United States v. Scott Alan Sandler

625 F.2d 537

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 7, 1980
• Docket: 79-5314
• Status: Published

Opinions

HATCHETT, Circuit Judge:

Appellant, Scott Sandler, appeals his conviction of knowingly and intentionally importing into the United States approximately 888 grams of cocaine in violation of 21 U.S.C. § 952(a). Because the customs officer who searched Sandler did not have reasonable suspicion upon which to base his search, the district court should have granted Sandler’s motion to suppress. We reverse.

A Customs Control Officer, Joel Ariel, arrested Sandler at Miami International Airport after a pat-down search and search of Sandler’s boots revealed packages of cocaine taped to each of his legs.

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 San-dler’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 Sandler 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 San-dler to accompany him to his office where a pat-down search and an inspection of San-dler’s legs were conducted. The search revealed the cocaine taped to Sandler’s legs.

After a pre-trial evidentiary hearing, a United States Magistrate denied Sandler’s motion to suppress the fruits of the search. The district court adopted the magistrate’s ^ruling. Subsequently, a jury convicted San-dler of importing cocaine.

Sandler now contends that the pat-down search was unlawful because Ariel lacked “real suspicion” on which to base his search.

The standard in this circuit for determining the validity of a warrantless border search is reasonable suspicion. 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. Himmelwright, 551 F.2d 991 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977).

Reasonable suspicion demands more than a “generalized suspicion of criminal activity such as that which is fostered, for example, when one closely resembles a ‘smuggling profile’.” United States v. Himmelwright, at 995. As outlined in Himmelwright, reasonable suspicion is properly created by a progression through several stages. Prior to even a minimally intrusive body search, the suspected traveler should be questioned concerning personal background and the nature of the trip and his baggage searched. In cases involving similar facts, this court has steadfastly required questioning as a necessary step in establishing reasonable suspicion. 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. Smith; United States v. Himmelwright.1

In Himmelwright, we said, “Himmel-wright fit a known pattern of characteristics which experience had associated with smuggling activity: she was a woman, traveling alone, wearing platform shoes, and recently returning from a short stay in Colombia.” Himmelwright, at 995-996. The court inserted a clarifying footnote, however, which said, “it is doubtful that in this day these characteristics standing alone would justify a body search.” Id. at 996. In that case, the critical factor which contributed to a finding of reasonable suspicion was the evasive and contradictory answers Himmelwright gave when questioned.

Customs Officer Ariel did not question Sandler about his background or the nature of his South American tour.² Without proper questioning, Ariel’s generalized suspicion lacked opportunity to graduate into reasonable suspicion. Ariel observed Sandler for less than a minute. The fact that Sandler walked with a stiff gait, after a long plane ride from Bolivia, and wore full-cut trousers with new-looking boots was not unusual. Collectively, these factors do not support a reasonable suspicion for a body search. It would be antithetical to the carefully articulated law of this circuit to allow customs officers to conduct body searches of any young traveler wearing nlw-looking boots, arriving from South America.

While insuring the right of customs officers to assert the national interest in impeding the influx of drugs and protecting tariff revenue, the court must continually recognize its duty tó protect the fourth amendment right of citizens from unreasonable searches. The reasonable suspicion standard will provide adequate fourth amendment protection only so long as it is not eroded into a generalized suspicion standard.

While Sandler raises other issues on this appeal, our holding eliminates the necessity of addressing them.

Accordingly, we hold that Customs Officer Ariel lacked reasonable suspicion to search Sandler. We reverse.

REVERSED AND REMANDED.

1 . A recent Supreme Court decision,. United States v. Mendenhall,-U.S.-, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), is not contra to either this line of reasoning or our holding. Mendenhall is factually distinguishable from Sandler, and we mention it only because it involves an airport search.

2 . It should be noted that appellant’s tour did not include a visit to the acknowledged source country for cocaine, Colombia. Given the overwhelming predominant status of Colombia, neither Bolivia nor Peru could be accurately described as source countries for cocaine.