UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2891

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

KAMORUDEEN ADEKUNLE, Defendant-Appellant.

CONSOLIDATED WITH

___________________

No. 91-2979

___________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

SAHEED MASHA, Defendant-Appellant.

Appeals from the United States District Court For the Southern District of Texas

( December 23, 1992 ) 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

2 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

3 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

1

,

,

(1985).

2 United States v. Simmons,

(5th Cir. 1990).

4 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

3 United States v. Castaneda,

(5th Cir. 1992).

4 United States v. De Gutierrez,

(5th Cir. 1982).

5 Montoya de Hernandez,

.

5 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.

6 See United States v. Esieke,

(2d Cir.), cert. denied,

(1991).

7 See De Gutierrez,

(resemblance to drug courier profile is factor which may be considered in reasonable suspicion determination).

6 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 Circuits10

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

8

.

9

.

10 Esieke,

; see United States v. Odofin,

(2d Cir.), cert. denied,

(1991); United States v. Oyekan,

(8th Cir. 1986).

7 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

11 Gerstein v. Pugh,

(1975).

12 County of Riverside v. McLaughlin, 114 L.Ed.2d49 (1991).

8 exposed that his companion, Masha, was carrying suspected

substances in his alimentary canal. Adekunle was not formally

arrested, however, until two days later, after he began passing

heroin-filled balloons. He was brought before a magistrate judge

Thursday morning, about 60 hours after his arrest. He contends

that the failure of prompt presentation before a magistrate judge

requires the suppression of any incriminating statements made

during the period of detention.13

Adekunle's contention must be rejected out-of-hand.

Acceptance of this proposition would result in the absurdity that

one could have his liberty restrained for a longer period based on

a mere reasonable suspicion than he lawfully could be detained

based on probable cause. In the case at bar the delay was

occasioned by appellants' refusal to cooperate with the authorities

and their initial nigh-remarkable ability to control their bodily

functions. This was coupled with the medical need to monitor them

until the potentially toxic substances, in death-dealing

quantities, were safely expelled from their bodies. We conclude

that the delay in bringing him before the magistrate judge was

justified.

C. The X-Ray

Masha also contends that x-rays were intrusive searches which

13 Mallory v. United States,

(1957).

9 required more than reasonable suspicion. Montoya de Hernandez did

not articulate the level of suspicion required for non-routine

border searches, such as x-rays.14 We have upheld the x-ray of a

suspected alimentary canal smuggler based upon reasonable suspicion

and with the suspect's consent.15 Masha does not challenge his

consent to the x-ray; therefore, reasonable suspicion was

sufficient.16

D. The Administration of Laxatives

Finally, the appellants maintain that they were forced to take

laxatives in violation of their fourth amendment privacy

expectations and their due process rights.17 They rely on Rochin

v. California18 wherein the Court found that forcing an emetic into

14

n.4.

15 United States v. Mejia,

(5th Cir. 1983).

16 Although at the suppression hearing Masha contended that he did not consent to the x-ray, his brief on appeal does not raise this argument.

17 Masha also contends that the evidence of heroin-filled balloons was obtained in violation of his fifth amendment privilege against self-incrimination. This argument is without merit. The fifth amendment protection against self-incrimination is limited to testimonial evidence. Schmerber v. California,

(1966); United States v. Brown,

(5th Cir.), cert. denied,

(1991). The forced administration of laxatives may have advanced the production of incriminating evidence, but it did not compel testimony.

18

(1952).

10 the defendant's stomach to induce the vomiting of evidence shocked

the conscience and violated due process. Appellants insist that

administering laxatives to expedite the normal expulsion of

evidence is no less shocking. In addition, they argue that, at a

minimum, a prior judicial determination of probable cause and the

reasonableness of such an intrusion was necessary.19 In Winston the

Court noted the importance of an "informed, detached and deliberate

determination of the issue whether or not to invade another's

body."20

Because the government was entitled to detain the appellants

until they had a bowel movement, the administration of laxatives at

the direction of physicians was not unreasonable. The district

court found that the laxatives were given for reasonable medical

purposes. Masha and Adekunle were at significant risk of serious

injury or death if the balloons allowed the escape of large

quantities of toxic substances into their systems. It was not

unreasonable for the customs agents to defer to the attending

physicians the decision on the appropriate medical attention

indicated during the detention period.21

19 See Winston v. Lee,

(1985).

20

(surgical removal of a bullet from the accused's chest, even with probable cause, unreasonably violated the accused's rights).

21 The laxatives advanced the process, but unlike the situation in Winston or Rochin, they did not cause the expulsion from the body of something which would not normally and routinely be expelled.

11 We affirm the convictions, but not without grave reservations

caused by the conduct of the customs agents. They detained

appellants, keeping them out of contact with any but those in their

immediate environment, for over 100 hours. In Montoya de Hernandez

the Supreme Court viewed the 16-hour detention at issue therein as

one which exceeded any detention they previously had approved. We

are mindful that Montoya de Hernandez has been cited for authority

to justify far longer detentions.22 But we cannot accept without

active response the circumstances of the instant detentions,

particularly their total incommunicado character. Thus the

following rule is to apply to all governmental agents and agencies

which hereafter might detain a suspected alimentary canal smuggler

in this circuit. Henceforth, all agencies and agents shall notify

the local United States Attorney within 24 hours of the detaining

of such a suspected smuggler. The United States Attorney shall, in

turn, immediately notify a district or magistrate judge with

jurisdiction and the detainee's attorney or local public defender

or counsel appointed by the court.23 In addition, the United States

Attorney shall make a daily report to the court until the detention

is terminated or the person is brought before the court pursuant to

22 Odofin,

(24 days before bowel movement); United States v. Onumonu,

(2d Cir. 1992) four days before bowel movement; six days total); Esieke,

(one and one-half days before bowel movement; three days total); United States v. Onyema,

(E.D.N.Y. 1991) (19 hours before bowel movement; 78 hours total); United States v. Yakubu,

(7th Cir. 1991) (18 hours before bowel movement).

23 See Esieke,

.

12 charges.

The convictions of Masha and Adekunle are AFFIRMED.

13