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 ...