747 F.2d 1417 (11th Cir. 1984), 84-5278, United States v. McMurray

Docket Nº:84-5278.
Citation:747 F.2d 1417
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Eddy McMURRAY, Defendant-Appellant.
Case Date:December 05, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1417

747 F.2d 1417 (11th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Eddy McMURRAY, Defendant-Appellant.

No. 84-5278.

United States Court of Appeals, Eleventh Circuit

December 5, 1984

Page 1418

[Copyrighted Material Omitted]

Page 1419

Charles G. White, Miami, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Roberto Martinez, Chris Mancino, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before VANCE, HENDERSON and CLARK, Circuit Judges.

PER CURIAM:

Thomas Eddy McMurray was convicted in the United States District Court for the Southern District of Florida for importing cocaine in violation of 21 U.S.C. Sec. 952(a), possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and introducing cocaine into a federal penal institution in violation of 18 U.S.C. Sec. 1791 and the regulations promulgated thereunder.

On appeal, McMurray assigns as error the district court's denial of his motion to suppress the evidence of a quantity of cocaine discovered during a search of his artificial leg by customs inspectors, and the failure of the government to prove that he possessed the necessary intent to violate 18 U.S.C. Sec. 1791.

On September 10, 1983, McMurray flew from Bogota, Colombia to Miami. At the Miami International Airport customs inspector Gloria Schwark noticed that McMurray limped and used a cane. When asked if he had injured his leg in Colombia, McMurray replied "no" and jumped back. According to Schwark, his actions seemed fearful.

Her suspicions aroused, Schwark questioned McMurray and was told that his uncle owned a resort in Colombia and that he had been vacationing in that country. His airplane ticket had been paid for in cash, and his passport indicated that he had gone to Colombia for two or three days at a time on four occasions in the last four months. McMurray's inexpensive luggage and clothes seemed inconsistent with the financial position of a person who made frequent and expensive trips to Colombia. Furthermore, McMurray had only four or five dollars in his possession, spoke in a whisper despite the fact he claimed to be a professional singer, appeared pale and nervous and kept backing away during her questioning.

Based on these facts Schwark summoned her supervisor, John Ryan, and requested a further search. Ryan escorted McMurray to a secondary search room where he and an associate discovered that McMurray had an artificial leg. McMurray refused Ryan's request that he remove his prosthesis and asked the reason for the request. Ryan replied that he suspected McMurray of carrying cocaine in the artificial limb. At this point McMurray became pale, began to hyperventilate and appeared agitated. In addition, McMurray expressed concern that the forcible removal of his artificial leg might damage it. After being moved to a larger, more comfortable room, McMurray removed the limb himself, declining an offer of medical assistance. The customs inspectors discovered a packet of cocaine in the thigh section of the leg. No attempt was made to further disassemble the prosthesis at that time.

After waiving his Miranda rights and admitting his guilt, McMurray was transported to the Metropolitan Correctional Center for incarceration pending arraignment. A search at the detention facility revealed an additional small quantity of cocaine in his cane. Later that day he was advised of the prison rules and regulations which included the proscription against bringing narcotics into a federal prison. A more thorough search of his prosthesis the next morning...

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