Kaniff, Kathryn v. United States

Court Case Details
  • Case Name: Kaniff, Kathryn v. United States
  • Court: Court of Appeals for the Seventh Circuit
  • Filed: December 11, 2003
  • Precedential Status: Published
  • Docket #: 02-2184
  • Judges: Per Curiam
  • Nature: civil
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2184

K

K

,

ATHRYN

ANIFF

Plaintiff-Appellant,

v.

U

S

A

,

NITED

TATES OF

MERICA

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 3882—Rebecca R. Pallmeyer, Judge.

____________

A

F

18,

2003—D

D

11,

2003

RGUED

EBRUARY

ECIDED

ECEMBER

____________

Before R

,

D

P.

W

, and E

, Circuit

IPPLE

IANE

OOD

VANS

Judges.

D

P.

W

, Circuit Judge. Kathryn Kaniff was

IANE

OOD

singled out for further inspection as a suspected drug
smuggler at O’Hare International Airport when she re-
turned from a four-day trip to Jamaica over the Christmas
holiday in 1997. After a pat-down search, a visual inspec-
tion of her body cavities, and an x-ray of Kaniff’s abdomen
failed to yield evidence of contraband, Customs officials al-
lowed her to leave the airport. Understandably distressed

2

No. 02-2184

by her ordeal, Kaniff sued the inspectors in their individual
capacities, alleging common law tort and constitutional
violations. The court later substituted the United States
as the defendant, and Kaniff dismissed her suit against the
individual officers with prejudice. After a full trial, an
advisory jury recommended judgment in Kaniff’s favor. The
district judge, however, disagreed with the recommendation
and entered judgment for the United States. Kaniff now
appeals. We affirm, in essence because the Customs officials
had sufficient grounds for their actions, even though their
suspicions ultimately proved to be unfounded.

I

As she had done for several years, Kaniff traveled to

Jamaica for a four-day vacation over the Christmas holiday.
She paid for her plane ticket in cash, and the price she paid
was higher than it might have been because she made her
arrangements less than two weeks before the trip. Notwith-
standing the latter fact, the price was not considerably
greater than she had paid for the same trip in years past.
For lodgings, she chose to camp at the Silver Point Resort
in Negril, as she had done on all but one of her prior trips
to Jamaica. The “resort” is actually a modest campground
and several rustic cabins located in the owner’s backyard.

Before Kaniff’s return flight to Chicago, the U.S. Customs

Service Passenger Analysis Unit (PAU) reviewed informa-
tion about her. The PAU is responsible for screening
incoming passengers for indicia of possible drug smuggling.
In Kaniff’s case, this review prompted Customs inspectors
at O’Hare to pre-select her for further questioning upon her
arrival. It did so for a number of reasons. At trial,
Guadalupe Whyte (at the time Guadalupe Corona), the
Customs inspector who was working in the PAU and who
created a “lookout” in the Customs database for Kaniff,

No. 02-2184

3

testified that the red flags were raised because Kaniff was
traveling from Jamaica, a known narcotics source country
from which drug traffickers frequently smuggle drugs using
body cavities, and because Kaniff was returning after a
short trip. In addition, after the government was permitted
to show Whyte a printout of the computer screens that she
had consulted when she ran the computer check in the
PAU, Whyte recalled that she would also have considered
the fact that narcotics arrests had been made at Kaniff’s
address and the fact that Kaniff had been referred for a
secondary Customs examination (that yielded no evidence
of contraband) upon her return from an earlier trip to
Jamaica. With the “lookout” in the computer, Kaniff was
immediately singled out for special treatment when she
deplaned at O’Hare. She was routed to a secondary inspec-
tion area after a trained dog independently alerted to the
odor of narcotics from her person or from a box that she was
carrying (when Kaniff walked down the jet-way past the
dog, he pulled away from his handler, began to “work the
air” behind Kaniff trying to trace the source of the scent of
narcotics he detected, and eventually circled her body before
hitting a box that she was carrying with his nose).

After the dog alert (which Kaniff has challenged, as we

discuss below), Customs inspector Olga Martinez took
Kaniff to the Customs inspection area to ask her some
questions and to inspect her luggage and the box. Although
a search of Kaniff’s luggage and the box did not yield any
contraband, Martinez was unsatisfied with Kaniff’s an-
swers to several questions. She accordingly sought and
obtained permission from her supervisor, Mark Woods,
to subject Kaniff to a pat-down search. Kaniff complains
about the questioning process itself, claiming that Martinez
repeatedly cut her off and did not allow her to give complete
answers to questions about the details of her trip to Ja-
maica, her income and employment.

4

No. 02-2184

The pat-down search took place in a private room

with Customs inspector Whyte observing Martinez’s work.
Claiming to have felt a thickness in Kaniff’s crotch, Marti-
nez asked Kaniff if she was wearing a sanitary pad or
menstruating; Kaniff answered no to both questions.
Martinez, now concerned that Kaniff may have hidden
contraband in her pants or a body cavity, consulted a
second time with Woods. She obtained permission to con-
duct a partial strip search during which Kaniff was told
to lower her pants and underpants so that both could
be inspected, and to spread her legs and buttocks with
her hands so that inspector Martinez could visually inspect
her anus. There was still no sign of contraband, and so
Martinez consulted her supervisor once again. This
time they were joined by inspector Whyte, and the three
discussed all known information about Kaniff. That infor-
mation included a number of facts that appeared suspicious,
including the fact that heroin was seized from an apartment
in the building in which she had lived the prior year, the
dog alert to narcotics odor from Kaniff or her possessions,
Kaniff’s responses to various questions, an inconsistency
between her driver’s license address (in Wisconsin) and the
address that she gave the Customs inspectors (in Illinois),
and her last minute and unusual travel arrangements,
including the fact that she told the inspectors that she was
going to page a friend to pick her up at the airport, but that
she did not know exactly where this friend lived.

Concerned that Kaniff might be an “internal” drug

smuggler (that is, someone who conceals the drugs some-
where inside her body), Woods advised her that she could:
(1) wait and pass a bowel movement naturally; (2) take a
laxative and wait to pass a bowel movement; or (3) consent
to an x-ray. All three options involved a trip to a nearby
hospital because it is Customs policy to take individuals
suspected of smuggling drugs by ingesting them to a med-

No. 02-2184

5

ical facility in case the package in which the drugs are
sealed ruptures and leaks internally before the drugs are
passed (a possibility that could be lethal). Woods also
explained to Kaniff that if she chose to wait or refused to
consent to an x-ray, Customs could seek a warrant to re-
quire her to have an x-ray. Kaniff then apparently signed a
consent form, although the evidence of her consent was not
as clear as it might have been. The government could not
produce the original signed form, because it was lost or
destroyed. Instead, it offered a copy that it had obtained
from the hospital. The reproduced copy of the form con-
tained Martinez’s and Whyte’s signatures, but Kaniff’s
signature was not visible because the copy was poor. After
hearing testimony from Kaniff, Woods, Whyte and
Martinez, the district court concluded that Woods credibly
testified that he informed Kaniff of her right to refuse to
consent to the x-ray and that Kaniff knowingly and volun-
tarily signed the consent form and thus agreed to submit to
the procedure.

Before taking Kaniff to a nearby hospital for the x-ray,

Woods obtained permission to take this step from the Chief
Customs inspector at O’Hare Airport. The Chief Customs
inspector agreed that there were reasonable grounds to
suspect Kaniff of internally smuggling narcotics. Kaniff was
then handcuffed and taken by Woods, Martinez and Whyte
to Resurrection Medical Center. The hospital was given a
copy of Kaniff’s signed consent form and, as was its policy,
required her to take a pregnancy test before administering
the x-ray. The pregnancy test necessitated a urine sample,
which Kaniff was required to produce in the presence of
inspectors Martinez and Whyte to ensure that contraband
was not destroyed or lost in the process. After the preg-
nancy test came back negative, Kaniff’s abdomen was x-
rayed. The x-ray revealed no contraband. Her ordeal over,
Kaniff was taken back to O’Hare, allowed to retrieve her
belongings, and released.

6

No. 02-2184

In June 1999, Kaniff filed a Bivens lawsuit against

several named Customs inspectors alleging violation of
various constitutional rights. She amended the suit to add
supervisor Woods and several common law tort claims,
including intentional infliction of emotional distress, false
imprisonment, assault and battery. The United States
moved to be substituted as the defendant for the tort
counts, and the named defendants filed a motion for sum-
mary judgment asserting qualified immunity as a defense.
The defendants’ motion was denied and then reinstated by
the district court upon the defendants’ motion for reconsid-
eration. Before the district court could rule on the motion
for summary judgment, the parties agreed to dismiss the
claims against the individual defendants with prejudice,
and to proceed before an advisory jury against the United
States alone on the non-constitutional tort claims under the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.
See also F

.

R.

C

.

P.

39(c). Following a full trial, as we

ED

IV

have noted, the advisory jury found for Kaniff. The district
court evaluated the case differently and entered judgment
for the United States.

II

O’Hare Airport is a major international port of entry

into the United States. At all such entry points, Customs
officials are entitled to conduct routine questioning and
examination of luggage, without any particular level of
suspicion. United States v. Montoya de Hernandez, 473 U.S.
531, 537 (1985); United States v. Yang, 286 F.3d 940, 944
(7th Cir. 2002); United States v. Johnson, 991 F.2d 1287,
1290-92 (7th Cir. 1993). In Kaniff’s case, however, certain
facts about Kaniff had raised enough concern for the first
round of supplemental questioning, and during that
process, inspector Martinez grew concerned about some of

No. 02-2184

7

the answers that Kaniff gave. The issues before us relate to
the escalating levels of intrusion that took place thereafter.

The first additional step that inspector Martinez took was

to conduct a pat-down search, after the inspector asked for
permission to do so and her supervisor approved. There is
some uncertainty over whether a pat-down search is a non-
routine border search that must be justified by some
quantum of suspicion—reasonable suspicion or less. The
Third Circuit has recently taken the position that a pat-
down search at a U.S. border is a routine border search that
requires no suspicion at all. In doing so, it joined a long line
of decisions that have reached the same result. Bradley v.
United States
, 299 F.3d 197, 203 (3d Cir. 2002); accord
United States v. Beras, 183 F.3d 22, 26 (1st Cir. 1999);
United States v. Gonzalez-Rincon, 36 F.3d 859, 864 (9th Cir.
1994); United States v. Carreon, 872 F.2d 1436, 1442 (10th
Cir. 1989); United States v. Oyekan, 786 F.2d 832, 835 (8th
Cir. 1986). See also United States v. Flores-Montano, No.
02-50306 (9th Cir. Mar. 14, 2003), petition for cert. filed, 71
U.S.L.W. 3791 (U.S. June 11, 2003) (No. 02-1794) (seeking
review of question whether Customs officials at interna-
tional border must have reasonable suspicion to remove,
disassemble, and search vehicle fuel tank for contraband).
In the past, this court has suggested that a pat-down search
at the border lies somewhere between routine questioning
and luggage inspection, which requires no suspicion, and a
strip search, which must be supported by reasonable sus-
picion. United States v. Dorsey, 641 F.2d 1213, 1218
(7th Cir. 1981). Later cases have not squarely addressed the
level of suspicion that is required to justify a pat-down
search. See, e.g., Johnson, 991 F.2d at 1291-92 (discussing
routine and non-routine border searches); Saffell v.
Crews
, 183 F.3d 655, 657-59 (7th Cir. 1999) (finding ample
justification to support strip search without explaining
quantum of suspicion required to conduct initial pat-down

8

No. 02-2184

search). This case does not require us to reconsider our
holding in Dorsey and decide whether any suspicion is
required to support a pat-down search at a U.S. border,
because we agree with the district court that the reasonable
suspicion existed here. Kaniff, of course, disagrees.

A

By now it is axiomatic that a district court’s finding of

reasonable suspicion is subject to plenary review, although
we defer to the district court’s findings of historical fact,
reversing only on a showing of clear error. Ornelas v. United
States
, 517 U.S. 690 (1996); United States v. Harris, 281
F.3d 667, 670 (7th Cir. 2002). This standard of review
requires us to parse the district court’s ruling carefully,
separating the fact findings, including credibility determi-
nations, from the applications of fact to law. It is the former
to which we owe deference, while the latter are subject to de
novo
review. Ornelas, 517 U.S. at 696-97; Harris, 281 F.3d
at 670.

In finding reasonable suspicion to justify the pat-down

search, the district court correctly considered all of the facts
that were known to inspector Martinez at the time she
sought permission to conduct the search. United States v.
Arvizu
, 534 U.S. 266, 274 (2002); Montoya de Hernandez,
473 U.S. at 541. As the Supreme Court has explained,
reasonable suspicion requires “a particularized and objec-
tive basis for suspecting the particular person” of concealing
contraband. Montoya de Hernandez, 473 U.S. at 541-42
(internal quotation marks and citations omitted). Those
facts included the particularized, objective information we
described above: the premium fare for the ticket; the use of
cash for the purchase; equivocal answers to several of
Martinez’s questions about where she stayed and how, on
an annual income of $9,000 to $11,000, she could afford the

No. 02-2184

9

trip; and the disparity between her Illinois home address
and the Wisconsin address on her driver’s license.

In response, Kaniff notes that several of these factors,

when considered in isolation, are consistent with the char-
acteristics and behavior of innocent travelers. We agree
with this general observation, but it is not enough to carry
the day for Kaniff. For example, it does not strike us as
particularly suspicious that Kaniff’s driver’s license listed
a Wisconsin address yet she gave the airline an Illinois
home address. In our mobile society, people move around
frequently, and Kaniff might have changed residences be-
tween the time her driver’s license was issued and her
airline tickets were purchased, or she might simply have
been slow to bring her driver’s license up-to-date. But
taking all the circumstances that were before the customs
inspectors together, as we must, we have no trouble con-
cluding that they created a reasonable suspicion that Kaniff
might have been smuggling drugs. See, e.g., Arvizu, 534
U.S. at 273, 275-76. Far more was before the court than was
found in the case of Reid v. Georgia, 448 U.S. 438 (1980)
(per curiam), on which Kaniff relies. In Reid, two travelers
were stopped for questioning on the basis of nothing more
than an-over-the-shoulder glance between them and the
fact that they were carrying matching carry-on luggage. 448
U.S. at 439. This, according to the Court, was “simply too
slender a reed to support the seizure in this case,” because
the circumstances “describe a very large category of pre-
sumably innocent travelers, who would be subject to
virtually random seizures” were the government’s position
embraced. Id. at 441. The objective facts pointing to a
reasonable suspicion in Kaniff’s case far exceed those in
Reid.

In another effort to undermine the district court’s rea-

sonable suspicion finding, Kaniff also challenges several
of its fact findings and evidentiary rulings. Yet in doing
so she has not shown anything to justify finding clear error

10

No. 02-2184

or an abuse of discretion in the presentation of the evidence.
Instead, she simply re-argues points that she raised and
lost in the district court. For example, she insists that the
so-called suspicious answers that she gave to inspector
Martinez appeared suspicious only because Martinez would
not let her finish her answers to the questions. Kaniff made
this same argument in the district court, even though
inspector Martinez testified that she allowed Kaniff to
provide complete responses to her questions. The district
court appears to have credited Martinez’s testimony
because it found Kaniff’s suspicious answers were one of
several factors upon which the Customs inspectors relied to
form their suspicion that she was smuggling drugs. This is
a straightforward credibility question, and we cannot say
that the district court’s decision to credit Martinez’s account
over Kaniff’s was clearly erroneous. United States v.
Carrasco
, 887 F.2d 794, 819 (7th Cir. 1989) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985)).

Likewise, Kaniff offers no basis on which we could find

clear error in the district court’s finding that a trained nar-
cotics dog alerted to the odor of narcotics from Kaniff’s
person or the box she was carrying. The trial transcripts
fully support the conclusion that the dog alerted to an odor
of narcotics that was somewhere between his nose,
Kaniff’s body, and the box that she was carrying. Upon
further questioning by the district court, the dog handler
testified that he did not allow the dog to finish his alert by
sitting down because the handler was not in a position
immediately to verify the source of the narcotics odor and
did not want to reward the dog for a potential false alert.
The district court, however, found nothing equivocal in the
dog’s alert, which it was entitled to do based on this
testimony.

Finally, Kaniff attacks the court’s decision to allow the

government to refresh inspectors Whyte’s and Woods’s re-
collection of the fact that during the creation of the PAU

No. 02-2184

11

lookout, inspector Whyte learned of narcotics arrests at
Kaniff’s Chicago address. Kaniff believes that she was
sand-bagged by the government’s last minute reliance on a
screen-by-screen computer playback that documented each
screen inspector Whyte looked at in developing the PAU
lookout. This information came to light in a rather unusual
way. Although during discovery Kaniff sought disclosure of
any underlying documentation in this case, the government
did not turn over the playback records because it had not
yet created these documents. The district court noted that
Kaniff’s request for electronic records would have included
such records. It expressed great concern over the govern-
ment’s last minute reliance on these documents to introduce
the very damaging fact that the Customs inspectors were
aware that Kaniff lived in a building in which drug arrests
had occurred. Nevertheless, the district court ruled that the
records could be used to refresh the inspectors’ recollection
of what information Whyte accessed prior to creating the
PAU lookout; it did not allow the government to introduce
the playback screens into evidence. We must decide
whether this decision was an abuse of the court’s discretion.

Inspectors Whyte and Woods both testified (after having

an opportunity to view the computer playback) that they
considered the fact that Kaniff lived in a building in
which drug arrests had occurred in assessing the totality of
circumstances to support their suspicion that Kaniff
was smuggling drugs. The fact that inspector Martinez
expressly testified that she did not consider the PAU
lookout in forming a suspicion about Kaniff does not mean
that this information was irrelevant. To the contrary, the
inspectors consulted one another before seeking Kaniff’s
consent to submit to an x-ray, and thus it was their col-
lective knowledge that mattered. The information about the
building was relevant to their belief that Kaniff may have
been smuggling drugs even though the mere fact of unre-

12

No. 02-2184

lated drug arrests in the building alone would have been
insufficient to support the inspectors’ suspicions.

Although the last-minute notice in this case made it

very difficult for Kaniff to respond to the government’s
computer records, the government provided adequate jus-
tification for the timing of its disclosure. Kaniff intended to
challenge the accuracy of the PAU record (known as a TECS
II, Treasury Enforcement Communication System report),
which was the only contemporaneous document that the
government revealed during discovery in this case. She
sought to introduce testimony from a former Customs
Service employee who was prepared to testify that he
believed the record may have been tampered with as late as
six months after the incident. In order to rebuff this line of
argument, the government decided to review the computer
screens that Whyte had accessed from the Customs Service
Internal Affairs Division. This review demonstrated that
the computer records had not been altered in a substantive
way. The government insists that it notified Kaniff’s
lawyers that it had created a playback of the computer
screens and that the printout was available for review.
Kaniff’s lawyers denied ever receiving notification of the
creation of the playback. In any event, the relevance of the
printouts of the computer screens did not become apparent
to the government until well into trial when its lawyers
were preparing Brian Yates, the dog handler, for his trial
testimony. It was Yates who first recalled that the customs
inspectors discussed the fact that narcotics arrests had
occurred at Kaniff’s building. In order to verify Yates’s
recollection, the government turned to the playback records.
The computer records indeed reflected the fact that inspec-
tor Whyte had accessed a screen that indicated the narcot-
ics arrest.

We agree with the government that this set of circum-

stances is devoid of any evidence of intentional sandbag-
ging. Nor does Kaniff suggest that the computer records are

No. 02-2184

13

in any way inaccurate. Although we find it troubling that
inspectors Martinez, Whyte, and Woods did not independ-
ently recall in their depositions and trial testimony the fact
that inspector Whyte learned of the narcotics arrest and
that this information was relied on in deciding to subject
Kaniff to an x-ray, the district court conducted a lengthy,
in-chambers discussion with the parties on this issue and
ultimately allowed the computer records to be used to
refresh
inspectors Whyte’s and Woods’s memories. This
decision was not so far out-of-bounds as to be an abuse of
the court’s discretion. And even if we were to find that the
district court abused its discretion in allowing the govern-
ment to refresh its witnesses’ memories, any such error is
harmless in light of all the other information that the
district court had to support its conclusion that the pat-
down search was supported by a reasonable suspicion of
drug smuggling. United States v. McCarthur, 6 F.3d 1270,
1280 (7th Cir. 1993).

B

Next Kaniff attacks the district court’s conclusion that the

humiliating partial strip search was supported by rea-
sonable suspicion. But the very same reasonable suspicion
that supported the pat-down search was enough to justify
this additional step, unpleasant though it may have been.
In seeking approval to conduct a partial strip search, in-
spector Martinez had an additional factor to justify the
search: she thought that she felt something hard in
Kaniff’s crotch during the pat-down search. When Kaniff
indicated that she was neither menstruating nor wearing a
sanitary pad, inspector Martinez had ample justifica-
tion—especially in light of everything else that she knew
about Kaniff’s unusual circumstances and travel plans—to
support the partial strip search. See Safell, 183 F.3d at 657
(finding ample support for pat-down search following drug

14

No. 02-2184

dog’s detection of narcotics odor and reasonable suspicion
for partial strip search after customs inspector felt bulge on
passenger).

Seizing upon language in the district court’s opinion that

expresses skepticism over what inspector Martinez may
have felt in Kaniff’s crotch while conducting the pat-down
search, Kaniff insists that the district court improperly
deferred to Martinez’s testimony even though it believed
she was lying. The entirety of the district court’s remarks,
however, indicate that the court ultimately decided to credit
Martinez’s account. Initially, as Kaniff is quick to point out,
the district court expressed doubt over exactly what it was
that Martinez may have felt through Kaniff’s thin blue
jeans. Notwithstanding its doubts, however, the court saw
no indication of ill motive on Martinez’s part nor did it have
any other reason to suspect her of lying, and thus it con-
cluded that Martinez had testified truthfully about her
perceptions at the time. This is not a case in which the
court credited wholly improbable testimony. United States
v. Dillon
, 150 F.3d 754, 758 (7th Cir. 1998) (“We defer to a
district court’s credibility determinations unless the district
judge has chosen to credit exceedingly improbable testi-
mony.”) (internal quotation marks and citation omitted).
Nor did the court simply defer to Martinez’s testimony
because it was unwilling to second-guess the assessment of
a Customs inspector. The latter position, of course, would be
unjustified. Law enforcement officers, by their mere
position, are not necessarily more credible than other
witnesses when they testify as fact witnesses. Cf., United
States v. Amerson
, 938 F.2d 116, 118 (8th Cir. 1991)
(finding “district court has a responsibility to ensure the
jurors are not predisposed to believe the testimony of the
officers is inherently more credible than that of other wit-
nesses”). But by finding a lack of bad faith on Martinez’s
part, and more importantly, by not expressly finding that
Martinez lied when she testified that she felt something

No. 02-2184

15

hard in Kaniff’s crotch during the pat-down search, the
court made the type of credibility determination that is en-
titled to deference on review. Dillon, 150 F.3d at 758.

Finally, Kaniff advances the theory that the inspectors

needed to obtain additional (that is, incremental) suspicious
evidence at each level of the increasingly invasive searches
that they conducted in order to justify searching further
(and more intrusively) for contraband. Kaniff cites no
authority in support of this position. We asked Kaniff’s
lawyer at oral argument whether she knew of any Supreme
Court decision that announced such a rule, and she could
not name one. This is not surprising. A rule that requires
additional suspicious details or facts at each level of a
search before further, more invasive searching may occur,
is problematic for at least two reasons: it would reward
criminals who creatively conceal contraband in various
ways, and it would create strong incentive for law enforce-
ment personnel to jump to the most invasive techniques in
their arsenal at the first opportunity.

C

Turning to the abdominal x-ray, Kaniff insists that she

did not voluntarily consent to an x-ray because any consent
that she may have given was in response to a claim of law
enforcement authority to obtain a warrant and compel her
to submit to an x-ray, and thus was not freely
and voluntarily given. The district court first found that
Kaniff consented, and then it held that her consent was
freely and voluntarily given. Both questions—whether
Kaniff consented, and if so, whether her consent was vol-
untary—are factual questions that are reviewed for clear
error. United States v. Pedroza, 269 F.3d 821, 829 (7th Cir.
2001). (No one has argued that the particular x-ray pro-
cedure here was not an intrusive search methodology.
In some instances, such as the routine x-raying of bag-

16

No. 02-2184

gage, x-rays have become a routine feature of modern
life. In others, such as hospital-based x-rays of the body, the
procedure as a whole may be considered invasive. Given the
parties’ focus on the voluntariness of Kaniff’s consent,
which would save even an invasive x-ray, we have no need
to explore the question whether all x-rays should be subject
to the same rule, and if so, which one.)

There was some disagreement at trial over whether

Kaniff really did consent to the x-ray. The district court
noted that Kaniff all but conceded to having consented on
cross-examination when she admitted that she signed a
document that she understood meant that she could be
taken to the hospital for an x-ray. The conspicuous absence
from the record of a consent form with Kaniff’s signature
makes it harder—but not impossible—to prove consent.
Based on the copy of the form and the testimony it heard,
the district court was satisfied that Kaniff consented to an
x-ray and that the lack of a legible copy was not the result
of any wrongdoing. Kaniff has not provided any basis on
which to find the district court’s initial finding of consent
clearly erroneous. Instead, she focuses on the nature of her
consent, arguing that the district court improperly shifted
the burden to her to prove that her consent was not know-
ing and voluntary. This raises a legal question— which
party bears the burden of proving the voluntariness of
consent in a civil case—and we have already held that the
burden is on the plaintiff in civil cases. Valance v. Wisel,
110 F.3d 1269, 1279 (7th Cir. 1997). We look at the totality
of the circumstances to determine whether Kaniff freely
consented to the x-ray. Id. at 1278.

In deciding this question, the district judge weighed the

testimony and made a credibility determination regarding
whether Kaniff voluntarily consented to the x-ray. The
court heard Kaniff first testify that she did not consent to
the x-ray, and then heard her admit on cross-examination
that she signed a form that would allow her to be taken to

No. 02-2184

17

a hospital for an abdominal x-ray. The court also heard
Kaniff deny that she was informed of her right to refuse to
consent to the x-ray. The court found Supervisor Woods’s
testimony that he informed Kaniff of her right to refuse to
consent more credible. This is enough to establish that the
court’s findings of both the fact of her consent and the
voluntariness of her consent were not clearly erroneous.

D

This leaves one loose end for us to tie up. Kaniff, the gov-

ernment, and the district court all agree that the scope of
the government’s liability in this FTCA action is limited to
conduct that is wanton or willful. Another reason the dis-
trict court ruled for the government was that it concluded
that Kaniff had not shown conduct meeting that standard.
Kaniff has also challenged that decision on appeal.

The district court decided that Kaniff could prevail only if

the inspectors had engaged in willful and wanton conduct
because that is the standard that would govern in the
Illinois courts in a case against a public employee for acts
in executing or enforcing the law. See 745 I

.

C

.

S

.

LL

OMP

TAT

§ 10/2-202 (the Illinois Local Governmental and
Governmental Employees Tort Immunity Act). FTCA claims
are governed by the substantive law of the state where the
alleged tort occurred, 28 U.S.C. § 1346(b)(1) (adopting “law
of the place where the act or omission occurred”);
Stratmeyer v. United States, 67 F.3d 1340, 1345 (7th Cir.
1995). The tort liability of the United States under the
FTCA is established “in the same manner and to the same
extent as a private individual under like circumstances,” 28
U.S.C. § 2674. Although we do not need to reach the issue
because we have already found each of the searches in this
case supported by ample justification or Kaniff’s consent,
we note that this court has never held that state immunity

18

No. 02-2184

rules set the standard to be applied to the federal govern-
ment in an FTCA suit. Other courts have considered this
question and arrived at different conclusions. Compare
Estate of Warner v. United States, 743 F. Supp. 551, 554
(N.D. Ill. 1990) (holding Illinois wanton and willful stan-
dard is adhered to as part of the “under like circumstances”
analysis in FTCA claim); Crider v. United States, 885 F.2d
294, 296 (5th Cir. 1989) (“We are not looking to state law
insofar as it immunizes a public entity from liability;
rather, we are seeking ‘like circumstances’ which best
articulate a state’s negligence law.”); Louie v. United States,
776 F.2d 819, 825 (9th Cir. 1985) (adopting state law
setting liability of state and municipal entities for govern-
ment actors in FTCA cases), with Hyatt v. United States,
968 F. Supp. 96, 107-08 (S.D.N.Y. 1997) (refusing to apply
wanton and willful standard from Illinois law to govern-
ment actors in FTCA suit). This case is not the right one in
which to assess whether the policy decision of the State of
Illinois to exempt from liability certain torts of its agents
should apply in an FTCA case.

III

We have no wish to minimize the unpleasantness of the

procedures to which Kaniff was subjected. Nevertheless, the
law simply does not require law enforcement officials,
including Customs inspectors, to be right every time. They
are obliged instead to have the requisite level of informa-
tion—sometimes reasonable suspicion, sometimes probable
cause—before they act. The district court’s underlying fact
findings here were not clearly erroneous, and we are
satisfied on our de novo review that its conclusions were
correct. We therefore A

the judgment of the district

FFIRM

court.

No. 02-2184

19

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-11-03

Referenced Cases

  1. Yvette Bradley v. The United States of America United States Customs Service Raymond W. Kelly
  2. Clara Louie v. United States
  3. United States v. Elizabeth Gonzalez-Rincon
  4. Randy William Crider v. United States
  5. United States v. Raymond Amerson v. Gerald Hopkins v. Gary Hammell
  6. United States v. Toyin Oyekan and Eniten Keleni
  7. United States v. Sandra McCarthur
  8. United States v. Juan Pedroza and Hilario Pedroza
  9. United States v. Teng Yang
  10. United States v. Larry Woodrow Harris
  11. United States v. Concepcion Carrasco and Francisco Diaz
  12. United States v. Jimmie C. Dorsey
  13. Elmer Stratmeyer and Cornelia Stratmeyer v. United States
  14. United States v. Kenneth P. Dillon
  15. United States v. Willa M. Johnson
  16. Valance v. Gaylon Wisel, Mike Reneau, Ed Pearce
  17. United States v. Enrique Carreon
  18. Hyatt v. United States
  19. Ornelas v. United States
  20. Reid v. Georgia
  21. Anderson v. Bessemer City
  22. United States v. Montoya De Hernandez
  23. United States v. Arvizu
  24. Estate of Warner v. United States
  25. United States v. Beras