United States v. Caron Faherty

Citations: 692 F.2d 1258; 1982 U.S. App. LEXIS 23912Docket: 82-1130

Court: Court of Appeals for the Ninth Circuit; November 22, 1982; Federal Appellate Court

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Caron Faherty was convicted of heroin importation and possession under 21 U.S.C. § 952(a) and § 844, respectively, after a court trial based on stipulated facts. She received a five-year custody sentence for importation, with a mandatory three-year parole, but execution was suspended in favor of three years probation and 120 days in a jail-type facility. The possession sentence was also suspended, placing her on concurrent probation.

The Ninth Circuit had previously remanded the case for a hearing to assess whether Faherty voluntarily consented to an x-ray search. During customs inspection upon returning from Thailand, Faherty’s behavior raised suspicions, leading to a secondary search. A notebook with a drug smuggler's name and previous associations with individuals under DEA investigation further heightened concerns. Despite a negative strip search, customs agents believed she was concealing drugs internally and requested consent for an x-ray, which she initially refused. However, after being informed of the potential for a court order, she later signed a consent form, resulting in an x-ray that revealed a balloon filled with heroin.

The key issues addressed include whether the strip search was based on "real suspicion" supported by objective facts, the legality of her detention following the unproductive search, the voluntariness of her consent to the x-ray, and the permissibility of imposing a special parole term when imprisonment was suspended and probation was granted. The standard for "real suspicion" was referenced from prior case law in the Ninth Circuit.

"Real suspicion" required for initiating a strip search involves subjective suspicion backed by objective, articulable facts that reasonably lead a customs official to suspect an individual is concealing contraband. The suspicion must be based on facts known at the time of the search, although it does not need to be correct. In this case, the agent's suspicion regarding Faherty was raised by her arrival from a known source country, her self-employed status, and her overly friendly demeanor. Further investigation uncovered restricted movements, unverified employment, a name linked to a drug suspect in her notebook, and unusual travel arrangements, which collectively supported the agent's suspicion.

Faherty's claim that her six-hour detention following a strip search was illegal was addressed in previous case law. The Fourth Amendment does not necessitate a warrant or probable cause for customs searches at the border. Detentions for searches are permissible as long as they are not excessively prolonged. Past rulings indicated that a 10-12 hour detention was reasonable unless evidence of intentional delay by the government was present, which was not the case here. Therefore, Faherty's continued detention for obtaining a court order for an x-ray search was lawful.

Regarding the voluntariness of Faherty's consent to the x-ray examination, the trial court's finding of voluntariness stands unless proven clearly erroneous upon review. The Supreme Court's standard for assessing consent relies on the totality of circumstances to determine whether it was given under duress or coercion. The dialogue between Faherty and the court revealed her understanding of the need for consent or a court order, the likelihood of receiving a court order, and that she would be required to sign a medical consent form. Her subsequent agreement to proceed with the x-ray examination supports the conclusion that her consent was voluntary, and the court's ruling on this matter was not erroneous.

The legality of imposing a special parole term while a sentence is suspended and probation is granted was affirmed. Faherty was sentenced to five years under 21 U.S.C. § 960, which mandates a special parole term for imprisonment sentences. The imposition of probation for three years did not negate this requirement. If Faherty successfully completed probation, the special parole term would not be enforced; however, if she violated probation, she would serve the five-year sentence and face the special parole term afterward.

Judge Burns concurred, noting that Faherty received a typical split sentence with an initial 120 days in jail followed by suspended time and probation, which is consistent with 18 U.S.C. § 3651. The sentencing judge believed a special parole term was required under 21 U.S.C. § 960. However, unless her probation is revoked, Faherty will not serve the special parole term, as clarified by the Parole Commission's guidelines. The Commission only exercises jurisdiction over those sentenced to imprisonment exceeding one year.

Burns highlighted the potential advisory nature of the court's ruling and acknowledged existing complexities in special parole regulations, including issues concerning early termination of parole. He noted that while regulations suggest special parole terms could terminate early, practical application may differ, leading to ambiguities regarding Congressional intent in these provisions.