Appeals from judgments of the United States District Court for the Eastern District of New York, Bramwell, J., convicting defendants of violations of federal narcotics laws.
Before MANSFIELD, KEARSE, and PRATT, Circuit Judges.
The sole issue raised on these appeals is whether body cavity searches of the defendants conducted at the border by United States customs officials violated the fourth amendment. Because we agree with the district court that the circumstances in these cases raised "reasonable suspicions", within the meaning of United States v. Asbury, 586 F.2d 973 (2d Cir. 1978), that defendants were concealing contraband internally, we hold that the searches were reasonable and that defendants' motions to suppress the seized heroin were properly denied. Accordingly, we affirm.
On May 26, 1984, defendants Rhoda Ogberaha and Kudirat Ayinde, two Nigerian nationals traveling separately on the same flight, arrived in New York at John F. Kennedy International Airport from Lagos, Nigeria. After routine interrogation and inspection of her travel documents, each was separately subjected to a body cavity search that revealed a heroin-filled condom concealed in her vagina. Each defendant was charged in three separate counts with knowingly and intentionally conspiring to import a substantial quantity of heroin hydrochloride in violation of 21 U.S.C. § 963; importing a substantial quantity of heroin hydrochloride in violation of 21 U.S.C. §§ 952(a) and 960(a)(1); and possessing with intent to distribute a substantial quantity of heroin hydrochloride in violation of 21 U.S.C. § 841(a)(1). The charges were included in a single indictment since the conspiracy charge against each defendant charged her with conspiring with another defendant whose case is not before us. Ogberaha and Ayinde were not charged with conspiring with each other.
Upon motion of both defendants the district court held a pretrial suppression hearing to determine the reasonableness of the searches. The inspectors who ordered the searches and the female inspector who performed them testified; neither defendant took the stand. The district court concluded that since the border officials possessed the requisite "reasonable suspicion" of criminal activity within the meaning of Asbury to justify the intrusive searches, defendants' fourth amendment rights were not violated. Accordingly, the motions to suppress the physical evidence as "fruits" of an unlawful search were denied.
Defendants waived their right to a jury trial. Upon stipulation of the parties the trial consisted of the transcript and exhibits of the suppression hearing and a stipulation concerning testimony by a Drug Enforcement Administration chemist about the seized narcotics. Judge Bramwell found defendants guilty on all counts and, on November 15, 1984, sentenced Ogberaha to five years imprisonment on each of the three counts, to run concurrently, plus a special parole term of ten years on counts 5 and 6 of the indictment, and Ayinde to treatment and supervision pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(b), on each of the three counts to run concurrently.
It is well established that routine border inspections do not violate the fourth amendment prohibition against unreasonable searches even when conducted without probable cause or a warrant. United States v. Montoya De Hernandez, 473 U.S. 531, 53 U.S.L.W. 5048, 5049, 87 L. Ed. 2d 381, 105 S. Ct. 3304 (1985); United States v. Ramsey, 431 U.S. 606, 616, 52 L. Ed. 2d 617, 97 S. Ct. 1972 (1977); Carroll v. United States, 267 U.S. 132, 153-54, 69 L. Ed. 543, 45 S. Ct. 280 (1925); Boyd v. United States, 116 U.S. 616, 623, 29 L. Ed. 746, 6 S. Ct. 524 (1886). Such searches are reasonable "simply by virtue of the fact that they occur at the border", Ramsey, 431 U.S. at 616, and are authorized "in order to regulate the collection of duties and to prevent the introduction of contraband into this country." Montoya De Hernandez, 53 U.S.L.W. at 5049. Even at the border, however, an intrusive body search is justified only if the border official can articulate facts "based upon something more than the border crossing" that raise the suspicion of illegal concealment. Asbury, 586 F.2d at 975. The reasonableness of such a search is determined by balancing the legitimate governmental interests against the offensiveness of the intrusion. Montoya De Hernandez, 53 U.S.L.W. at 5049.
To justify a strip search conducted at the border the circumstances must warrant a "reasonable suspicion" that the party to be searched is guilty of illegal concealment. Asbury, 586 F.2d at 976. Appellants argue that the even greater intrusion and indignity of a body cavity search, which involves an "intrusion beyond the body's surface", Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S. Ct. 980, 17 L. Ed. 2d 875 (1967), should require not just a "reasonable suspicion" but a "clear indication" that the person searched is concealing contraband within his body cavity. This "clear indication" standard, as adopted by the ninth circuit, see, e.g., United States v. Mastberg, 503 F.2d 465, 471 (9th Cir. 1974), defines a level of suspicion falling somewhere between "reasonable suspicion" and "probable cause". Montoya De Hernandez, 53 U.S.L.W. at 5050.
However, the ninth circuit's use of a "clear indication" standard in the context of a border detention case was recently rejected in Montoya De Hernandez, where the Supreme Court found that the "Fourth Amendment's emphasis upon reasonableness [is not] consistent with the creation of a third verbal standard." Id. Although the Court did not address the level of suspicion required to conduct strip or body cavity searches, id. at 5050 n.4, its more general, but firm, rejection of a third verbal standard supports our present refusal to adopt a "clear indication" standard in the context of a body cavity search.
We are, of course, aware of and sensitive to the indignity and intrusiveness of body cavity searches, see Bell v. Wolfish, 441 U.S. 520, 576-77, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (marshall J., dissenting); id. at 594 (Stevens, J., dissenting); Security and law Enforcement Employees v. Carey, 737 F.2d 187, 208 (2d Cir. 1984). But the "subtle verbal gradations" that appellants urge us to adopt "may obscure rather than elucidate the meaning" of the fourth amendment. Montoya De Hernandez, 53 U.S.L.W. at 5050. The reasonable suspicion standard of Asbury, is "flexible enough to afford the full measure of protection which ...