United States v. Don Bruce Duncan

693 F.2d 971, 1982 U.S. App. LEXIS 23614, 12 Fed. R. Serv. 82

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 1982
• Docket: 80-1459
• Status: Published

Opinions

ALARCON, Circuit Judge:

Don Bruce Duncan, appellant, was convicted in a jury trial of making a false statement to Customs agents, in violation of 18 U.S.C. § 1001. We affirm.

FACTS

At approximately 11:00 P.M. on April 3, 1980, United States Customs Special Agents Darryl M. Henry, Donald K. Shruhan, Jr. and C.K. Lauridsen were on assignment at Los Angeles International Airport. They were to survey and, if necessary, search departing passengers to ensure the compliance of international travelers with federal currency laws.

While observing passengers in the boarding area of Braniff Airlines Flight 923, to Bogota, Colombia, Agent Henry noticed Duncan. The agent, in his declaration submitted in Opposition to Duncan’s suppression motion, stated that Duncan did not “have the same demeanor as the other passengers and did not appear ... to be someone looking forward to a trip out of the United States.” Henry also noticed that Duncan was traveling alone, not talking to others in the lounge, and that he appeared to be looking for someone. Agent Henry had eight years’ experience with Customs. He believed that appellant Duncan met the narcotics/currency violator profile used by Customs to identify potential offenders.

Henry pointed Duncan out to Lauridsen, who had also noticed Duncan’s suspicious behavior. The agents decided to question Duncan before he boardéd the plane.

At 11:00 P.M., passengers began to board Flight 923. Duncan had passed through the airline checkpoint and was proceeding on the boarding ramp when Henry and Laurid-sen stopped him. In his declaration in opposition to Duncan’s suppression motion, Officer Henry stated that “At that point, we identified ourselves as United States Customs Special Agents and asked Mr. Duncan if we could ask him a few questions away from the view of the other passengers. Mr. Duncan replied affirmatively. We then went with Mr. Duncan to the upper portion of the boarding ramp which was not being used.”

When Lauridsen asked if Duncan had anything to report to Customs prior to his departure, Duncan said “No”. In response to inquiries about currency or monetary instruments, Duncan stated that “I know I have to report anything over $5,000, but I have only $5,000.” Lauridsen asked Duncan if he had any more currency and Duncan said “No.”

Lauridsen asked if he could examine Duncan’s shoulder bag, and Duncan agreed. When the search produced nothing, Laurid-sen asked to see the $5,000. Duncan produced the $5,000 from his jacket. He said that he was carrying no more currency. Agent Henry stated in his declaration that he “then asked Mr. Duncan if [he] could pat him down to check for additional currency, [Duncan] replied affirmatively.”

During the superficial pat-down search, Henry felt a hard object in Duncan’s right rear pocket, which turned out to be an additional $5,000 in $100 bills.

At this point, the agents believed that Duncan had violated the Bank Secrecy Act, 31 U.S.C. § 1101(b), because he had failed to report to Customs that he was taking over $5,000 out of the country. Lauridsen advised Duncan that they were going to seize his $10,000 because of the 1101(b) violation, and said “Looks like you’ll be missing your flight.” Duncan had not yet received Miranda, warnings.

When Henry asked Duncan why he had not reported the extra money to Customs, Duncan said he had recently filed his 1979 income tax return without reporting the $10,000 and that he was afraid of the Internal Revenue Service. Agent Henry then “asked Mr. Duncan if he wished me to retrieve his baggage from the aircraft. [Duncan] stated that he did and gave [Henry] his baggage claim checks. ...”

Agents Shruhan and Lauridsen accompanied Duncan to the Customs Office on the lower level of the airport. Lauridsen processed the seizure of Duncan’s money. As he was checking Duncan’s identification, he discovered approximately $1,200 in Duncan’s wallet. Duncan said that he had forgotten about the extra money in his wallet.

When Henry returned with Duncan’s suitcase, he asked Duncan if it was alright to search his luggage for additional currency or other merchandise. [Duncan] stated that it was. Henry found nothing in the suitcase. He then asked Duncan to remove his sweater and undershirt. Duncan did so, and surrendered a blue plastic money belt containing $10,000 to Henry.

Over $21,000 was recovered from Duncan. Three and one-half hours after the detention had begun, Duncan was given his Miranda warnings. He then made no-further statements.

ISSUES

Duncan contends that there are several errors that require reversal of his conviction. He first contends that his conviction under 18 U.S.C. § 1001 is invalid because his “false statement” to customs agents cannot form the basis of an 18 U.S.C. § 1001 charge. Second, he contends that the stop and search violated the fourth amendment, and therefore all evidence derived from that search is inadmissible. Third, he contends that his statements are inadmissible because they were made during custodial interrogation but before Miranda warnings were given. Finally, he contends the trial court’s rulings on discovery, jury instructions and the court’s evidentiary rulings were in error, and. require reversal.

18 U.S.C. § 1001 COUNT

Duncan claims that his false statement to customs officials — that he knew the reporting requirement but was carrying only $5,000 — cannot form the basis of an 18 U.S.C. § 1001 conviction because: (1) there is a more narrowly drawn statute which specifically prohibits his conduct; (2) Duncan’s statement was not material within the meaning of § 1001; and'(3) Duncan’s statement fell within the “exculpatory no” exception to § 1001. We find no merit in any of these contentions.¹

1. Narrowly Drawn Statute

Duncan contends that 18 U.S.C. § 1001 is a “catch-all” false statement statute which cannot be applied to a defendant’s conduct if a more specific, narrowly drawn statute prohibits the same conduct. Duncan claims that the currency reporting statutes, 31 U.S.C. §§ 1058 and 1101², are applicable in this case, and therefore preclude application of 18 U.S.C. § 1001. We disagree.

There is no reason that Duncan cannot be charged and convicted under 18 U.S.C. § 1001 simply because another statute is also applicable.³ Often a course of criminal conduct will entail the violation of several statutes. In those cases, if the statutes are.not redundant,⁴ the prosecutor may charge the defendant with violating one or all of the statutes, and the defendant can be convicted of violating more than one statute. See United States v. Moore, 638 F.2d 1171 (9th Cir.1980) (defendant convicted of violating both 18 U.S.C. § 1001 and 31 U.S.C. § 1101.) Thus, the 18 U.S.C. § 1001 count was proper.

2. Materiality of Duncan’s Response

Duncan contends that his statement —“I know I have to report anything over $5,000, but I have only $5,000” — is not material within the meaning of § 1001, and therefore cannot constitute the basis of an 18 U.S.C. §, 1001 conviction. We disagree. This court has held that a statement satisfies the materiality requirement of 18 U.S.C. § 1001 if “the false statements [could] have affected or influenced the exercise of a governmental function.” United States v. Goldfine, 538 F.2d 815, 820 (9th Cir.1976).

In United States v. Carrier, 654 F.2d 559 (9th Cir.1981), this court held that a response of “no” to a customs inquiry of whether a person was bringing over $5,000 into the United States was material within the meaning of 18 U.S.C. § 1001. The Carrier court stated:

Appellant’s claim-that his oral answer “No” was not a material statement is meritless. The test for determining the materiality of the falsification is whether it is: (1) one that could affect or influence the exercise of governmental functions; (2) does it have the natural tendency to influence or is it capable of influencing agency decision? . .. Beyond question, the statement “No” could very well affect the exercise of governmental functions and agency decisions since it would have a tendency to prevent Customs from fulfilling their administrative duty to require persons entering the United States to file a currency reporting form in accordance with 31 U.S.C. § 1101.” Id. at 561-62 (citations omitted.)

Carrier is not distinguishable from the instant case. The only difference in the two cases is that while Carrier was entering the United States, Duncan was leaving.⁵ In both instances Customs has a duty to enforce reporting laws, and in both instances, a false answer could impair Customs’ ability to function. We therefore find Duncan’s statement to be material within the meaning of 18 U.S.C. § 1001.

3. “Exculpatory No” Exception

Duncan contends that his false statement that he had only $5,000 cannot be used to convict him under § 1001 because a “yes” response to the inquiry of Custom’s agents would have tended to incriminate him; Duncan contends he was therefore entitled to respond with an “exculpatory no.” Duncan is mistaken. In United States v. Moore, 638 F.2d 1171, 1175-76 (9th Cir.1980), this court explicitly held that any affirmative statement in response to a Customs agent’s inquiry can form the basis of a § 1001 conviction. In response to the “exculpatory no” argument, the Moore court stated: “It is doubtful whether the ‘exculpatory “no”-’ defense has any validity within this Circuit.... We need not reach the issue, however, because appellants did more than merely say no, they had nothing to declare; they offered . .. affirmative, unsolicited statements....” Id. at 1176. Moore is controlling here. Duncan did more than merely say no — he offered the affirmative statements that he knew the reporting requirements, and that he had only $5,000. These statements are sufficient to form the basis of a § 1001 conviction. See also United States v. Carrier, 654 F.2d 559, at 561 (9th Cir.1981) (response of “no” to inquiry of whether defendant was carrying over $5,000 into the United States is sufficient to form a basis of 18 U.S.C. § 1001 conviction).

STOP AND SEARCH

Duncan filed a pretrial suppression motion challenging the actions of customs officers at the airport on fourth and fifth amendment grounds. The trial court denied the suppression motion.

.On appeal, Duncan argues that the stop and search as he was preparing to board his plane violates his fourth amendment rights because customs agents had no warrant and no probable cause.⁶ We find the search was valid as a border-search.⁷

This Circuit has clearly held that a person leaving the United States may be stopped and searched, without probable cause or any suspicion, pursuant to border search principles. United States v. Stanley, 545 F.2d 661, 666-67 (9th Cir.1976), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978); see also California Bankers Assn. v. Schultz, 416 U.S. 21, 63, 94 S.Ct. 1494, 1518, 39 L.Ed.2d 812 (1974) (the Supreme Court stated in dictum that no violation of the fourth amendment occurs when those entering and leaving the country are “examined as to their belongings and effects”); United States v. Swarovski, 592 F.2d 131, 133 (2nd Cir.1979) (no violation of the fourth amendment occurs when there is a warrantless search of the luggage belonging to a person about to leave the country). The first question here is whether Duncan was at a border when he was stopped.

In this era of air travel, it is unreasonable to expect that persons can be searched at the exact moment they cross an international border.' One will board a plane at a place within the interior borders of one country and not touch ground again until within the interior borders of a second country. Because of this, courts have recognized the validity of border searches at what are referred to as the “functional equivalent” of a border. See Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973) (“a search of the passengers and cargo of' an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search”). See also United States v. Moore, 638 F.2d 1171, 1173 (9th Cir.1980).

Here Duncan was stopped while he was proceeding up the ramp to board a plane bound for Bogota, Colombia. We think that the point at which he was stopped was the “functional equivalent of a border.” See United States v. Cutaia, 511 F.Supp. 619, 625 (E.D.N.Y.1981) (search of passengers while waiting to board aircraft for international flight is a search at the border). To require that a passenger board a plane before allowing a customs stop is unreasonable. It is enough that the passenger manifest a definite commitment to leave the United States and that the search occur in reasonable temporal and spatial proximity to the departure. See id. Duncan, by checking his luggage, passing through the airline checkpoint, obtaining a boarding pass, and proceeding up the ramp had manifested a definite commitment to leave the country.

Since this was a search at a “border”, of a person leaving the country, there is no need for probable cause, warrants or even suspicion. United States v. Stanley, 545 F.2d at 655. See also United States v. Ajlouny, 629 F.2d 830, 834 n. 3 (2d Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840 (1981). Rather, the search comports with the fourth amendment unless it violates “reasonableness”. See United States v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir.1970). Reasonableness, when used in the context of a border search, is “incapable of comprehensive definition or of mechanical application.. . . ” Id. The scope of the intrusion, the manner of its conduct, and the justification for its initiation must all be considered in determining whether a search comports with reasonableness.

The search of Duncan comports with reasonableness in both scope and conduct. In the initial stages of the search only Duncan’s carry-on baggage, pockets, and wallet were searched, and he was superficially patted down. This does not involve a serious invasion of personal privacy and dignity. Although he was later required to remove his sweater and undershirt,⁸ it was conducted only after agents had recovered over $5,000 — the maximum that can be exported without a declaration. This excess currency created the real suspicion necessary for a strip search. See United States v. Palmer, 575 F.2d 721, 723-24 (9th Cir.), cert. denied, 439 U.S. 875, 99 S.Ct. 212, 58 L.Ed.2d 189 (1978).

Moreover, there is no indication that the manner in which this search was conducted was unreasonable. The length of the search was no longer than necessary to ensure no laws were violated — although the stop eventually stretched to over three hours, most of this time was after agents had evidence Duncan had violated the law, and thus had cause to detain him. The search was conducted out of the public view, initially on a deserted boarding ramp and later in a room, thus ensuring that Duncan would not be embarrassed by the stop and search.

Duncan argues, however, that this search as he was leaving the United States is not reasonable because he did not have any notice that he was subject to a border search. He notes that searches while exiting the United States are not expected by travelers, and that the percentage of persons searched exiting is less than those searched entering. These searches, he claims, are particularly disruptive because of their novel and unexpected character. Duncan, however, has cited no authority to support his contention that notice is necessary. Even if notice is necessary, this court has held that a person exiting the United States has constructive notice that he or she is subject to search. In United States v. Stanley, 545 F.2d 661 (9th Cir.1976), this court upheld a border search of a boat leaving the United States. The Stanley court wrote, in upholding exiting searches, that “[a] person leaving the country belongs to a class whose members sometimes violate certain laws in leaving. On crossing a border, he is on notice that a search may be made....” Id. at 667 (emphasis added) (footnote omitted). We think it reasonable to conclude that a person, about to board a plane for a non-stop trip to a foreign country, is on notice that he or she is at the functional equivalent of an international border. It is at or before this point that a person is required to declare to customs that he or she is transporting certain items out of the United States, not at the point of actual border crossing.

Finally, we do not find any merit in Duncan’s claim that the search is unreasonable because he was the only passenger stopped. As we noted above, customs agents have the power to make searches of exiting persons. However, the existence of this power does not require that it be exercised on all persons leaving the United States. There are many reasons, fiscal, administrative and others, why customs might not search all exiting individuals. Duncan does not argue that he was singled out for impermissible reasons.

MIRANDA

Duncan contends that admitting his statements to customs agents made after he was stopped and before he was given Miranda warnings constitutes reversible error. He argues thát he was subjected to custodial. interrogation from the time he was stopped and thus entitled to Miranda warnings, and because the statements were made before the warnings were given, they were inadmissible, and their admission was prejudicial. We disagree.

Duncan’s suppression claim centers on two statements. The first statement “I know I have to report anything over $5,000, but I have only $5,000” was made in response to an inquiry of whether Duncan had anything to report to customs. At the time this statement was made, the agents had no evidence that Duncan had committed a crime, nor any probable cause to arrest him for any crime.

The second statement, that Duncan had concealed the money to avoid problems with the IRS, was made after the agents discovered the second $5,000. The agents, at the time the second statement was made, had evidence of a crime,⁹ and probable cause to arrest for that crime.

This court has often considered the problem of Miranda warnings in the context of border searches. It is the rule of this Circuit “that Miranda warnings need not be given in border crossing situation ‘unless and until the questioning agents have probable cause to believe that the person questioned has committed an offense.’ ” United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir.1980) (quoting Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969). See also United States v. Espericueta-Reyes, 631. F.2d 616, 621-22 (9th Cir.1980).

As we noted above, the agents here had no probable cause to believe Duncan committed an offense when he made the first statement, that he knew the reporting requirements but had only $5,000. Thus, there was no need for Miranda warnings at that time. It was not until later that the second $5,000, which provided the basis for the probable cause, was discovered.

When Duncan made the second statement, however, the agents had recovered $10,000 from Duncan, and they therefore had probable cause to believe Duncan had committed at least one offense. At the time the second $5,000 was recovered, the officers were required by Miranda to advise Duncan of his constitutional rights.

We, however, will not reverse a conviction because of erroneous admission of statements made in violation of the defendant’s Miranda rights if the admission of the statement was harmless beyond a reasonable doubt. United States v. Casimiro-Benitez, 533 F.2d 1121, 1124-25 (9th Cir.), cert. denied, 429 U.S. 926, 97 S.Ct. 329, 50 L.Ed.2d 295 (1976).

The admission of the statement referring to the IRS was harmless beyond a reasonable doubt. Duncan’s false statement that he was carrying only $5,000, was properly admitted. That statement, combined with physical evidence obtained in the search of Duncan, provided sufficient independent evidence of guilt beyond a reasonable doubt.

REMAINING CONTENTIONS

Duncan’s remaining contentions, that he was erroneously denied discovery, that the trial court erred in instructing the jury, that there was error in admitting prior consistent statements of agent Lauridsen, and that the court erred in restricting Duncan’s presentation of evidence are without merit.

A. Discovery

Duncan contends that the trial court committed reversible error in denying his motions for discovery of the customs narcotics/currency violator profile and the customs enforcement standards. Duncan cites no authority to support his contentions and we have found none. We will not reverse a district court’s discovery ruling unless there is a showing that the court abused its discretion, resulting in prejudice to the defendant’s substantial rights. United States v. Arguelles, 594 F.2d 109, 112 (5th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979). Duncan has made no such showing.

Duncan also contends he was denied discovery of his statements. Under Rule 16 of the Federal Rules of Criminal Procedure, a defendant is entitled to discovery of all his relevant statements upon request. There is no indication here that Duncan had not given all of his statements or that Rule 16 was not complied with. We have been presented with no basis on which to disturb the trial court’s ruling.

B. Jury Instructions

The trial court instructed the jury that until proven otherwise everyone is presumed to know the requirements of the law. Duncan claims that the giving of this instruction was reversible error. We disagree.

On appeal, jury instructions must be reviewed as a whole to determine their legal sufficiency. United States v. Ponticelli, 622 F.2d 985, 990 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980). Here, the jury was instructed that Duncan had to knowingly and willfully make a false statement to government officials before they could find him in violation of § 1001. Taking the instructions as a whole, we find no error.

C. Agent Lauridsen’s Prior Statements

Duncan claims that the court improperly admitted into evidence three “pri- or consistent statements” made by Agent Lauridsen. Lauridsen testified that Duncan had admitted knowing that he had to report currency in excess of $5,000 to Customs before leaving the country. The notes which Lauridsen made during his first official interview with Duncan did not include this admission. The government introduced Lauridsen’s prior consistent statements to rebut the implication by Duncan’s attorney on cross-examination that Lauridsen had fabricated Duncan’s admission after the initial interview. Duncan argues that the statements were not exceptions to the hearsay rule because they did not meet the requirements of Fed.R.Evid. 801(d)(1)(B) and that their admission was reversible error.

The trial court has broad discretion regarding the admission of prior consistent statements. United States v. Mock, 640 F.2d 629, 632 (5th Cir.1981). In the present case, the government offered Lauridsen’s prior consistent statements in an attempt to rehabilitate him as a witness. Under the circumstances, the admission of prior consistent statements was entirely appropriate. See United States v. Allen, 579 F.2d 531, 533 (9th Cir.), cert. denied, subnom. Mitchell v. United States, 439 U.S. 933, 99 S.Ct. 326, 58 L.Ed.2d 329 (1978). We find no error in the court’s ruling.

D.Evidentiary Ruling

Similarly, the trial court has broad discretion in conducting a trial, including the examination of witnesses. See United States v. Salsedo, 607 F.2d 318, 321 (9th Cir.1979). See Fed.R.Evid. 611(a). We find no abuse of discretion in the court’s ruling sustaining tjje government’s objection to the question put to Duncan by his attorney “If you had known that all you had to do was file a Form 4790 in order to take all your money out of the country, would you have done so?” The jury also had already heard Duncan’s previous testimony that he believed taking over $5,000 out of the country was against the law. They had had ample opportunity to evaluate Duncan’s familiarity with the Bank Secrecy Act and its reporting requirements.

The judgment is AFFIRMED.

1 . 18 U.S.C. § 1001 provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

2 . 31 U.S.C. § 1058 provides:

“Whoever willfully violates any provision of this chapter or any regulation under this chapter shall be fined not more than $1,000, or imprisoned not more than one year, or both.”

31 U.S.C. § 1101 provides in pertinent part:

(a) Except as provided in subsection (c) of this section, whoever, . . . knowingly—

(1) transports or causes to be transported monetary instruments—

(A) from any place within the United States to or through any place outside the United States ... in an amount exceeding $5,000 on any one occasion shall file a report or reports in accordance with Subsection (b) of this section.

3 . In United States v. Masters, 612 F.2d 1117, 1122 (9th Cir.1979), cert. denied, 449 U.S. 847, 101 S.Ct. 134, 66 L.Ed.2d 57 (1980), this court held that a defendant was properly convicted under 18 U.S.C. § 1001, despite the fact that the customs agents’ first dealings with the defendant were under the currency reporting statutes. Accord United States v. Fitzgibbon, 576 F.2d 279, 283 (10th Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978).

4 . Duncan contends that this court, in United States v. Rose, 570 F.2d 1358 (9th Cir.1978), held that a person cannot be convicted of violating 18 U.S.C. § 1001 when a more narrow and specific statute covering the same alleged misconduct exists. Duncan misreads Rose. In Rose the § 1001 conviction was invalid because it was redundant. The defendant in Rose was convicted of violating both 18 U.S.C. § 542 and § 1001. The court concluded the counts were redundant because every element of § 1001 was an element of § 542. Id. at 1363. In the instant case, there is no redundancy — both because 31 U.S.C. §§ 1058 and 1101 and 18 U.S.C. § 1001 are not the same, and because Duncan was convicted only of violating § 1001.

5 .Duncan contends that this court has held similar statements material when one seeks to enter the United States only because in those cases one is seeking the privilege of entry, and that makes this case distinguishable. We are cognizant of the fact that U.S. v. Rose, 570 F.2d 1358, 1364 (9th Cir.1978), mentioned that a defendant was seeking the privilege of entry in finding a statement material within § 1001. We, however, do not believe that is a significant distinction. The key to § 1001 materiality is a statement’s ability to impair governmental functions. For the reasons noted in the text, Duncan’s statement could impair governmental functions, and, therefore, it is material.

We also find Duncan’s “right to travel” argument without merit. A customs inquiry does not infringe on the right to travel.

6 . The government contends that Duncan consented to the stop and search, and therefore the fourth amendment is not violated. Because we find the search valid as a border search and see no reversible error committed during the stop, search, or questioning, we need not decide whether Duncan, in fact, consented to the stop and search.

7 . Duncan argues that a border search is improper unless there is some statute authorizing the search. As support Duncan cites United States v. Williams, 617 F.2d 1063, 1074 (5th Cir.1980) (en banc). Duncan misreads Williams. Williams analyzes the power to' search without warrant, and says in some cases a statute will be the source of the authority to search. Williams continues, however, to say “that the source of authority for a seizure or search need not be statutory....” Id. at 1074 (emphasis added). A search made at a border is justified by the need of the sovereign to protect itself. See United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977). Of course, the search must also comport with constitutional principles.

8 . Duncan refers to this as a strip search. It is not clear whether he was required to remove more than just his upper garment, however, and thus questionable whether this was in fact a strip search. It is, however, reasonable even if considered a strip search. For example, in Henderson v. United States, 390 F.2d 805 (9th Cir.1967), this court, in determining whether a border search was reasonable, held that while no suspicion is required for the border search of a person, his or her baggage, vehicle, purse, wallet or pockets, at least real suspicion is necessary for a strip search, and some clear indication that contraband will be found is required for a body cavity search because such a search is “a serious invasion of personal privacy and dignity.... ” Id. at 808.

9 . At this point the agents had probable cause to believe that Duncan violated both 31 U.S.C. § 1058 (reporting requirements) and 18 U.S.C.- § 1001 (false statements).