980 F.2d 985 (5th Cir. 1992), 91-2891, United States v. Adekunle

Docket Nº:91-2891, 91-2979.
Citation:980 F.2d 985
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kamorudeen ADEKUNLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Saheed MASHA, Defendant-Appellant.
Case Date:December 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 985

980 F.2d 985 (5th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kamorudeen ADEKUNLE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Saheed MASHA, Defendant-Appellant.

Nos. 91-2891, 91-2979.

United States Court of Appeals, Fifth Circuit

December 23, 1992

Page 986

Roland E. Dahlin, II, Federal Public Defender, Thomas S. Berg and Jeffrey L. Wilde, Asst. Federal Public Defenders, Houston, Tex., for Kamorudeen Adekunle.

Richard S. Hoffman, Brownsville, Tex. (Court-appointed), for Saheed Masha.

Paula C. Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S.

Appeals from the United States District Court for the Southern District of Texas.

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

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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 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 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 questions of law de novo. 3

The Strip Search and Detention

  1. Masha

    A strip search conducted at the border passes fourth amendment muster if

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    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...

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