UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4258

FESTUS OGIE ANTHONY AGUEBOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CR-97-428-A)

Submitted: December 15, 1998

Decided: January 4, 1999

Before NIEMEYER and LUTTIG, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dale Warren Dover, Alexandria, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, Keith E. Bell, Special Assistant

United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Festus Ogie Anthony Aguebor was convicted on his conditional

guilty plea of possession with intent to distribute more than 100

grams of heroin. See 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(I) (1994).

Aguebor conditioned his guilty plea on the ruling of the district court

refusing to suppress the heroin that customs officials discovered in

Aguebor's alimentary canal after he attempted to enter the United

States from Nigeria. In his motion to suppress the evidence, Aguebor

claimed that several x-ray images taken of his lower abdomen to

effect a search of his alimentary canal violated the Fourth Amendment. The district court disagreed and declined to suppress the evidence. In this appeal, Aguebor assigns error to the district court's

ruling. Because we find no merit to Aguebor's contentions, we affirm

the criminal conviction.

Aguebor arrived in the United States at Dulles Airport near Washington, D.C. from Nigeria. The customs inspector who initially

screened Aguebor for further investigation did so because a computer

check revealed that during previous visits to the United States, Aguebor had stayed with his brother, who had been arrested for smuggling

heroin. Although a pat-down search was negative, additional investigation raised additional suspicions. The investigating agent considered Aguebor's answers to his inquiries evasive. Aguebor had

purchased his airline tickets with cash shortly before the flight into

Washington, D.C. He traveled to the United States from Nigeria, a

source country for narcotics. Aguebor had previously sent fraudulent

passports through the United States mail. Finally, a drug-detecting

dog trained to discover internal carriers gave a positive indication for

contraband in Aguebor's possession.1

At that point, the investigating agents attempted to obtain Aguebor's consent to an x-ray examination of Aguebor's alimentary canal.

The agent told Aguebor that if he did not consent to the x-ray examination, he would be detained until a court order authorizing the search

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1 Although Aguebor suggests in his brief that the dog did not give a

positive response, that contention is not borne out in the record.

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could be obtained. On that information, Aguebor consented to the xray search. The x-rays taken in a nearby hospital revealed foreign

objects in his alimentary canal. Aguebor passed eighty-eight pellets

containing heroin a few days later.

Aguebor assigns error to the district court's refusal to suppress the

heroin discovered in his lower intestines. The customs officials conducted the search relying on Aguebor's consent. A search may be

conducted without probable cause or a search warrant when valid

consent is given. See Schneckloth v. Bustamonte , 412 U.S. 218, 222

(1973). In this appeal, as in the district court, Aguebor contends that

his consent was not voluntary. The voluntariness of the consent is a

factual question which is reviewed by this court only for a finding of

clear error. See United States v. Elie, 111 F.3d 1135, 1144 (4th Cir.

1997); United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996).

To determine whether consent to search is voluntarily given, the district court must examine the totality of the circumstances. See

Schneckloth, 412 U.S. at 227. Accordingly, the court must consider

the characteristics of the defendant and the circumstances under

which the defendant gave consent, and whether the defendant knew

that he had a right to refuse consent. See Lattimore, 87 F.3d at 650.

A district court commits clear error only when the reviewing court is

left with "the definite and firm conviction that a mistake has been

committed." United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948).

At the suppression hearing, Aguebor testified that when he initially

refused to sign the consent form, the customs agents threatened to

arrest him and obtain the x-ray images without his consent. According

to Aguebor, that threat evoked images of police brutality and caused

him to conclude that at fifty-seven years of age, if he were "rough

handle[d]," he might die. That fear, contends Aguebor, compromised

the voluntary nature of his consent. However, the testimony of the

customs agent who obtained Aguebor's consent differed from Aguebor's recollection. The agent testified that instead of threatening to

arrest him, he merely informed Aguebor that if he declined to consent

to the examination, he would be detained until such time as a court

order could be obtained. The agent further testified that Aguebor did

not appear fearful at any point. In determining that Aguebor's consent

to the x-ray examination was voluntary, the district court credited the

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testimony of the customs agent. The decision of the district court of

what testimony to credit is not subject to appellate review. See United

States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). In light of relatively sedate conditions under which the consent to search was given,

see Lattimore, 87 F.3d at 650, there is no hint of clear error in the district court's conclusion that Aguebor's consent was voluntary.

Aguebor relies on Bumper v. North Carolina, 391 U.S. 543, 548-49

(1968), to support his position. In that case, the Supreme Court determined that where the consent is obtained by falsely informing the person who is the object of the search that he has"no right to resist the

search," the coercion inherent in the situation invalidates the consent.

Id. at 550. There is no such coercion in this case. The district court

found that customs officials informed Aguebor that if he did not consent, he would be detained until a court order could be obtained

authorizing the search. This is a legal and reasonable course of action.

As a result, Aguebor's reliance on Bumper, where there was compelling evidence of police misconduct, is unavailing in the absence of

similar evidence in this case.

Aguebor also attempts to equate the customs agents' threat of an

arrest in this case with "deceitful misrepresentation" which would

undermine a finding of valid consent. See Vizbaras v. Prieber, 761

F.2d 1013, 1017 (4th Cir. 1985). The district court found that the

agents did not threaten Aguebor with arrest, but rather told him that

he would be detained until a court order authorizing the search could

be obtained. There was no misrepresentation on the part of the customs agents that would "critically impair" Aguebor's ability to voluntarily consent to the search. See United States v. Pelton, 835 F.2d

1067, 1071-73 (4th Cir. 1987). Because we are not left with the "definite and firm conviction" that the district's court's finding that Aguebor's consent was voluntary was in error, we must also conclude that

the x-ray examination was premised on Aguebor's valid consent.

Even if we had found that Aguebor's consent was not valid, that

conclusion would not render the district court's ruling on the suppression motion error. Routine border stops and searches may be conducted without probable cause or reasonable articulable suspicion, in

order to regulate collection of duties and prevent introduction of contraband. See United States v. Montoya de Hernandez, 473 U.S. 531,

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537 (1985). Border searches have been considered to be "reasonable"

by definition because the person or item in question came into the

United States from elsewhere. See United States v. Ramsey, 431 U.S.

606, 619 (1977). There is no question but that the customs agent conducted his initial search of Aguebor's person and baggage in full

compliance with the Fourth Amendment.

Following the more pedestrian inspection, the investigating agents

eventually subjected Aguebor to multiple x-rays of his lower abdomen. It is at least debatable that this action went beyond the boundaries of a routine inspection. See United States v. Johnson, 991 F.2d

1287, 1293 (7th Cir. 1993) (assuming but not deciding that x-ray

examination and removal of inner shell of suitcase was non-routine

search). The Supreme Court did not define "routine search" in

Montoya de Hernandez. Neither did the Court determine the level of

suspicion necessary to conduct an x-ray examination in compliance

with the Fourth Amendment. See Montoya de Hernandez, 473 U.S.

at 541 n.4. However, only strip searches and body cavity searches

have consistently been considered sufficiently intrusive to be nonroutine. See United States v. Braks, 842 F.2d 509, 511-13 (1st Cir.

1988); see also United States v. Ramos-Sanez, 36 F.3d 59, 61 (9th

Cir. 1994). Neither is involved here, but because a trip to the hospital

and a medical procedure were required to continue the search, see

Braks, 842 F.2d at 512, we will assume for the purposes of this case

that this was something more than a "routine search."

Before the agent could initiate a non-routine search, a reasonable

suspicion was required. See United States v. Oriakhi, 57 F.3d 1290,

1297 (4th Cir. 1995). The non-routine search of Aguebor would be

justified when the customs agents, considering all the facts, "reasonably suspect[ed]" that Aguebor was smuggling contraband in his alimentary canal. See Montoya de Hernandez, 473 U.S. at 541.2 Even

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2 Aguebor cites two cases from the Ninth Circuit decided before

Montoya de Hernandez for the proposition that a"clear indication" or

"plain suggestion" is required to carry out an x-ray examination. See

United States v. Quintero-Castro, 705 F.2d 1099, 1100 (9th Cir. 1983);

United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982). The Supreme

Court in Montoya de Hernandez flatly rejected the "clear indication"

standard, declining to create verbal gradation under the Fourth Amendment. See Montoya de Hernandez, 473 U.S. at 540-41.

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assuming that the x-ray examination was a non-routine search, the

district court did not err in concluding that the customs agent had reasonable suspicion to support the more intrusive search. As noted

above, Aguebor purchased his ticket with cash shortly before his

departure. He traveled from Nigeria, a source country and reported

that he was visiting his brother who had been arrested for smuggling

heroin. Aguebor had previously mailed fraudulent passports to individuals in the United States. Finally, the narcotics search dog gave a

positive response when searching Aguebor. In light of the fact that a

search of Aguebor's person did not reveal narcotics, the conclusion

that Aguebor was carrying the drugs internally was reasonable. The

combination of these factors easily reach the threshold of a reasonable

suspicion supporting the x-ray examination. There was no violation

of the Fourth Amendment in the customs agents' actions effecting the

search and no error in the district court's decision not to suppress the

fruits of that search.3

Finding no merit to either of Aguebor's contentions on appeal, we

affirm his conviction. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the Court and argument would not aid the decisional process.

AFFIRMED

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3 In his briefs, Aguebor suggests, somewhat obliquely, that the manner

in which the x-ray examination was conducted and the course of treatment followed by attending physicians upon the discovery of foreign

objects in Aguebor's alimentary canal somehow rendered the search

unreasonable. Although Aguebor chronicles the difficulties he experienced with his diabetes during his hospital stay, there is no evidence of

record that would suggest that the officials' actions caused the variation

in his blood sugar level. While Aguebor notes that there is no evidence

that the laxative he received in the hospital was administered voluntarily,

neither is there evidence that the medication was forced on him. See

United States v. Saldarriaga-Marin, 734 F.2d 1425, 1428 (11th Cir.

1984). As a result, the care given to Aguebor as officials waited for the

deadly heroin to pass safely through his body did not render the otherwise legal search of his person unreasonable.

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