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U.S. v. ONYEMA

June 5, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SILAS ONYEMA, DEFENDANT.



The opinion of the court was delivered by: Korman, District Judge.

MEMORANDUM

On June 6, 1990, Silas Onyema arrived at John F. Kennedy Airport ("JFK") on Nigerian Airlines Flight 850. Review of Mr. Onyema's documents and the search of his luggage at the Customs area, as well as a brief questioning by the attending Customs Inspector, revealed facts sufficient to arouse a reasonable suspicion that Mr. Onyema was attempting to import narcotics into the United States and, given stomach medication found in his luggage and the absence of any visible contraband, that he was carrying the drugs in his alimentary tract. The Customs Inspector informed Mr. Onyema of his suspicions and asked him to consent to an x-ray. Upon hearing this accusation, Mr. Onyema became extremely agitated and verbally abusive and asked to see an attorney. He was then escorted by the Customs Inspector and another customs official to a private customs search room and asked to take a seat. Mr. Onyema began to sit but sprang up immediately, pushed the official and kicked the inspector in the shin. The two then subdued the screaming Mr. Onyema, restrained him by handcuffing his arms behind his back and read him the Miranda warnings.

At this point, the rather ordinary and customary (if somewhat excited) border search and seizure changed character dramatically. Mr. Onyema was driven to a two-level trailer that housed twelve hospital beds — a so-called "medical van" — so that the Customs Inspectors could monitor his bowel movements. All requests to make a telephone call, either to an attorney or to anyone who might be expecting his arrival, were denied. When he entered the trailer, Mr. Onyema was asked to remove his clothing and was given a hospital gown to wear. He was then instructed to lie on one of the beds and was shackled to the frame hand and foot, one wrist handcuffed to the side of the bed and an ankle chained to the frame using a leg iron. A group of Customs Inspectors then took shifts waiting for Mr. Onyema to move his bowels and confirm his guilt or innocence and, if the former, to deliver up all the contraband.

When Mr. Onyema finished his bowel movement, he was directed to take the filled bucket portion of the "potty" to a bathroom sink in the trailer and instructed to pour the feces into the sink and to wash the feces and separate the foreign objects. The process disclosed thirty five balloons or condoms wrapped in black electrical tape. Mr. Onyema was then asked to wash and dry these condoms, and to place them inside a plastic evidence bag. A field test later confirmed that the condoms contained heroin. After he had completed this procedure, Mr. Onyema was returned to the hospital bed, reshackled, advised again of his Miranda rights and placed formally under arrest.

This formal arrest, however, did not affect the conditions of his confinement. Mr. Onyema was held incommunicado, shackled to a hospital bed, and without any review by a judicial officer, until he had at least two clear stools. Although his bowel movements were regular — indeed fairly frequent — after the first one, the process which was not completed until some 78 hours after he was first locked away in the van. At approximately 2:30 p.m. on June 9, 1990, Mr. Onyema was removed from the van to the JFK medical facility where an x-ray was taken and Mr. Onyema's intestinal tract determined to be empty. Mr. Onyema was then transported to the Drug Enforcement Agency office at JFK where he was processed and later transported to the Manhattan Correctional Center.

On May 3, 1991, after the defendant was convicted of importing heroin into the United States from Nigeria, his motion to suppress the evidence used to obtain his conviction was granted, and a new trial was ordered. The purpose of this memorandum is to set forth in detail the reasons for the suppression order.

DISCUSSION

The instant case demands a response to the compelling question that was raised by Justice Brennan in his dissenting opinion in United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), and that was left unanswered by the majority opinion in that case and by subsequent decisions.

  Does the Fourth Amendment permit an international
  traveler, citizen or alien, to be subjected to the
  sort of treatment that occurred in this case
  without the sanction of a judicial officer and
  based on nothing more than the "reasonable
  suspicion" of low-ranking investigative officers
  that something might be amiss?

Id. at 549, 105 S.Ct. at 3315 (Brennan, J., dissenting).

The issues that animate Justice Brennan's question spring from the growing phenomenon of men and women crossing our national borders with illegal narcotic drugs hidden in their alimentary canals. This phenomenon has fundamentally altered the character of the traditional, routine border search and detention — the stopping of travelers at border checkpoints, the routine searching of the persons and effects of entrants by customs officials, the occasional quarantining of individuals suspected of carrying disease — that served as the model upon which the Fourth Amendment jurisprudence concerning border searches has evolved. With that model in mind, the Supreme Court has consistently granted customs officials broad summary authority to search and detain travelers without probable cause and a warrant. See United States v. Ramsey, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977); Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925); Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886). The jurisprudence that served well the classical routine border search and detention has, however, been subject to increasing stress, as alimentary canal smuggling has obligated the Customs Inspectors to undertake increasingly invasive searches and detentions to confirm or dispel suspicions that a given traveler is importing narcotics.

One aspect of this stress was addressed in United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). In Montoya de Hernandez, the Supreme Court examined the standard of suspicion that the Fourth Amendment requires to ensure the reasonableness of an extended warrantless detention at the United States border of a traveler suspected of carrying narcotics in her alimentary canal. The defendant, Rosa Montoya de Hernandez, was held in circumstances far less severe than those of the present case: Ms. Hernandez, a woman travelling from Bogota, Colombia, was detained (but not shackled) on suspicion of alimentary canal smuggling in a locked room furnished only with hard chairs and a table, and she was offered a wastebasket as a makeshift toilet. Her repeated requests to place a telephone call were refused. After waiting nearly sixteen hours for the defendant's bowels to move, the Customs Inspectors finally sought judicial authorization for an x-ray and a rectal examination of the defendant, which order arrived some eight hours later. The rectal examination disclosed a balloon containing cocaine, one of eighty eight that ultimately passed from her body, and Ms. Hernandez was placed formally under arrest. She was later convicted at trial.

On appeal from her conviction, Ms. Hernandez argued that the district court had erred in failing to suppress the eighty eight balloons of cocaine that the government had introduced into evidence. The Court of Appeals for the Ninth Circuit agreed with her, holding that the "evidence available to the customs officers when they decided to hold de Hernandez for continued observations was insufficient to support the ...


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