Unpublished Disposition, 874 F.2d 817 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Anastacia Chacon De Rodriguez was stopped and searched by customs agents as she attempted to depart the United States by airplane. The search revealed that Rodriguez was carrying a large amount of undeclared currency. Subsequently, Rodriguez was convicted for transporting over $10,000 in undeclared U.S. currency out of the United States and for making false statements to customs agents, pursuant to 31 U.S.C. § 5316(a) (1) (A) and 18 U.S.C. § 1001. On appeal, Rodriguez challenges the legality of the exit search to which she was subjected on two grounds: 1) the search violated the Fourth Amendment because it was conducted without a warrant and without probable cause; and 2) even if the "border exception" to the warrant requirement should apply, the strip search to which she was subjected was unreasonable. We reject these arguments and affirm.

* In United States v. Stanley, 545 F.2d 661 (9th Cir. 1976), cert. denied, 436 U.S. 917 (1978), we held that the border search exception to the Fourth Amendment's warrant requirement applies to searches of those exiting the country, as well as to those entering. Thus, customs officials may search an individual exiting this country without first obtaining a warrant and without having probable cause to believe that the individual has engaged or is engaging in criminal activity. That holding has been reaffirmed on numerous occasions. E.g., United States v. Nates, 831 F.2d 860, 862 (9th Cir. 1987), cert. denied, 108 S. Ct. 2845 (1988); United States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986); United States v. Cardona, 769 F.2d 625, 628 (9th Cir. 1985).

Rodriguez argues that the Fourth Amendment does not allow the government to search those who are exiting the country without first obtaining a search warrant based on probable cause. In short, Rodriguez requests that we overrule established law of this circuit that the "border exception" to the warrant requirement applies to searches of those exiting the country. This we cannot do. A three-judge panel is bound to follow the precedents of our circuit. Those precedents have held that exit searches and entry searches are indistinguishable for purposes of the Fourth Amendment. See United States v. Des Jardins, 747 F.2d 499, 504 (9th Cir. 1984), modified, 772 F.2d 578 (9th Cir. 1985) (rejecting similar request to overrule Stanley and other cases excepting exit searches from the warrant requirement). Stanley and its progeny may be overruled only by an en banc panel. Accordingly, we hold that the search of Rodriguez's person was not unconstitutional because it was conducted without a warrant or probable cause.

II

While a border search may be initiated in the absence of both a warrant and probable cause, the officer conducting the search must nonetheless proceed in a reasonable manner. Des Jardins, 747 F.2d at 504; United States v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir. 1970). Our prior decisions provide us with general guidelines for determining whether a given search is reasonable. Under these decisions, a simple pat-down search is "permissible with only a minimal showing of suspicion," Des Jardins, 747 F.2d at 504 (quoting United States v. Couch, 688 F.2d 599, 604 (9th Cir.), cert. denied, 459 U.S. 857 (1982)). A strip search, however, must be based on "real suspicion." Des Jardins, 747 F.2d at 504-05 (quoting Guadalupe-Garza, 421 F.2d at 879).

Rodriguez argues that the strip search to which she was subjected was unreasonable because the customs agents did not have "real suspicion" that she was carrying contraband. She claims that the presence of ammunition in her luggage did not give rise to "real suspicion," nor did the fact that she was wearing a girdle, which Customs agents discovered during an initial pat-down search. We cannot agree. Considering all the facts known to the agents at the time that they decided to conduct the strip search, we find that decision to have been based on "real suspicion" that Rodriguez was attempting to smuggle contraband out of the country.

The sequence of events leading up to the strip search fully supports the government's claim that the agents had real suspicion to conduct the search. An X-ray examination of Rodriguez's luggage revealed 60 rounds of ammunition concealed in a length of garden hose. Customs agents' suspicion that Rodriguez might be attempting to smuggle other contraband out of the country was heightened by the facts that Rodriguez denied having any ammunition to declare and that she fit the profile of drug traffickers traveling between Mexico and the United States. Based upon the agents' observations and Rodriguez's own conduct, the agents clearly had the minimal suspicion necessary to justify a pat-down search. See Des Jardins, 747 F.2d at 505 (the fact that appellant's suitcases contained objects frequently used in narcotics smuggling alone sufficient to supply minimal suspicion). During the two pat-down searches that followed, customs agents detected that Rodriguez was wearing a girdle and that there was a "hardness under both breast areas." Only at this point did the agents ask Rodriguez to remove her dress so that they could observe whether she was carrying anything within her girdle.

We believe that the customs agents had "real suspicion" at this point to believe that Rodriguez was carrying contraband. Of particular significance is the fact that the agents felt unexplained hard areas under her clothes, as well as the presence of a girdle. On several occasions we have held that a pat-down search which reveals an unexplained bulge creates "real suspicion" justifying a strip search. Des Jardins, 747 F.2d at 506; United States v. Wilmot, 563 F.2d 1298, 1299-1300 (9th Cir. 1977); United States v. Rivera-Marquez, 519 F.2d 1227, 1228 (9th Cir.), cert. denied, 423 U.S. 949 (1975). The unexplained hardness that the agents felt would also indicate the presence of something under the person's clothes, giving rise to real suspicion that the person was carrying contraband. Accordingly, we hold that the search of Rodriguez's person was based on real suspicion and, therefore, was not unreasonable.

III

Rodriguez raises an additional objection to both the pat-down and the strip search. She claims that both searches were unreasonable because the customs agents did not have a "reasonable articulable suspicion" that she was attempting to smuggle currency out of the country. In other words, Rodriguez claims that customs officials must be able to reasonably articulate the type of contraband that they suspect an individual is carrying before conducting any search of the individual. This claim is without merit. Customs agents are not required to have a reasonable articulable suspicion that a person is carrying a particular type of contraband; they only need to suspect "that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it ... [out of] the United States contrary to law." Guadalupe-Garza, 421 F.2d at 879 (emphasis added). There is no requirement that the government suspect in advance precisely what contraband the person may be carrying.

AFFIRMED.