United States v. Elizabeth Gonzalez-Rincon

36 F.3d 859 63 USLW 2275 UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth GONZALEZ-RINCON, Defendant-Appellant. No. 93-50603. United States Court of Appeals, Ninth Circuit. Submitted June 8, 1994 * . Decided Sept. 27, 1994. Amy Fan, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant. Mary Carter Andrues, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: D.W. NELSON, BEEZER and KOZINSKI, Circuit Judges. Opinion by Judge BEEZER; Concurrence by Judge KOZINSKI; Dissent by Judge D.W. NELSON BEEZER, Circuit Judge: 1 Elizabeth Gonzalez-Rincon ("Gonzalez") appeals from the judgment entered upon her conviction for possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841 (a)(1), and importation of cocaine, 21 U.S.C. Secs. 952 (a) and 960. She argues that the district court erred in denying her motion to suppress cocaine seized after she was detained at the border for a monitored bowel movement. She also argues that the district court erred in denying her motion for a new trial, based on the government's failure to disclose impeachment evidence…

Opinion by Judge BEEZER; Concurrence by Judge KOZINSKI; Dissent by Judge D.W. NELSON

Elizabeth Gonzalez-Rincon (“Gonzalez”) appeals from the judgment entered upon her conviction for possession of cocaine with intent to distribute, 21 U.S.C. § 841 (a)(1), and importation of cocaine, 21 U.S.C. §§ 952 (a) and 960. She argues that the district court erred in denying her motion to suppress cocaine seized after she was detained at the border for a monitored bowel movement. She also argues that the district court erred in denying her motion for a new trial, based on the government’s failure to disclose impeachment evidence prior to trial, and in refusing to admit into evidence her husband’s death certificate. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I

On March 10, 1993, Gonzalez arrived at Los Angeles International Airport on a flight from Bogota, Colombia, via Mexico City. A United States Customs inspector monitoring incoming passengers noticed Gonzalez because she was wearing a bulky overcoat, unlike other passengers on her flight, and was carrying only one piece of luggage and a purse. When questioned, Gonzalez stated that she was from Colombia and was…

concurring.

As our dissenting colleague points out, no one likes being pressured by strangers while performing bodily functions; it can be a degrading experience. But despite the strong implication in the dissent’s opening paragraph, there is no evidence that anything like that took place here. The record reflects only that Gonzalez-Rincon was left in an examination room with a single female agent, and that she was taken to the restroom four times to attempt a bowel movement. During the last of these efforts she passed blood, at which time she was seen by a doctor who helped her remove an astonishing quantity of drugs from her alimentary canal. Nothing in the record supports the notion that Gonzalez-Rincon was required to defecate in front of others, or that anyone hurried her along or cajoled her in any way. Indeed, there is no reason to believe that Gonzalez-Rincon was subjected to embarrassment significantly greater than that endured by millions of people who use public restrooms every day. To be sure, she knew the results would be examined, and to that end she was not allowed to use a flushable toilet. But is this “necessarily more degrading” than a strip search, Dissent at…

dissenting:

To sit in a room, monitored by customs inspectors or medical staff, knowing that one is not free to leave until one produces a bowel movement, is unquestionably a degrading and humiliating experience. As the majority acknowledges, the Supreme Court has held that border officials may detain a traveler for a monitored bowel movement search only when, at the inception of the detention for the search, they have “ ‘a particularized and objective basis for suspecting the particular person’ of alimentary canal smuggling.” United States v. Montoya de Hernandez, 473 U.S. 531, 541 , 105 S.Ct. 3304, 3311 , 87 L.Ed.2d 381 (1985) (internal citation omitted); see also id. at 540 , 105 S.Ct. at 3309 (stating that border officials must have “particularized suspicion that the evidence sought might be found within the body of the individual”) (emphasis added). Because I believe that the decision by the majority threatens to eviscerate this requirement, significantly increasing the likelihood that innocent travelers seeking entry or re-entry to the country will be subjected to the degradation of such a search, I dissent.

I.

The majority opinion expands Ninth Circuit law in two…