U.S. v. Oba

• Decision Date: 02 November 1992
• Docket Number: No. 91-10137,91-10137
• Citation: 978 F.2d 1123
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roland Ogbogu OBA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1123

978 F.2d 1123

UNITED STATES of America, Plaintiff-Appellee, v. Roland Ogbogu OBA, Defendant-Appellant.

No. 91-10137.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 18, 1992.

Decided Nov. 2, 1992.

Marvin S. Cahn, San Francisco, Cal., for defendant-appellant.

Susan B. Gray, Asst. U.S. Atty., Martha Boersch, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: ALARCON, BOOCHEVER, and HALL, Circuit Judges.

ALARCON, Circuit Judge:

Roland Ogbogu Oba ("Oba") appeals from the judgment entered upon his conviction for importing a controlled substance into the United States in violation of 21 U.S.C. § 952. Oba contends that the district court erred in denying his motion to suppress the heroin and oral statements obtained from him by United States Customs officers following a border stop. Oba seeks reversal of the judgment on three discrete grounds:

1) The United States Customs officers' prolonged detention of Oba was not justified by facts showing that a reasonable suspicion existed that he had placed a controlled substance in his alimentary canal.

2) The Government failed to meet its burden of proving that Oba's oral consent to an x-ray examination was obtained freely and voluntarily.

3) Oba's written consent to an x-ray examination and oral statements were inadmissible because they resulted from a renewed interrogation that followed his express request for the advice of counsel.

We affirm because we conclude that the officers had reasonable suspicion to detain Oba for importing a controlled substance. We also hold that Oba's consent to an x-ray was voluntary and that he did not invoke his right to an attorney to advise him during police interrogation concerning the importation of a controlled substance into the United States.

I PERTINENT FACTS

At the suppression hearing the Government introduced the declarations of Inspector Edward August Schack and Special Agent James Dinkins of the United States Customs Service. Oba testified as the only defense witness. His testimony was in conflict with the Customs officers' allegations on each material fact. The district court found that the officers were credible witnesses and accepted their version of the facts. We review a district court's credibility determinations and findings of historical fact for clear error. United States v. Caicedo-Guarnigo, 723 F.2d 1420, 1424 (9th Cir.1984) (credibility determinations reviewed for clear error); United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.1984), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) (historical fact reviewed under clearly erroneous standard). The district court's findings in this case were not clearly erroneous. Accordingly, we accept the following version of the facts.

Oba arrived at San Francisco's International Airport on June 1, 1990, at approximately 12:45 p.m. on Lufthansa Flight Number 454 from Lagos, Nigeria via Frankfort, Germany. Nigeria is a source country for narcotics. On that date Inspector Edward August Schack of the United States Customs Service was employed as a roving enforcement inspector in the baggage section of the San Francisco International Airport. His duties were to meet international passengers as they came off airplanes to determine whether they should be referred to a secondary inspector.

Inspector Schack contacted Oba during a routine border entry processing of arriving passengers. Oba's entry form indicated that Sacramento was his destination. Inspector Schack asked Oba to explain his travel plans. Oba stated he was going to Sacramento. Oba told Inspector Schack he had no knowledge of Sacramento. He represented that he was going to live with his girlfriend. When first asked if she was going to pick him up, he was vague about how he would travel to Sacramento. He then stated he was going to travel there by bus or by plane. Oba initially told Inspector Schack that he had traveled to his birthplace in Nigeria only once since he moved to the United States in the early 1980's. Inspector Schack then noted that Oba's passport showed that he had made additional trips to Nigeria. When Inspector Schack asked Oba again if this was his only trip to Nigeria, Oba replied that he had been to Nigeria twice since 1982. The inconsistency between the passport entries and Oba's responses caused Inspector Schack to suspect that Oba was concealing something.

Oba stated that he was presently unemployed but had worked part-time. Because Oba was unemployed, Inspector Schack formed the belief that Oba's trips to Nigeria were unusual because the cost of one trip was between $1,500.00 to $1,800.00. Inspector Schack concluded that Oba's answers had been evasive concerning his trips to Nigeria, his destination, and that he fit the profile of a drug smuggler. Inspector Schack directed Oba to go to a "search room" for a secondary examination.

During the secondary examination, Inspector Schack discovered that Oba had two Nigerian passports. The passports disclosed that Oba had made three trips to Nigeria since October 1989. When asked to explain the reasons for these trips, Oba replied that he made a trip in December to attend his mother's funeral. He told Inspector Schack that the October 10, 1989 trip was to celebrate Christmas. This explanation made no sense to Inspector Schack.

Inspector Schack received a report from the Treasury Enforcement Communications System archives that revealed that a person named Rolland Oba with the same birth date as the appellant had entered the United States on January 23, 1990. Neither of the passports showed an arrival stamp for that date.

Inspector Schack also interviewed Fyneface Amechi, a Nigerian national, who had been on the same flight from Nigeria. Amechi was carrying Imodium, an antidiarrhea medication, and Auomine, a medicine used to treat motion sickness. Amechi denied knowing Oba. Oba also denied knowing Amechi. Amechi's personal address book contained Oba's name, address and telephone number. When confronted with Amechi's address book, Oba stated he met Amechi on the trip to the United States.

Inspector Schack visited the interview room a number of times prior to 4:30 p.m. to inquire how Oba was feeling. Oba replied that he felt fine except for being constipated. Oba did not complain of being ill, ask for medical attention, or exhibit signs of ill health.

Special Agent Dinkins was contacted by Inspector Schack at approximately 2:15 p.m. on June 1, 1990, to come to the search room to interrogate Oba. Special Agent Dinkins was accompanied by Special Agent Wallrapp. Special Agent Dinkins asked Oba to explain the fact that Immigration records showed that a person with his name and birthdate entered the United States on January 23, 1990. Oba replied that someone must have stolen his green card and passport.

Oba told the officers that he was receiving an unemployment check of $184 a week, and between $300.00 and $500.00 a month from the Manpower Employment Agency. Oba stated that he paid for some of the trips and his parents also sent him money.

At approximately 3:00 p.m. Special Agent Dinkins asked Oba if he would consent to an x-ray examination to determine whether he had ingested narcotics. Oba replied that he would consent to an x-ray but he would not sign an x-ray consent form because he wanted to take legal action against the United States Customs Service when the x-ray showed that he had not ingested any narcotics. Oba stated that he wanted an attorney to look at the consent form before he signed it.

Special Agent Dinkins informed Oba that Customs regulations required a written consent. Oba was told that he did not have to sign a consent form. Instead, Oba was advised he would be detained for a bowel movement. Thus, despite his oral consent, Oba was not taken to the airport medical facility for x-rays at that time.

Inspector Dinkins testified during cross-examination that Customs regulations also require that if a person is monitored for a bowel movement, he shall be taken to a medical facility as soon as possible and placed under medical supervision to minimize injury in the event that a concealed drug container should rupture. Special Agent Dinkins also testified that there was a medical facility equipped with an x-ray machine at the airport within 100 yards of the search room. A doctor is stationed at the facility. That facility closed at 10:00 p.m.

At approximately 10:00 p.m. Special Agent Dinkins told Oba that he was going to be transported to a hospital for medical observation of a bowel movement. In response Oba stated he would sign a consent form. Oba did so at 10:05 p.m Oba was x-rayed at the San Mateo County Hospital. The x-ray revealed that he had foreign objects in his abdominal tract.

Oba was placed under arrest at 11:20 p.m. for smuggling and importing narcotics into the United States. At 11:47 p.m., Oba had a bowel movement. He passed 28 balloons containing heroin. Over the next 16 hours Oba passed a total of 70 balloons with a gross weight of 1.5 lbs.

At 11:32 p.m., Special Agent Dinkins advised Oba of his constitutional rights. Oba was handed a statement-of-rights form. Oba read it aloud and then signed it. Oba then admitted that he had smuggled narcotics as a carrier for Amechi.

The next day Oba asked the officers when he would be allowed to speak to a lawyer. Oba gave a written statement. This statement was not offered into evidence by the Government. At trial it was introduced into evidence by the defense in an attempt to prove duress.

Oba testified in support of his motion to suppress as follows. He did not tell any United States Customs Officer that he was going to Sacramento to live with his girlfriend. He told the officers that he lived with his girlfriend in Little Rock, Arkansas.

He denied telling the officers he had gone to Nigeria only once or...