The opinion of the court was delivered by: PLATT
Defendants Leonard Wiley and Robert A. Lee, having been indicted for allegedly importing, possessing and conspiring to import, possess and distribute controlled substances, have moved to suppress evidence taken from them during a search conducted at the behest of United States Customs officers. This Court held a number of hearings in the latter part of April and early May to consider these motions and now finds the following facts and arrives at the attendant conclusions of law.
Although the activities presently under consideration occurred on January 23, 1981, to understand the events of that day it is necessary to outline briefly the events of the two previous days.
On January 21, 1981, Ms. Kim Mowitz and Ms. Diane Moseman arrived at Kennedy International Airport on a flight from Frankfurt, Germany. Upon discovering that these travellers had been to Pakistan, a known source country for narcotics, United States Customs officials conducted various searches of them and their baggage and found that they had strapped packets of hashish oil to their bodies. Both were then arrested. (Tr. 41, 83-85).
The true extent of their attempts to smuggle narcotics into the country, however, was not known until Ms. Kim Mowitz suddenly became comatose. She apparently had swallowed a number of condoms filled with hashish oil. One of the condoms had burst and Ms. Mowitz came very close to death as a result of the sudden onrush of the drug into her system. (Tr. 41, 369-70). Fortunately, she recovered.
Subsequent to these events, Customs officials determined that Mlles. Mowitz and Moseman had made reservations and apparently were travelling with five other individuals, viz: Messrs. Craig Richard Clymore, Leonard Wiley, Robert A. Lee, Kenneth Grissom and Ms. Helen Plesko.
Further investigation revealed that Messrs. Wiley, Lee, Donnell and Grissom were due in at Kennedy Airport on January 23, 1981, on Lufthansa Flight 404 from Frankfurt, Germany. (Tr. 42, 87). Consequently, awaiting the arrival of that flight were Customs Patrol Officers, among whom were Officers Sanchez and Viccica, with Officer Sanchez taking a position at the immigration embarkation point near the belts bearing luggage for customs inspection. (Tr. 44).
At approximately 4:00 PM on January 23, 1981, defendants Wiley and Lee deplaned and forty minutes later approached the Customs area. Mr. Wiley drew near Customs Inspector Daniel S. McDonald who was inspecting baggage and documents and who was checking the Customs computer for information about the deplaning passengers. Upon receiving Mr. Wiley's name, the computer indicated that he had previously been arrested at an airport for attempting to smuggle hashish into the country whereupon Inspector McDonald decided to ask Mr. Wiley to stand aside while he searched Mr. Wiley's bags. He did so but found no contraband. Inspector McDonald summoned Senior Inspector Brummet and relayed to him the pertinent facts. Inspector Brummet then called Officers Sanchez and Viccica and turned Mr. Wiley over to those officers. (Tr. 45-48).
Returning to his belt position, Inspector McDonald was next approached by Mr. Lee. He took Mr. Lee's papers, examined them, and punched Mr. Lee's name into the Customs computer. Mr. Lee's name produced no reaction from the computer but, when the Inspector noted that Mr. Lee had visited Pakistan, his suspicions were aroused. He then queried Mr. Lee on his visit to Pakistan whereupon Mr. Lee quickly reached to his shirt pocket, pulled out a business card and flashed it in the Inspector's face. Not unreasonably, the Inspector found his flurried activity to be a bit odd. (Tr. 220).
Inspector McDonald checked Mr. Lee's luggage and found nothing suspicious. However, upon further examination of Mr. Lee's passport and airline ticket he discovered that Mr. Lee had been to Karachi, Pakistan, the same city visited by Mr. Wiley. He also noticed that Mr. Lee's and Mr. Wiley's luggage tags were numbered sequentially, which indicated to him that they had checked their respective bags at the same time. (Tr. 182-184). Thus, once again did Inspector McDonald summon Senior Inspector Brummet. This time, however, the two Inspectors did not relinquish control of the suspect but rather they themselves took Mr. Lee to a nearby room used for more extensive searches of persons entering the United States. (Tr. 183-184).
As the three entered the room with the understanding that some sort of body search was about to be conducted, Mr. Lee volunteered that he suffered from hemorrhoids. (Tr. 184). Soon thereafter a pat-down search was conducted and Mr. Lee's luggage was examined for a second time, both searches proving negative. (Tr. 185). Inspector McDonald left the room to discuss the situation with other Customs officials at which time he was informed that Mr. Lee was associated with and was travelling with Mlles. Mowitz and Moseman, who had been apprehended two days earlier for attempting to smuggle narcotics. The Inspector then spoke with his supervisor, Ms. Joan Lewis, who, upon learning of the pertinent facts, authorized a strip search of Mr. Lee. (Tr. 185).
During the strip search of Mr. Lee, a wad of tissue paper was found in the backside of his underwear and a reddening was seen around the anal opening, but no contraband could be seen. (Tr. 185-186). Following the strip search, Mr. Lee was asked for, and gave without hesitation, his written consent to undergo X-ray and rectal examination. (Tr. 188). Thereupon, Mr. Lee was transported to the medical facility at JFK Airport.
At approximately 6:20 PM, about an hour and one-half after he first entered Customs, Mr. Lee arrived at the medical facility where he was to be examined by Dr. Lubomyr Woroch. Apparently Mr. Lee cooperated fully with the doctor who, after conducting a rectal probe, ascertained that foreign objects were indeed present in Mr. Lee's large intestine. (Tr. 191-192, 371-372). The doctor then directed that X-rays of Mr. Lee's lower abdomen be taken and these pictures confirmed the doctor's initial diagnosis that Mr. Lee was carrying foreign objects in his lower intestinal area. (Tr. 192, 373). It was at this time that the Customs official informed Mr. Lee that he was being detained pending removal of the substances and read him his rights. (Tr. 193, 256).
At this point, the doctor recommended the use of an oral laxative to facilitate the passing of the foreign objects, and, despite the fact that he vigorously maintained that no such objects existed, Mr. Lee agreed to take a laxative and did so at approximately 6:45. (Tr. 195-196).
Twenty minutes or so elapsed and nothing happened so the Customs officials again approached Mr. Lee and asked him to consider taking an enema to enable him to pass the foreign objects in his system. At that time, Mr. Lee refused and the officials did not press the point; Mr. Lee then asked to make a call to an attorney. (Tr. 196). Unsure of what procedure should be followed, Inspector McDonald called his supervisor who said she would return his call. When she did call back, she told the Inspector that Mr. Lee should be allowed to make his call. Just about that time, Drug Enforcement Agents arrived and also indicated that Mr. Lee was free to call an attorney. Mr. Lee, however, declined the opportunity. (Tr. 196-198).
While the record is not completely clear as to who said what, apparently Dr. Woroch informed Mr. Lee that the presence of foreign objects inside the body could be extremely dangerous to his health, particularly if those objects were packets of narcotics. Also some mention may have been made of the fact that Ms. Mowitz had nearly died when one of the condoms full of hashish oil burst inside of her. (Tr. 199-200, 264, 370). At this time, the doctor asked Mr. Lee for and was given consent to perform a second rectal examination, during which the doctor removed a condom full of opium. Inspector McDonald then arrested Mr. Lee and again advised him of his rights. Soon thereafter Mr. Lee excreted thirteen more condoms which contained heroin. (Tr. 200).
The suspended story of Mr. Wiley, who was left in the custody of Officers Sanchez and Viccica, now shall be resumed. After a search of his luggage proved negative, the officers asked him whether he was travelling by himself or with others. Mr. Wiley responded that he was travelling alone, an answer which the officers thought to be false because of the suspected connection with Mr. Lee and others. (Tr. 49).
Mr. Wiley was accordingly escorted to a private search room and, when a pat-down search and another search of his bags revealed nothing, ...