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