503 F.2d 571, 1974 U.S. App. LEXIS 8833

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 3, 1974
• Docket: 73-2490
• Status: Published

Opinions

CHOY, Circuit Judge:

The appellant, Christine Chase, was convicted of illegally importing three pounds of cocaine.¹ She contends on appeal that the narcotics were discovered as the result of an unlawful strip search conducted at the border. We affirm.

On December 13, 1972 appellant, upon entering the United States from Mexico, was halted at the Calexico, California point of entry. After preliminary questioning, a search of her car and luggage, and a Customs Bureau computer check all revealed reason to be suspicious of her, she was taken to a secondary inspection room to be personally searched by a matron.

What happened there is the subject of much dispute. Appellant contends that a strip search was conducted for which the requisite “real suspicion,” see, e. g., United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970), was lacking. The government counters that contraband was initially discovered in her right sock, before any of her other clothing had been shed, when one of appellant’s boots was removed. This, the government urges, was not a strip search, but merely a conventional border search for which no particular showing of cause is required.² The trial court agreed that the first batch of cocaine was found in appellant’s sock, prior to her undressing, after her boot was taken off, and that this was not a strip search.

We must first determine if the factual finding that the boot was initially removed is clearly erroneous.³ At the suppression hearing the matron, Linda Jiminez, testified on direct examination that Chase had first taken off her right boot, revealing a package of cocaine in her sock, following which she removed her left boot disclosing two more packets of cocaine. Then, Jiminez said, she pulled off her sweater and pulled up an “undergarment” (apparently a body suit) revealing packages of cocaine taped around her waist. On cross-examination and again on redirect, however, Jiminez became confused and stated she could not recall whether Chase’s sweater was removed — and thus whether she was partially undressed — before the boots were removed or whether her clothing was intact when the cocaine was found in the boots. Jiminez continued to insist, though, that the first packages of cocaine were discovered in appellant’s boots and not underneath her sweater.

Appellant contradicted Jiminez’s story. Chase averred that she had, at the outset of the search, partially disrobed by pulling both her sweater and her body suit up to her shoulders. At that time, appellant claimed, the matron had discovered the packages taped around her waist. Only after that, she testified, were her boots removed.

We cannot say that the district court clearly erred in finding that the search commenced with the removal of appellant’s boots. First, while the matron’s testimony is somewhat contradictory, her testimony on direct does provide support for the trial judge’s conclusion.

Second, in certain restricted circumstances — where, for example, a witness’ story is implausible — disbelief of testimony on a certain point can support the truth of what the witness denies. See, e. g., United States v. Castro, 476 F.2d 750, 753 (9th Cir. 1973); United States v. Barham, 466 F.2d 1138, 1140-1141 (9th Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1356, 35 L.Ed.2d 587 (1973); Anderson v. Knox, 297 F.2d 702, 726 (9th Cir. 1961), cert. denied, 370 U.S. 915, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); Ege v. United States, 242 F.2d 879, 881 (9th Cir. 1957).

A trier of fact is not compelled to accept and believe the self serving stories of vitally interested defendants. Their evidence may not only be disbelieved, but from the totality of the circumstances, including the manner in which they testify, a contrary conclusion may be properly drawn.

United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971); see also, United States v. Hood, 493 F.2d 677 (9th Cir. 1974). We think this is one of those situations.⁴ Appellant had an obvious motive to falsify. Moreover, her story contrasted with that of the matron not only with respect to appellant’s state of undress when she took off her boots, but also as to which items of contraband were discovered first. From the latter conflict the district judge could have concluded other portions of her narrative were the opposite of what she claimed as well. Finally, the record shows appellant to have been undergoing methadone treatment for narcotics addiction and to have been a frequent user of tranquilizers at the time of the suppression hearing. The trial judge, who was very concerned with the effect of these conditions upon the guilty plea she entered on the same day as the suppression hearing, could well have concluded they affected her ability to recall the search.

Accepting the trial judge’s finding, we simply cannot say that the mere removal of a boot is the type of “serious invasion of privacy” which the real suspicion standard, applicable to strip searches, was designed to limit. See United States v. Guadalupe-Garza, 421 F.2d at 879. The origin of the real suspicion test is, of course, in the fourth amendment’s proscription of unreasonable searches. 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).

Nor can we say that a strip search commences with the order to a suspect to remove her clothing. While the record is not entirely clear on this point, it is possible that the matron first ordered Chase to remove all her clothing, not merely her boots.⁵ Assuming this is true, it should not vitiate the search. Cf. 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) (appellant stripped, but contraband found independently in coat; since it was proper to search the suspect’s clothing, evidence was not discovered via a strip search).⁶ The reason real suspicion is required to conduct a strip search is not because the command to strip is intrusive but because the actual search of a stripped person is. It is, after all, the stripping which is offensive to privacy, not the words which order the strip search. Thus, whether a strip search occurred should be measured by what the subject objectively did.

There was, then, no strip search in this case when the initial batch of cocaine was found. The subsequent strip search was supported by probable cause —that initial batch of contraband.

Affirmed.

1 . The conviction was for violating 21 U.S.C. §§ 952 and 960.

2 . Appellant does not dispute that a search short of a strip was justified. See Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967). Nor does appellant dispute that if contraband was first found in other than a strip search, a subsequent full strip search was proper.

3 . Findings of fact made at a suppression hearing will only be overturned on appeal if clearly erroneous. See, e. g., United States v. Welp, 469 F.2d 688 (9th Cir. 1972); Jackson v. United States, 122 U.S.App.D.C. 324, 353 F.2d 862, 864-865 (1965); United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962).

4 . We emphasize that the use of denials to support opposite propositions is limited. It could not be used to support a finding of fact where, for example, the only basis for drawing the opposite inference was demean- or. Otherwise, a fact finder’s decision would be unreviewable. See Dyer v. MacDougall, 201 F.2d 265, 268-269 (2d Cir. 1952) (L. Hand, J.) There must be other objective evidence on the record which buttresses the fact finder’s drawing of the opposite inference. See United States v. Cisneros, 448 F.2d 298, 306 n. 10 (9th Cir. 1971) (“It should be noted that Judge Hand [in Dyer] carefully circumscribed the limitations of his quoted statement. We also subscribe to those limitations.”)

5 . At the suppression hearing, the matron first testified that she initially asked Chase to remove her boots. (Tr. at 9.) Later, she testified she orderd Chase to undress completely. (Tr. at 15.)

6 . It is true that in both Shorter v. United States, 469 F.2d 61 (9th Cir. 1972) and Murray v. United States, 403 F.2d 694, 697 (9th Cir. 1968), the suspects were not ordered to take off all their clothing. Neither panel, however, regarded the command to remove the clothing as the equivalent of a strip search, as the dissent here intimates, infra, text at p. 575 n. 1, since that question was not before them.