UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-2891
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KAMORUDEEN ADEKUNLE,
Defendant-Appellant.
___________________
No. 91-2979
___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAHEED MASHA,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
OPINION ON REHEARING
(Opinion December 23, 5th Cir., 1992 F.2d )
September 9, 1993
Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.
POLITZ, Chief Judge:
Treating the Suggestion for Rehearing En Banc as a petition
for panel hearing, it is ordered that the petition for panel
rehearing is GRANTED. Our prior opinion, reported at 980 F.2d 985
(5th Cir. 1992), cert. denied, 113 S.Ct. 2380 and 2455 (1993), is
revised and as revised is reinstated. Section B, 980 F.2d at 989,
and the final paragraph, 980 F.2d at 990, of the prior opinion are
vacated and replaced.
Again we consider the issues posed by the detention in excess
of 100 hours of suspected alimentary canal drug smugglers. The
issue addressed in this opinion was raised only by appellant
Kamorudeen Adekunle. The facts underlying this appeal are set out
more fully in the prior panel opinion. Adekunle and a companion,
Saheed Masha, were detained by customs officials in Brownsville,
Texas as suspected alimentary canal drug smugglers. They were
taken to a hospital for observation and, pursuant to a magistrate
judge's order, Adekunle was subjected to an x-ray. After attending
physicians administered laxatives, both Adekunle and Masha excreted
numerous balloons containing heroin and were then arrested.
Following expulsion of all the balloons, they were removed to the
local jail and finally presented before the magistrate judge, over
100 hours after the initial detention and more than two days after
their arrest.
A detention at the border satisfies the fourth amendment if
supported by a customs official's reasonable suspicion based upon
2
a "'particularized and objective basis for suspecting the
particular person' of alimentary canal smuggling."1 Adekunle does
not dispute that customs officials had reasonable suspicion to
detain him as a suspected alimentary canal drug smuggler. Rather,
he maintains that once reasonable suspicion ripened into probable
cause, he no longer was a subject in investigatory detention but
was under arrest. He therefore contends that the customs officials
failed timely to provide him with the procedural protections
required for warrantless arrests, and that such failure requires
suppression of any statements made during the period of detention.2
The fourth amendment requires a prompt determination of probable
cause following a warrantless arrest.3 Failure to provide such a
determination within 48 hours shifts the burden to the government
to demonstrate a bona fide emergency or extraordinary circumstance
justifying the lengthier delay.4
Because it was based on reasonable suspicion, Adekunle's
detention was justified at its inception.5 He argues, however,
that as the customs officers discovered more information, their
reasonable suspicion ripened into probable cause requiring that he
1
United States v. Montoya de Hernandez, 473 U.S. 531,
541-42, 105 S.Ct. 3304, 3310-11, 87 L.Ed.2d 381 (1985) (quoting
United States v. Cortez, 449 U.S. 411, 417 (1981)).
2
See Mallory v. United States, 354 U.S. 449, 453 (1957).
3
Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54
(1975).
4
County of Riverside v. McLaughlin, 111 S.Ct. 1661, 114
L.Ed.2d 49 (1991).
5
Montoya de Hernandez, 473 U.S. at 541.
3
be put under arrest rather than kept in investigative detention.
A defendant has no constitutional right to be arrested at the point
when either he or the court deems that there is sufficient probable
cause for arrest.6 Law enforcement officials are "not required to
guess at their peril the precise moment at which they have probable
cause to arrest a suspect."7 Such a requirement would punish the
cautious officer who errs on the side of protecting a defendant's
rights by requiring a stronger showing of probable cause than the
court might deem necessary.
We cannot, however, countenance the absurdity that one may
have his liberty restrained for a longer period based on a mere
suspicion than he lawfully could be detained based on probable
cause. The same evils which the fourth amendment protects against
by requiring a probable cause hearing within 48 hours of a
warrantless arrest exist for a suspect in investigative detention
for an extended period. Prolonged detention may have serious
consequences to a defendant, whether the defendant is arrested or
is merely in investigative detention. Such "confinement may
imperil the suspect's job, interrupt his source of income, and
6
United States v. Hoffa, 385 U.S. 293 (1966).
7
385 U.S. at 310. An encounter which begins as a
permissible Terry stop, however, may ripen into an arrest requiring
probable cause if the officer uses means of detention which are
more intrusive than necessary SQ thus, the officer's conduct
determines the level of suspicion required. See, e.g., United
States v. Martinez-Perez, 941 F.2d 295 (5th Cir.), cert. denied,
112 S.Ct. 1295 (1991). Adekunle's argument, on the other hand, is
circular SQ the officer's actual level of suspicion determines the
level of suspicion required. This fails to persuade.
4
impair his family relationships."8
While the same grave consequences are at stake in prolonged
detentions following arrest or for investigation, the justification
for permitting detentions based only on a law enforcement
official's reasonable suspicion diminishes with the length of the
detention. The reasonable suspicion standard "effects a needed
balance between private and public interests when law enforcement
officials must make a limited intrusion on less than probable
cause."9 When an investigative detention extends beyond 48 hours,
it no longer is a limited intrusion. As the detention becomes more
prolonged, the "calculus of interests" shifts from the government
to the person in custody.10 If the fourth amendment is to have any
meaning, it must require a judicial determination that there is a
basis SQ under the applicable standard SQ for any extended restraint
of liberty. As the Supreme Court has observed:
The point of the Fourth Amendment . . . is not that it denies
law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in
requiring that those inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out
crime.11
We hold that under basic fourth amendment principles, the
8
Gerstein, 420 U.S. at 114. "When the stakes are this high,
the detached judgment of a neutral magistrate is essential if the
Fourth Amendment is to furnish meaningful protection from unfounded
interference with liberty." Id.
9
Montoya de Hernandez, 473 U.S. at 541 (emphasis added).
10
Hallstrom v. City of Garden City, 991 F.2d 1473, 1481 (9th
Cir. 1993) (citing Gerstein).
11
Johnson v. United States, 333 U.S. 10, 13-14 (1948).
5
government, after detaining a suspected alimentary canal drug
smuggler, must seek a judicial determination, within a reasonable
period, that reasonable suspicion exists to support the detention.
The fourth amendment does not require a formal adversary hearing
for such a determination; informal presentation of the evidence
supporting the customs agent's suspicion before a neutral and
detached judicial officer satisfies the concerns underlying the
fourth amendment.12 Failure to obtain such a judicial determination
within 48 hours shifts the burden to the government to demonstrate
a bona fide emergency or extraordinary circumstance justifying the
lengthier delay.13
Today's holding is consistent with Montoya de Hernandez's
teachings that "detention for the period necessary to either verify
or dispel the suspicion [is] not unreasonable."14 In Montoya de
Hernandez the Supreme Court viewed the 16-hour detention at issue
therein as one which exceeded any detention it previously had
approved.15 The Court left open the possibility that the balance
12
Gerstein, 420 U.S. at 120-21.
13
See County of Riverside.
14
473 U.S. at 544.
15
We note that Montoya de Hernandez has been cited as
authority to justify far longer detentions. See United States v.
Odofin, 929 F.2d 56 (2d Cir.) (24 days before bowel movement),
cert. denied, 112 S.Ct. 154 (1991); United States v. Onumonu, 967
F.2d 782 (2d Cir. 1992) (four days before bowel movement; six days
total); United States v. Esieke, 940 F.2d 29 (2d Cir.) (one and
one-half days before bowel movement; three days total), cert.
denied, 112 S.Ct. 610 (1991); United States v. Onyema, 766 F.Supp.
76 (E.D.N.Y. 1991) (19 hours before bowel movement; 78 hours
total); United States v. Yakubu, 936 F.2d 936 (7th Cir. 1991) (18
hours before bowel movement).
6
of fourth amendment interests may shift with the increase in the
duration of the detention.
Adekunle's detention passes constitutional muster under the
standard announced herein because within 48 hours customs officials
brought the matter before a magistrate judge who ordered an x-ray.
This order demonstrated an implicit determination that there was
reasonable suspicion to warrant the continued detention.
Accordingly, his conviction must be AFFIRMED. For the reasons
cited in the prior panel opinion, the conviction of Saheed Masha is
also AFFIRMED.
7