# United States v. Maria Vega-Barvo

> Court of Appeals for the Eleventh Circuit · April 16, 1984 · 729 F.2d 1341

URL: https://www.frixlaw.com/law-library/cases/9471931

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Maria VEGA-BARVO, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** April 16, 1984
- **Citations:** 729 F.2d 1341; 1984 U.S. App. LEXIS 23524
- **Precedential status:** Published
- **Opinion:** Dissent by Hatchett
- **Judges:** Roney, Hatchett, Anderson
- **Cited by:** 67 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9471931

## How later opinions describe it (automated extraction)

- finding that inspectors had reasonable suspicion of internal smuggling and could proceed with an x-ray following a negative strip search where suspect was traveling alone from a source country, carried a single piece of luggage, and told an implausible story regarding her empl…
- finding reasonable suspicion to conduct an x-ray after a strip search revealed no drugs when passenger was traveling alone from a source country, carried only one piece of poor-quality luggage, and told an implausible story about her business trip to the United States
- noting that, although suspects often are initially approached because they fit a profile, “[i]t is not the profile . . . but the factors which make up the profile which are crucial to whether or not there is a reasonable suspicion”
- noting that, although suspects often are initially approached because they fit a profile, "[i]t is not the profile ... but the factors which make up the profile which are crucial to whether or not there is a reasonable suspicion"

## Opinion text

HATCHETT, Circuit Judge,
dissenting:
The court today decides seven cases regarding persons detained and searched at our border and found to be internal carriers of contraband. 1 I dissent in this case because it presents what will probably become a typical fact pattern and contains all of the issues to be faced in these cases. In *1351 this ease, we have no particularized suspicion but a matching with a drug profile, detention, consent, and the x-ray search.
At the outset, it is important to keep in mind that these eases do not concern immigration matters, or the right of a person to enter or remain in the country. These are customs cases and involve what things may be brought into the country and under what circumstances. Therefore, the rule fashioned today applies not only to poor and illiterate foreigners, but also applies to everyone crossing the border, including United States citizens returning to this country.
The constitutional issue posed in these cases is not an easy one, and it is a matter of first impression in this circuit. The resolution of the issue requires a balancing between the effort to ferret out criminal activity on the one hand and the necessity to protect rights guaranteed by the fourth amendment to the Constitution of the United States.
On two matters I am certain: First, the degree of suspicion necessary for an x-ray search at the border should not be probable cause. Second, the majority has correctly rejected the Ninth Circuit’s requirement that x-ray searches be conducted only after a magistrate issues an order based upon an affidavit showing that there is a “clear indication” or “plain suggestion” that the person is carrying contraband within the body. United States v. Quintero-Castro, 705 F.2d 1099 (9th Cir.1983); United States v. Aman, 624 F.2d 911 (9th Cir.1980).
The Fifth Circuit and this circuit have utilized a two-tier standard in border search cases. The first tier is termed “mere suspicion.” The second tier is termed “reasonable suspicion.” Within this second tier, the amount of “reasonable suspicion” required increases with the intrusiveness of the search. More “reasonable suspicion” is required for a body cavity search (probing of body cavities) than a strip search (removal of clothing).
“Mere suspicion” is sufficient to permit a pat-down search at the border, as such searches are a part of routine border inspection. United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir.1981) (en banc).
In Sandler , the court concluded that examination of a person by ordinary pat-down or frisk, the requirement that outer garments such as coat or jacket, hat or shoes, be removed, that pockets, wallet or purse be emptied, are part of the routine examination of a person’s effects which require no justification other than the person’s decision to cross our border. The fact that such a search occurs at a border makes it reasonable within the meaning of the fourth amendment. Id. at 1169 . Thus, no suspicion other than the subjective response of a customs official who considers that the circumstances make such a search appropriate is necessary.
In this circuit, the standard for conducting a strip search at a border requires that customs officials have “reasonable suspicion” that the party to be searched is concealing contraband on his person. United States v. Carter, 590 F.2d 138, 139 (5th Cir.), cert. denied, 441 U.S. 908 , 99 S.Ct. 2001 , 60 L.Ed.2d 378 (1979); United States v. Smith, 557 F.2d 1206, 1208 (5th Cir.1977), cert. denied, 434 U.S. 1073 , 98 S.Ct. 1259 , 55 L.Ed.2d 777 (1978). With respect to strip searches, “reasonable suspicion” includes a requirement that customs officials have cause to suspect that contraband exists in the particular place which the officials decide to search. 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). The reasonable suspicion standard has been held to have been met if a person behaves in an articulably suspicious manner. 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); Himmelwright, 551 F.2d at 995-96 .
“Our cases have recognized three distinct kinds of border searches of persons: frisk or pat-downs, strip searches, and body-cavity searches. These three categories are subject to different standards because of the varying degrees of intrusion that they entail.” United States v. De *1352 Gutierrez, 667 F.2d 16, 19 (5th Cir. Unit B 1982). Thorough research does not reveal the exact degree of suspicion required for body cavity searches, but we know that due to the greater degree of intrusion involved, the standard demands a greater degree of suspicion than does a strip search.
Where along the sliding scale of reasonable suspicion should an unconsented to x-ray search fall? I dissent in this case because of my disagreement with the majority’s placement of x-ray searches on the sliding scale. As I view these cases, two issues, not one, must be decided: (1) what level of suspicion is required before a suspected “swallower” may be detained for more than the reasonable time required for questioning, and (2) what level of suspicion is required to subject a suspected swallower to an x-ray search.
As to the first issue, involving detention, I would hold that to detain a person longer than is reasonably necessary for questioning and investigation of leads, customs officials must have the same suspicion necessary to conduct a strip search, i.e. a particularized reasonable suspicion. Reality indicates that mere detention, in these cases, will always result in consent or a search. I would hold that the search begins when the period of detention for questioning becomes unreasonable. Consequently, that is the time strip search reasonable suspicion must be present.
As to the x-ray search, I would hold that the highest standard of reasonable suspicion would apply. 2 That is, the same degree of suspicion required for a body cavity search. X-ray examinations are harmful to people, especially pregnant women. Therefore, the x-ray search has an element which is absent from the pat-down, strip search, or even the body cavity search. In none of the searches which we have to this time passed upon presented, as a result of the search technique, a danger to the life of the suspect. Because of this difference, I would hold that the government may not subject any person seeking to enter or reenter our country to the risk of diminished health without the highest degree of reasonable suspicion.
I realize that the x-ray search standard I urge, without an informant’s tip, may be difficult to reach. On the other hand, since detention based on a lower standard over a long period of time, under these circumstances, equals a search or consent, customs officers should be able to ferret out the internal carriers of contraband from innocent travelers.
. I dissent for the reasons expressed herein in United States v. Henao-Castano; United States v. Padilla; United States v. Mosquera-Ramirez; and United States v. Castaneda-Castaneda.
I concur in upholding the searches in United States v. DeMontoya and United States v. Pino, because the searches were based on valid consents.
In Castañeda-Castañeda, I dissent for the reasons herein expressed and because customs official's trickery did not result in merely a confession, but a consent to search. While the majority has correctly cited the confession by trick cases, it has not cited any case which indicates that consent to search may be lawfully produced by trickery. Case law dictates that consent to search must be voluntarily given. One can hardly act voluntarily without knowing the true facts. United States v. Smith, 543 F.2d 1141, 1145 (5th Cir.1976), cert. denied, 429 U.S. 1110 , 97 S.Ct. 1147 , 51 L.Ed.2d 564 (1977); Alexander v. United States, 390 F.2d 101 (5th Cir.1968).
The shackling of the appellant to a wheelchair in Henao-Castano is not only highly intrusive, but constitutes arrest and imprisonment.
. It is time for the Eleventh Circuit to identify this third level of suspicion by a separate name. Perhaps, “substantial suspicion” would be workable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471931. Public record. Not legal advice.