U.S. v. Mosquera-Ramirez, MOSQUERA-RAMIRE

• Decision Date: 16 April 1984
• Docket Number: No. 83-5006,MOSQUERA-RAMIRE,D,83-5006
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Fernandoefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1352

729 F.2d 1352

UNITED STATES of America, Plaintiff-Appellee, v. Luis Fernando MOSQUERA-RAMIREZ, Defendant-Appellant.

No. 83-5006.

United States Court of Appeals, Eleventh Circuit.

April 16, 1984.

Charles G. White, Kenneth E. Cohen, Asst. Federal Public Defenders, Miami, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Linda Collins Hertz, James G. McAdams, James R. Gailey, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

RONEY, Circuit Judge:

Today we have decided that an x-ray search performed at the border is reasonable if based on the same amount of suspicion required for a strip search. United States v. Vega-Barvo, 729 F.2d 1341 (11th Cir.1984). This case presents the issue of whether it violates the Fourth Amendment to detain a person who refuses a reasonable x-ray search until a bowel movement occurs through natural body functions.

Luis Fernando Mosquera-Ramirez was suspected by customs officials of carrying drugs internally. Because he refused to consent to an x-ray of his stomach, he was detained until he passed his stomach's contents. Eventually, he excreted 95 cocaine-filled condoms. Convicted of importation and possession of cocaine with intent to distribute in violation of 21 U.S.C.A. Secs. 952(a) and 841(a)(1), Mosquera-Ramirez disputes the legality of his detention and the subsequent search of his fecal matter. The district court held that the customs inspectors had reasonable suspicion to believe Mosquera-Ramirez was carrying drugs internally and that detaining him until he moved his bowels was a reasonable method of searching his digestive tract. We affirm.

A review of the facts reveals that the customs inspectors' suspicions about Mosquera-Ramirez were based on articulably suspicious behavior sufficient to make an x-ray search reasonable. Vega-Barvo, 729 F.2d at 1344. As we noted in Vega-Barvo, a suspicion may be reasonable even though it rests substantially on the inability to give a credible explanation for a trip to this country.

Mosquera-Ramirez arrived at Miami International Airport from Bogota, Colombia shortly after midnight. He presented himself and his luggage for Customs clearance before a customs inspector. While the inspector was examining Mosquera-Ramirez's passport and other papers, he questioned Mosquera-Ramirez about the purposes of his trip. Mosquera-Ramirez explained that although he was on vacation he planned to travel to Los Angeles to shop for electronic equipment. His Customs Declaration had an extensive list of intended purchases including Betamaxes and stereo components. Mosquera-Ramirez also stated he was in the billiards business.

The inspector probed further on the business aspect of Mosquera-Ramirez's trip. He inquired as to why Mosquera-Ramirez did not have a airline ticket to Los Angeles, what his Los Angeles itinerary was, what price he expected to pay for the listed electronic items, and what stores in Los Angeles he was going to visit. Although Mosquera-Ramirez said he planned to buy a ticket to Los Angeles in Miami, he could not answer the other questions. Subsequent inquiries revealed that Mosquera-Ramirez was carrying $1,295 in cash but had no credit cards, checks, or letters of credit.

At this point, the inspector decided that a more thorough inspection was necessary and he asked Mosquera-Ramirez to step into a search room. In the search room, the inspector more closely examined Mosquera-Ramirez's passport. He noticed that Mosquera-Ramirez had traveled to Miami just two months ago. When asked about the previous trip, Mosquera-Ramirez became very evasive and very nervous.

The inspector then requestioned Mosquera-Ramirez on his purported buying trip. Mosquera-Ramirez said he was going to spend a week to ten days at the Clark Hotel in Los Angeles, so the inspector calculated on paper what airfare, lodging, meals, and cab fare would cost for a week-long excursion to Los Angeles. When confronted with the fact that such a trip would exhaust most of his capital, Mosquera-Ramirez was unable to explain how he planned to buy electronic equipment in Los Angeles as well. Mosquera-Ramirez also could not give a definite itinerary for his stay in Miami. The most he could say was that he was there to rest.

On the basis of his experience, the inspector concluded that Mosquera-Ramirez was carrying drugs internally. He informed Mosquera-Ramirez of his suspicions, advised him of the Miranda Rights, and asked him if he would submit to an x-ray examination. Mosquera-Ramirez refused, replying that if he was going to be treated so inhospitably he wanted to return to Colombia. This further heightened the inspector's suspicion that Mosquera-Ramirez was an internal carrier.

Questioning of Mosquera-Ramirez was then turned over to a Drug Enforcement Administration (DEA) agent. The agent received the same inconclusive answers as had the customs inspector. Mosquera-Ramirez did admit, however, that he was not in the billiards business but just worked at a billiards hall.

On these facts, the reasonable suspicion standard for x-ray searches was met. Mosquera-Ramirez's weak story about buying Betamaxes and stereo components and his initial exaggeration of his employment constituted articulably suspicious behavior. If the cocaine Mosquera-Ramirez was carrying had been located by an x-ray search, he could not complain.

Mosquera-Ramirez, however, refused both the custom inspector's and the DEA agent's request to consent to an x-ray examination. Unwilling to release a suspected carrier, the DEA agent took Mosquera-Ramirez to a local hospital for the purpose of detaining him until he discharged the contents of his stomach. At the hospital, Mosquera-Ramirez was directed to remove his clothes and put on a hospital gown. Just over twelve hours after he arrived from Colombia, Mosquera-Ramirez began excreting cocaine-filled condoms, 95 in all. He was then placed under arrest.

Mosquera-Ramirez argues that the length of the detention made the discovery of the contraband unconstitutional. Clearly, even if some detention is constitutionally reasonable under a given set of circumstances, the length of that detention can make the detention an unreasonable seizure, and therefore unconstitutional.

Mosquera-Ramirez relies on United States v. Place, --- U.S. ----, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Dunaway, police officers took a murder suspect into custody and interrogated him without probable cause. Analogizing this procedure to an illegal arrest, the Court ruled that the confession obtained by these tactics came within the exclusionary rule of the Fourth Amendment. In Place, a domestic air traveler's luggage was seized and 90 minutes later tested by a narcotic-detecting dog. The search was held invalid. The Court noted that the initial seizure was a valid Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889]-type stop, but ruled inadmissible the cocaine discovered in a later search of the luggage because the 90-minute detention "exceeded the permissible limits of a Terry-type investigative stop." --- U.S. at ----, 103 S.Ct. at 2645, 77 L.Ed.2d at 122.

Both Dunaway and Place, however, are distinguishable from the instant case. Other courts have rejected Dunaway as applicable to detention at the border. United States v. Ek, 676 F.2d 379, 381 (9th Cir.1982); United States v. Erwin, 625 F.2d 838, 841 (9th Cir.1980). Dunaway involved the Fourth Amendment's probable cause requirement and that traditional standard cannot be easily analogized to the flexible reasonable suspicion standard used at the border. Dunaway is also not a length of detention case. What concerned the Supreme Court in Dunaway was that a person was seized and taken into custody on less than probable cause. Mosquera-Ramirez does...