United States v. Aguebor ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4258
FESTUS OGIE ANTHONY AGUEBOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-97-428-A)
Submitted: December 15, 1998
Decided: January 4, 1999
Before NIEMEYER and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Dale Warren Dover, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Keith E. Bell, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Festus Ogie Anthony Aguebor was convicted on his conditional
guilty plea of possession with intent to distribute more than 100
grams of heroin. See 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(I) (1994).
Aguebor conditioned his guilty plea on the ruling of the district court
refusing to suppress the heroin that customs officials discovered in
Aguebor's alimentary canal after he attempted to enter the United
States from Nigeria. In his motion to suppress the evidence, Aguebor
claimed that several x-ray images taken of his lower abdomen to
effect a search of his alimentary canal violated the Fourth Amend-
ment. The district court disagreed and declined to suppress the evi-
dence. In this appeal, Aguebor assigns error to the district court's
ruling. Because we find no merit to Aguebor's contentions, we affirm
the criminal conviction.
Aguebor arrived in the United States at Dulles Airport near Wash-
ington, D.C. from Nigeria. The customs inspector who initially
screened Aguebor for further investigation did so because a computer
check revealed that during previous visits to the United States, Ague-
bor had stayed with his brother, who had been arrested for smuggling
heroin. Although a pat-down search was negative, additional investi-
gation raised additional suspicions. The investigating agent consid-
ered Aguebor's answers to his inquiries evasive. Aguebor had
purchased his airline tickets with cash shortly before the flight into
Washington, D.C. He traveled to the United States from Nigeria, a
source country for narcotics. Aguebor had previously sent fraudulent
passports through the United States mail. Finally, a drug-detecting
dog trained to discover internal carriers gave a positive indication for
contraband in Aguebor's possession.1
At that point, the investigating agents attempted to obtain Ague-
bor's consent to an x-ray examination of Aguebor's alimentary canal.
The agent told Aguebor that if he did not consent to the x-ray exami-
nation, he would be detained until a court order authorizing the search
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1 Although Aguebor suggests in his brief that the dog did not give a
positive response, that contention is not borne out in the record.
2
could be obtained. On that information, Aguebor consented to the x-
ray search. The x-rays taken in a nearby hospital revealed foreign
objects in his alimentary canal. Aguebor passed eighty-eight pellets
containing heroin a few days later.
Aguebor assigns error to the district court's refusal to suppress the
heroin discovered in his lower intestines. The customs officials con-
ducted the search relying on Aguebor's consent. A search may be
conducted without probable cause or a search warrant when valid
consent is given. See Schneckloth v. Bustamonte , 412 U.S. 218, 222
(1973). In this appeal, as in the district court, Aguebor contends that
his consent was not voluntary. The voluntariness of the consent is a
factual question which is reviewed by this court only for a finding of
clear error. See United States v. Elie, 111 F.3d 1135, 1144 (4th Cir.
1997); United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996).
To determine whether consent to search is voluntarily given, the dis-
trict court must examine the totality of the circumstances. See
Schneckloth, 412 U.S. at 227. Accordingly, the court must consider
the characteristics of the defendant and the circumstances under
which the defendant gave consent, and whether the defendant knew
that he had a right to refuse consent. See Lattimore, 87 F.3d at 650.
A district court commits clear error only when the reviewing court is
left with "the definite and firm conviction that a mistake has been
committed." United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948).
At the suppression hearing, Aguebor testified that when he initially
refused to sign the consent form, the customs agents threatened to
arrest him and obtain the x-ray images without his consent. According
to Aguebor, that threat evoked images of police brutality and caused
him to conclude that at fifty-seven years of age, if he were "rough
handle[d]," he might die. That fear, contends Aguebor, compromised
the voluntary nature of his consent. However, the testimony of the
customs agent who obtained Aguebor's consent differed from Ague-
bor's recollection. The agent testified that instead of threatening to
arrest him, he merely informed Aguebor that if he declined to consent
to the examination, he would be detained until such time as a court
order could be obtained. The agent further testified that Aguebor did
not appear fearful at any point. In determining that Aguebor's consent
to the x-ray examination was voluntary, the district court credited the
3
testimony of the customs agent. The decision of the district court of
what testimony to credit is not subject to appellate review. See United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). In light of rela-
tively sedate conditions under which the consent to search was given,
see Lattimore, 87 F.3d at 650, there is no hint of clear error in the dis-
trict court's conclusion that Aguebor's consent was voluntary.
Aguebor relies on Bumper v. North Carolina, 391 U.S. 543, 548-49
(1968), to support his position. In that case, the Supreme Court deter-
mined that where the consent is obtained by falsely informing the per-
son who is the object of the search that he has"no right to resist the
search," the coercion inherent in the situation invalidates the consent.
Id. at 550. There is no such coercion in this case. The district court
found that customs officials informed Aguebor that if he did not con-
sent, he would be detained until a court order could be obtained
authorizing the search. This is a legal and reasonable course of action.
As a result, Aguebor's reliance on Bumper, where there was compel-
ling evidence of police misconduct, is unavailing in the absence of
similar evidence in this case.
Aguebor also attempts to equate the customs agents' threat of an
arrest in this case with "deceitful misrepresentation" which would
undermine a finding of valid consent. See Vizbaras v. Prieber, 761
F.2d 1013, 1017 (4th Cir. 1985). The district court found that the
agents did not threaten Aguebor with arrest, but rather told him that
he would be detained until a court order authorizing the search could
be obtained. There was no misrepresentation on the part of the cus-
toms agents that would "critically impair" Aguebor's ability to volun-
tarily consent to the search. See United States v. Pelton, 835 F.2d
1067, 1071-73 (4th Cir. 1987). Because we are not left with the "defi-
nite and firm conviction" that the district's court's finding that Ague-
bor's consent was voluntary was in error, we must also conclude that
the x-ray examination was premised on Aguebor's valid consent.
Even if we had found that Aguebor's consent was not valid, that
conclusion would not render the district court's ruling on the suppres-
sion motion error. Routine border stops and searches may be con-
ducted without probable cause or reasonable articulable suspicion, in
order to regulate collection of duties and prevent introduction of con-
traband. See United States v. Montoya de Hernandez, 473 U.S. 531,
4
537 (1985). Border searches have been considered to be "reasonable"
by definition because the person or item in question came into the
United States from elsewhere. See United States v. Ramsey, 431 U.S.
606, 619 (1977). There is no question but that the customs agent con-
ducted his initial search of Aguebor's person and baggage in full
compliance with the Fourth Amendment.
Following the more pedestrian inspection, the investigating agents
eventually subjected Aguebor to multiple x-rays of his lower abdo-
men. It is at least debatable that this action went beyond the bounda-
ries of a routine inspection. See United States v. Johnson, 991 F.2d
1287, 1293 (7th Cir. 1993) (assuming but not deciding that x-ray
examination and removal of inner shell of suitcase was non-routine
search). The Supreme Court did not define "routine search" in
Montoya de Hernandez. Neither did the Court determine the level of
suspicion necessary to conduct an x-ray examination in compliance
with the Fourth Amendment. See Montoya de Hernandez, 473 U.S.
at 541 n.4. However, only strip searches and body cavity searches
have consistently been considered sufficiently intrusive to be non-
routine. See United States v. Braks, 842 F.2d 509, 511-13 (1st Cir.
1988); see also United States v. Ramos-Sanez, 36 F.3d 59, 61 (9th
Cir. 1994). Neither is involved here, but because a trip to the hospital
and a medical procedure were required to continue the search, see
Braks, 842 F.2d at 512, we will assume for the purposes of this case
that this was something more than a "routine search."
Before the agent could initiate a non-routine search, a reasonable
suspicion was required. See United States v. Oriakhi, 57 F.3d 1290,
1297 (4th Cir. 1995). The non-routine search of Aguebor would be
justified when the customs agents, considering all the facts, "reason-
ably suspect[ed]" that Aguebor was smuggling contraband in his ali-
mentary canal. See Montoya de Hernandez, 473 U.S. at 541.2 Even
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2 Aguebor cites two cases from the Ninth Circuit decided before
Montoya de Hernandez for the proposition that a"clear indication" or
"plain suggestion" is required to carry out an x-ray examination. See
United States v. Quintero-Castro, 705 F.2d 1099, 1100 (9th Cir. 1983);
United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982). The Supreme
Court in Montoya de Hernandez flatly rejected the "clear indication"
standard, declining to create verbal gradation under the Fourth Amend-
ment. See Montoya de Hernandez, 473 U.S. at 540-41.
5
assuming that the x-ray examination was a non-routine search, the
district court did not err in concluding that the customs agent had rea-
sonable suspicion to support the more intrusive search. As noted
above, Aguebor purchased his ticket with cash shortly before his
departure. He traveled from Nigeria, a source country and reported
that he was visiting his brother who had been arrested for smuggling
heroin. Aguebor had previously mailed fraudulent passports to indi-
viduals in the United States. Finally, the narcotics search dog gave a
positive response when searching Aguebor. In light of the fact that a
search of Aguebor's person did not reveal narcotics, the conclusion
that Aguebor was carrying the drugs internally was reasonable. The
combination of these factors easily reach the threshold of a reasonable
suspicion supporting the x-ray examination. There was no violation
of the Fourth Amendment in the customs agents' actions effecting the
search and no error in the district court's decision not to suppress the
fruits of that search.3
Finding no merit to either of Aguebor's contentions on appeal, we
affirm his conviction. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the Court and argument would not aid the decisional process.
AFFIRMED
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3 In his briefs, Aguebor suggests, somewhat obliquely, that the manner
in which the x-ray examination was conducted and the course of treat-
ment followed by attending physicians upon the discovery of foreign
objects in Aguebor's alimentary canal somehow rendered the search
unreasonable. Although Aguebor chronicles the difficulties he experi-
enced with his diabetes during his hospital stay, there is no evidence of
record that would suggest that the officials' actions caused the variation
in his blood sugar level. While Aguebor notes that there is no evidence
that the laxative he received in the hospital was administered voluntarily,
neither is there evidence that the medication was forced on him. See
United States v. Saldarriaga-Marin, 734 F.2d 1425, 1428 (11th Cir.
1984). As a result, the care given to Aguebor as officials waited for the
deadly heroin to pass safely through his body did not render the other-
wise legal search of his person unreasonable.
6