decided: March 4, 1981.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
JIMMIE C. DORSEY, DEFENDANT-APPELLANT .
Before Cummings and Cudahy, Circuit Judges, and Campbell, Senior Judge.*fn*
Defendant-appellant Jimmie Dorsey appeals from a judgment of conviction for illegal importation of cocaine. 21 U.S.C. § 952(a). Specifically, Dorsey appeals the district court's denial of his motion to suppress certain evidence. We affirm.
On August 14, 1979, Dorsey arrived at O'Hare International Airport from Kingston, Jamaica. A customs agent at O'Hare examined Dorsey's passport and noted that it revealed the following travel schedule: entered Jamacia on July 21, 1979; entered Panama on July 22, 1979; entered Colombia on July 25, 1979; entered Panama on July 27, 1979; entered Jamaica on August 13, 1979.
Dorsey was then referred to a separate room for a secondary search of his luggage. This search revealed only clothing and receipts for $2,700 in traveler's checks. The agent asked Dorsey to empty his pockets. Dorsey emptied all his pockets except his left shirt pocket. The agent then conducted a patdown search of Dorsey which revealed a cigarette package in the left shirt pocket. Further inspection of the cigarette package disclosed a plastic bag containing 58.5 grams of cocaine. A strip search was then performed which proved negative.*fn1
Dorsey sought to suppress the cocaine found in his shirt pocket, arguing that the patdown search was made without a search warrant and without his consent nor was it made incident to a lawful arrest. He contended that his rights under the Fourth Amendment were thereby violated. The district court denied the motion to suppress, believing that the customs agent had an adequate basis of suspicion to conduct the search at issue.*fn2
In this case we are confronted with defining the limits of a border search*fn3 and the justification necessary at each level of intrusion upon a traveler's privacy. To be sure, a routine inspection of a person and his belongings and effects at the border is exempt from the warrant provisions and the probable cause requirements of the Fourth Amendment. Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S. Ct. 2535, 2539, 37 L. Ed. 2d 596 (1973). However, defining what is properly considered a routine border search and determining whether an intrusion exceeds the bounds of such a search are more difficult questions.*fn4
The Government primarily relies here on our decision in United States v. Carter, 592 F.2d 402 (7th Cir.), cert. denied, 441 U.S. 908, 99 S. Ct. 2001, 60 L. Ed. 2d 378 (1979). In Carter the defendant arrived at customs and passed through the initial customs check. Thereafter, he was taken to a secondary search room where the customs inspector asked the defendant to empty his pockets, which he did. The customs inspector then asked the defendant to remove his overcoat and suitcoat. The defendant complied and the customs inspector examined the suitcoat and found a package containing heroin. After finding the heroin the customs inspector conducted a strip search as well as a thorough search of the defendant's luggage. In one bag several cigarette cartons were found, which, upon further inspection, revealed heroin.
In commenting on the search we noted the "unique nature of a border search." 592 F.2d at 404. Further, we discussed, although not definitively, the proper scope of a routine border search which may be performed without any suspicion:
(T)hose entering the country may be examined as to their "belongings and effects" without violating the Fourth Amendment. Belongings and effects have been held to include the contents of a person's purse, wallet or pockets.
592 F.2d at 404-05 (citations omitted). The Government, relying on this passage from Carter, *fn5 contends that the discovery of the cigarette package in Dorsey's shirt pocket after a patdown was a mere search of outer clothing and pockets and under Carter can be conducted even in the absence of any suspicion.
Dorsey attempts to distinguish Carter, contending that in the instant case a patdown search was conducted a greater intrusion than the request to empty pockets or the examination of pockets in a coat that has been removed (as in Carter ).
Examination of the rapidly changing case law in the area supports the distinction drawn by Dorsey. Courts which have analyzed the scope of customs or border searches have been careful to note the degrees of intrusion upon the traveler's privacy and to note the incremental changes in the degree of intrusion which may trigger greater Fourth Amendment protections.
Initially, it is important to state what the instant case does not involve. This case does not involve a strip search. Nor are we presented with a cavity search. Finally, we are not deciding what justification is required for a search and seizure following a domestic flight. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).*fn6
As a general principle, the scope of a search at the border and the attendant degree of objectively justifiable suspicion (or lack thereof) required to trigger such a search are directly related that is, the stronger the suspicion of the investigating officer the greater the intrusion justified. Courts have recognized this direct relationship and couched the analysis in terms of balancing the level of suspicion against the level of indignity or intrusion. United States v. Brown, 499 F.2d 829, 833 (7th Cir. 1974).
The cases using this balancing approach can be properly viewed as covering a spectrum with a cavity or strip search at one end and a search of luggage at the other. Courts generally agree that the former requires a certain quantum of suspicion while the latter requires no suspicion whatever. Compare United States v. Rodriguez, 592 F.2d 553, 556 (9th Cir. 1979) with United States v. Carter, 592 F.2d 402, 404-05 (7th Cir. 1979).
The instant case, involving a patdown search, falls somewhere between these two ends of the spectrum. The Government, of course, attempts to classify the patdown as part of a routine border search while Dorsey urges us to use the analysis adopted in strip search cases. We decline to adopt the approach of either party. Rather, we believe that the relevant cases require that an approach different from either extreme be adopted.
Dorsey's reliance on the strip search cases is misplaced. Courts which have evaluated a strip search at the border have uniformly required some degree of suspicion often categorized as "reasonable suspicion" or "real suspicion." United States v. Nieves, 609 F.2d 642, 646 (2d Cir. 1979); United States v. Rodriguez, 592 F.2d 553, 556 (9th Cir. 1979); United States v. Himmelwright, 551 F.2d 991, 995 (5th Cir.), cert. denied, 434 U.S. 902, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977).*fn7 We believe, however, that this "reasonable" or "real" level of suspicion is required because of the invasion of privacy and indignity involved in a strip search as compared to a patdown search. But we see no reason to discuss in detail the indignity and invasion of privacy attendant to a strip search. Rather, we believe these indignities and invasions of privacy are self-evident and clearly transcend the corresponding affronts suffered by the subject of a patdown search. United States v. Grayson, 597 F.2d 1225, 1228 (9th Cir.), cert. denied, 444 U.S. 873, 100 S. Ct. 153, 62 L. Ed. 2d 99, 875, 100 S. Ct. 157, 62 L. Ed. 2d 102 (1979); United States v. Rivera-Marquez, 519 F.2d 1227, 1228 (9th Cir. 1975).
Our refusal to apply strip search principles to the present case is supported by other authority. In the process of analyzing the application of strip search principles courts have been required to define and delineate the boundaries of what constitutes such a search. Intrusions which fall short of a strip search do not require the application of standards of suspicion appropriate to such searches. Thus, a patdown search, which falls short of the intrusiveness associated with a strip search, is governed by principles different from those applicable to strip searches.
United States v. Nieves, 609 F.2d 642 (2d Cir. 1979) supports this conclusion. In Nieves the defendant was subjected to a patdown search and a search of the heels of his shoes. The court rejected the defendant's contention that reasonable or probable cause was required to justify the intrusion. The court reasoned that not every request to remove an article of clothing or to remove something from pockets will transform a search into a strip search, because the level of embarrassment and intrusion differ significantly from a strip search. Id. at 646. See also United States v. Klein, 592 F.2d 909, 912 (5th Cir. 1979) (relatively unobtrusive patdown search not equivalent to strip search); United States v. Fitzgibbon, 576 F.2d 279, 284 (10th Cir. 1978) (removal of boot not a strip search); United States v. Chase, 503 F.2d 571, 573-74 (9th Cir. 1974) (removal of boot not as intrusive as strip search); United States v. Brown, 499 F.2d 829, 833-34 (7th Cir. 1974) (lifting of skirt to knees not equivalent to a strip search).*fn8
We therefore conclude that the strip search principles requiring "reasonable" or "real" suspicion are inapplicable to the present case.*fn9
Our conclusion that strip search principles are inapplicable does not lead us to conclude that the instant type of intrusion may be performed without any degree of suspicion. The Carter case relied upon by the Government, as well as similar decisions, did not involve patdown searches. Instead, they involved a request to remove an outer garment and subsequent searches of pockets and thus properly were performed absent even minimal suspicion. Likewise, we do not think that those cases which allow the search of personal effects and belongings contents of pockets, wallets, etc. govern a patdown search. We believe that the intrusions on privacy and indignities involved in a patdown search exceed those of a search of the contents of a purse or wallet or of a request to empty pockets. See United States v. Grayson, 597 F.2d 1225, 1228 (9th Cir. 1979); United States v. Klein, 592 F.2d 909, 912 (5th Cir. 1979); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967).
Arguably, the distinction between a request to search or empty pockets and a patdown search is chimerical. To be sure, at first glance, the apparent difference in indignity and invasion of privacy may be minimal. However, while the difference may be difficult to articulate, it is real to those who are subject to the search in question. But we acknowledge that a statement of general principles governing the justification for patdown searches is difficult to propose.
Between a search of pockets and a strip search there can be a variety of types of intrusion, with varying degrees of intrusiveness.... It is hardly feasible to enunciate a clear, and simple standard for each....
United States v. Grayson, 597 F.2d 1225, 1228 (9th Cir. 1979) (citing United States v. Palmer, 575 F.2d 721, 723 (9th Cir. 1978)). However, other circuits have been sensitive to these distinctions and require a degree of suspicion to justify a patdown search.
The Ninth Circuit, in analyzing patdown searches, has required a certain level of suspicion described as "mere suspicion." Grayson, 597 F.2d at 1228.*fn10 This is in recognition of the fact that the intrusiveness of a patdown search exceeds that of a routine border search. In Grayson, the Ninth Circuit stated:
Although ... we said that no suspicion was required to examine the contents of pockets we stated that "mere suspicion" was necessary for a patdown at a border.
Grayson, 597 F.2d at 1228 (citing United States v. Carter, 563 F.2d 1360, 1361 (9th Cir. 1977)). The Fifth Circuit also has required some level of suspicion in patdown searches. United States v. Klein, 592 F.2d 909, 912 (5th Cir. 1979) (using flexible test of reasonable suspicion). We agree with the Ninth and Fifth Circuits that a patdown requires some level of suspicion.
While we agree with the Ninth and Fifth Circuits that some suspicion is required to conduct a patdown search at the border, we decline to emulate the attempts of the Ninth and Fifth Circuits to label the degree of suspicion required for a patdown search. In Grayson, the Ninth Circuit denominated the requisite level of suspicion as "mere suspicion." 597 F.2d at 1228. The Fifth Circuit in Klein used a flexible test of "reasonable suspicion." 592 F.2d at 912. We believe that any attempt to label the required level of suspicion would not be helpful in resolving disputes involving the diverse circumstances of border searches. Each case requires an inquiry into the level of suspicion and the scope of intrusion presented. Hence, we believe that the balancing test set forth in our decision in United States v. Brown, 499 F.2d 829, 833 (7th Cir. 1974), is the appropriate mode of analysis.
What is required to be balanced in any particular case is the level of suspicion of the agent against the level of indignity perpetrated upon the traveler.
Id. at 833.*fn11
By rejecting any attempt at labelling the requisite level of suspicion we do not reject the principles embodied in the decisions of the Fifth and Ninth Circuits. Indeed, the balancing process we adopt is fully consistent with the analysis used by those courts in resolving border search cases.
Although we believe that in the instant case a patdown search was justified, our generalized holding that some level of suspicion is required for such a search resists formulation of a rule readily applicable to specific cases. Rather, a case-by-case method is the only means of establishing the contours of the principle.
But we may hazard some generalizations. The suspicion justifying a patdown search, like that required for a strip search, must be based on objective factors and judged in light of the experience of the customs agents. Also, in assessing these objective factors the factors relevant in strip search cases apply equally to the propriety of a patdown search.*fn12
Several factors in the present case justify the patdown search and the eventual discovery of the cocaine in the cigarette package.*fn13 First, Dorsey's travel schedule indicated that he had traveled to countries known as sources of cocaine. United States v. Nieves, 609 F.2d 642, 646 n.6 (2d Cir. 1979). Second, Dorsey's stays in these countries were short.*fn14 Finally, Dorsey's failure to empty the contents of his left shirt pocket after a request to do so was suspicious.*fn15 Dorsey does not dispute that the contents of the pockets may be searched.*fn16 After he emptied all pockets but the one, the agents could have reasonably suspected that Dorsey chose to hide something.*fn17 This cause for suspicion, in conjunction with the peculiarities of Dorsey's itinerary, was sufficient to justify the patdown search. We regard this as a common sense result, which appropriately matches a degree of suspicion against the intrusive aspects of a patdown search.
Hence, the judgment of the district court is AFFIRMED.