United States v. Shepard

Citations: 930 F. Supp. 1189; 1996 U.S. Dist. LEXIS 12784; 1996 WL 338828Docket: CR-2-96-19(1)(2)

Court: District Court, S.D. Ohio; June 18, 1996; Federal District Court

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Defendants Sonya D. Shepard and Jacqueline R. Duncan are charged with two counts of conspiracy and one count of cocaine importation under federal law. The Court, led by District Judge DLOTT, reviewed their motions to suppress evidence after an evidentiary hearing on June 12, 1996. The facts established include that both defendants are U.S. citizens residing in Ohio, who traveled to Jamaica from Miami in August 1995, purchasing their tickets with cash on the day of travel. Upon their return to Miami, U.S. Customs inspectors, including Inspector Rachel Thomas, were present to screen passengers. Inspector Thomas, part of a specialized Rover Team focused on narcotics detection, received a tip regarding potential narcotics carriers from Ohio. She pulled aside several women from the group, including Shepard and Duncan, for preliminary questioning upon disembarkation, noting they had traveled from a known source country for cocaine.

Inspector Thomas observed Linda Duncan, a woman using the phone and lagging behind a group of passengers. Upon inquiry, it was revealed that she was also from Ohio, but she and the four other women traveling with her denied knowing each other. Noticing Duncan's nervous demeanor, Inspector Thomas brought her with the group to the baggage claim area. She then left the women to retrieve their luggage while seeking assistance from Inspectors Eric Sallick and Laura Anderson for further questioning and searching.

Inspector Sallick, a member of the Customs Service since 1991, and Inspector Anderson, employed for three and a half years, were informed by Thomas about the suspicious behavior of the women, leading to a decision for a secondary inspection of their baggage. During the searches, Inspector Thomas found documents in Sarah Reed's luggage suggesting government assistance, raising doubts regarding her ability to afford the trip. Inspector Sallick discovered an address book in Jacqueline Duncan's bags that contained Linda Duncan’s contact information, contradicting their earlier claims of not knowing each other; they later admitted to being sisters.

No narcotics were found in the other women's luggage, but based on their nervousness, the brevity of their trip to a known source country, and the loose clothing some wore, the inspectors decided to request permission for pat-down searches from Supervisor Alexis Coleman. Coleman approved the request. The women were taken individually to a search room for pat-downs, conducted by female inspectors, with no evidence of narcotic smuggling found during these searches.

After conducting pat-down searches, agents suspected that Sarah Reed, Sonya Shepard, and Jacqueline Duncan were carrying narcotics, leading to the decision to release Linda Duncan and Rita Monroe due to their more credible stories and observed behaviors. The agents then questioned Reed, Shepard, and Duncan individually for about 45 minutes. Following this, they concluded that the three women were internal drug carriers and sought permission to transport Reed to a hospital for a body cavity examination, citing her nervousness, a short trip to a source country, conflicting stories, and other indicators of suspicious behavior.

Inspector Thomas articulated specific concerns to Supervisor Coleman, who approved the transport for Reed. Likewise, Inspector Sallick requested a medical examination for Jacqueline Duncan, noting her nervousness and conflicting accounts. Inspector Anderson sought permission for a pelvic examination of Sonya Shepard, similarly highlighting suspicious factors. All requests were approved by Supervisor Coleman.

Before transporting Jacqueline Duncan, Inspector Sallick read her Miranda rights, which she waived, consenting to the pelvic examination. During this examination, Duncan admitted to concealing an item and voluntarily produced a can-shaped cylinder containing 0.57 pounds of cocaine. After her arrest, Shepard approached Sallick, revealing she too had concealed drugs. She was escorted to the restroom, where she produced a vessel containing 0.59 pounds of cocaine, leading to her arrest as well.

Inspector Anderson informed Ms. Shepard of her belief that she was an internal drug carrier and the U.S. Customs procedures, which included a medical examination. Ms. Shepard initially refused consent for a pelvic examination but later agreed after cocaine was produced. The Fourth Amendment protects against unreasonable searches and seizures, with the reasonableness of a search determined by the circumstances surrounding it. Searches at international borders have a different standard, where routine searches do not require reasonable suspicion, probable cause, or a warrant. The authority for such searches stems from Congressional power to regulate duties and prevent contraband entry. Non-routine searches, such as strip and body cavity searches, demand a higher level of scrutiny and require law enforcement to demonstrate reasonable suspicion of illegal concealment. Courts may apply a balancing approach, increasing the level of suspicion needed as the invasiveness of the search rises, thereby weighing the privacy interests of travelers against governmental interests in controlling contraband flow.

Courts have established a set of factors to evaluate the reasonableness of searches, particularly in the context of border searches, as demonstrated in United States v. Asbury. The Asbury case identifies twelve factors that may indicate reasonable suspicion, including excessive nervousness, unusual behavior, informant tips, and other indicators of potential wrongdoing. Most cases affirming non-routine searches rely on a combination of these factors.

The Sixth Circuit has not specifically defined 'reasonable suspicion' for body cavity searches at international borders but has addressed it in the context of federal penitentiaries in Spear v. Sowders. Here, the court clarified that 'reasonable suspicion' is a lower standard than probable cause, requiring only specific, objective facts that suggest illicit activity. This standard accommodates information that might be less reliable than what is needed for probable cause.

In the current case, agents sought permission for a body cavity search but did not need reasonable suspicion for the initial pat-downs. However, once the agents decided to conduct more intrusive searches, they were required to have reasonable suspicion that the defendants were carrying narcotics. The defendants argued that the inspectors only had an 'inchoate hunch' about the narcotics, which is insufficient for justifying a non-routine search, even if the suspicion turned out to be correct. The court concluded that individuals traveling to the U.S. retain Fourth Amendment protections and cannot be subjected to non-routine searches based solely on a vague hunch.

Prison visitors' privacy expectations are diminished due to government interests in preventing contraband entry. Customs officials may detain and search international travelers if reasonable suspicion of narcotics smuggling exists. In this case, customs agents had reasonable suspicion regarding Defendants Shepard and Duncan. Jacqueline Duncan's trip from Jamaica raised red flags due to her cash purchase of the ticket, her unemployment claim, inconsistencies in her story about her sister, and her nervous demeanor. Sonya Shepard, also returning from Jamaica, exhibited suspicious behavior but lacked direct inconsistencies. However, her association with Duncan and her travel companion Reed, who was on government assistance, raised further concerns. The agents’ experience with smuggling indicators contributed to their reasonable suspicion. The Court concluded that sufficient reasonable suspicion justified the customs officers' actions, affirming that their conduct was constitutional under the Fourth Amendment. The Defendants' motion to suppress evidence was denied. Additionally, notes clarify the involvement of other individuals on the trip and address testimony inconsistencies regarding the search authorization process.