Kaniff, Kathryn v. United States

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2184

KATHRYN KANIFF,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 3882—Rebecca R. Pallmeyer, Judge.

____________

ARGUED FEBRUARY 18, 2003—DECIDED DECEMBER 11, 2003

____________

Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. Kathryn Kaniff was

singled out for further inspection as a suspected drug

smuggler at O’Hare International Airport when she re-

turned from a four-day trip to Jamaica over the Christmas

holiday in 1997. After a pat-down search, a visual inspec-

tion of her body cavities, and an x-ray of Kaniff’s abdomen

failed to yield evidence of contraband, Customs officials al-

lowed her to leave the airport. Understandably distressed

2 No. 02-2184

by her ordeal, Kaniff sued the inspectors in their individual

capacities, alleging common law tort and constitutional

violations. The court later substituted the United States

as the defendant, and Kaniff dismissed her suit against the

individual officers with prejudice. After a full trial, an

advisory jury recommended judgment in Kaniff’s favor. The

district judge, however, disagreed with the recommendation

and entered judgment for the United States. Kaniff now

appeals. We affirm, in essence because the Customs officials

had sufficient grounds for their actions, even though their

suspicions ultimately proved to be unfounded.

I

As she had done for several years, Kaniff traveled to

Jamaica for a four-day vacation over the Christmas holiday.

She paid for her plane ticket in cash, and the price she paid

was higher than it might have been because she made her

arrangements less than two weeks before the trip. Notwith-

standing the latter fact, the price was not considerably

greater than she had paid for the same trip in years past.

For lodgings, she chose to camp at the Silver Point Resort

in Negril, as she had done on all but one of her prior trips

to Jamaica. The “resort” is actually a modest campground

and several rustic cabins located in the owner’s backyard.

Before Kaniff’s return flight to Chicago, the U.S. Customs

Service Passenger Analysis Unit (PAU) reviewed informa-

tion about her. The PAU is responsible for screening

incoming passengers for indicia of possible drug smuggling.

In Kaniff’s case, this review prompted Customs inspectors

at O’Hare to pre-select her for further questioning upon her

arrival. It did so for a number of reasons. At trial,

Guadalupe Whyte (at the time Guadalupe Corona), the

Customs inspector who was working in the PAU and who

created a “lookout” in the Customs database for Kaniff,

No. 02-2184 3

testified that the red flags were raised because Kaniff was

traveling from Jamaica, a known narcotics source country

from which drug traffickers frequently smuggle drugs using

body cavities, and because Kaniff was returning after a

short trip. In addition, after the government was permitted

to show Whyte a printout of the computer screens that she

had consulted when she ran the computer check in the

PAU, Whyte recalled that she would also have considered

the fact that narcotics arrests had been made at Kaniff’s

address and the fact that Kaniff had been referred for a

secondary Customs examination (that yielded no evidence

of contraband) upon her return from an earlier trip to

Jamaica. With the “lookout” in the computer, Kaniff was

immediately singled out for special treatment when she

deplaned at O’Hare. She was routed to a secondary inspec-

tion area after a trained dog independently alerted to the

odor of narcotics from her person or from a box that she was

carrying (when Kaniff walked down the jet-way past the

dog, he pulled away from his handler, began to “work the

air” behind Kaniff trying to trace the source of the scent of

narcotics he detected, and eventually circled her body before

hitting a box that she was carrying with his nose).

After the dog alert (which Kaniff has challenged, as we

discuss below), Customs inspector Olga Martinez took

Kaniff to the Customs inspection area to ask her some

questions and to inspect her luggage and the box. Although

a search of Kaniff’s luggage and the box did not yield any

contraband, Martinez was unsatisfied with Kaniff’s an-

swers to several questions. She accordingly sought and

obtained permission from her supervisor, Mark Woods,

to subject Kaniff to a pat-down search. Kaniff complains

about the questioning process itself, claiming that Martinez

repeatedly cut her off and did not allow her to give complete

answers to questions about the details of her trip to Ja-

maica, her income and employment.

4 No. 02-2184

The pat-down search took place in a private room

with Customs inspector Whyte observing Martinez’s work.

Claiming to have felt a thickness in Kaniff’s crotch, Marti-

nez asked Kaniff if she was wearing a sanitary pad or

menstruating; Kaniff answered no to both questions.

Martinez, now concerned that Kaniff may have hidden

contraband in her pants or a body cavity, consulted a

second time with Woods. She obtained permission to con-

duct a partial strip search during which Kaniff was told

to lower her pants and underpants so that both could

be inspected, and to spread her legs and buttocks with

her hands so that inspector Martinez could visually inspect

her anus. There was still no sign of contraband, and so

Martinez consulted her supervisor once again. This

time they were joined by inspector Whyte, and the three

discussed all known information about Kaniff. That infor-

mation included a number of facts that appeared suspicious,

including the fact that heroin was seized from an apartment

in the building in which she had lived the prior year, the

dog alert to narcotics odor from Kaniff or her possessions,

Kaniff’s responses to various questions, an inconsistency

between her driver’s license address (in Wisconsin) and the

address that she gave the Customs inspectors (in Illinois),

and her last minute and unusual travel arrangements,

including the fact that she told the inspectors that she was

going to page a friend to pick her up at the airport, but that

she did not know exactly where this friend lived.

Concerned that Kaniff might be an “internal” drug

smuggler (that is, someone who conceals the drugs some-

where inside her body), Woods advised her that she could:

(1) wait and pass a bowel movement naturally; (2) take a

laxative and wait to pass a bowel movement; or (3) consent

to an x-ray. All three options involved a trip to a nearby

hospital because it is Customs policy to take individuals

suspected of smuggling drugs by ingesting them to a med-

No. 02-2184 5

ical facility in case the package in which the drugs are

sealed ruptures and leaks internally before the drugs are

passed (a possibility that could be lethal). Woods also

explained to Kaniff that if she chose to wait or refused to

consent to an x-ray, Customs could seek a warrant to re-

quire her to have an x-ray. Kaniff then apparently signed a

consent form, although the evidence of her consent was not

as clear as it might have been. The government could not

produce the original signed form, because it was lost or

destroyed. Instead, it offered a copy that it had obtained

from the hospital. The reproduced copy of the form con-

tained Martinez’s and Whyte’s signatures, but Kaniff’s

signature was not visible because the copy was poor. After

hearing testimony from Kaniff, Woods, Whyte and

Martinez, the district court concluded that Woods credibly

testified that he informed Kaniff of her right to refuse to

consent to the x-ray and that Kaniff knowingly and volun-

tarily signed the consent form and thus agreed to submit to

the procedure.

Before taking Kaniff to a nearby hospital for the x-ray,

Woods obtained permission to take this step from the Chief

Customs inspector at O’Hare Airport. The Chief Customs

inspector agreed that there were reasonable grounds to

suspect Kaniff of internally smuggling narcotics. Kaniff was

then handcuffed and taken by Woods, Martinez and Whyte

to Resurrection Medical Center. The hospital was given a

copy of Kaniff’s signed consent form and, as was its policy,

required her to take a pregnancy test before administering

the x-ray. The pregnancy test necessitated a urine sample,

which Kaniff was required to produce in the presence of

inspectors Martinez and Whyte to ensure that contraband

was not destroyed or lost in the process. After the preg-

nancy test came back negative, Kaniff’s abdomen was x-

rayed. The x-ray revealed no contraband. Her ordeal over,

Kaniff was taken back to O’Hare, allowed to retrieve her

belongings, and released.

6 No. 02-2184

In June 1999, Kaniff filed a Bivens lawsuit against

several named Customs inspectors alleging violation of

various constitutional rights. She amended the suit to add

supervisor Woods and several common law tort claims,

including intentional infliction of emotional distress, false

imprisonment, assault and battery. The United States

moved to be substituted as the defendant for the tort

counts, and the named defendants filed a motion for sum-

mary judgment asserting qualified immunity as a defense.

The defendants’ motion was denied and then reinstated by

the district court upon the defendants’ motion for reconsid-

eration. Before the district court could rule on the motion

for summary judgment, the parties agreed to dismiss the

claims against the individual defendants with prejudice,

and to proceed before an advisory jury against the United

States alone on the non-constitutional tort claims under the

Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.

See also FED. R. CIV. P. 39(c). Following a full trial, as we

have noted, the advisory jury found for Kaniff. The district

court evaluated the case differently and entered judgment

for the United States.

II

O’Hare Airport is a major international port of entry

into the United States. At all such entry points, Customs

officials are entitled to conduct routine questioning and

examination of luggage, without any particular level of

suspicion. United States v. Montoya de Hernandez, 473 U.S.

531, 537 (1985); United States v. Yang, 286 F.3d 940, 944

(7th Cir. 2002); United States v. Johnson, 991 F.2d 1287,

1290-92 (7th Cir. 1993). In Kaniff’s case, however, certain

facts about Kaniff had raised enough concern for the first

round of supplemental questioning, and during that

process, inspector Martinez grew concerned about some of

No. 02-2184 7

the answers that Kaniff gave. The issues before us relate to

the escalating levels of intrusion that took place thereafter.

The first additional step that inspector Martinez took was

to conduct a pat-down search, after the inspector asked for

permission to do so and her supervisor approved. There is

some uncertainty over whether a pat-down search is a non-

routine border search that must be justified by some

quantum of suspicion—reasonable suspicion or less. The

Third Circuit has recently taken the position that a pat-

down search at a U.S. border is a routine border search that

requires no suspicion at all. In doing so, it joined a long line

of decisions that have reached the same result. Bradley v.

United States, 299 F.3d 197, 203 (3d Cir. 2002); accord

United States v. Beras, 183 F.3d 22, 26 (1st Cir. 1999);

United States v. Gonzalez-Rincon, 36 F.3d 859, 864 (9th Cir.

1994); United States v. Carreon, 872 F.2d 1436, 1442 (10th

Cir. 1989); United States v. Oyekan, 786 F.2d 832, 835 (8th

Cir. 1986). See also United States v. Flores-Montano, No.

02-50306 (9th Cir. Mar. 14, 2003), petition for cert. filed, 71

U.S.L.W. 3791 (U.S. June 11, 2003) (No. 02-1794) (seeking

review of question whether Customs officials at interna-

tional border must have reasonable suspicion to remove,

disassemble, and search vehicle fuel tank for contraband).

In the past, this court has suggested that a pat-down search

at the border lies somewhere between routine questioning

and luggage inspection, which requires no suspicion, and a

strip search, which must be supported by reasonable sus-

picion. United States v. Dorsey, 641 F.2d 1213, 1218

(7th Cir. 1981). Later cases have not squarely addressed the

level of suspicion that is required to justify a pat-down

search. See, e.g., Johnson, 991 F.2d at 1291-92 (discussing

routine and non-routine border searches); Saffell v.

Crews, 183 F.3d 655, 657-59 (7th Cir. 1999) (finding ample

justification to support strip search without explaining

quantum of suspicion required to conduct initial pat-down

8 No. 02-2184

search). This case does not require us to reconsider our

holding in Dorsey and decide whether any suspicion is

required to support a pat-down search at a U.S. border,

because we agree with the district court that the reasonable

suspicion existed here. Kaniff, of course, disagrees.

A

By now it is axiomatic that a district court’s finding of

reasonable suspicion is subject to plenary review, although

we defer to the district court’s findings of historical fact,

reversing only on a showing of clear error. Ornelas v. United

States, 517 U.S. 690 (1996); United States v. Harris, 281

F.3d 667, 670 (7th Cir. 2002). This standard of review

requires us to parse the district court’s ruling carefully,

separating the fact findings, including credibility determi-

nations, from the applications of fact to law. It is the former

to which we owe deference, while the latter are subject to de

novo review. Ornelas, 517 U.S. at 696-97; Harris, 281 F.3d

at 670.

In finding reasonable suspicion to justify the pat-down

search, the district court correctly considered all of the facts

that were known to inspector Martinez at the time she

sought permission to conduct the search. United States v.

Arvizu, 534 U.S. 266, 274 (2002); Montoya de Hernandez,

473 U.S. at 541. As the Supreme Court has explained,

reasonable suspicion requires “a particularized and objec-

tive basis for suspecting the particular person” of concealing

contraband. Montoya de Hernandez, 473 U.S. at 541-42

(internal quotation marks and citations omitted). Those

facts included the particularized, objective information we

described above: the premium fare for the ticket; the use of

cash for the purchase; equivocal answers to several of

Martinez’s questions about where she stayed and how, on

an annual income of $9,000 to $11,000, she could afford the

No. 02-2184 9

trip; and the disparity between her Illinois home address

and the Wisconsin address on her driver’s license.

In response, Kaniff notes that several of these factors,

when considered in isolation, are consistent with the char-

acteristics and behavior of innocent travelers. We agree

with this general observation, but it is not enough to carry

the day for Kaniff. For example, it does not strike us as

particularly suspicious that Kaniff’s driver’s license listed

a Wisconsin address yet she gave the airline an Illinois

home address. In our mobile society, people move around

frequently, and Kaniff might have changed residences be-

tween the time her driver’s license was issued and her

airline tickets were purchased, or she might simply have

been slow to bring her driver’s license up-to-date. But

taking all the circumstances that were before the customs

inspectors together, as we must, we have no trouble con-

cluding that they created a reasonable suspicion that Kaniff

might have been smuggling drugs. See, e.g., Arvizu, 534

U.S. at 273, 275-76. Far more was before the court than was

found in the case of Reid v. Georgia, 448 U.S. 438 (1980)

(per curiam), on which Kaniff relies. In Reid, two travelers

were stopped for questioning on the basis of nothing more

than an-over-the-shoulder glance between them and the

fact that they were carrying matching carry-on luggage. 448

U.S. at 439. This, according to the Court, was “simply too

slender a reed to support the seizure in this case,” because

the circumstances “describe a very large category of pre-

sumably innocent travelers, who would be subject to

virtually random seizures” were the government’s position

embraced. Id. at 441. The objective facts pointing to a

reasonable suspicion in Kaniff’s case far exceed those in

Reid.

In another effort to undermine the district court’s rea-

sonable suspicion finding, Kaniff also challenges several

of its fact findings and evidentiary rulings. Yet in doing

so she has not shown anything to justify finding clear error

10 No. 02-2184

or an abuse of discretion in the presentation of the evidence.

Instead, she simply re-argues points that she raised and

lost in the district court. For example, she insists that the

so-called suspicious answers that she gave to inspector

Martinez appeared suspicious only because Martinez would

not let her finish her answers to the questions. Kaniff made

this same argument in the district court, even though

inspector Martinez testified that she allowed Kaniff to

provide complete responses to her questions. The district

court appears to have credited Martinez’s testimony

because it found Kaniff’s suspicious answers were one of

several factors upon which the Customs inspectors relied to

form their suspicion that she was smuggling drugs. This is

a straightforward credibility question, and we cannot say

that the district court’s decision to credit Martinez’s account

over Kaniff’s was clearly erroneous. United States v.

Carrasco, 887 F.2d 794, 819 (7th Cir. 1989) (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985)).

Likewise, Kaniff offers no basis on which we could find

clear error in the district court’s finding that a trained nar-

cotics dog alerted to the odor of narcotics from Kaniff’s

person or the box she was carrying. The trial transcripts

fully support the conclusion that the dog alerted to an odor

of narcotics that was somewhere between his nose,

Kaniff’s body, and the box that she was carrying. Upon

further questioning by the district court, the dog handler

testified that he did not allow the dog to finish his alert by

sitting down because the handler was not in a position

immediately to verify the source of the narcotics odor and

did not want to reward the dog for a potential false alert.

The district court, however, found nothing equivocal in the

dog’s alert, which it was entitled to do based on this

testimony.

Finally, Kaniff attacks the court’s decision to allow the

government to refresh inspectors Whyte’s and Woods’s re-

collection of the fact that during the creation of the PAU

No. 02-2184 11

lookout, inspector Whyte learned of narcotics arrests at

Kaniff’s Chicago address. Kaniff believes that she was

sand-bagged by the government’s last minute reliance on a

screen-by-screen computer playback that documented each

screen inspector Whyte looked at in developing the PAU

lookout. This information came to light in a rather unusual

way. Although during discovery Kaniff sought disclosure of

any underlying documentation in this case, the government

did not turn over the playback records because it had not

yet created these documents. The district court noted that

Kaniff’s request for electronic records would have included

such records. It expressed great concern over the govern-

ment’s last minute reliance on these documents to introduce

the very damaging fact that the Customs inspectors were

aware that Kaniff lived in a building in which drug arrests

had occurred. Nevertheless, the district court ruled that the

records could be used to refresh the inspectors’ recollection

of what information Whyte accessed prior to creating the

PAU lookout; it did not allow the government to introduce

the playback screens into evidence. We must decide

whether this decision was an abuse of the court’s discretion.

Inspectors Whyte and Woods both testified (after having

an opportunity to view the computer playback) that they

considered the fact that Kaniff lived in a building in

which drug arrests had occurred in assessing the totality of

circumstances to support their suspicion that Kaniff

was smuggling drugs. The fact that inspector Martinez

expressly testified that she did not consider the PAU

lookout in forming a suspicion about Kaniff does not mean

that this information was irrelevant. To the contrary, the

inspectors consulted one another before seeking Kaniff’s

consent to submit to an x-ray, and thus it was their col-

lective knowledge that mattered. The information about the

building was relevant to their belief that Kaniff may have

been smuggling drugs even though the mere fact of unre-

12 No. 02-2184

lated drug arrests in the building alone would have been

insufficient to support the inspectors’ suspicions.

Although the last-minute notice in this case made it

very difficult for Kaniff to respond to the government’s

computer records, the government provided adequate jus-

tification for the timing of its disclosure. Kaniff intended to

challenge the accuracy of the PAU record (known as a TECS

II, Treasury Enforcement Communication System report),

which was the only contemporaneous document that the

government revealed during discovery in this case. She

sought to introduce testimony from a former Customs

Service employee who was prepared to testify that he

believed the record may have been tampered with as late as

six months after the incident. In order to rebuff this line of

argument, the government decided to review the computer

screens that Whyte had accessed from the Customs Service

Internal Affairs Division. This review demonstrated that

the computer records had not been altered in a substantive

way. The government insists that it notified Kaniff’s

lawyers that it had created a playback of the computer

screens and that the printout was available for review.

Kaniff’s lawyers denied ever receiving notification of the

creation of the playback. In any event, the relevance of the

printouts of the computer screens did not become apparent

to the government until well into trial when its lawyers

were preparing Brian Yates, the dog handler, for his trial

testimony. It was Yates who first recalled that the customs

inspectors discussed the fact that narcotics arrests had

occurred at Kaniff’s building. In order to verify Yates’s

recollection, the government turned to the playback records.

The computer records indeed reflected the fact that inspec-

tor Whyte had accessed a screen that indicated the narcot-

ics arrest.

We agree with the government that this set of circum-

stances is devoid of any evidence of intentional sandbag-

ging. Nor does Kaniff suggest that the computer records are

No. 02-2184 13

in any way inaccurate. Although we find it troubling that

inspectors Martinez, Whyte, and Woods did not independ-

ently recall in their depositions and trial testimony the fact

that inspector Whyte learned of the narcotics arrest and

that this information was relied on in deciding to subject

Kaniff to an x-ray, the district court conducted a lengthy,

in-chambers discussion with the parties on this issue and

ultimately allowed the computer records to be used to

refresh inspectors Whyte’s and Woods’s memories. This

decision was not so far out-of-bounds as to be an abuse of

the court’s discretion. And even if we were to find that the

district court abused its discretion in allowing the govern-

ment to refresh its witnesses’ memories, any such error is

harmless in light of all the other information that the

district court had to support its conclusion that the pat-

down search was supported by a reasonable suspicion of

drug smuggling. United States v. McCarthur, 6 F.3d 1270,

1280 (7th Cir. 1993).

B

Next Kaniff attacks the district court’s conclusion that the

humiliating partial strip search was supported by rea-

sonable suspicion. But the very same reasonable suspicion

that supported the pat-down search was enough to justify

this additional step, unpleasant though it may have been.

In seeking approval to conduct a partial strip search, in-

spector Martinez had an additional factor to justify the

search: she thought that she felt something hard in

Kaniff’s crotch during the pat-down search. When Kaniff

indicated that she was neither menstruating nor wearing a

sanitary pad, inspector Martinez had ample justifica-

tion—especially in light of everything else that she knew

about Kaniff’s unusual circumstances and travel plans—to

support the partial strip search. See Safell, 183 F.3d at 657

(finding ample support for pat-down search following drug

14 No. 02-2184

dog’s detection of narcotics odor and reasonable suspicion

for partial strip search after customs inspector felt bulge on

passenger).

Seizing upon language in the district court’s opinion that

expresses skepticism over what inspector Martinez may

have felt in Kaniff’s crotch while conducting the pat-down

search, Kaniff insists that the district court improperly

deferred to Martinez’s testimony even though it believed

she was lying. The entirety of the district court’s remarks,

however, indicate that the court ultimately decided to credit

Martinez’s account. Initially, as Kaniff is quick to point out,

the district court expressed doubt over exactly what it was

that Martinez may have felt through Kaniff’s thin blue

jeans. Notwithstanding its doubts, however, the court saw

no indication of ill motive on Martinez’s part nor did it have

any other reason to suspect her of lying, and thus it con-

cluded that Martinez had testified truthfully about her

perceptions at the time. This is not a case in which the

court credited wholly improbable testimony. United States

v. Dillon, 150 F.3d 754, 758 (7th Cir. 1998) (“We defer to a

district court’s credibility determinations unless the district

judge has chosen to credit exceedingly improbable testi-

mony.”) (internal quotation marks and citation omitted).

Nor did the court simply defer to Martinez’s testimony

because it was unwilling to second-guess the assessment of

a Customs inspector. The latter position, of course, would be

unjustified. Law enforcement officers, by their mere

position, are not necessarily more credible than other

witnesses when they testify as fact witnesses. Cf., United

States v. Amerson, 938 F.2d 116, 118 (8th Cir. 1991)

(finding “district court has a responsibility to ensure the

jurors are not predisposed to believe the testimony of the

officers is inherently more credible than that of other wit-

nesses”). But by finding a lack of bad faith on Martinez’s

part, and more importantly, by not expressly finding that

Martinez lied when she testified that she felt something

No. 02-2184 15

hard in Kaniff’s crotch during the pat-down search, the

court made the type of credibility determination that is en-

titled to deference on review. Dillon, 150 F.3d at 758.

Finally, Kaniff advances the theory that the inspectors

needed to obtain additional (that is, incremental) suspicious

evidence at each level of the increasingly invasive searches

that they conducted in order to justify searching further

(and more intrusively) for contraband. Kaniff cites no

authority in support of this position. We asked Kaniff’s

lawyer at oral argument whether she knew of any Supreme

Court decision that announced such a rule, and she could

not name one. This is not surprising. A rule that requires

additional suspicious details or facts at each level of a

search before further, more invasive searching may occur,

is problematic for at least two reasons: it would reward

criminals who creatively conceal contraband in various

ways, and it would create strong incentive for law enforce-

ment personnel to jump to the most invasive techniques in

their arsenal at the first opportunity.

C

Turning to the abdominal x-ray, Kaniff insists that she

did not voluntarily consent to an x-ray because any consent

that she may have given was in response to a claim of law

enforcement authority to obtain a warrant and compel her

to submit to an x-ray, and thus was not freely

and voluntarily given. The district court first found that

Kaniff consented, and then it held that her consent was

freely and voluntarily given. Both questions—whether

Kaniff consented, and if so, whether her consent was vol-

untary—are factual questions that are reviewed for clear

error. United States v. Pedroza, 269 F.3d 821, 829 (7th Cir.

2001). (No one has argued that the particular x-ray pro-

cedure here was not an intrusive search methodology.

In some instances, such as the routine x-raying of bag-

16 No. 02-2184

gage, x-rays have become a routine feature of modern

life. In others, such as hospital-based x-rays of the body, the

procedure as a whole may be considered invasive. Given the

parties’ focus on the voluntariness of Kaniff’s consent,

which would save even an invasive x-ray, we have no need

to explore the question whether all x-rays should be subject

to the same rule, and if so, which one.)

There was some disagreement at trial over whether

Kaniff really did consent to the x-ray. The district court

noted that Kaniff all but conceded to having consented on

cross-examination when she admitted that she signed a

document that she understood meant that she could be

taken to the hospital for an x-ray. The conspicuous absence

from the record of a consent form with Kaniff’s signature

makes it harder—but not impossible—to prove consent.

Based on the copy of the form and the testimony it heard,

the district court was satisfied that Kaniff consented to an

x-ray and that the lack of a legible copy was not the result

of any wrongdoing. Kaniff has not provided any basis on

which to find the district court’s initial finding of consent

clearly erroneous. Instead, she focuses on the nature of her

consent, arguing that the district court improperly shifted

the burden to her to prove that her consent was not know-

ing and voluntary. This raises a legal question— which

party bears the burden of proving the voluntariness of

consent in a civil case—and we have already held that the

burden is on the plaintiff in civil cases. Valance v. Wisel,

110 F.3d 1269, 1279 (7th Cir. 1997). We look at the totality

of the circumstances to determine whether Kaniff freely

consented to the x-ray. Id. at 1278.

In deciding this question, the district judge weighed the

testimony and made a credibility determination regarding

whether Kaniff voluntarily consented to the x-ray. The

court heard Kaniff first testify that she did not consent to

the x-ray, and then heard her admit on cross-examination

that she signed a form that would allow her to be taken to

No. 02-2184 17

a hospital for an abdominal x-ray. The court also heard

Kaniff deny that she was informed of her right to refuse to

consent to the x-ray. The court found Supervisor Woods’s

testimony that he informed Kaniff of her right to refuse to

consent more credible. This is enough to establish that the

court’s findings of both the fact of her consent and the

voluntariness of her consent were not clearly erroneous.

D

This leaves one loose end for us to tie up. Kaniff, the gov-

ernment, and the district court all agree that the scope of

the government’s liability in this FTCA action is limited to

conduct that is wanton or willful. Another reason the dis-

trict court ruled for the government was that it concluded

that Kaniff had not shown conduct meeting that standard.

Kaniff has also challenged that decision on appeal.

The district court decided that Kaniff could prevail only if

the inspectors had engaged in willful and wanton conduct

because that is the standard that would govern in the

Illinois courts in a case against a public employee for acts

in executing or enforcing the law. See 745 ILL. COMP. STAT.

§ 10/2-202 (the Illinois Local Governmental and

Governmental Employees Tort Immunity Act). FTCA claims

are governed by the substantive law of the state where the

alleged tort occurred, 28 U.S.C. § 1346(b)(1) (adopting “law

of the place where the act or omission occurred”);

Stratmeyer v. United States, 67 F.3d 1340, 1345 (7th Cir.

1995). The tort liability of the United States under the

FTCA is established “in the same manner and to the same

extent as a private individual under like circumstances,” 28

U.S.C. § 2674. Although we do not need to reach the issue

because we have already found each of the searches in this

case supported by ample justification or Kaniff’s consent,

we note that this court has never held that state immunity

18 No. 02-2184

rules set the standard to be applied to the federal govern-

ment in an FTCA suit. Other courts have considered this

question and arrived at different conclusions. Compare

Estate of Warner v. United States, 743 F. Supp. 551, 554

(N.D. Ill. 1990) (holding Illinois wanton and willful stan-

dard is adhered to as part of the “under like circumstances”

analysis in FTCA claim); Crider v. United States, 885 F.2d

294, 296 (5th Cir. 1989) (“We are not looking to state law

insofar as it immunizes a public entity from liability;

rather, we are seeking ‘like circumstances’ which best

articulate a state’s negligence law.”); Louie v. United States,

776 F.2d 819, 825 (9th Cir. 1985) (adopting state law

setting liability of state and municipal entities for govern-

ment actors in FTCA cases), with Hyatt v. United States,

968 F. Supp. 96, 107-08 (S.D.N.Y. 1997) (refusing to apply

wanton and willful standard from Illinois law to govern-

ment actors in FTCA suit). This case is not the right one in

which to assess whether the policy decision of the State of

Illinois to exempt from liability certain torts of its agents

should apply in an FTCA case.

III

We have no wish to minimize the unpleasantness of the

procedures to which Kaniff was subjected. Nevertheless, the

law simply does not require law enforcement officials,

including Customs inspectors, to be right every time. They

are obliged instead to have the requisite level of informa-

tion—sometimes reasonable suspicion, sometimes probable

cause—before they act. The district court’s underlying fact

findings here were not clearly erroneous, and we are

satisfied on our de novo review that its conclusions were

correct. We therefore AFFIRM the judgment of the district

court.

No. 02-2184 19

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-11-03