The opinion of the court was delivered by: LESLIE G. FOSCHIO
This case was referred to the undersigned by the Hon. Richard J. Arcara on July 11, 1994 for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A), and for report and recommendation pursuant to § 636(b)(1)(B). It is presently before the court on Oboh's motion to dismiss Count II of the Indictment and for suppression of physical evidence and statements.
Oboh was charged, in a three-count Indictment dated June 1, 1994, with violations of Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 952(a), 960(a) and 960(b)(2), and Title 18 U.S.C. § 545. Specifically, he was charged, in Count I, with unlawfully importing into the United States 100 grams or more of a substance containing heroin. Additionally, he was charged, in Count II, with unlawfully bringing into the United States certain merchandise, namely a quantity of heroin, contrary to law. Finally, he was accused of the unlawful possession with intent to distribute 100 grams or more of a substance containing heroin (Count III).
On July 7, 1994, Oboh filed a motion and memorandum of law in support, seeking dismissal of Count II of the Indictment on the grounds that it is unconstitutionally applied, is multiplicitous and violates Department of Justice policy, and suppression of evidence seized and statements made at the border stop and search of Oboh on the ground that there was an insufficient basis on which to compel Oboh to submit to a strip search.
On September 9, 1994, Oboh filed a reply memorandum in response to the Government's opposition to his motions. The Government filed its reply on September 21, 1994, and Oboh filed a final reply on September 29, 1994.
For the reasons that follow, the Defendants' motions to dismiss Count II of the Indictment and to suppress evidence and statements should be DENIED.
Immigration Inspector Jeffrey M. Rouhlac testified that on April 21, 1994, he observed the arrival of an Amtrak train from Canada at the Whirlpool Bridge in Niagara Falls, New York at approximately 11:45 a.m. (T.115).
He boarded the train to conduct the primary inspection of individuals entering the country, including Oboh. (T.116). Oboh was seated on the train when Rouhlac approached him, and was surrounded by papers, as if he were trying to appear busy. (T.147). Rouhlac asked him his citizenship and picked up his customs declaration form. (T.119). Oboh gave Rouhlac his passport, which indicated that he was Nigerian. (T.121). The passport also showed that Oboh had travelled extensively. (T.122). Rouhlac asked Oboh the purpose of his visit, and Oboh said that he wanted to see Buffalo. (T.123). Oboh also said that he was the manager of the housekeeping department of a hospital. (T.123). Rouhlac picked up a document that was on Oboh's tray table, and noticed it was dated 1992. (T.124).
Rouhlac decided that a secondary inspection was appropriate, based on Oboh's hesitancy and answers to his questions, the passport showing extensive travel and citizenship from a source country for contraband. He also found it strange that Oboh would travel from Toronto to Buffalo for only a few hours. (T.122, 124-127). Rouhlac then gave Oboh's passport to Inspector Bartel, and told the customs inspectors to inquire further. (T.128). The primary encounter lasted from two to five minutes. (T.128).
On cross-examination, Rouhlac stated that he decided he was going to refer Oboh for a secondary inspection when he learned of the Defendant's Nigerian citizenship. (T.142). He further stated that he refers all Nigerians to secondary inspections. (T.144).
United States Customs Inspector Robert Wyzykiewicz testified that on April 21, 1994, he was on duty at the Whirlpool Bridge in Niagara Falls on the border between the United States and Canada. Between approximately 11:30 and 11:45 a.m., a train arrived from Canada, and the customs and immigration inspectors entered the train to question the incoming travelers and collect declaration forms. (T.11-12). During the course of their duties, Immigration Inspector Jeffrey Rouhlac indicated to Wyzykiewicz that he wished for the inspectors to conduct a secondary inspection of Oboh. (T.14). Inspector Bartel asked Oboh some questions regarding his nationality, and determined that the inspectors should move him to the dining car to conduct the secondary inspection. (T.15). Oboh had both tray tables down and there were numerous business papers strewn about, some of which were dated years before. (T.75-76, 82). When the inspectors asked Oboh to accompany them to the dining car, he let out a sigh of exasperation. (T.17).
Oboh presented a Nigerian passport which indicated extensive travel. (T.30, 33). He also gave contradictory responses to the inspectors, stating that he had travelled to Canada on business, and was on vacation. (T.35). Oboh told the inspectors that he was in the medical supply business, and Inspector Wyzykiewicz asked him some questions regarding computerized IV's to test if Oboh was truly in the medical field. (T.37). Oboh had not heard of computerized IV's, and stated that he was buying medicines from hospitals in Canada to ship oversees. (T.68). Inspector Wyzykiewicz also found some paperwork regarding remodeling and building supplies in the briefcase. (T.38). The inspectors had conducted a pocket search, but when Oboh was unable to adequately respond to the inspectors' questions, they decided to conduct a complete patdown search. (T.39-41). Although Wyzykiewicz could not say that he suspected Oboh of committing a crime, he knew, at that point, that "something was not right." (T.84).
Inspector Bartel conducted the patdown search, and when he reached the Defendant's groin area, he stated that he felt something hard. (T.43). Oboh repeatedly said that it was his penis. (T.44). The inspectors then decided, and their supervisor agreed, that a strip search was necessary, because they felt that "there was something in there." (T.44-45).
The inspectors took Oboh into the handicap bathroom within the dining car. (T.46). The Defendant resisted and became boisterous, yelling "what's wrong with you people, do you want to see my penis?" (T.46). After the inspectors walked Oboh into the bathroom, they asked him to remove his shirt and shoes, and he complied. (T.48). The Defendant, however, refused to remove his pants. Several times, he loosened them, and pulled them down partway, but then pulled them up again. (T.48). When Oboh again yelled "do you want to see my penis," Inspector Bartel answered that he did. (T.49). The inspectors then told Oboh that if he did not remove his pants, they would do it for him. Oboh took off his pants and lunged toward the toilet. (T.50). Inspector Bartel grabbed the pants and pair of underwear, and the inspectors noticed that the Defendant was wearing a second pair of underwear. (T.50). Oboh then said "don't go planting anything on me." (T.67).
In the underwear, Inspector Bartel found a tied-up blue handkerchief, and took it out of the bathroom. (T.53-54). Inside the handkerchief, the inspectors found several condoms filled with a substance and smelling of excrement. (T.55). Oboh was then transferred to the Customs office. (T.63). A field test on the substance in the condoms was positive for heroin. (T.65).
Inspector Wyzykiewicz testified that the inspectors did not raise their voices, except when Inspector Bartel told Oboh that he wanted to see his penis, and they did not have physical contact with Oboh, except for the patdown search, until he lunged toward the toilet after removing his pants. (T.66, 176-177). The inspectors never unholstered their weapons, and Oboh appeared to understand their questions, responding appropriately, albeit inconsistently. (T.66, 80, 178). The total time of the secondary inspection did not exceed twenty minutes. (T.66).
In the dining car, Inspector Bartel continued to question Oboh about his line of work. Oboh stated he was a buyer of medical supplies for a hospital, then stated he worked for a group of hospitals, yet could not name a specific hospital. (T.158). Additionally, Oboh was unable to produce a business card. (T.160). Inspector Bartel asked Oboh to empty his pockets and place the contents on the table (T.159), and then asked Oboh to remove his jacket for a patdown search. (T.162).
Inspector Bartel proceeded to conduct the patdown examination, loosely rubbing his hands over Oboh's clothing. (T.163-164). When he reached the groin area, he felt an unnaturally hard object. (T.164). Oboh said that it was his penis, but Inspector Bartel did not believe that it was, and decided that a strip search was appropriate. (T.165). Inspector Bartel then escorted Oboh, who was reluctant, into the handicap bathroom. (T.168). At that point, Inspector Bartel suspected that Oboh had contraband hidden in his pants. (T.169).
In the bathroom, Inspector Bartel asked Oboh to remove his shirt and shoes, and he complied, but yelled at the inspectors in the process. (T.171). When Inspector Bartel asked him to remove his pants, Oboh became louder and more boisterous. (T.171). He hesitated removing them, and pulled them down partially several times. (T.172). Finally, Oboh removed his pants and, with his pants in his hands, attempted to move past Inspector Bartel toward the toilet. (T.173). Inspector Wyzykiewicz assisted Inspector Bartel in restraining Oboh, and Bartel took the pants out into the dining car. (T.174).
Inspector Bartel opened the pants on a table and discovered a blue handkerchief containing thirty condoms filled with a white powdery substance, and emitting a foul odor. (T.174-175). Oboh was redressed and escorted off the train, and the powder was field tested. (T.175-176). The entire encounter with Inspector Bartel lasted approximately fifteen minutes. (T.176).
Customs Special Agent Vincent J. Salvatore testified that, following the seizure of the heroin, he went to the lock-up area and advised Oboh of his Miranda rights. (T.198). Following the reading of the rights, Oboh stated that he understood, that he did not wish to speak with the agents, and requested an attorney. (T.201). He then stated, not in response to any question, that "they planted it on me." (T.201). Agent Salvatore then asked Oboh if he would consent to an ...