U.S. v. Adekunle, s. 91-2891

Decision Date23 December 1992
Docket NumberNos. 91-2891,91-2979,s. 91-2891
Citation980 F.2d 985
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kamorudeen ADEKUNLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Saheed MASHA, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

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 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
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 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. 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 Circuits 10 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 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 exposed that his companion, Masha, was carrying suspected substances in his...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
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    ...de Hernandez, 473 U.S. at 541, 105 S.Ct. 3304 (alimentary canal search); Vega-Barvo, 729 F.2d at 1349 x-rays; United States v. Adekunle, 980 F.2d 985, 987-88 (5th Cir. 1992) (strip search). 4. Here, by contrast, the dog did not alert until after the cabin was opened and prepared for inspect......
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  • Digital Border Searches After Riley v. California
    • United States
    • University of Whashington School of Law University of Washington Law Review No. 90-4, June 2021
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    ...United States v. Johnson, 991 F.2d 1287, 1291-92 (7th Cir. 1993). 120. Saboonchi, 990 F. Supp. 2d at 549. 121. United States v. Adekunle, 980 F.2d 985, 987-88 (5th Cir. 1992); United States v. Asbury, 586 F.2d 973, 975-76 (2d Cir. 1978); Henderson v. United States, 390 F.2d 805, 809 (9th Ci......

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