609 F.

2d 642

UNITED STATES of America, Appellee,

v.
Jose Vidal NIEVES and Maria Isabel Figueroa, Appellants.
Nos. 926, 927, Dockets 79-1051, 79-1052.

United States Court of Appeals,

Second Circuit.
Argued April 23, 1979.
Decided Oct. 30, 1979.

Ruth A. Nordenbrook, Mary McGowan Davis, Asst. U. S. Attys., Edward

R. Korman, U. S. Atty., Eastern District of New York, Brooklyn, N. Y.,
for appellee.
Barry Bassis, New York City (Legal Aid Society, Fed. Defender Services
Unit), for Figueroa; William F. Hanrahan, Bellmore, N. Y., on the brief
(no oral argument), for Nieves.
Before WATERMAN, FEINBERG and MANSFIELD, Circuit Judges.
WATERMAN, Circuit Judge:

Jose Vidal Nieves and Maria Isabel Figueroa appeal from judgments entered in
the United States District Court for the Eastern District of New York (Neaher,
District Judge) on December 1, 1978, convicting each of them, upon their pleas
of guilty, of one count of knowingly and intentionally importing into the United
States approximately 984.3 grams of cocaine, a Schedule II narcotic drug
controlled substance, in violation of 21 U.S.C. 952(a) and 960(a)(1). Nieves
was sentenced to three years imprisonment, with the court directing that he be
incarcerated for six months, and that the execution of the remainder of the
sentence be suspended. Nieves also was placed on probation for five years, and
was required to serve a special five year parole term. Figueroa was sentenced to
five years probation pursuant to the Youth Corrections Act, 18 U.S.C. 4216.
Execution of these sentences was stayed pending disposition of this appeal.
Nieves and Figueroa entered their guilty pleas pursuant to a court approved

agreement between them and the government preserving their right to appeal
the court's denial of their motions to suppress certain physical evidence and
post-arrest statements.1

Nieves challenges the denial of his suppression motion on the grounds that the
border search performed on him at the time of his entry into the United States
from Panama at John F. Kennedy International Airport was unreasonable, in
violation of the Fourth Amendment. Figueroa challenges the denial of her
suppression motion on the grounds that the secondary search of her person,
conducted after she had successfully completed a regular customs inspection,
was not a valid border search. She, too, alleges that the search, absent a border
search justification, was unreasonable, in violation of the Fourth Amendment.
For the reasons set forth below, we affirm the district court's denial of the
suppression motions, and thus uphold the convictions of Nieves and Figueroa.

* On the evening of July 12, 1978, Customs Patrol Officer John Boyle was on
duty at the International Arrivals Building at JFK International Airport. Boyle
observed Nieves presenting his luggage and entry documents to the regular
customs inspector who was examining passengers arriving on Braniff Flight
906 from South America. Boyle's attention was drawn to Nieves because he
was carrying only one small bag, did not have any gifts or souvenirs that would
have marked him as a tourist and did not look like a businessman. Boyle's
suspicions were aroused by these circumstances, and he made inquiries of the
customs inspector who was examining Nieves's things. Boyle looked at
Nieves's passport, and noted that Nieves was born in Puerto Rico, was returning
from a vacation trip to Panama, and had been away for four or five days. Boyle
then told the customs inspector that he wanted to "check out" Nieves after the
initial inspection was completed.

Nieves was taken from the inspection line to the private search room, where he
was patted down and told to remove his shoes. Boyle noticed that the inner sole
of Nieves's shoes appeared to be homemade. He obtained a drill, and proceeded
to bore small holes through the inner soles of the shoes. This core sampling
procedure disclosed the presence of a white powder under the inner soles of the
shoes, which a contemporaneous field test established to be cocaine. At this
point, Nieves was placed under arrest and advised of his constitutional rights.
Nieves indicated that he understood his rights and that he did not wish to
cooperate. He was then asked to remove his pants so that a further search of his
person could be conducted. No other narcotics were uncovered in this
subsequent search.

After this search was completed, Nieves was turned over to Agent Arthur Rose

of the United States Drug Enforcement Administration (DEA). Rose took

Nieves to the DEA office at the airport where Nieves was again advised of his
constitutional rights. When Nieves was asked whether he wished to waive his
rights and cooperate, Nieves responded affirmatively, and told the agents how
he had become involved in the cocaine venture. He also told the agents that he
was to be contacted in the airport lobby by an unknown man. Nieves then
agreed to go to the lobby, under the watch of several DEA agents, to see if
someone would contact Nieves in an attempt to take delivery of the drugs. After
half an hour passed without any contact, the agents and Nieves proceeded back
to the DEA office. En route to the office, one of the agents (Huber) noticed that
the suitcase Nieves was carrying had a felt stripe with a buckle running down
its side, and remembered that during the surveillance in the lobby he had seen a
woman standing beside a similar bag with an identical stripe running down its
side. Huber told his colleagues what he had observed, and while the other
agents proceeded to the DEA office with Nieves, Huber and another agent
(Murphy) returned to the lobby to attempt to locate the woman that Huber had
seen earlier.

Upon returning to the lobby, the agents located the woman (appellant Figueroa)
immediately. Murphy maintained surveillance while Huber summoned a
customs inspector. Upon his return, Huber approached closer to Figueroa, and
noticed that her bag, in addition to appearing identical to Nieves's, bore a similar
baggage identification tag. In the proceedings in the district court, Huber
testified that Figueroa, standing in the airport lobby, "appeared to be confused,
if not lost; she was not being met nor was she meeting anyone outside, and this
was, as I understood it, just what Nieves was supposed to do." On the basis of
these observations, Huber contacted Figueroa, identified himself, and asked her
for identification. She produced a passport, but her response indicated that she
did not understand English well enough to be interrogated further by him.
Huber then asked Figueroa to accompany him back to the customs area, where
she could be interrogated by a Spanish speaking customs officer.

While Figueroa was being escorted back to the customs area, Murphy returned
to the DEA office, where he announced that they had "the woman" in custody.
Upon hearing this, Nieves told Rose that the woman also had cocaine in her
shoes. Murphy immediately called Huber in the customs area and advised him
of what Nieves had said. At about the time of this phone call, Huber was shown
Figueroa's customs declaration form, which indicated that Figueroa's address
was the same as Nieves's2 and that the two had entered the United States on the
same flight from Panama. Huber then placed Figueroa under arrest, and called
a female customs inspector to conduct a search of Figueroa. The female
customs inspector took Figueroa to a private inspection room, where she

instructed3 Figueroa to remove her slacks and shoes. Sewn to the inside
waistband of the slacks was a cloth strip holding a plastic tube that contained
white powder, which subsequent testing established to be cocaine. Cocaine also
was discovered in the soles and heels of Figueroa's shoes.
9

After the search was completed, Figueroa was handed a printed card, which set
out her constitutional rights in Spanish. Later, when Figueroa arrived at the
DEA office, she was advised of her constitutional rights by an agent who spoke
Spanish. She indicated to this agent that she understood her rights, and was
prepared to cooperate, whereupon she related to the agent substantially the
same account of her involvement in the cocaine venture that Nieves had given
earlier.

10

After the suppression hearing, the district court concluded that the search of
Nieves was a valid border search, and on the basis of United States v. Ramsey,
431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977), was Per se reasonable.

11

As to Figueroa, the court found that, although she had passed through the
customs clearing point, she had not yet left the Arrivals Building, and was still
in close proximity to the customs area. Therefore, the court concluded that the
subsequent search of her person was a valid border search, and further noted
that the temporary stop and detention of Figueroa was reasonable due both to
the agents' observations of Figueroa and the information which they possessed
as a result of the earlier arrest and search of Nieves.

12

Finally, the district court determined that both Nieves and Figueroa had been
advised fully and effectively of their constitutional rights, and that each had
made a knowing and intelligent waiver of those rights.

II
13

Appellant Nieves advances two grounds in support of his contention that the
border search performed on him was unreasonable, in violation of the Fourth
Amendment. First, he alleges that the search was unreasonable because the
customs officers lacked probable or reasonable cause to justify their actions.
We will discuss this contention only briefly, as we find it to be wholly without
merit.

14

Of necessity, the law governing the inspection of travellers crossing our

national boundaries is responsive to a different set of imperatives from those
that guide law enforcement officers in their investigative contacts with persons

who already are within this country. It long has been established that routine
border searches, conducted for the purpose of controlling the movement of
people and goods across our national boundaries, do not violate the Fourth
Amendment's prohibition against unreasonable searches. See United States v.
Asbury, 586 F.2d 973, 976 (2d Cir. 1978) and cases cited therein.
15

As the court below correctly noted, the United States Supreme Court, United
States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977), recently
has articulated its views with reference to the applicable legal standard in border
search situations. In that case, Mr. Justice Rehnquist, writing for the majority,
surveyed the relevant law in this area and concluded that

16

Border searches, then, from before the adoption of the Fourth Amendment,
have been considered to be "reasonable" by the single fact that the person or
item in question had entered into our country from outside. There has never
been any additional requirement that the reasonableness of a border search
depended on the existence of probable cause. This longstanding recognition
that searches at our borders without probable cause and without a warrant are
nonetheless "reasonable" has a history as old as the Fourth Amendment itself.

17

431 U.S. at 619, 97 S.Ct. at 1980 (footnote omitted).

18

Accordingly, Nieves, by his decision to cross our national boundary, was

deemed to have waived any objection to a routine search of his belongings and
effects, because to this extent, society is not prepared to recognize as reasonable
any subjective expectation of privacy he might have. See Asbury, supra, at 975.

19

This brings us to Nieves's second and final allegation, namely, that the search of
his person went beyond a routine border search and was not supported by
probable or reasonable cause. We do not agree. Although this Circuit has not
yet squarely been faced with the issue of whether the removal and search of a
person's shoes constitutes a "strip search" subject to the "reasonable suspicion"
standard,4 we have recognized that a number of other Circuits have held that
the term "personal effects" includes a person's outer clothing as well as the
contents of pockets, purse or wallet. See Asbury, supra, at 975 n.2. Thus, not
every request that a person remove an article of clothing or remove objects
from an article of clothing will result in the automatic transformation of a
routine search of belongings and effects into a strip search. We also note that
several Circuits have held that the removal and search of a person's shoes at a
border checkpoint does not amount to a strip search, but rather is an acceptable
procedure in a routine border inspection for which no justification is needed

beyond the fact that the person involved has just crossed our national
boundary.5
20

We find the reasoning expressed by these Circuits, which analogizes the

removal of a shoe to the removal of an outer garment, to be persuasive. We do
not believe that the relative degree of embarrassment or indignity that a person
is likely to suffer as a result of complying with a request to remove his shoes is
sufficient to warrant the imposition of a "reasonable suspicion" requirement as a
precondition to such a request in a standard border search context. Accordingly,
we hold that the search of Nieves's shoes was an acceptable routine border
inspection procedure, and that this search needed no justification beyond that
provided by Nieves's decision to cross our national boundary.6 Of course, once
the customs officers discovered that Nieves's shoes contained cocaine, they had
ample probable cause both to place Nieves under arrest and to conduct the
subsequent strip search of his person.

III
21

Appellant Figueroa's situation presents a somewhat more difficult case.

Essentially, she asserts that because she already had undergone a customs
inspection, and no longer was within the customs inspection area, her
subsequent detention and search should not have been classified as a valid
border search and they therefore should have been held unreasonable, in
violation of the Fourth Amendment, if, as she claims, they were not supported
by probable cause. We do not agree with Figueroa's contention that the district
court erred in treating her detention and search as a valid border search.
Further, we hold that, even assuming, arguendo, such an error by the court
below, Fiqueroa's detention and search were under the circumstances neither
inappropriate nor unsupported by probable cause. Because these contentions
raise distinct issues, we discuss each one separately.

22

We will first address the district court's classification of Figueroa's postcustoms detention and search as a valid border search. The court below, in
denying Figueroa's suppression motion, relied heavily on the fact that although
Figueroa already had been cleared through customs, she was still inside the
International Arrivals Building. Previous decisions of this Court, See, e. g.,
United States v. Glaziou, 402 F.2d 8 (2d Cir. 1968), Cert. denied, 393 U.S.
1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969), as well as of other Circuits, See, e.
g., United States v. Wardlaw, 576 F.2d 932 (1st Cir. 1978); United States v.
Golden, 532 F.2d 1244 (9th Cir. 1976), have established the propriety of
conducting secondary customs searches on persons who previously have
undergone an initial customs inspection, yet who still were within close

proximity to the customs inspection area. Indeed, as we stated in Glaziou, supra

The
23 term "border area" in this context, is elastic, see Murgia v. United States (285
F.2d 14 (9th Cir. 1960), Cert. denied, 336 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265
(1961)); the precise limits of the border area depend on the particular factual
situation presented by the case raising the issue. . . . "(B)order area" reasonably
includes not only actual land border checkpoints but also the checkpoints at all
international ports of entry And a reasonable extended geographic area in the
immediate vicinity of any entry point.
24

402 F.2d at 12-13 (emphasis added).

25

Furthermore, as we also noted in Glaziou, supra, principles developed in the

analogous "extended border search" cases, although not directly applicable,
nonetheless may be analytically helpful in assessing the validity of secondary
customs searches. 7 Accordingly, given the facts that Figueroa was still within
the confines of the International Arrivals Building, that a relatively short time
had elapsed since she had undergone the initial customs inspection, and that the
agents had ample grounds to suspect that she might be involved in the same
drug smuggling operation as Nieves,8 we agree with the conclusion of the
district court that her subsequent detention and search qualified as a valid
border search, and conclude that her suppression motion was properly denied
on that ground.

26

Alternatively, even assuming that the post-customs detention and search of

Figueroa was incorrectly held to have been a valid border search, the agents'
actions either were appropriate under the circumstances or were supported by
probable cause.

27

As a preliminary matter, we think the agents' initial contact and detention of

Figueroa is governed by the "investigative stop" doctrine first formulated in
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which
permits law enforcement officers "in appropriate circumstances and in an
appropriate manner (to) approach a person for purposes of investigating
possibly criminal behavior even though there is no probable cause to make an
arrest." Id. at 22, 88 S.Ct. at 1880.9

28

On numerous occasions, this Court has outlined the contours of the Terry
doctrine. See, e. g., United States v. Ortiz, 594 F.2d 320 (2d Cir. 1979); United
States v. Oates, 560 F.2d 45 (2d Cir. 1977); United States v. Magda, 547 F.2d
756 (2d Cir. 1976), Cert. denied, 434 U.S. 878, 98 S.Ct. 230, 54 L.Ed.2d 157

(1978); United States v. Santana, 485 F.2d 365 (2d Cir. 1973), Cert. denied,
415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 490 (1974). Indeed, in Oates, supra,
we determined that the Terry doctrine authorized not only investigative stops of
suspects, but, also, in appropriate circumstances, the temporary detention of
such suspects and their removal to a location more conducive to effective
interrogation. See 560 F.2d at 56-61. We believe that the action taken by the
agents in the present case is virtually indistinguishable from the course of
conduct we endorsed in Oates, supra.10
29

Finally, we proceed to discuss the justification for the subsequent strip search
performed on Figueroa after she had been placed under arrest. It is well
established that any reasonable search conducted incident to a lawful arrest
would be unobjectionable. See, e. g., United States v. DeLeon, 561 F.2d 421
(2d Cir. 1977). Therefore, we first must inquire whether the agents had
probable cause to place Figueroa under arrest "whether at that moment the facts
and circumstances within their knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing
that (Figueroa) had committed or was committing an offense." Beck v. Ohio,
379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). As we previously
indicated, we find that the additional information that the agents obtained after
accompanying Figueroa back to the customs inspection area amply satisfied the
probable cause requirement needed to justify the placing of her under arrest. 11
Further, we find that the search performed on Figueroa incident to her lawful
arrest was not conducted in such an offensive manner as would warrant a
finding that it was unreasonable, in violation of the Fourth Amendment.

30

The suppression motions were properly denied. The judgments of the district
court are affirmed.

In return for their pleas of guilty on the importation count, the government also
agreed to drop related possession and conspiracy counts against Nieves and
Figueroa
The procedure under which a defendant may enter an agreement to plead guilty
while preserving an issue for appeal has been approved by this Court in several
recent cases. See United States v. Price, 599 F.2d 494, 495 n.1 (2d Cir. 1979);
United States v. Rico, 594 F.2d 320, 321 n.1 (2d Cir. 1979).

At the suppression hearing, Huber testified that even though he had not been
involved in the original search and arrest of Nieves, he had been informed of
Nieves's address

Because the customs inspector did not speak Spanish, she employed hand
gestures to communicate with Figueroa during the search

In Asbury, supra, we adopted the Fifth Circuit's "reasonable suspicion"

standard rather than the Ninth Circuit's "real suspicion" standard for application
in future border search contexts in this Circuit. See 586 F.2d at 976-77

See United States v. Fitzgibbon, 576 F.2d 279 (10th Cir.), Cert. denied, 439
U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978); United States v. Chase, 503
F.2d 571 (9th Cir. 1974), Cert. denied, 420 U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d
427 (1975)

Even assuming that the search of Nieves's shoes would not be an acceptable
procedure in a routine border search, we still would reach the same result. As
we noted in Asbury, supra, "(i)n each case, reasonableness is determined by
weighing the warranted suspicion of the border official against the
offensiveness of the intrusion." 586 F.2d at 976 (footnote omitted). See also
Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)
Of the dozen factors we set forth in Asbury, supra, 586 F.2d at 976-77, that
could be taken into account in determining the issue of reasonableness in
particular cases, two an itinerary suggestive of wrongdoing and inadequate
luggage were present here. Under the circumstances of this case, these factors
at least established a degree of reasonable suspicion sufficient to justify the
minimally offensive intrusion involved in the removal and search of Nieves's
shoes.

The factors we identified in Glaziou, supra, as relevant to the inquiry

concerning the validity of an extended border search included "the distance of
the search from the point where goods could be introduced by the suspect into
the United States, the time that has elapsed since the suspect had an opportunity
to bring in the goods, and the circumstances upon which the officers base their
suspicions." 402 F.2d at 14 n.3 (quoting United States v. McGlone, 394 F.2d
75, 78 (4th Cir. 1968))

At the time when the agents first contacted and detained appellant Figueroa,
they were in possession of the following information: that Figueroa's suitcase
appeared identical to the one belonging to Nieves; that Figueroa's suitcase bore
a luggage tag identical to the one observed on Nieves's suitcase; that Figueroa
was standing, apparently waiting for something or someone, in the area Nieves
had identified as the location where the "contact person" was to meet him; and
that Figueroa's behavior corresponded exactly with the instructions Nieves was
to follow in arranging to be contacted

Of course, by the time appellant Figueroa was subjected to the more intrusive
strip search of her person the agents had discovered the following additional
information: that Figueroa had arrived on the same flight from Panama as
Nieves; that Figueroa's customs declaration form revealed her address to be the
same as Nieves's; and, most crucial, that Nieves had indicated that "the woman"
also had cocaine concealed in her shoes.
9

Of course, to justify the "investigative stop," the agents "must be able to point
to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion," Terry v. Ohio, 392 U.S. 1,
21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) (footnote omitted). Here, we
believe that the information known to the agents at the time they initially
contacted and detained Figueroa, See note 8 Supra, constituted such "specific
and articulable facts."

10

In both Oates and the present case, persons suspected of transporting narcotics
were contacted initially by the law enforcement officers in a public area of an
airport; in both cases the law enforcement officers, for valid reasons, requested
the suspects to move to a more private area for further interrogation (in Oates
the request appears to have been motivated by a concern for the safety of others
in the area, because the law enforcement officers had reason to believe that the
suspects might be armed; in the present case, the request was made so that a
Spanish-speaking officer could be obtained to interrogate Figueroa, who was
not conversant in English); and in both cases, there is no evidence that the
suspects' compliance with these requests was other than voluntary
In the present case, Figueroa contends that because the agent who asked her to
accompany him back to the customs inspection area later testified that he was
"thinking in terms of a custodial situation," the matter had proceeded beyond a
mere "investigative stop" and had developed into an actual arrest. We were
faced with a similar claim in Oates, where we stated that "the issues involved in
determining the propriety of stops, arrests and searches must be resolved by an
objective rather than a subjective standard." 560 F.2d at 58 (footnote and
citations omitted). Viewing the situation here under an objective standard, we
must conclude that Figueroa's detention was in fact a stop and not an arrest.
Because there is nothing in the record to indicate that Figueroa's seemingly
voluntary decision to accompany the agent back to the customs inspection area
was in fact coerced, and because this course of conduct, objectively viewed,
cannot be characterized as equivalent to an arrest, we think the situation here is
sufficiently distinguishable from the "investigatory seizure" situation involved
in the U. S. Supreme Court's recent decision in Dunaway v. New York, --- U.S.
----, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

Finally, we note that in contacting and detaining Figueroa, the agents did not
attempt to harass, intimidate or humiliate her in any way. We previously have
considered such factors relevant to an examination of the propriety of an
investigative stop. See Magda, supra, 547 F.2d at 759.
11

See note 8 Supra