US v. Onyema, No. CR-90-521.

• Decision Date: 05 June 1991
• Docket Number: No. CR-90-521.
• Citation: 766 F. Supp. 76
• Parties: UNITED STATES of America, Plaintiff, v. Silas ONYEMA, Defendant.
• Court: U.S. District Court — Eastern District of New York

766 F. Supp. 76

UNITED STATES of America, Plaintiff, v. Silas ONYEMA, Defendant.

No. CR-90-521.

United States District Court, E.D. New York.

June 5, 1991.

Richard W. Levitt, New York City, for plaintiff.

Stanley Okula, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.

MEMORANDUM

KORMAN, District Judge.

On June 6, 1990, Silas Onyema arrived at John F. Kennedy Airport ("JFK") on Nigerian Airlines Flight 850. Review of Mr. Onyema's documents and the search of his luggage at the Customs area, as well as a brief questioning by the attending Customs Inspector, revealed facts sufficient to arouse a reasonable suspicion that Mr. Onyema was attempting to import narcotics into the United States and, given stomach medication found in his luggage and the absence of any visible contraband, that he was carrying the drugs in his alimentary tract. The Customs Inspector informed Mr. Onyema of his suspicions and asked him to consent to an x-ray. Upon hearing this accusation, Mr. Onyema became extremely agitated and verbally abusive and asked to see an attorney. He was then escorted by the Customs Inspector and another customs official to a private customs search room and asked to take a seat. Mr. Onyema began to sit but sprang up immediately, pushed the official and kicked the inspector in the shin. The two then subdued the screaming Mr. Onyema, restrained him by handcuffing his arms behind his back and read him the Miranda warnings.

At this point, the rather ordinary and customary (if somewhat excited) border search and seizure changed character dramatically. Mr. Onyema was driven to a two-level trailer that housed twelve hospital beds—a so-called "medical van"—so that the Customs Inspectors could monitor his bowel movements. All requests to make a telephone call, either to an attorney or to anyone who might be expecting his arrival, were denied. When he entered the trailer, Mr. Onyema was asked to remove his clothing and was given a hospital gown to wear. He was then instructed to lie on one of the beds and was shackled to the frame hand and foot, one wrist handcuffed to the side of the bed and an ankle chained to the frame using a leg iron. A group of Customs Inspectors then took shifts waiting for Mr. Onyema to move his bowels and confirm his guilt or innocence and, if the former, to deliver up all the contraband.

When Mr. Onyema indicated that he needed to use a bathroom, he was released from the bed, the handcuffs were removed and his legs were shackled together with the leg iron. He was then directed to sit on a "portable potty" and relieve himself, under the watchful eye of the Customs Inspectors, one of whom sat in front of Mr. Onyema at a distance of one and one half feet. In this manner, at approximately 3:30 a.m., Mr. Onyema had the first bowel movement of his detention, some nineteen hours after he had been first brought to the trailer.

When Mr. Onyema finished his bowel movement, he was directed to take the filled bucket portion of the "potty" to a bathroom sink in the trailer and instructed to pour the feces into the sink and to wash the feces and separate the foreign objects. The process disclosed thirty five balloons or condoms wrapped in black electrical tape. Mr. Onyema was then asked to wash and dry these condoms, and to place them inside a plastic evidence bag. A field test later confirmed that the condoms contained heroin. After he had completed this procedure, Mr. Onyema was returned to the hospital bed, reshackled, advised again of his Miranda rights and placed formally under arrest.

This formal arrest, however, did not affect the conditions of his confinement. Mr. Onyema was held incommunicado, shackled to a hospital bed, and without any review by a judicial officer, until he had at least two clear stools. Although his bowel movements were regular—indeed fairly frequent—after the first one, the process which was not completed until some 78 hours after he was first locked away in the van. At approximately 2:30 p.m. on June 9, 1990, Mr. Onyema was removed from the van to the JFK medical facility where an x-ray was taken and Mr. Onyema's intestinal tract determined to be empty. Mr. Onyema was then transported to the Drug Enforcement Agency office at JFK where he was processed and later transported to the Manhattan Correctional Center.

On May 3, 1991, after the defendant was convicted of importing heroin into the United States from Nigeria, his motion to suppress the evidence used to obtain his conviction was granted, and a new trial was ordered. The purpose of this memorandum is to set forth in detail the reasons for the suppression order.

DISCUSSION

The instant case demands a response to the compelling question that was raised by Justice Brennan in his dissenting opinion in United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), and that was left unanswered by the majority opinion in that case and by subsequent decisions.

Does the Fourth Amendment permit an international traveler, citizen or alien, to be subjected to the sort of treatment that occurred in this case without the sanction of a judicial officer and based on nothing more than the "reasonable suspicion" of low-ranking investigative officers that something might be amiss?

Id. at 549, 105 S.Ct. at 3315 (Brennan, J., dissenting).

The issues that animate Justice Brennan's question spring from the growing phenomenon of men and women crossing our national borders with illegal narcotic drugs hidden in their alimentary canals. This phenomenon has fundamentally altered the character of the traditional, routine border search and detention—the stopping of travelers at border checkpoints, the routine searching of the persons and effects of entrants by customs officials, the occasional quarantining of individuals suspected of carrying disease—that served as the model upon which the Fourth Amendment jurisprudence concerning border searches has evolved. With that model in mind, the Supreme Court has consistently granted customs officials broad summary authority to search and detain travelers without probable cause and a warrant. See United States v. Ramsey, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977); Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925); Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886). The jurisprudence that served well the classical routine border search and detention has, however, been subject to increasing stress, as alimentary canal smuggling has obligated the Customs Inspectors to undertake increasingly invasive searches and detentions to confirm or dispel suspicions that a given traveler is importing narcotics.

One aspect of this stress was addressed in United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). In Montoya de Hernandez, the Supreme Court examined the standard of suspicion that the Fourth Amendment requires to ensure the reasonableness of an extended warrantless detention at the United States border of a traveler suspected of carrying narcotics in her alimentary canal. The defendant, Rosa Montoya de Hernandez, was held in circumstances far less severe than those of the present case: Ms. Hernandez, a woman travelling from Bogota, Colombia, was detained (but not shackled) on suspicion of alimentary canal smuggling in a locked room furnished only with hard chairs and a table, and she was offered a wastebasket as a makeshift toilet. Her repeated requests to place a telephone call were refused. After waiting nearly sixteen hours for the defendant's bowels to move, the Customs Inspectors finally sought judicial authorization for an x-ray and a rectal examination of the defendant, which order arrived some eight hours later. The rectal examination disclosed a balloon containing cocaine, one of eighty eight that ultimately passed from her body, and Ms. Hernandez was placed formally under arrest. She was later convicted at trial.

On appeal from her conviction, Ms. Hernandez argued that the district court had erred in failing to suppress the eighty eight balloons of cocaine that the government had introduced into evidence. The Court of Appeals for the Ninth Circuit agreed with her, holding that the "evidence available to the customs officers when they decided to hold de Hernandez for continued observations was insufficient to support the 16-hour detention." United States v. Montoya de Hernandez, 731 F.2d 1369, 1373 (9th Cir.1984). The Supreme Court reversed.

In an opinion by the present Chief Justice, the Supreme Court rejected the effort of the Court of Appeals to fix the "clear indication" standard as the standard of proof mandated by the Fourth Amendment for an extended customs detention. The majority held that "the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal." Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 3310, 87 L.Ed.2d 381 (1985).¹ Because of the relatively narrow focus on the level-of-suspicion issues, the Supreme Court was able to avert its gaze from some of the more troubling questions that hovered around the defendant's detention, including the question—critical for the present case—raised by Justice Brennan in his dissent. Indeed, the persuasive arguments advanced by Justice Brennan for some kind of judicial authorization requirement failed to elicit any response from the Montoya de Hernandez majority.

In the present case, the United States Attorney suggests that Montoya de Hernandez's nondiscussion of judicial authorization justifies the lengthy incommunicado detention of Mr. Onyema. See Government's Letter Brief (April 26, 1991). This silence, however, does not compel the...