U.S. v. Yakubu, 90-1657

• Citation: 936 F.2d 936
• Decision Date: 10 June 1991
• Docket Number: No. 90-1657,90-1657
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Babatunde YAKUBU, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 936

936 F.2d 936

UNITED STATES of America, Plaintiff-Appellee, v. Babatunde YAKUBU, Defendant-Appellant.

No. 90-1657.

United States Court of Appeals Seventh Circuit.

Submitted June 10, 1991. ^*

Decided July 8, 1991.

Barry R. Elden, Pamela Pepper, Asst. U.S. Attys., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Craig J. Katz, Chicago, Ill., for defendant-appellant.

Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

PER CURIAM.

This case involves a "balloon swallower" who attempted to smuggle narcotics into this country hidden in his alimentary canal. After a bench trial, Babatunde Yakubu was convicted of one count of possession with intent to distribute 334 grams of a mixture containing heroin in violation of 21 U.S.C. Sec. 841(a)(1) and one count of willfully importing 334 grams of a mixture containing heroin in violation of 21 U.S.C. Sec. 952. He appeals from the district court's denial of his motion to suppress evidence and quash his arrest.

The parties stipulated to the following facts. On June 18, 1989 at about 2:00 p.m., Yakubu arrived at O'Hare International Airport on a flight from Lagos, Nigeria. Yakubu is a Nigerian citizen and a permanent resident of this country. At customs, Inspector James Scoles noted that Yakubu had taken two recent trips to Nigeria between February 24, 1989 and March 1, 1989, and from April 13 to 19, 1989. Scoles knew that Nigeria is a source country for heroin. Yakubu said that he bought his one-way plane ticket with cash and that he had been in Nigeria to visit his sick mother. Scoles noticed that Yakubu had purchased his tickets at "Transmission Travel" and "CES Travel," which are often used, though not exclusively, by Nigerian heroin smugglers.

Inspectors David Hillman and Jack Ladd inspected Yakubu's luggage and found a bottle of lomotil tablets and a package of ground charcoal. The inspectors knew that lomotil suppresses bowel movements and the charcoal, when swallowed, absorbs the stomach acids which aid in digestion. These items are frequently, but not exclusively, used by people smuggling narcotics in their alimentary canal.

Hillman then patted Yakubu down. Yakubu appeared nervous and said "Oh please don't do that," when Hillman patted his stomach. Hillman noted that Yakubu's abdomen was distended and rigid, indicating that the stomach and bowels were filled to capacity--another common trait in person's smuggling narcotics in their alimentary canal. Yakubu was then referred to an interview with various inspectors and special agents.

During the interview, Yakubu became nervous whenever asked questions relating to contraband. He refused to consent to an x-ray of this abdomen, stating that his doctor, John Gleason at St. Anthony Hospital in Chicago had told him not to be x-rayed for eight years because of x-rays taken following a shooting incident. Yakubu also said that x-rays make him dizzy. An agent called St. Anthony's where Drs Thomas Gleason--John's son--and Allemayehu Bekele both stated that there is no set of conditions that precludes the use of x-rays for eight years and that dizziness is not a side effect. When told this, Yakubu said that he preferred not to have x-rays because he had had enough of them.

Inspector Ulanowski asked Yakubu how much "ebba" he had eaten lately. Ebba is a dough-ball pastry made from cassava that is used by Nigerian internal narcotics smugglers to practice their swallowing technique. At first Yakubu said he did not understand the question. Next he said did not know what ebba was; then he said he had not eaten any ebba; and finally he said that he had eaten ebba a few days earlier.

Yakubu said his wife was waiting for him in the airport terminal. Agents went and looked but found no one waiting for him. Ulanowski asked Yakubu for his wife's phone number. Yakubu gave two wrong numbers before providing the number of Sola Yakubu who lived at 820 West Belle Plaine in Chicago. The agents asked why his travel documents showed his address as 927 East 192nd in Glenwood. Yakubu said that he lived at Belle Plaine, and that the Glenwood address was his uncle's pharmacy where he lived and worked during the week.

At 8:45 p.m., Agent Kaczmarek told Yakubu that there was a reasonable suspicion that Yakubu was concealing contraband. Yakubu again declined to take an x-ray. Kaczmarek told Yakubu that he would either be held until Yakubu had a bowel movement or the agents could obtain a court order for x-rays.

The agents then took Yakubu to Resurrection Hospital where he refused to sign an x-ray consent form or a hospital release form. They waited in the hospital's waiting room. At 10:00 a.m. on June 19, Yakubu asked to use the toilet. The agents monitored him while he had a bowel movement. Yakubu told the Inspectors Richard Green and Jack Ladd that he had swallowed 82 balloons. Agent John Stecker then read Yakubu his Miranda rights. He passed 31 balloons approximately 1 inch by 2 inches in diameter. Hospital officials observed that the surface of one balloon was deteriorated and they placed Yakubu in the surgical intensive care unit. Yakubu agreed to sign himself in as a patient and submit to an x-ray and body cavity search.

At 3:42 p.m. that afternoon Yakubu passed 34 more balloons. At 8:51 p.m. that evening, he passed ten more. He passed three more at 9:43 p.m., two more at 12:53 on June 20, and two more at 2:37 that same morning. An x-ray showed that no more foreign objects remained in Yakubu's body.

After his indictment, Yakubu filed a motion to suppress the evidence and quash the arrest. The court did not hold a hearing because the motion raised only a question of law and denied the motion citing United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), which states the relevant standard for "balloon swallowers" at the border. Yakubu waived his right to a jury trial, and the district court conducted a bench trial, returning guilty verdicts on both counts. Yakubu filed a motion for a new trial, arguing that the district court erred in relying on Montoya de Hernandez to deny the motion to suppress. The district court denied this motion and sentenced Yakubu to a 60 month term of imprisonment to be followed by a four-year period of supervised release.

ANALYSIS

In non-warrant cases such as this one, this court applies a de novo review of the customs agents' probable cause determinations. See United States v. McKinney, 919 F.2d 405, 412 (7th Cir.1990). Both in his brief before the district...