United States v. Sandra Denise Johnson

425 F.2d 630

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 1970
• Docket: 24563
• Status: Published

Opinions

PER CURIAM:

Defendant was convicted of smuggling, concealing, and transporting narcotics in violation of 21 U.S.C. §§ 173 and 174. Her sole contention on appeal is that the trial court erred in dismissing her motion to suppress the heroin introduced into evidence against her. She alleges that the evidence was the product of an illegal strip search of her person at the border.

The prosecution called two witnesses at the hearing on defendant’s motion to suppress. The first, Richard L. McCown, testified that he was a customs inspector stationed at San Ysidro, California, that he had considerable experience in examining persons crossing the border for narcotics, and that on August 18, 1968, he had observed defendant and a female companion entering the United States by foot, had talked with them, and had then requested a female Customs agent to search defendant. Government counsel then asked, “Were you suspicious before you made that request?”; and Inspector McCown replied, “I was, yes, sir.”

The prosecution’s second witness was Netta W. Lohman, a part-time Customs inspectress. She testified that she had conducted the strip search of defendant and had found' the heroin in question hidden in defendant’s panties. No further testimony was presented.

The trial judge dismissed defendant’s motion, stating, “I cannot see where one can differentiate between the various degrees of suspicion, if an experienced police officer of some twenty-seven years of experience as Mr. McCown has, suspects enough to request a female Customs agent to search it seems to me it is a real suspicion.”

This ruling was erroneous in light of our subsequent decision in United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. Feb. 2, 1970).¹

In Henderson v. United States, 390 F. 2d 805, 808 (9th Cir. 1967), we held that the forced disrobing of a person entering the country violated the Fourth Amendment unless there was “at least a real suspicion, directed specifically to that person.”

In Guadalupe-Garza, Judge Hufstedler wrote:

“[N]either Henderson nor our decisions following it have further defined the ‘real suspicion’ test stated there. We do so now.

‘Real suspicion’ justifying the initiation of a strip search is subjective suspicion supported by objective, articulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law.

The objective, articulable facts must bear some reasonable relationship to suspicion that something is concealed on the body of the person to be searched; otherwise, the scope of the search is not related to the justification for its initiation, as it must be to meet the reasonableness standard of the Fourth Amendment. (Cf. Terry v. Ohio, supra, 392 U.S. 1 at 29, 88 S.Ct. 1868, 20 L.Ed.2d 889; Warden Md. Penitentiary v. Hayden (1967) 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (Mr. Justice Fortas, concurring).)” 421 F.2d at 879.

There are no “objective, articulable facts” in the record to support Inspector McCown’s suspicion. If such facts existed, it was incumbent upon the government to prove them.²

And, of course, the discovery of contraband in defendant’s underclothing does not validate the search. United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948).

Reversed.

1 . In Huguez v. United States, 406 F.2d 366, 376 (9th Cir. 1968), we held in a similar context that the standards governing body cavity searches enunciated in several cases decided by our court subsequent to the trial court’s decision in that case were “controlling and imperative upon us.”

2 . United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Cohen v. Norris, 300 F.2d 24, 32 (9th Cir. 1962); Cervantes v. United States, 278 F.2d 350, 353 (9th Cir. 1960); Wrightson v. United States, 95 U.S.App. D.C. 390, 222 F.2d 556, 558 (1955); 3 Wright, Federal Practice & Procedure § 675, at 126-27 (1969 ed.); see also Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Vickers, 387 F. 2d 703, 706 (4th Cir. 1967).