United States v. Forde

June 30, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1322

UNITED STATES,

Appellee,

v.

DAVID A. FORDE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Selya, Boudin and Stahl,
Circuit Judges.

David A. Forde on brief pro se.

Guillermo Gil, United States Attorney, Esther Castro-Schmidt,

Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior

Litigation Counsel, on brief for appellee.

Per Curiam. In Gerstein v. Pugh, 420 U.S. 103 (1975),

the Court held that the Fourth Amendment requires a prompt

judicial determination of probable cause as a prerequisite to

extended detention following a warrantless arrest. In County

of Riverside v. McLaughlin, 500 U.S. 44 (1991), the Court

established that "prompt" generally means within 48 hours of

the warrantless arrest. Absent extraordinary circumstances

(and intervening weekends do not qualify as such), a longer

delay presumptively violates the Fourth Amendment. Id. at

57. In Powell v. Nevada, 114 S. Ct. 1280 (1994), the Court

held that McLaughlin applied retroactively to all cases

pending on direct review or not yet final. The Court left

open the issue of the appropriate remedy for an unreasonable

delay in determining probable cause. Powell v. Nevada, 114

S. Ct. at 1283-84.

David Forde, appellant before this court, contends that

the appropriate remedy, in his case, is suppression of

evidence. But, no evidence was obtained during the period

that Forde was detained after his arrest and prior to his

indictment. We affirm Forde's conviction.

I.

Forde arrived at the Luis Munoz Marin International

Airport in Puerto Rico on Friday, January 3, 1992, at

approximately 7:00 p.m. He was in transit from Barbados to

Boston, Massachusetts. United States Customs Inspector Jose

M. Martinez' attention was drawn to Forde because Forde was

"skinny" but was wearing a bulky sweater. Martinez testified

that he was in uniform when he first encountered Forde. He

further testified that Forde appeared surprised and nervous

when he saw that Martinez was staring at him and that Forde

tried to avoid him. At that moment, Martinez was called by

radio to his supervisor's office. Martinez pointed out Forde

to fellow Customs Inspector Hector Caban, who was in plain

clothes. Martinez told Caban of Forde's nervousness. Caban

waited until Forde retrieved his luggage. Then Caban

identified himself to Forde and asked him to go to a separate

inspection area.

There, Caban requested Forde's ticket and passport,

which Forde gave him, and asked Forde routine questions.

According to Caban, Forde appeared nervous, moving from side

to side, and averted his eyes from Caban, while answering

these questions. Caban inspected Forde's luggage and found

nothing suspicious. Caban then proceeded to conduct a

personal search of Forde. By this time, Martinez had

returned. During the patdown, Martinez noticed the thick

soles of Forde's shoes. He had Forde remove them and noticed

traces of glue in the sole area and nails in the inside of

the shoe. Martinez probed the soles with a screwdriver. The

white powder substance therein field-tested positive for

cocaine. After ripping off both soles, Martinez found four

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packages of cocaine, totaling approximately 100 grams, and

one package of marihuana, weighing approximately 20 grams.

Forde was arrested and informed of his Miranda rights. Forde

declined to waive these rights and no further questioning

occurred. Nor was any further evidence obtained.

At approximately 9:05 p.m., the Customs officials

notified the United States Attorney's office of Forde's

arrest. That office authorized prosecution. A Pretrial

Services officer contacted Magistrate Judge Schmidt-Monge at

approximately 1:30 a.m., Saturday, January 4, requesting

Forde's temporary commitment. Magistrate Schmidt-Monge

ordered the temporary commitment and instructed the arresting

agent to bring Forde for further proceedings on the next

working day, which was Tuesday, January 7. The district

court in Puerto Rico was closed on Monday, January 6, 1992,

in observance of Three Kings Day, a Commonwealth holiday.

Scheduling the initial appearance for the next working day

after an arrest was in accordance with the written procedure

in the district.1

1. The record does not disclose the contents of the request
for temporary commitment nor the basis for Magistrate Judge
Schmidt-Monge's approval. Neither Magistrate Judge
Castellanos, before whom Forde was later brought, see infra,

text at 5, nor the district court considered what weight, if
any, Magistrate Schmidt-Monge's approval of Forde's temporary
commitment, approximately 6 hours after his arrest, played
in the McLaughlin calculus. The government has never argued

that this approval constituted a probable cause determination
for McLaughlin purposes. As it appears that everyone

heretofore - parties and judicial officers alike - has

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On January 7, at approximately 10:00 a.m., Forde was

charged, by criminal complaint, with possession with intent

to distribute, importation, and possession on board an

aircraft, arriving in the United States, of approximately 100

grams of cocaine base and 20 grams of marihuana, in violation

of 21 U.S.C. 841(a)(1); 952(a); and 955. At that time,

Forde appeared before Magistrate Judge Castellanos, who

raised concern about the failure to hold a probable cause

determination within 48 hours of Forde's arrest. Magistrate

Castellanos appointed counsel for Forde and scheduled a

hearing for later that afternoon.

At that hearing, counsel for Forde argued that

McLaughlin required that the evidence be suppressed and the

complaint be dismissed with prejudice. The government

countered that the sole remedy dictated by McLaughlin, a

class action civil rights case, was a suit for declaratory

and/or injunctive relief. The government also relied on its

compliance with the written procedure in the district.

assumed that the approval of a temporary commitment until the
next working day did not suffice as a probable cause
determination, we shall do likewise, without passing on the
issue. But cf. United States v. Adekunle, 2 F.3d 559, 562

(5th Cir. 1993) (concluding that the detention of a suspected
alimentary canal drug smuggler for more than four days prior
to his appearance before a magistrate was constitutional
because, within the first 48 hours of defendant's detention,
customs officials presented the matter to a magistrate, who
approved an order for an x-ray; opining that that order
demonstrated an implicit determination that there was
reasonable suspicion to warrant the continued detention).

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Lastly, the government pointed out that no statements or

evidence had been obtained from Forde after his arrest and

during the intervening detention period. Magistrate

Castellanos ruled that the complaint should be dismissed

without prejudice, but he stayed his decision to allow the

government to seek review of that determination in the

district court. Forde remained incarcerated.

On January 8, the government sought review of the

dismissal ruling in the district court. Also on January 8, a

grand jury issued a five count indictment against Forde,

essentially replicating the charges brought in the complaint.

Forde was arraigned on the indictment on January 9 and he

continued to be detained without bail.

On January 10, the district court held a hearing on the

government's appeal of Magistrate Castellanos' decision

dismissing the complaint. On January 23, the district court

ruled that, in light of the intervening indictment, the issue

whether McLaughlin required the dismissal of the complaint

was moot.2

2. We question, but need not resolve, the correctness of the
district court's mootness determination. No doubt the later-
obtained indictment superseded the complaint and, in that
sense, mooted the question whether to dismiss that complaint.
But, we note that Forde had argued that he was entitled to
dismissal of the complaint with prejudice. Presumably, he

was contending that the failure to provide him a probable
cause determination within 48 hours of his arrest meant that
he could not be prosecuted at all, whether by complaint or
indictment.

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On the day before the commencement of trial, Forde's

counsel moved to suppress the cocaine and marihuana and to

dismiss the indictment with prejudice, again arguing that

McLaughlin instructs that the delay in Forde's initial

appearance before a magistrate violated the Fourth Amendment.

After a hearing, the court denied that motion. It ruled that

the search was lawful and, therefore, the controlled

substances were admissible. As for the request to dismiss

the indictment, the court ruled that that issue had been

resolved by its prior ruling of mootness.3

After a four-day jury trial, Forde was convicted on all

five counts. He was sentenced to a term of 121 months on

each of the three cocaine charges and to a term of 60 months

on each of the two marihuana charges, all terms to be served

concurrently with each other. He was also sentenced to

Beyond question, an indictment constitutes a
determination of probable cause. The mere fact that an
indictment was eventually obtained, however, does not resolve
whether a defendant is entitled to relief, and, if so, the
contours of that relief, for the failure to provide him with
a determination of probable cause within the first 48 hours
of his detention. See Arnold v. City of Chicago, 776 F.

Supp. 1259, 1263 (N.D. Ill. 1991) (reciting that a finding of
probable cause for arrest does not estop an extended
detention claim). Indeed, counsel for Forde made this
contention in his subsequent motion to dismiss the
indictment, when he argued that the indictment obtained five
days after his arrest did not "cure" the prior extended
detention.

3. But see note 2, supra.

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concurrent five and three year terms of supervised release.

Forde has appealed and elected to proceed pro se.4

II.

It is conceded in this case that Forde was arrested

without a warrant and he was detained for more than 48 hours

prior to a judicial determination of probable cause.

According to McLaughlin, once the 48-hour mark was passed, it

is the government's burden to demonstrate that the delay was

reasonable due to a bona fide emergency or other

extraordinary circumstance. County of Riverside v.

McLaughlin, 500 U.S. at 57. The government has offered no

justification, other than the occurrence of the intervening

holiday weekend, and McLaughlin, itself, rejects that

justification. See id.

4. During the course of pretrial proceedings, counsel for
Forde moved to dismiss the indictment with prejudice, on the
ground that the delay prior to Forde's appearance before the
magistrate violated Fed. R. Crim. P. 5(a). That rule states,
in pertinent part, that "any person making an arrest without
a warrant shall take the arrested person without unnecessary
delay before the nearest available federal magistrate judge."
The court denied the motion. Forde has not repeated the
contention on appeal. In any event, we have previously
determined that Rule 5(a) does not require suppression of
evidence lawfully obtained prior to any period of unnecessary
delay. United States v. Elkins, 774 F.2d 530, 534 (1st Cir.

1985). This caselaw supports the result in this case.
Prior to trial, Forde also filed a pro se motion to
dismiss the indictment and a pro se petition for habeas
corpus, each citing McLaughlin. The record does not evidence

any express ruling by the district court on either filing.
In light of our disposition of this appeal, that lacuna is of
no matter.

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We are aware that the Court has left open the issue of

the appropriate remedy for a McLaughlin violation. Powell v.

Nevada, 114 S. Ct. at 1283-84. We are confident of the

correct result in this case, nonetheless. Even conceding the

unlawfulness of Forde's extended detention prior to the

probable cause determination, it does not follow that, as

Forde would have it, the evidence of the controlled

substances must be suppressed.5 In this case, the

contraband was obtained from a lawful search.6 And, that

5. Although Forde has limited his appellate argument to
advocating suppression, we recognize that, in effect, he is
seeking the dismissal of his indictment. Even granting this
interpretative largess to Forde's pro se filing, we would
nonetheless affirm. "Once a defendant has been tried and
convicted, delay in bringing him before a magistrate is not
reason to set aside the conviction unless the defendant can
show that he was prejudiced by the delay." United States v.

Perez-Bustamante, 963 F.2d 48, 52 (5th Cir.) (citations

omitted) (declining to suppress a voluntary confession
obtained 60 hours after an arrest and two days prior to
presentment to a magistrate where there was no evidence that
the delay was for the purpose of interrogation or that the
interrogation was lengthy, hostile, or coercive), cert.

denied, 113 S. Ct. 663 (1992); see also United States v.

Jernigan, 582 F.2d 1211, 1214 (9th Cir.) (declining to vacate

a conviction and dismiss an indictment despite evidence that
the DEA agent deliberately delayed arresting the defendant
until the evening preceding a long holiday weekend; no
statements were made by defendant during that period), cert.

denied, 439 U.S. 991 (1978).

6. Although Forde contends, in a passing reference, that the
search was unlawful, that is clearly not so. "It is well
established that routine border inspections do not violate
the Fourth Amendment prohibition against unreasonable
searches even when conducted without a warrant or probable
cause." United States v. Uricoechea-Casallas, 946 F.2d 162,

164 (1st Cir. 1991). "Under the 'no suspicion' standard
applicable to routine border searches, a customs officer may
search an individual based on 'subjective suspicion alone, or

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search was not conducted during any period of unlawful

detention. Simply put, the evidence was not the product of

any unlawful detention. That, at some later point, the

length of his detention violated the Fourth Amendment does

not retroactively invalidate the prior lawful search or taint

its results. See United States v. Crews, 445 U.S. 463, 471

(1980) ("In the typical 'fruit of the poisonous tree' case,

... the challenged evidence was acquired by the police after

some initial Fourth Amendment violation.") (Emphasis in the

original).

We understand Forde's instinctive belief that there must

be a remedy for the Fourth Amendment violation which occurred

in this case. However, "[t]here is no presumption or general

rule that for every duty imposed upon the court or the

even on random basis.'" Id. at 166 (citations omitted). The

patdown search of Forde, including the request that he remove
his shoes constituted a routine border search. See, e.g.,

United States v. Grotke, 702 F.2d 49, 52 (2d Cir. 1983)

(search of cowboy boots was minimally intrusive and did not
require reasonable suspicion); United States v. Fitzgibbon,

576 F.2d 279, 284 (10th Cir.) (same), cert. denied, 439 U.S.

910 (1978). The thick soles, the traces of glue, and the
nails in the inside of the shoes justified the probing and
field test. The contraband retrieved from the soles was
lawfully obtained.
After the drugs were found, Forde was strip-searched.
Such a non-routine search requires reasonable suspicion,
i.e., "some objective, articulable facts that justify the
intrusion as to the particular person and place searched."
United States v. Uricoechea-Casallas, 946 F.2d at 166

(citations omitted). Forde complains that the strip search
was done without any reasonable suspicion. The discovery of
the contraband in Forde's shoes provided the required
reasonable suspicion. As noted, supra at 4, no further

contraband was discovered.

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Government and its prosecutors there must exist some

corollary punitive sanction for departures or omissions, even

if negligent." United States v. Montalvo-Murillo, 495 U.S.

711, 717 (1990) (holding that release is not an appropriate

remedy for a defendant, otherwise properly detained, when the

government fails to comply with the Bail Reform Act's

directive to hold a detention hearing upon the defendant's

first appearance). We do not commend the violation of the

McLaughlin rule that occurred in this case. Like the Court,

we leave to another day what remedy, if any, does exist for a

McLaughlin violation. In this case, the remedy that Forde

propounds, suppression of evidence lawfully obtained prior to

any unlawfully-extended detention, is clearly unwarranted.

Affirmed.

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