United States v. Roberts

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                          ____________________

                                No. 00-20781
                            ____________________

                         UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                      versus

                         WILLIAM DOUGLAS ROBERTS,

                                                          Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas


                         December 4, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

      Our analysis turns on whether the Fourth Amendment permits a

non-routine, outbound search at the functional equivalent of the

border, when Customs Agents reasonably suspect a traveler is

smuggling    contraband.        William   Douglas      Roberts,    convicted     of

possession and interstate transportation of child pornography,

appeals the     denial     of   his   motion    to    suppress,   claiming     that

diskettes containing child pornography seized during a warrantless

search of his personal effects at an airport as he was departing

the   United   States    were    obtained      in    violation    of   the   Fourth

Amendment.     AFFIRMED.
                                          I.

       On 7 July 1998, the Customs Service Resident Agent in Charge

for Lake Charles, Louisiana (RAC-Lake Charles), contacted Customs

Senior Special Agent Coffman and informed him: (1) a William

Roberts would be flying that day non-stop from Houston’s Bush

Intercontinental Airport (IAH) to Paris; (2) when he traveled, he

typically    carried      a    computer   and    diskettes   containing   child

pornography; and (3) he usually carried the diskettes in a shaving

kit.    Agent Coffman relayed this information to Customs Special

Agent Rios, and those two Agents proceeded to IAH.                     Roberts,

however, did not board a flight that day.

       Approximately seven weeks later, on 24 August, another Agent

with RAC-Lake Charles notified Agent Rios that, the next day,

Roberts     would   fly       from   Louisiana    to   Houston   and   take   an

international flight.           RAC-Lake Charles also provided Roberts’

photograph.     The next morning, 25 August, an Officer with the

Sheriff’s Office for Natchitoches Parish, Louisiana, informed Agent

Rios that Roberts was suspected of traveling with child pornography

on diskettes that would be packed in a shaving kit; this conformed

with the information provided by the RAC-Lake Charles on 7 July.

Upon receiving this information, Agent Rios and Special Agent

Stewart met Agent Coffman at IAH.

       Agent Rios provided the information to Agent Coffman, and the

Agents checked a computer database, verifying that Roberts was

booked on a direct flight to Paris (Paris-flight).                 Agent Rios

                                          2
showed Roberts’ photograph to Agent Coffman and informed him that

Roberts would be arriving on a flight from Louisiana at 12:18 p.m.

Agent Coffman watched the passengers disembark the flight from

Louisiana and, using the photograph, identified Roberts and noted

his clothing.

       Agent   Coffman    then   proceeded    to   organize   an   outbound

inspection of the Paris-flight.        He informed the inspection group

that    Roberts   would    be    carrying    diskettes   containing    child

pornography in a shaving kit and described Roberts’ clothing.

       The Agents established the outbound inspection in the jetway

to the Paris-flight.      As Roberts entered the jetway, Agent Coffman

identified him and directed him to a search table.                    Customs

Inspector Hanson asked Roberts: (1) if he possessed more than

$10,000 in currency he wanted to declare; and (2) to open his bags.

Roberts opened his luggage and the Inspector found a shaving kit.

The Inspector opened the kit and discovered six diskettes matching

the information the Agents had received.           Inspector Hanson asked

Roberts what the diskettes contained, but Roberts gave no specific

response.

       Agent Coffman identified himself and took over the interview.

He told Roberts he was with Customs and was looking for currency or

the exportation of high technology or other data prohibited by law.

Agent Coffman asked Roberts whether he was carrying anything that




                                      3
did not belong to him.           Roberts indicated he was not.1                 Agent

Coffman told Roberts the Agents would have to search the diskettes

to ensure they could be carried out of the country legally.                      The

Agent offered Roberts the choice of either: continuing on the

Paris-flight, leaving the diskettes behind to be searched and

mailed to him; or remaining at the airport while the diskettes were

searched and departing on a later flight.                  Roberts indicated he

would wait.

     Agents    Coffman,    Rios,    and      Stewart,     and    Inspector     Hanson

escorted Roberts to a secondary inspection area.                      Agent Coffman

opened Roberts’ laptop computer and told Roberts he needed to scan

the material on it.       Agent Coffman also asked Roberts if he could

describe what the diskettes contained.               Roberts responded that he

wanted to     cooperate    but   asked       to   speak   privately     with    Agent

Coffman.    Agent Coffman escorted him to an interview room.

     There, Roberts told Agent Coffman “he was embarrassed that

there was some child pornography on the diskettes and he didn’t

want everybody to see it”.         Agent Coffman asked, “What do you mean

child    pornography,     like   the   teen       stuff   on    the   internet...?”

Roberts replied, “No, young kids”, followed by “six”, which Agent

Coffman understood to mean the diskettes contained images of six-

year-old children. Agent Coffman then left the room and told Agent



     1
      “Indicated” appears in this opinion only to the extent it was
used in testimony.

                                         4
Rios    that      Roberts   had    stated         the    diskettes     contained      child

pornography.

       Agents Coffman and Rios presented Roberts a waiver form

stating his Miranda rights.                Roberts initialed each right and

signed the waiver portion of the form.                          Agent Coffman informed

Roberts it is illegal to possess and transport child pornography

out    of   the    country.       When   asked          where    he   had   obtained    the

pornography, Roberts responded: he had downloaded it from internet

sites and chat rooms; he had not paid for it; and it was for

personal use and not resale.

       Shortly     thereafter,      Agent         Coffman      presented,    and    Roberts

signed, a consent-to-search form, authorizing a complete search of

his luggage, computer, and diskettes.                       The form also provided:

“Agents     are    authorized      by    me       to    take    any   letters,      papers,

materials, or other property which they may desire to examine”.

The Agents        signed    a   “Custody      receipt       for    Retained    or    Seized

Property”, which listed the items seized from Roberts.                              Roberts

signed the portion of the form titled “Notice of Abandonment and

Assent to Forfeiture”.

       In accordance with Customs procedure, the Agents provided

Roberts a blank form on which to make a written statement, if he so

chose.      They left Roberts alone, and he provided a four-page

handwritten statement.            Agent Rios and another Agent then finished

the interview.



                                              5
     Agent Coffman testified at trial he believed another Agent

turned on Roberts’ computer that day and confirmed the presence of

pornographic materials.      The Agents did not, however, search the

diskettes that day.       The computer and diskettes were sent to a

forensic agent for an examination; it revealed more than 5,000

graphic images, mostly depicting teens and pre-teens engaged in

sexually explicit conduct.

     On 20 July 1999, approximately 11 months after the search, the

Agents executed an arrest warrant on Roberts at IAH.            Agent Rios

advised Roberts of his Miranda rights, and Roberts waived them in

writing.     Roberts admitted he knew the diskettes seized on 25

August 1998 contained child pornography; stated he had downloaded

it from the internet; and denied having taken the photographs.

     That August, Roberts was indicted on two counts for knowingly

possessing     and    transporting,    in    interstate   commerce,   child

pornography,     in    violation      of    18   U.S.C.   §§   2252A(a)(1),

2252A(a)(5)(b), and 2256(8)(A).        Roberts moved to suppress: (1) on

Fourth Amendment grounds, the evidence seized in the searches; and

(2) the statements he made on that date, as “fruit of the poisonous

tree”.

     Through a comprehensive and insightful opinion analyzing the

constitutionality vel non of routine and non-routine outbound

border searches, the district court held, inter alia: (1) the

initial stop and luggage search in the jetway, as well as escorting


                                       6
Roberts to the secondary search area, were permissible as a routine

border search; (2) Roberts consented to the search of his computer

and diskettes; and (3) even absent consent, the search of the

computer and diskettes would have been valid as a routine border

search. United States v. Roberts, 86 F. Supp. 2d 678, 687-89 (S.D.

Tex. 2000).   Regarding Roberts’ statements, the district court

held: (1) they were not “fruit of the poisonous tree”, as there was

no earlier Fourth Amendment violation; (2) they were not coerced;

and (3) they were not subject to suppression under Miranda v.

Arizona, 384 U.S. 436 (1966).   Roberts, 86 F. Supp. 2d at 689-90.

     In a subsequent bench trial, Roberts was convicted on both

counts. He was sentenced to 51 months imprisonment and three years

supervised release.

                                II.

     The underlying facts are essentially undisputed.     Disputed

questions of law concerning a suppression ruling are reviewed de

novo, including whether there was reasonable suspicion for the

search. See United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir.

1999).   The denial “should be upheld ‘if there is any reasonable

view of the evidence to support it’”.   Id. (quoting United States

v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993)).

                                A.

     The Fourth Amendment provides in part:     “The right of the

people to be secure in their persons ... and effects, against

                                 7
unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause....”           As a result,

“warrantless searches and seizures are per se unreasonable unless

they fall within a few narrowly defined exceptions”. United States

v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 511

U.S. 1134 (1994).

                                    1.

     One exception is for border searches; Agents may conduct a

“routine” search — one that does not “seriously invade a traveler’s

privacy”, id. at 1148 n.3 — “at the international border or its

functional equivalent without probable cause, a warrant, or any

suspicion to justify the search”. United States v. Rivas, 157 F.3d

364, 367 (5th Cir. 1998) (emphasis added).           The parties agree the

initial jetway search occurred at the functional equivalent of the

border but disagree on whether that search was “routine”.

     Citing United States v. Berisha, 925 F.2d 791 (5th Cir. 1991),

Roberts contends: an outbound border search may qualify as routine

only if   the   search   is   incident   to   some   substantial   national

interest, e.g., a search for currency; and, in the alternative, a

seizure of computer equipment cannot be routine because of its

intrusiveness on a traveler’s privacy.          The Government counters:

the jetway search involved a routine search for currency and

technology; an additional subjective motive to search for child

pornography did not render it non-routine; and a limited search and


                                    8
seizure of a person and his effects, including a computer, is

routine for purposes of the border search exception.

     For obvious reasons, constitutional issues should be decided

on the most narrow, limited basis.    See, e.g., Dallas Joint Stock

Land Bank v. Davis, 83 F.2d 322, 323 (5th Cir. 1936) (“[I]t is a

settled rule in the federal courts that questions of constitutional

law ... will be decided only where a present necessity for such

decision exists, and then only no more broadly than the precise

situation in question requires”.); see also Liverpool, N.Y. &

Philadelphia S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39

(1885) (admonishing “never to formulate a rule of constitutional

law broader than is required by the precise facts to which it is to

be applied”);   Staub v. City of Baxley, 355 U.S. 313, 330 (1958)

(Frankfurter, J., dissenting) (noting Supreme Court practice of

“keeping constitutional adjudication, when unavoidable, as narrow

as circumstances will permit”).      Accordingly, if possible, the

issue of whether the jetway search was “routine” should be avoided.

     On this record, it is possible to do so.   Assuming the search

was not routine, it is well established that, for inbound traffic,

Customs Agents may conduct “non-routine” searches at the border or

its functional equivalent provided they reasonably suspect the

traveler is smuggling contraband.     See Cardenas, 9 F.3d at 1148




                                9
n.3. It is on this more narrow constitutional basis that, for this

outbound traffic, the suppression ruling can be affirmed.2

                                         2.

       To date, our court’s non-routine border search jurisprudence

has involved only inbound searches. While cases involving arguably

non-routine outbound searches have arisen in our circuit, they have

been       resolved     on   grounds   alternative   to   the   border   search

exception. See, e.g., Samora v. United States, 406 F.2d 1095, 1099

(5th Cir. 1969) (finding probable cause and stating “[w]e need not

consider other grounds on which the government claims the search

was valid”).          In Berisha, 925 F.2d at 795, our court extended the

border search exception to routine outbound searches conducted

       2
      Even Roberts seems to agree with the Government on the
constitutionality of this more narrow exception. In any event,
this issue was raised in district court.     Roberts, of course,
maintains reasonable suspicion is lacking. For this alternative
basis for upholding the search, the district court noted:

               If the border search exception applies to
               export searches in the same way it applies to
               searches of persons and property entering the
               country, then the agents had the authority to
               search the defendant’s computer and diskettes
               even if that search would be “nonroutine.”
               The agents needed only a “reasonable suspicion
               of wrongdoing” to conduct a nonroutine search.
               They had a reasonable suspicion based on the
               information they had previously received about
               the defendant and their corroboration of that
               information in their preliminary observations
               and during the routine detention and search in
               the jetway.

United States v. Roberts, 86 F. Supp. 2d 678, 688 n.4 (S.D. Tex.
2000) (emphasis added).

                                         10
pursuant to a statute authorizing Customs Agents, for purposes of

detecting certain currency violations, to “stop and search, at the

border and without a search warrant ... any person entering or

departing from the United States”.         31 U.S.C. § 5317(b).3

     Our court declined, however, to adopt a blanket rule as to the

applicability   of   our   border     search   jurisprudence   to    outbound

searches    generally.       See    Berisha,    925   F.2d   at     795    n.8.

Nevertheless, Berisha’s observations regarding the similarities

between    inbound   and   outbound    searches   are   pertinent     to    the

constitutionality vel non of the search at issue:

            We note that both incoming and outgoing border
            searches have several features in common; for
            example, the government is interested in
            protecting some interest of United States
            citizens, there is a likelihood of smuggling
            attempts at the border, and the individual is
            on notice that his privacy may be invaded when
            he crosses the border.

Id. at 795 (citing United States v. Stanley, 545 F.2d 661, 667 (9th

Cir. 1976), cert. denied, 436 U.S. 917 (1978)).

     Perhaps most instructive for the present case is United States

v. Salinas-Garza, 803 F.2d 834 (5th Cir. 1986), where our court

considered whether, pursuant to an earlier version of the statute

     3
      That section provides: “For purposes of ensuring compliance
with the requirements of [31 U.S.C. §] 5316, a customs officer may
stop and search, at the border and without a search warrant, any
vehicle, vessel, aircraft, or other conveyance, any envelope or
other container, and any person entering or departing from the
United States”.    31 U.S.C. § 5317(b).     The referenced § 5316
establishes a reporting requirement for persons transporting out of
the country monetary instruments greater than $10,000.

                                      11
involved in Berisha, there was the then requisite “reasonable

cause” to permit an outbound stop and search for currency.             The

earlier version authorized a border search only if a Customs Agent

“had reasonable cause to believe” a person was engaging in certain

currency violations.      31 U.S.C. § 5317(b) (1984) (emphasis added).

In reviewing the denial of Salinas-Garza’s suppression motion, our

court observed:

          Some circuits have extended the [border search
          exception] to persons exiting the country.
          Such a standard would allow a warrantless
          search of a person leaving the country without
          any modicum of suspicion of criminal activity.
          However, we do not need to decide whether to
          adopt such a position because even if such a
          border    search     were    constitutionally
          permissible, Congress can further restrict the
          search authority of federal agents, and has
          done so in the context of this case. Thus, it
          is not the constitutional standard of a border
          search that regulates the behavior of the
          custom agents in this case, but a statutory
          one.

Salinas-Garza,    803    F.2d   at   836-37   (emphasis   added;   internal

quotations, citations, and footnote omitted).

     While our court purported not to decide a constitutional issue

in Salinas-Garza, id. at 836 n.4, 837, it implicitly did.               The

opinion’s characterization that Congress “restricted” the search

authority of federal agents by imposing the “reasonable cause”

standard is only accurate to the extent that the search authority

prior to such Congressional action required something less than

reasonable cause.       Restated, our court assumed that what Congress


                                      12
restricted was the border search exception itself. For absent that

exception, the applicable standard for the search would have been

probable cause — a standard more restrictive than the reasonable

cause required by the statute.           In short, for outbound border

searches, our court acknowledged, by implication, a constitutional

standard less stringent than probable cause.

     As our court noted in Salinas-Garza, other circuits have

acknowledged the full force of the border search exception for

outbound searches. See, e.g., Stanley, 545 F.2d at 665-67; United

States   v.   Ezeiruaku,    936   F.2d     136,   143   (3d   Cir.   1991)

(“Accordingly, we ... conclud[e] that the traditional rationale for

the border search exception applies as well in the outgoing border

search context.”); United States v. Duncan, 693 F.2d 971, 977 (9th

Cir. 1982) (“Since this was a search at a ‘border’, of a person

leaving the country, there is no need for probable cause, warrants

or even suspicion.”), cert. denied, 461 U.S. 961 (1983); United

States v. Ajlouny, 629 F.2d 830, 834 (2d Cir. 1980) (interpreting

Second Circuit law to hold “the border search exception applies to

items leaving as well as entering the country”), cert. denied, 449

U.S. 1111 (1981).     Even so, as in Berisha, it is not necessary on

this record to fully extend the border search exception to all

outbound searches.4


     4
      The Supreme Court has suggested — albeit in dicta — that such
a result is permissible: “[T]hose entering and leaving the country

                                   13
     Pursuant to the plain wording of the Fourth Amendment (“right

to be secure ... against unreasonable searches and seizures”),

“[t]he ultimate standard set forth in the Fourth Amendment is

reasonableness”.   Cady v. Dombrowski, 413 U.S. 433, 439 (1973).   In

addition, “the Fourth Amendment balance between the interests of

the Government and the privacy of the individual is ... struck much

more favorably to the Government at the border”.   United States v.

Montoya de Hernandez, 473 U.S. 531, 540 (1985). Accordingly, based

on this record, and bringing into play only the most narrow

constitutional basis, a non-routine outbound search is permissible

when the following factors are present: (1) the outbound search is

at the border or its functional equivalent; (2) Customs Agents have

reasonable suspicion that a particular traveler will imminently

engage in the felonious transportation of specific contraband in

foreign commerce; and (3) the search is relatively unintrusive and

only of the area where the contraband is allegedly secreted.

Factors (1) and (3) are satisfied for the initial search at the

jetway; factor (2) (reasonable suspicion), as discussed below in

part II.B., is as well.

     Again, our holding establishes only the most narrow basis for

a non-routine outbound search being constitutional.   Expansion, if




may be examined as to their belongings and effects, all without
violating the Fourth Amendment....” Cal. Bankers Ass’n v. Shultz,
416 U.S. 21, 63 (1974).

                                 14
any, of this holding must await another case.      Obviously, each case

will turn on its facts.

                                  B.

      “Reasonable suspicion is defined as ‘a particularized and

objective basis for suspecting the particular person’ of smuggling

contraband.” Rivas, 157 F.3d at 367 (quoting Montoya de Hernandez,

473 U.S. at 541).       Such suspicion must be based upon “specific

facts which, taken together with rational inferences therefrom,

reasonably warrant an intrusion”.      Cardenas, 9 F.3d at 1153.     “In

determining   whether    government   agents   possessed   a   reasonable

suspicion that criminal activity was occurring, we must consider

‘the totality of the particular circumstances.’”       Rivas, 157 F.3d

at 367 (quoting Cardenas, 9 F.3d at 1148).      As stated earlier, each

reasonable suspicion case ultimately turns on its own facts.

United States v. Himmelwright, 551 F.2d 991, 995 (5th Cir.), cert.

denied, 434 U.S. 902 (1977).

      The facts at hand are not novel.         Almost 25 years ago, in

United States v. Afanador, 567 F.2d 1325 (5th Cir. 1978), our court

reviewed the denial of a motion to suppress cocaine discovered and

seized by Customs Agents in the course of a strip search of two

flight attendants who had entered the United States.       Id. at 1327-

28.   Those Agents acted pursuant to a tip from a confidential

source with whom the Agents had had no prior contact.                The

informant provided the following information: (1) a particular

                                  15
person (defendant Vidal-Garcia); (2) would fly into the country

(Miami); (3) from a foreign country (Colombia); (4) on a particular

flight (Aerocondor 204); (5) on a particular date (3 January 1977);

(6) traveling as a stewardess; (7) carrying a particular type of

contraband (cocaine).   Id. at 1327.   Upon the specified flight’s

arrival, Customs authorities verified Vidal-Garcia had arrived as

a stewardess on the specified flight and date.      After a primary

search of the crew’s luggage revealed nothing suspicious, and

“[s]olely on the basis of the partially verified confidential tip

regarding Vidal-Garcia, customs inspectors were instructed by their

supervisor ... to search all six members of the Aerocondor crew”.

Id.   In the ensuing strip searches, Agents discovered cocaine on

the persons of Vidal-Garcia and another crew member.   Id. at 1327-

28.

      In affirming the denial of the motion to suppress as to Vidal-

Garcia, our court stated:

           We   believe  the   applicable   standard   of
           “reasonable suspicion” is met in a strip
           search case where the authorities have
           received information as detailed as that
           received in this case, specifying that a named
           individual traveling in a specified capacity
           will be body carrying a particular type of
           contraband on a particular date and flight,
           where   the  identifying   portion   of   that
           information   has   been   verified   by   the
           authorities on the flight’s arrival, and where
           the authorities have no reason to believe the
           informant is unreliable and have taken
           affirmative steps to insure that the informant
           is not being paid for the information and has
           no criminal record.

                                 16
Id. at 1329 (emphasis added; footnote omitted). Afanador is clear:

where the Government has received information of requisite detail

from a confidential source, and where enough of that detail has

been verified (albeit detail of otherwise innocent activity),

reasonable suspicion to conduct a non-routine border search is

established.

       Of course, this case differs from Afanador in one respect —

here, an outbound search is involved.             This case mirrors Afanador,

however, in almost every other respect.               First, the information

provided to Customs Agents here was the same in kind and degree as

that provided to Customs Agents in Afanador.                 Between 24 and 25

August 1998, Rios learned: (1) Roberts; (2) would fly into IAH; (3)

from   Louisiana;    (4)   on   25    August     1998;   (5)   continue   on   an

international flight; (6) carrying a shaving kit; (7) holding

diskettes; (8) containing child pornography.

       Second, the degree of independent corroboration here is nearly

identical to that in Afanador.                 That Roberts was flying from

Louisiana to Houston was corroborated when Agent Coffman matched

Roberts to     his   photograph      as   he   disembarked     the   flight   from

Louisiana.    That Roberts would connect to an international flight

was corroborated when Agents checked the flight database and

confirmed Roberts was scheduled on the Paris-flight.

       That the source of the information on which Agents in the

present case acted (other law enforcement officers) differed from

                                          17
that       on   which   the   Agents     in    Afanador   acted    (a   confidential

informant)        is    of    no   consequence.5           As     discussed    supra,

Salinas-Garza involved an outgoing border search conducted pursuant

to the earlier “reasonable cause” version of 31 U.S.C. § 5317(b).

In that case, the Customs Agent who conducted the stop and search

had received information from a Drug Enforcement Agent:

                DEA agent Saldana called Cano early in the
                morning informing him that a specifically
                named   person,   Salinas-Garza,    would  be
                attempting to cross the border at 6:00 A.M.
                with a large sum of money in a dark colored
                Ford pickup truck having a specifically
                identified license plate. At 6:15 A.M. a dark
                colored Ford pickup truck approached, with a
                license plate number identical but for one
                transposed    digit.    Upon     asking   for
                identification, the customs agents verified
                the person as Salinas-Garza.

803 F.2d at 837. Our court concluded that the information received

and corroborated created “a reasonable cause or suspicion to stop

the vehicle and inquire whether Salinas-Garza was transporting

monetary instruments”.             Id.        Moreover, our court ruled that,

“[a]fter [Salinas-Garza] responded in the negative and since all

the other information proved to be correct, it was reasonable for

the    agents      to    believe   Salinas-Garza          was   violating     section

5316(a)(1)(A) and to then search the vehicle”.                    Id.




       5
      Agent Rios testified he was unaware of the source or
reliability of the information received from RAC-Lake Charles and
the Natchitoches Parish Sheriff’s Office.

                                              18
     Salinas-Garza moved to suppress evidence seized during the

search, contending in part “that reasonable suspicion did not exist

because the only basis for the search was information from [DEA

Agent] Saldana, who received it from an unidentified source of

unknown reliability”.       Id. at 838.       Our court held:        “While it is

not entirely clear where the information originally came from, ...

when the   details   of   the   tip     are   corroborated      by    independent

investigation, it may give rise to a reasonable suspicion”.                  Id.

     As in Salinas-Garza, “[t]he accurate transmission by ... law

enforcement agent[s] of articulable objective facts, subsequently

corroborated, was sufficient to create a reasonable suspicion in

the minds of the customs agents”, id. at 837, to search Roberts’

luggage, including    the     shaving      kit,   at   the   jetway.      Further

corroborated by Roberts’ evasiveness and the discovery of the

diskettes in his shaving kit, that suspicion warranted the Agents’

escorting Roberts to the secondary area for questioning.

                                      C.

     Concerning the subsequent searches of Roberts’ computer and

diskettes, the district court ruled, and we agree, that Roberts

consented to both: Roberts waived his Miranda rights; signed a

consent-to-search    form    authorizing       the     Agents   to    “conduct   a

complete search of [his] luggage, computer, [and] diskettes” and

“take any letters, papers, materials, or other property which they




                                      19
may desire to examine”; and signed a notice of abandonment and

assent to forfeiture.

     Roberts       contends   his    consent         was   obtained      unlawfully,

maintaining that the Agents induced his consent by threatening to

proceed with the search regardless.             His assertion is irrelevant;

before the Agents searched the computer or diskettes, Roberts

admitted to Agent Coffman that the diskettes contained child

pornography.        “Admissions     of    crime,      like      admissions   against

proprietary        interests,       carry        their       own      indicia       of

credibility—sufficient at least to support a finding of probable

cause.”    United States v. Harris, 403 U.S. 573, 583 (1971).                   The

subsequent search and seizure of the computer and diskettes were

justified on probable cause grounds at that point, and the Agents

properly and immediately administered the Miranda warnings.

                                      III.

     The       initial   jetway   search       was    permitted     by   reasonable

suspicion that Roberts was about to board an international flight

with child pornography in tote.           The subsequent search and seizure

of the computer and diskettes were permitted by probable cause

resulting from Roberts’ admission.             Because there was no unlawful

search    or     seizure,   there   was       likewise     no    poisonous    fruit.

Therefore, all evidence obtained, including Roberts’ statements,

was admissible.

                                                                         AFFIRMED


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