record shows that at 9:30 p.m. Mr. Vazquez was "to be held" and "repeat x-ray done." After the second set of x-rays, the same doctor returned to the room where Mr. Vazquez was being held and again asked Mr. Vazquez what he had swallowed. Inspector Faraone explained to Mr. Vazquez, in accordance with Customs policy, that in light of the positive x-ray, he would have to be detained until and if he had clear bowel movements. (T. at 74, 148-49, 216-17. Government Exhibit 15)
29. According to a notation in his admission record, Mr. Vazquez was given a laxative by hospital personnel at approximately 11:45 p.m. During this period, Inspector Faraone gave Mr. Vazquez a pair of gloves and explained that if any foreign bodies appeared in his stool, Mr. Vazquez would have to thoroughly clean each such foreign body himself.
Customs agents testified -- and the United States concedes -- that it is the policy of the Customs Service at Newark International to require suspects to search their stool in light of "chain of custody" concerns. The government nevertheless claims that Mr. Vazquez's testimony that he searched his own stool lacks credibility because of the inspectors' presence and the presence of the doctor and nurse. We find that he did indeed search through his own stool. (T. at 66-68. Government Exhibit 15)
30. Between approximately 12:50 and 1:05 a.m. on the morning of February 4, Mr. Vazquez had his first bowel movement; it was clear of foreign bodies. Inspector Faraone was surprised because the doctor had told him the x-ray was positive and because this was the first case he had encountered where, following a positive x-ray, the first bowel movement was negative. Mr. Vazquez's second bowel movement occurred between 1:20 and 1:35 a.m.; it too was clear. Inspector Faraone immediately requested a final x-ray after the second clear bowel movement pursuant to Customs procedures to ensure that no foreign bodies were present. (T. at 66-68, 186, 220, 292. Government Exhibits 15 and 18)
31. Mr. Vazquez was released from the restraints at approximately 1:35 a.m. as they waited for the final x-ray. Because of other emergency room activity, Mr. Vazquez was not x-rayed until between 2:20 and 2:30 a.m. The x-ray was again negative. Inspector Faraone then secured the discharge of Mr. Vazquez from the doctor pursuant to Customs procedures which do not allow release of the passenger without the doctor's approval. Inspectors Faraone and Pfirrman drove Mr. Vazquez back to Newark International Airport at approximately 3:00 a.m. (T. 187, 222-23, 259. Government Exhibit 3, Paragraph N, Government Exhibit 18)
32. Mr. Vazquez, like his companion and co-plaintiff, alleges that he asked Inspector Faraone why he was singled out. He asserts that Faraone replied that he "fit the profile" -- a claim the government denies. We find that if this statement was made, it was only a short hand explanation for the factors which supported the x-rays and monitored bowel movements and not an explanation of the reason Mr. Vazquez was initially questioned. (T. at 68-69, 218, 287-88)
33. After Mr. Vazquez arrived at the airport, he joined Mr. Garcia and was met by others who drove them home. Before they left, profanity was shouted and threats were made to inspectors Faraone and Pfirrman. The inspectors filled out a formal incident log which records this incident. (T. at 47-48, 225, Government's Exhibit 19)
As we stated earlier, the Supreme Court, in U.S. v. Montoya de Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985), found that a reasonable suspicion was necessary for the nonroutine detention of a suspected alimentary canal smuggler at the border but left open the question of what level of suspicion is necessary for the types of searches involved in the case before us. To date, the Third Circuit has not decided any case which provides such guidance. For this reason, we specifically directed the parties to brief this issue. After reviewing the particular facts and circumstances of the case before us, as well as the decisions of other federal courts, we believe we have sufficiently resolved this issue.
We can not fail to observe that the events of this case occurred in the context of an increasing drug problem in the United States that has necessitated the development of heightened investigative methods and procedures. "Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances." U.S. v. Mendenhall, 446 U.S. 544, 561, 100 S. Ct. 1870, 1881, 64 L. Ed. 2d 497 (1980). See also Adedeji v. U.S., 782 F. Supp. 688, 692 (D.Mass. 1992). Although it is not a pleasant subject, "As drug smugglers have become more ingenious, courts have also had to distinguish between different body orifices according to the indignity caused by peering into them." U.S. v. Vega-Barvo, 729 F.2d 1341, 1347 (11th Cir. 1984).
We also note that the searches at issue in this case occurred at the international border where "the Fourth Amendment balance of interests leans heavily to the Government." U.S. v. Montoya de Hernandez, 473 U.S. 531, 544, 105 S. Ct. 3304, 3312, 87 L. Ed. 2d 381 (1985). See also U.S. v. Vega-Barvo, 729 F.2d 1341, 1344 (11th Cir. 1984); Mokwue v. U.S., 884 F. Supp. 228, 232 (N.D. Texas 1995). "Neither history nor contemporary concepts of dignity suggests to anyone that he will be free from official scrutiny on crossing an international boundary." U.S. v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir. 1970). We therefore approach this case with an understanding of the difficulties inherent in protecting our nation's border from an increasingly ingenious, if desperate drug trade.
"Unlike an actual or de facto arrest, an extended border detention of a suspected alimentary canal smuggler does not implicate the Fourth Amendment's warrant clause and, accordingly, does not require judicial approval." U.S. v. Esieke, 940 F.2d 29, 35 (2d Cir. 1991), cert. denied, 502 U.S. 992, 112 S. Ct. 610, 116 L. Ed. 2d 632 (1991). Whereas an incoming routine border search requires no articulable suspicion, "a non-routine search triggers the requirement of reasonable suspicion." U.S. v. Ezeiruaku, 936 F.2d 136, 140 (3d Cir. 1991). Under the reasonable suspicion standard, border officials must have a "particularized and objective basis for suspecting the particular person of alimentary canal smuggling. U.S. v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S. Ct. 3304, 3311, 87 L. Ed. 2d 381 (1985); U.S. v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993); U.S. v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984).
In response to this particularized and objective basis requirement, customs inspectors now routinely list the factors substantiating their suspicion.
The United States maintains, and we have found, that the Customs Service at Newark International Airport does not use pre-established "profiles"
in deciding who to question, search or detain to carry out its mission at the Newark border.
We are alert to the danger that by merely listing several innocuous "factors" together law enforcement officers may support a "reasonable suspicion" in virtually every case. See U.S. v. Sokolow, 490 U.S. 1, 13, 109 S. Ct. 1581, 1589, 104 L. Ed. 2d 1 (1989) (observing profile's "chameleon-like way of adapting to any particular set of observations.") Numerous courts have therefore deemed particular lists of factors insufficient to establish reasonable suspicion.
Additionally, some factors may well be subject to innocent interpretation. For example, the nature of air travel alone may induce the state of nervousness subsequently relied upon by border officials to justify a passenger's detention. U.S. v. Berry, 670 F.2d 583, 596 (5th Cir. 1982). So too may other factors be "individually consistent with innocent travel." Mokwue v. U.S., 884 F. Supp. 228, 232 (N.D. Texas 1995). Nonetheless, in order to perform their crucial function of protecting our nation's borders, customs officers can not be subjected to "unrealistic second-guessing" by the courts. Montoya, 473 U.S. at 542, 105 S. Ct. at 3311. Although individually susceptible to innocent interpretation, when "considered together [by trained customs officers, those same factors] may amount to reasonable suspicion." Mokwue, 884 F. Supp. at 232.
We conclude it is only sensible to allow customs officers to exercise the very judgment they have developed both individually and collectively. Clearly some latitude must be given. "The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact-finders are permitted to do the same -- and so are law enforcement officers." U.S. v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (quoting U.S. v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). "Among the circumstances that can give rise to reasonable suspicion are the agent's knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices." U.S. v. Mendenhall, 446 U.S. 544, 563, 100 S. Ct. 1870, 1882, 64 L. Ed. 2d 497 (1980); See also Mokwue v. U.S., 884 F. Supp. 228, 232 (N.D. Texas 1995). Agent Calise's participation in over 50 seizures of drugs, including 20 from the same flight involved in this case, deserves the respect of this tribunal.
As the Supreme Court has stated, "the concept of reasonable suspicion, like probable cause, is not readily, or even usefully, reduced to a neat set of legal rules...In evaluating the validity of a stop such as this, we must consider the totality of the circumstances -- the whole picture." U.S. v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (citations omitted).
The Third Circuit has most recently articulated its interpretation of the "totality of circumstances" test in Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995). The Karnes court concluded:
It is not enough that law enforcement officials can articulate reasons why they stopped someone if those reasons are not probative of behavior in which few innocent people would engage -- the factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied. This is a totality of the circumstances test.
Karnes v. Skrutski, 62 F.3d at 493 (emphasis added).
We believe that the factors relied on together by the agents in this case do eliminate a substantial portion of innocent travelers. Both plaintiffs were traveling on a high risk flight, from a known source country for drugs. Past searches of travelers from this source country and flight had successfully discovered drugs including drugs carried in the alimentary canal (see findings of fact 8 and 10). In the case of Mr. Garcia, agents also observed that (1) he had a small amount of cash; (2) he gave no explanation about how he was getting home; (3) when asked how he obtained his ticket, he stated that he had given money to "a guy"; (4) he was unable to identify his traveling companion's occupation; (5) he was extremely nervous; and (6) gave a conflicting response concerning the length of his stay (see finding of fact 12).
In the case of Mr. Vazquez, agents observed that (1) he was extremely nervous; (2) he evidenced high blood pressure; (3) he did not adequately explain how he would get home; (4) when asked how long was his stay, he replied "a short period"; (5) he appeared bulky; (6) he was unemployed; and (7) he paid cash for a ticket purchased by someone else (see findings of fact 18 and 20).
A common goal of numerous courts has been the need to strike a balance between intrusions on individuals and the legitimate concerns for protecting our nation's borders. That balance has been struck in several ways. The Montoya Court focused on the length of detention in determining whether it was reasonably related in scope to the circumstances which justified it initially. U.S. v. Montoya de Hernandez, 473 U.S. 531, 542, 105 S. Ct. 3304, 3311, 87 L. Ed. 2d 381 (1985). See also Adedeji v. U.S., 782 F. Supp. 688, 692 (D.Mass. 1992) (each case requires balancing need for particular search against the invasion of personal rights the search entails) and at 699 (inspectors must be cognizant of factors which should have lessened their suspicion) . A plurality of the Supreme Court has even required that law-enforcement officers employ the least intrusive means possible to verify or dispel their suspicions. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983) (concluding "It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure"). The Third Circuit has also required that investigative stops be reasonably related in scope to the justification for their initiation. U.S. v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984).
As noted in finding of fact 13, the customs officer clearly reasonably believed that he had been given a conflicting story. Even though he may have been innocently mistaken, his actions were consistent with those of an objectively reasonable officer under a totality of the circumstances.
Although we cannot reduce it to a "neat set of legal rules" we find that under the totality of the foregoing articulated and particularized factual circumstances a sufficient reasonable suspicion existed that plaintiffs were smuggling narcotics internally. Accordingly, the conduct of the customs officers was within constitutional and common law bounds.
In addition to asserting that their detention exceeded the bounds of reasonableness, plaintiffs also maintain that the government as a whole owed them a level of reasonable competence, including the quality of medical treatment they were provided at the hospital.
The government explains that a doctor's approval is required for customs officers to release passengers who are admitted to the hospital.
We believe that there must be limits to what knowledge will be required of customs agents. Law enforcement officers are not doctors and should not be expected to be capable of contradicting or evaluating the expertise of medical practitioners. In this case, we conclude that the agents reasonably relied on the representations made to them by hospital personnel. We believe it would be inappropriate to second-guess that reliance here.
We have found the conduct of the customs officers to be constitutional, and we are well aware that the safeguards which are in place cannot guarantee that an innocent person will never be detained or searched. Indeed, the Constitution does not even guarantee that an innocent person will not be arrested. Baker v. McCollan, 443 U.S. 137, 145, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433 (1979). We are also aware that so long as constitutional standards are met, it is not our function to set policy for the Customs Service. We are nonetheless concerned about two aspects of this matter.
Until the shouting match at the very end, both plaintiffs were fully cooperative and the government concedes that at no time did the inspectors have to use or threaten force to make the plaintiffs comply with them. The U.S. Customs Service Hospital Procedures for Internal Carriers at Newark International Airport (government exhibit 3) do not provide guidance with regard to the use of leg irons during transport. The procedures do provide that the "passenger is to remain handcuffed and observed at all times." We cannot help but wonder if this is necessary given the presence of two or more uniformed customs officers. Nevertheless, we accept the reasoning of the Court of Appeals in U.S. v. Esieke, 940 F.2d 29 (2d Cir. 1991), cert. denied, 502 U.S. 992, 112 S. Ct. 610, 116 L. Ed. 2d 632 (1991). In that case, the government explained that during a monitored bowel movement, suspect was forced to wear handcuffs and leg irons "because suspected narcotic smugglers present a potential threat to the customs inspectors as well as to themselves." Id. at 35. The Esieke court explored the implications of this reasoning in some detail:
We certainly agree that law enforcement officials have a right to take reasonable steps to protect themselves regardless of whether probable cause to arrest exists. However, the use of handcuffs and leg irons strongly suggests that the detainees pose a very real and imminent threat of physical violence. While we need not decide whether such a risk is actually presented, we do take notice of the fact that the individuals being detained on suspicion of alimentary canal smuggling are subjected to strip searches, are clad solely in hospital gowns and presumably are in less than peak physical condition. We therefore question whether the risk they pose is as extreme as the government imagines. Furthermore, it seems to us that the officials responsible for devising the detention procedures utilized at Kennedy Airport have approached their duties with an unwarranted degree of callousness and may have lost sight of the fact that the persons they detain are merely suspects who have not yet been -- and may never be -- charged with a crime.