United States v. Adekunle ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-2891
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KAMORUDEEN ADEKUNLE,
Defendant-Appellant.
CONSOLIDATED WITH
___________________
No. 91-2979
___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAHEED MASHA,
Defendant-Appellant.
Appeals from the United States District Court
For the Southern District of Texas
( December 23, 1992 )
Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.
POLITZ, Chief Judge:
These consolidated appeals pose questions about the detention
in excess of 100 hours of two suspected alimentary drug smugglers.
Kamorudeen Adekunle and Saheed Masha entered conditional pleas of
guilty to possession of heroin with intent to distribute. They
appeal the denial of motions to suppress evidence of the
heroin-filled balloons they ultimately expelled from their bodies
and statements made during their detention. For the reasons
assigned we affirm both convictions and take this opportunity to
announce a prophylactic rule to govern, in the future, instances
such as are here presented.
Background
Masha and Adekunle crossed the border from Matamoras, Mexico
to Brownsville, Texas at about 4:00 p.m. Saturday, February 23,
1991. They fit in part the drug courier profile: young men coming
from central Mexico with little luggage, giving inconsistent
answers about their travel plans, and conferring in their native
tongue before responding to questions. They were referred to the
secondary inspection station.
Resort to the Treasury Enforcement Computer System revealed
the reports of two informants that Masha, a suspected alimentary
canal smuggler, probably accompanied by another person, would be
attempting to enter the United States. They were not arrested but
were given Miranda warnings and were strip searched. They held
2
Nigerian passports, were extremely nervous, and had tight,
distended stomachs. Both refused to consent to an x-ray
examination of their stomachs.
The two were taken by customs officers to a local hospital.
Masha there consented to an x-ray examination which revealed the
presence of foreign objects in his intestinal tract. Adekunle
continued to refuse an x-ray. They were kept in the hospital for
observation and in expectation of the normal bodily processes which
would confirm or dispel the suspicion of alimentary tract
smuggling. Both demonstrated notable intestinal fortitude,
declined all food and drink, and had no bowel movements on Saturday
or Sunday.
On Monday, information from the Treasury Enforcement Computer
System connected Adekunle to Masha and, upon request, a magistrate
judge ordered him to submit to x-rays of his abdomen. These x-rays
disclosed the presence of foreign objects.
Masha and Adekunle continued to resist normal bowel movements.
The decision on the administration of laxatives was deferred to the
attending physicians, to be based on medical considerations.
Customs agents were present and prepared to assist the doctors, as
needed, and to observe the results of the bowel movements. The
doctors prescribed laxatives and informed appellants that the
medication would be involuntarily administered if refused. Under
these conditions, both took the laxatives. Starting later Monday
evening the pair began excreting balloons containing heroin. They
were arrested but kept in the hospital under monitoring until
3
Wednesday when all balloons were expelled. On Wednesday evening
they were removed to the local jail. They were brought before the
magistrate judge the following morning, over 100 hours after the
initial detention and more than two days after their arrest.
Throughout the period of detention appellants were held
incommunicado, being denied access to a telephone or to counsel.
Charged with multiple counts of conspiracy and of importation
and possession with intent to distribute heroin, Masha and Adekunle
entered conditional guilty pleas to one count of possession with
intent to distribute. Both sought to suppress the heroin seized
and statements made during the detention. The district court,
guided by United States v. Montoya de Hernandez,1 found a
reasonable suspicion to support the detention and further found
that the period of the detention was the result of appellants'
refusal to cooperate with the customs officers and their very
disciplined control of normal bodily functions. Finding no
constitutional violations, the district court denied the motions to
suppress. Appellants timely appealed and we consolidated their
appeals.
Analysis
In reviewing rulings on motions to suppress we accept trial
court factual findings unless clearly erroneous,2 but review
1
473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985).
2
United States v. Simmons, 918 F.2d 476 (5th Cir. 1990).
4
questions of law de novo.3
The Strip Search and Detention
A. Masha
A strip search conducted at the border passes fourth amendment
muster if it is supported by "reasonable suspicion."4 Given the
diminished expectation of privacy at our borders, a detention
satisfies the fourth amendment if the border agent's reasonable
suspicion is based upon a "particularized and objective basis for
suspecting the particular person" of alimentary canal smuggling.5
Masha contends that the government did not have reasonable
suspicion to warrant his detention and strip search. He relies
heavily on statistics offered at the suppression hearing that
approximately 800 strip searches at the border had yielded only one
case of ingested contraband. The government counters that the
evidence supporting reasonable suspicion in this case far exceeds
that found sufficient by the Supreme Court in Montoya de Hernandez.
Therein a 16-hour incommunicado detention of a suspected alimentary
smuggler was deemed reasonable because she: arrived in Los Angeles
from Bogota, Colombia with a passport showing multiple recent trips
from Colombia to Los Angeles and Miami; was unable to speak English
3
United States v. Castaneda, 951 F.2d 44 (5th Cir. 1992).
4
United States v. De Gutierrez, 667 F.2d 16 (5th Cir.
1982).
5
Montoya de Hernandez, 473 U.S. at 541-42.
5
and had no friends or relatives here; claimed to be on a shopping
trip for her husband's store but had no appointments or firm plans
to meet with merchants; carried $5000 in cash; had no hotel
reservations; and carried nearly empty luggage. The strip search
revealed a firm abdomen.
The district court made the following relevant findings
supportive of the customs agent's reasonable suspicion that Masha
was an alimentary canal smuggler: (1) he carried a passport from
Nigeria, a known narcotics source country;6 (2) he came from
central Mexico with negligible luggage; (3) he and his traveling
companion were extremely nervous and conferred in their native
tongue before responding to the agent's questions; and (4) two
informants had alerted authorities about Masha and possible
internal body smuggling of contraband accompanied by another.
These factors provided a reasonable suspicion justifying a border
strip search.7 Assuming the validity of the evidence of the 800 or
so fruitless searches, those numbers are alarming and very
distressing, but that evidence is not dispositive in the case at
bar because of the facts found by the trial court.
The strip search revealed that Masha's stomach was firm and
distended, a finding consistent with alimentary canal smuggling.
6
See United States v. Esieke, 940 F.2d 29 (2d Cir.), cert.
denied, 112 S.Ct. 610 (1991).
7
See De Gutierrez, 667 F.2d at 19 (resemblance to drug
courier profile is factor which may be considered in reasonable
suspicion determination).
6
The agents were justified in detaining Masha for a reasonable
period during which normal bodily functions would be expected to
confirm or allay their suspicions.
We must now determine whether the period of the detention
during which Masha was not allowed contact with anyone other than
the agents and hospital personnel violated the fourth amendment.
It was over 48 hours before the first heroin-filled balloon was
passed. In Montoya de Hernandez the defendant refused an x-ray and
was detained only 16 hours awaiting a bowel movement. The Supreme
Court held that "detention for the period necessary to either
verify or dispel the suspicion was not unreasonable."8 The Court
also made clear that delay attributable to a suspect's "heroic"
efforts to resist natural bodily functions is to be put in
perspective and not counted in the equation as a negative against
the government.9 Our colleagues in the Second and Eighth Circuits10
have permitted detentions at the border for extended periods made
necessary by a detainee's remarkable control of bodily functions.
The case at bar differs in that Masha consented to an x-ray
which demonstrated the foreign substances in his body. Masha was
detained thereafter for an additional 40 hours before he had a
8
473 U.S. at 544.
9
Id. at 543.
10
Esieke, 940 F.2d at 35; see United States v. Odofin, 929
F.2d 56 (2d Cir.), cert. denied, 112 S.Ct. 154 (1991); United
States v. Oyekan, 786 F.2d 832, 836 (8th Cir. 1986).
7
bowel movement expelling some of the balloons. The district court
found that Masha was properly detained until his bodily functions
confirmed the presence of contraband, and that he contributed to
the delay by refusing all food, drink, or laxatives during that
period. We agree.
B. Adekunle
Adekunle, on the other hand, does not dispute that customs
officials had reasonable suspicion to detain him as a suspected
alimentary canal drug smuggler. He argues, rather, that once
reasonable suspicion ripened into probable cause he was no longer
a subject in investigatory detention governed by the rule of
Montoya de Hernandez, but was under arrest.
Rule 5(a) of the Federal Rules of Criminal Procedure requires
that after a defendant is arrested he must be taken before a
federal magistrate without unnecessary delay. Further, the fourth
amendment requires a prompt determination of probable cause
following a warrantless arrest.11 Failure to provide such a
determination within 48 hours shifts the burden to the government
to demonstrate a bona fide emergency or extraordinary circumstances
justifying the lengthier delay.12
Adekunle argues that the government's investigative detention
ripened into an arrest supported by probable cause when an x-ray
11
Gerstein v. Pugh, 420 U.S. 103 (1975).
12
County of Riverside v. McLaughlin, 114 L.Ed.2d49 (1991).
8
exposed that his companion, Masha, was carrying suspected
substances in his alimentary canal. Adekunle was not formally
arrested, however, until two days later, after he began passing
heroin-filled balloons. He was brought before a magistrate judge
Thursday morning, about 60 hours after his arrest. He contends
that the failure of prompt presentation before a magistrate judge
requires the suppression of any incriminating statements made
during the period of detention.13
Adekunle's contention must be rejected out-of-hand.
Acceptance of this proposition would result in the absurdity that
one could have his liberty restrained for a longer period based on
a mere reasonable suspicion than he lawfully could be detained
based on probable cause. In the case at bar the delay was
occasioned by appellants' refusal to cooperate with the authorities
and their initial nigh-remarkable ability to control their bodily
functions. This was coupled with the medical need to monitor them
until the potentially toxic substances, in death-dealing
quantities, were safely expelled from their bodies. We conclude
that the delay in bringing him before the magistrate judge was
justified.
C. The X-Ray
Masha also contends that x-rays were intrusive searches which
13
Mallory v. United States, 354 U.S. 449, 453 (1957).
9
required more than reasonable suspicion. Montoya de Hernandez did
not articulate the level of suspicion required for non-routine
border searches, such as x-rays.14 We have upheld the x-ray of a
suspected alimentary canal smuggler based upon reasonable suspicion
and with the suspect's consent.15 Masha does not challenge his
consent to the x-ray; therefore, reasonable suspicion was
sufficient.16
D. The Administration of Laxatives
Finally, the appellants maintain that they were forced to take
laxatives in violation of their fourth amendment privacy
expectations and their due process rights.17 They rely on Rochin
v. California18 wherein the Court found that forcing an emetic into
14
473 U.S. at 541 n.4.
15
United States v. Mejia, 720 F.2d 1378 (5th Cir. 1983).
16
Although at the suppression hearing Masha contended that
he did not consent to the x-ray, his brief on appeal does not raise
this argument.
17
Masha also contends that the evidence of heroin-filled
balloons was obtained in violation of his fifth amendment privilege
against self-incrimination. This argument is without merit. The
fifth amendment protection against self-incrimination is limited to
testimonial evidence. Schmerber v. California, 384 U.S. 757(1966); United States v. Brown, 920 F.2d 1212 (5th Cir.), cert.
denied, 111 S.Ct. 2034 (1991). The forced administration of
laxatives may have advanced the production of incriminating
evidence, but it did not compel testimony.
18
342 U.S. 165 (1952).
10
the defendant's stomach to induce the vomiting of evidence shocked
the conscience and violated due process. Appellants insist that
administering laxatives to expedite the normal expulsion of
evidence is no less shocking. In addition, they argue that, at a
minimum, a prior judicial determination of probable cause and the
reasonableness of such an intrusion was necessary.19 In Winston the
Court noted the importance of an "informed, detached and deliberate
determination of the issue whether or not to invade another's
body."20
Because the government was entitled to detain the appellants
until they had a bowel movement, the administration of laxatives at
the direction of physicians was not unreasonable. The district
court found that the laxatives were given for reasonable medical
purposes. Masha and Adekunle were at significant risk of serious
injury or death if the balloons allowed the escape of large
quantities of toxic substances into their systems. It was not
unreasonable for the customs agents to defer to the attending
physicians the decision on the appropriate medical attention
indicated during the detention period.21
19
See Winston v. Lee, 470 U.S. 753 (1985).
20
Id. at 760-61 (surgical removal of a bullet from the
accused's chest, even with probable cause, unreasonably violated
the accused's rights).
21
The laxatives advanced the process, but unlike the
situation in Winston or Rochin, they did not cause the expulsion
from the body of something which would not normally and routinely
be expelled.
11
We affirm the convictions, but not without grave reservations
caused by the conduct of the customs agents. They detained
appellants, keeping them out of contact with any but those in their
immediate environment, for over 100 hours. In Montoya de Hernandez
the Supreme Court viewed the 16-hour detention at issue therein as
one which exceeded any detention they previously had approved. We
are mindful that Montoya de Hernandez has been cited for authority
to justify far longer detentions.22 But we cannot accept without
active response the circumstances of the instant detentions,
particularly their total incommunicado character. Thus the
following rule is to apply to all governmental agents and agencies
which hereafter might detain a suspected alimentary canal smuggler
in this circuit. Henceforth, all agencies and agents shall notify
the local United States Attorney within 24 hours of the detaining
of such a suspected smuggler. The United States Attorney shall, in
turn, immediately notify a district or magistrate judge with
jurisdiction and the detainee's attorney or local public defender
or counsel appointed by the court.23 In addition, the United States
Attorney shall make a daily report to the court until the detention
is terminated or the person is brought before the court pursuant to
22
Odofin, 929 F.2d 56 (24 days before bowel movement);
United States v. Onumonu, 967 F.2d 782 (2d Cir. 1992) four days
before bowel movement; six days total); Esieke, 940 F.2d 29 (one
and one-half days before bowel movement; three days total); United
States v. Onyema, 766 F.Supp. 76 (E.D.N.Y. 1991) (19 hours before
bowel movement; 78 hours total); United States v. Yakubu, 936 F.2d
936 (7th Cir. 1991) (18 hours before bowel movement).
23
See Esieke, 940 F.2d at 36.
12
charges.
The convictions of Masha and Adekunle are AFFIRMED.
13