United States v. Adekunle ( 1993 )

                           FOR THE FIFTH CIRCUIT
                                No. 91-2891
                               No. 91-2979
              Appeals from the United States District Court
                    for the Southern District of Texas
                           OPINION ON REHEARING
         (Opinion December 23, 5th Cir., 
    1992 F.2d
                             September 9, 1993
    Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.
    POLITZ, Chief Judge:
         Treating the Suggestion for Rehearing En Banc as a petition
    for panel hearing, it is ordered that the petition for panel
    rehearing is GRANTED.   Our prior opinion, reported at 
    980 F.2d 985
    (5th Cir. 1992), cert. denied, 
    113 S. Ct. 2380
     and 2455 (1993), is
    revised and as revised is reinstated.       Section B, 980 F.2d at 989,
    and the final paragraph, 980 F.2d at 990, of the prior opinion are
    vacated and replaced.
         Again we consider the issues posed by the detention in excess
    of 100 hours of suspected alimentary canal drug smugglers.            The
    issue addressed in this opinion was raised only by appellant
    Kamorudeen Adekunle.    The facts underlying this appeal are set out
    more fully in the prior panel opinion.       Adekunle and a companion,
    Saheed Masha, were detained by customs officials in Brownsville,
    Texas as suspected alimentary canal drug smugglers.             They were
    taken to a hospital for observation and, pursuant to a magistrate
    judge's order, Adekunle was subjected to an x-ray. After attending
    physicians administered laxatives, both Adekunle and Masha excreted
    numerous   balloons   containing   heroin   and   were   then   arrested.
    Following expulsion of all the balloons, they were removed to the
    local jail and finally presented before the magistrate judge, over
    100 hours after the initial detention and more than two days after
    their arrest.
         A detention at the border satisfies the fourth amendment if
    supported by a customs official's reasonable suspicion based upon
    a   "'particularized         and    objective   basis    for   suspecting   the
    particular person' of alimentary canal smuggling."1              Adekunle does
    not dispute that customs officials had reasonable suspicion to
    detain him as a suspected alimentary canal drug smuggler.               Rather,
    he maintains that once reasonable suspicion ripened into probable
    cause, he no longer was a subject in investigatory detention but
    was under arrest. He therefore contends that the customs officials
    failed timely to provide him with the procedural protections
    required for warrantless arrests, and that such failure requires
    suppression of any statements made during the period of detention.2
        The fourth amendment requires a prompt determination of probable
    cause following a warrantless arrest.3            Failure to provide such a
    determination within 48 hours shifts the burden to the government
    to demonstrate a bona fide emergency or extraordinary circumstance
    justifying the lengthier delay.4
        Because      it   was   based   on   reasonable     suspicion,   Adekunle's
    detention was justified at its inception.5                He argues, however,
    that as the customs officers discovered more information, their
    reasonable suspicion ripened into probable cause requiring that he
              United States v. Montoya de Hernandez, 
    473 U.S. 531
    105 S. Ct. 3304
    , 3310-11, 
    87 L. Ed. 2d 381
     (1985) (quoting
    United States v. Cortez, 
    449 U.S. 411
    , 417 (1981)).
                  See Mallory v. United States, 
    354 U.S. 449
    , 453 (1957).
           Gerstein v. Pugh, 
    420 U.S. 103
    95 S. Ct. 854
    43 L. Ed. 2d 54
             County of Riverside v. McLaughlin, 
    111 S. Ct. 1661
    114 L. Ed. 2d 49
                  Montoya de Hernandez, 473 U.S. at 541.
    be put under arrest rather than kept in investigative detention.
    A defendant has no constitutional right to be arrested at the point
    when either he or the court deems that there is sufficient probable
    cause for arrest.6     Law enforcement officials are "not required to
    guess at their peril the precise moment at which they have probable
    cause to arrest a suspect."7       Such a requirement would punish the
    cautious officer who errs on the side of protecting a defendant's
    rights by requiring a stronger showing of probable cause than the
    court might deem necessary.
          We cannot, however, countenance the absurdity that one may
    have his liberty restrained for a longer period based on a mere
    suspicion than he lawfully could be detained based on probable
    cause.    The same evils which the fourth amendment protects against
    by   requiring   a   probable   cause       hearing   within   48   hours   of   a
    warrantless arrest exist for a suspect in investigative detention
    for an extended period.         Prolonged detention may have serious
    consequences to a defendant, whether the defendant is arrested or
    is merely in investigative detention.                 Such "confinement may
    imperil the suspect's job, interrupt his source of income, and
              United States v. Hoffa, 
    385 U.S. 293
                385 U.S. at 310.     An encounter which begins as a
    permissible Terry stop, however, may ripen into an arrest requiring
    probable cause if the officer uses means of detention which are
    more intrusive than necessary SQ thus, the officer's conduct
    determines the level of suspicion required.      See, e.g., United
    States v. Martinez-Perez, 
    941 F.2d 295
     (5th Cir.), cert. denied,
    112 S. Ct. 1295
     (1991). Adekunle's argument, on the other hand, is
    circular SQ the officer's actual level of suspicion determines the
    level of suspicion required. This fails to persuade.
    impair his family relationships."8
          While the same grave consequences are at stake in prolonged
    detentions following arrest or for investigation, the justification
    for   permitting    detentions    based   only   on   a   law   enforcement
    official's reasonable suspicion diminishes with the length of the
    detention.     The reasonable suspicion standard "effects a needed
    balance between private and public interests when law enforcement
    officials must make a limited intrusion on less than probable
    cause."9    When an investigative detention extends beyond 48 hours,
    it no longer is a limited intrusion.      As the detention becomes more
    prolonged, the "calculus of interests" shifts from the government
    to the person in custody.10      If the fourth amendment is to have any
    meaning, it must require a judicial determination that there is a
    basis SQ under the applicable standard SQ for any extended restraint
    of liberty.     As the Supreme Court has observed:
      The point of the Fourth Amendment . . . is not that it denies
      law enforcement the support of the usual inferences which
      reasonable men draw from evidence. Its protection consists in
      requiring that those inferences be drawn by a neutral and
      detached magistrate instead of being judged by the officer
      engaged in the often competitive enterprise of ferreting out
          We hold that under basic fourth amendment principles, the
           Gerstein, 420 U.S. at 114. "When the stakes are this high,
    the detached judgment of a neutral magistrate is essential if the
    Fourth Amendment is to furnish meaningful protection from unfounded
    interference with liberty." Id.
               Montoya de Hernandez, 473 U.S. at 541 (emphasis added).
            Hallstrom v. City of Garden City, 
    991 F.2d 1473
    , 1481 (9th
    Cir. 1993) (citing Gerstein).
               Johnson v. United States, 
    333 U.S. 10
    , 13-14 (1948).
    government, after detaining a suspected alimentary canal drug
    smuggler, must seek a judicial determination, within a reasonable
    period, that reasonable suspicion exists to support the detention.
    The fourth amendment does not require a formal adversary hearing
    for such a determination; informal presentation of the evidence
    supporting the customs agent's suspicion before a neutral and
    detached judicial officer satisfies the concerns underlying the
    fourth amendment.12 Failure to obtain such a judicial determination
    within 48 hours shifts the burden to the government to demonstrate
    a bona fide emergency or extraordinary circumstance justifying the
    lengthier delay.13
         Today's holding is consistent with Montoya de Hernandez's
    teachings that "detention for the period necessary to either verify
    or dispel the suspicion [is] not unreasonable."14        In Montoya de
    Hernandez the Supreme Court viewed the 16-hour detention at issue
    therein as one which exceeded any detention it previously had
    approved.15        The Court left open the possibility that the balance
                   Gerstein, 420 U.S. at 120-21.
                   See County of Riverside.
                   473 U.S. at 544.
               We note that Montoya de Hernandez has been cited as
    authority to justify far longer detentions. See United States v.
    929 F.2d 56
     (2d Cir.) (24 days before bowel movement),
    cert. denied, 
    112 S. Ct. 154
     (1991); United States v. Onumonu, 
    967 F.2d 782
     (2d Cir. 1992) (four days before bowel movement; six days
    total); United States v. Esieke, 
    940 F.2d 29
     (2d Cir.) (one and
    one-half days before bowel movement; three days total), cert.
    112 S. Ct. 610
     (1991); 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).
    of fourth amendment interests may shift with the increase in the
    duration of the detention.
      Adekunle's detention passes constitutional muster under the
    standard announced herein because within 48 hours customs officials
    brought the matter before a magistrate judge who ordered an x-ray.
    This order demonstrated an implicit determination that there was
    reasonable   suspicion   to   warrant   the   continued   detention.
    Accordingly, his conviction must be AFFIRMED.      For the reasons
    cited in the prior panel opinion, the conviction of Saheed Masha is
    also AFFIRMED.