United States v. Adekunle ( 1992 )


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  •                  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