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 )2

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

a ssigned we affirm both convictions and take this opportunity to

announce a prophylactic rule to g overn, 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, Feb ruary 23,

1991. They fit in part the drug courier profile: young men coming

from central Mexico with little luggage, giving incon sistent

a nswers 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 Treas ury Enforcement Computer System revealed

the reports of tw o informants that Masha, a suspected alimentary

canal smuggler, probably accompanied by another perso n, would be

attempting to enter the United States. They were not arrested but

were given Miranda warnings and were strip searched. They held3

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 the re 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 mo vements. The

doctors prescribed laxatives and informed appella n ts 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 until1 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985).

2 United States v. Simmons , 918 F.2d 476 (5th Cir. 1990).

4 Wednesday when all balloons were expelled. On Wednesday evening

they were removed to the local jail. They were brought before the

m agistrate judge the following morning, over 100 hours after the

initial detention and more than t wo days after their arrest.

Throughout the period of detention appellan ts 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 guilt y 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

reason able 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

disciplin ed control of normal bodily functions. Finding no

constitutional violations, the district court denied the motions to

su ppress. Appellants timely appealed and we consolidated their

appeals.

Analysis

In reviewing ruling s on motions to suppress we accept trial

court factual findings unless clearly erroneous, 2 but review3 United States v. Castaneda

, 951 F.2d 44 (5th Cir. 1992).

4 United States v. De Gutierrez , 667 F.2d 16 (5th Cir.

1982).

5 Montoya de Hernandez , 473 U.S. at 541-42.

5 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 susp icion." 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 con tends 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 English6 See United States v. Esieke

, 940 F.2d 29 (2d Cir.), cert

.

denied , 112 S.Ct. 610 (1991).

7 See De Gutie rrez

, 667 F.2d at 19 (resemblance to drug

courier profile is factor which may be considered in reasonable

suspicion determination).

6 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 follo wing 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

c entral Mexico with negligible luggage; (3) he and his travel ing

companion were extrem ely nervous and conferred in their native

tongue before responding to the agent's questions; and (4) two

info rmants had alerted authorities about Masha and possible

internal body smuggling of contraband acco m panied 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.8 473 U.S. at 544.

9 Id. at 543.

1 0 Esieke

, 940 F.2d at 35; see United States v. Odofin , 929

F.2d 56 (2d Cir.), cert

. denied

, 112 S.Ct. 154 (1991); United

States v. Oyekan , 786 F.2d 832, 836 (8th Cir. 1986).

7 The agents were justifi ed in detaining Masha for a reasonable

period during which normal bo dily 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 th e fourth amendment.

It was over 48 hours before the first heroin-filled balloon was

passed. In M ontoya de Hernandez the defendant refused an x-ray and

was detained only 16 hours awaiting a bowel movement. The Supreme

Court he ld that "detention for the period necessary to either

verify o r dispel the suspicion was not unreasonable." 8 The Court

also made clear that delay attri butable 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 Circuits 1 0

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 a11 Gerstein v. Pugh , 420 U.S. 103 (1975).

1 2 County of Riverside v. McLaughlin

, 114 L.Ed.2d49 (1991).

8 bowel movement expelling some of the balloons. The district court

found that Masha was properly detained until his bodily functions

c onfirmed 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 hi m as a suspected

alimenta ry 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

t hat after a defendant is arrested he must be taken b efore a

federal magistrate without unnecessary delay. Further, the fourth

amendment requires a prompt determination of proba ble 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-ray13 Mallory v. United States , 354 U.S. 449, 453 (1957).

9 expose d that his companion, Masha, was carrying suspected

substances in his alimentary canal. Adekunle was not formally

arrested, howe ver, 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 expel led 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 which14 473 U.S. at 541 n.4.

15 United States v. Mejia , 720 F.2d 1378 (5th Cir. 1983).

1 6 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 , 384 U.S. 757

(1966); United States v. Brown

, 920 F.2d 1212 (5th Cir.), cert

. den ied , 111 S.Ct. 2034 (1991). The forced administration of

laxatives may have advanced the production of incriminating

evidence, but it did not compel testimony.

18 342 U.S. 165 (1952).

10 required more than reasonable suspicion. M ontoya 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 co nsent. 1 5 Masha does not challenge his

consent to the x-ray; therefore, reasonable suspic ion 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. 1 7 They rely on R ochin

v. California 18 wherein the Court found that forcing an emetic into19 See Winston v. Lee , 470 U.S. 753 (1985).

20 Id. at 760-61 (surgical removal of a bullet from the

accused's chest, even with prob able 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 the defendant's stomach to induce the vomiting of evidence shocked

the conscience and violated d ue process. Appellants insist that

adminis tering 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 W inston 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 t o defer to the attending

physicians the decision on the appropriate medical at tention

indicated during the detention period. 2122 Odofin

, 929 F.2d 56 (24 days before bowel movement);

United States v. Onumonu , 967 F.2d 782 (2d Cir. 1992) four days

before bowel movement; six days total); Esieke

, 940 F.2d 29 (one

and one-half days before bowel movement; three days total); United

States v. Onyema , 766 F.Supp. 76 (E.D.N.Y. 1991) (19 hours before

bowel movement; 78 hours total); United States v. Yakubu

, 936 F.2d

936 (7th Cir. 1991) (18 hours before bowel movement).

23 See Esieke , 940 F.2d at 36.

12 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 M ontoya 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 dete ntions,

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 distri ct 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 to13

charges.

The convictions of Masha and Adekunle are AFFIRMED.