The opinion of the court was delivered by: BARTELS
Defendant Paul Solimini moves to suppress certain statements and physical evidence in connection with his indictment for importing and possessing with intent to distribute cocaine. The following findings of fact, and attendant conclusions of law, are based on testimony elicited and exhibits introduced in evidence at the suppression hearing held on February 16, 1983.
On November 24, 1982, at 5:15 P.M., Solimini arrived at John F. Kennedy International Airport on Avianca Flight 004 from Bogota, Colombia. Solimini proceeded to the Customs Baggage retrieval area in the Pan American terminal to pick up the one piece of luggage that he had checked in. There, United States Customs Inspector Anthony Contorno approached Solimini for questioning. Contorno was a member of a special Customs Enforcement Team ("CET") assigned to scrutinize passengers arriving from narcotics source countries and examine those suspected of smuggling narcotics. According to Contorno, his suspicions became aroused because Solimini had arrived alone from Colombia with only one piece of luggage and appeared to be neither a tourist nor a businessman.
Contorno first asked to examine Solimini's passport, Customs declaration, and flight ticket. From the documents he learned that Solimini was a United States citizen returning from a three-day trip to Colombia; that he had obtained his passport on November 19, 1982 (two days prior to his departure from the United States); and that he had purchased his ticket for $764.00 cash on November 18, 1982. Solimini had nothing to declare and accordingly Contorno questioned him about the purpose of his trip, to which Solimini responded that he had visited a friend for three days.
Contorno then directed Solimini to accompany him to a nearby private examination room where they were joined by Customs Inspector Michael Moore, supervisor of the CET. Contorno patted down Solimini and searched his suitcase without finding tourist souvenirs, business documents, or any evidence of contraband. In response to further questioning, Solimini told Contorno and Moore that his girlfriend -- whose name and address he could not remember
-- had called him a week before his trip inviting him to visit. Solimini stated that he had met the girlfriend while walking about the World Trade Center in New York City but he had not heard from her for a year prior to her call. He further explained that he had been unemployed for three years; that his father, a truck driver, had paid for his flight ticket; that he had returned after only three days to be with his parents on Thanksgiving (November 25th); that he intended to visit his girlfriend again; and that he could not remember the name or approximate cost of the hotel where he had stayed his first night in South America. Contorno noticed that Solimini acted very nervously throughout the questioning, tapping his foot, licking his lips, clenching his fist, and clearing his throat, and Moore noticed perspiration on Solimini's forehead.
At this point both inspectors suspected that Solimini was carrying drugs internally, and directed him to lower his trousers and underwear. They discovered fresh excrement stains on his underwear and Moore saw excrement in Solimini's anal area when he bent over and spread his buttocks. Based on their past experiences with internal drug smuggling and the indications thereof,
this discovery reinforced their suspicion that Solimini had either ingested narcotics or inserted them into his rectum. They advised him of their suspicion and presented a consent form authorizing abdominal x-rays, which Solimini read and refused to sign. Contorno then read to Solimini his Miranda rights which, according to Contorno, Solimini orally waived. Joined by Customs Inspectors Alschuler and Hauck, Contorno took Solimini from the examination room to a Customs van parked several hundred feet from the building exit. Contorno noticed that in walking to the van Solimini exhibited an unusual gait as he tightened his buttocks as if trying to prevent a bowel movement. The three inspectors then drove Solimini to Jamaica Hospital, located three miles away, for observation and, apparently, x-rays even though Solimini had refused to sign a consent form. The inspectors did not converse with Solimini during the ten-minute drive.
Upon arrival at the hospital shortly before 7:00 P.M. Solimini refused to submit to an x-ray examination. Even after a doctor explained to him the dangers of carrying narcotics internally, Solimini refused to give admittance information or have his vital signs taken. Approximately one hour after arrival at the hospital, Solimini was admitted and taken by the inspectors to a room where, upon their direction, he undressed himself, put on a hospital gown, and got into a bed to which he was then handcuffed. Sometime before Contorno's departure at 9:15 P.M., Solimini asked to call his parents and was permitted to do so.
Solimini did not request to speak with an attorney.
For three hours -- 8 P.M. to 11:00 P.M. -- Solimini remained in bed while the inspectors awaited his bowel movement. The only questioning of Solimini was by doctors attempting to elicit medically-related information. Shortly before 11:00 P.M., Solimini asked Alschuler, hypothetically, what legal consequences would follow should he be found to be carrying drugs, to which Alschuler stated he could give no such advice.
At 11:00 P.M. Solimini requested to be permitted to have a bowel movement and he excreted seventeen rubber packets containing white powder. After a field test indicated positive for cocaine, Alschuler formally arrested Solimini and read his Miranda rights. Soon thereafter Solimini's attorney -- contacted by Solimini's parents -- called the hospital and spoke with Solimini. Sometime within an hour after his arrest Solimini told Alschuler that while on the plane prior to landing he had excreted several rubber packets and had reswallowed them after cleaning them.
The following day while still in the hospital Solimini volunteered to Customs Inspector Baach that he was anxious to get the whole affair over with and that he had secreted four packets of cocaine in a sock in his suitcase, which Baach subsequently recovered.
A magistrate arraigned Solimini by telephone on November 26th, the previous day having been the Thanksgiving holiday. Over the three days Solimini remained in the hospital,