Appeal from the United States District Court for the Central District of California. D.C. No. CR 90-859-LEW. Laughlin E. Waters, Senior District Judge, Presiding.
Before: Jerome Farris, John T. Noonan, Jr. and Stephen S. Trott, Circuit Judges. Opinion by Judge Noonan.
Joseph Chukwubike appeals the denial of his motion to suppress evidence in connection with his conditional plea of guilty to one count of violating 21 U.S.C. §§ 952(a) and 960(a)(1) (1988) by importing heroin and one count of violating 21 U.S.C. § 841(a)(1) (1988) by possessing heroin with intent to distribute. The issue presented by the case is this: whether doctors acting to save the life of a drug courier carrying balloons of heroin in his stomach should be regarded as government agents conducting a search governed by the Fourth Amendment. We conclude that they should not be so characterized. Consequently, we affirm the denial of Chukwubike's motion to suppress and affirm his conviction.
On November 13, 1990 Chukwubike was indicted for the importation of 753 grams of heroin and possession with intention to distribute. On December 18, 1990 he filed a motion to suppress the evidence obtained as a result of his detention at the border. On January 22, 1991, after an evidentiary hearing, the court denied his motion. On February 4, 1991 he entered conditional pleas of guilty to both counts, reserving the right to appeal the denial of the motion to suppress. On March 14, 1991 he was sentenced to five years in custody on each count, the time to run concurrently, and to four years supervised release upon his release from custody. He now appeals the denial of his motion to suppress.
Joseph Chukwubike is a citizen of Nigeria. About 3:00 p.m. October 17, 1990 he was observed by customs officials in the primary immigration line at the Los Angeles airport. On being engaged in conversation by them he gave inconsistent and implausible accounts of his purpose in coming to the United States from Nigeria and was referred to secondary inspection.
At secondary inspection Chukwubike continued to spin inconsistent stories. His briefcase was found to contain pills that appeared to be Lomotil, an antidiarrhea medicine, often used by body cavity smugglers to prevent narcotics from passing through their system before they enter the United States. Chukwubike's lips were dry, a condition consistent with one taking antidiarrhea medication.
Chukwubike was informed that he was suspected of carrying narcotics within his body and asked if he would consent to an x-ray. He refused to consent. By this time Chukwubike appeared extremely uncomfortable in his sitting position, was constantly moving as if to relieve pressure on his lower extremities and was continually rubbing his abdominal area. He sat with his pants unbelted as if to relieve pressure on the middle of his body.
At 6:30 p.m. customs officials transported Chukwubike to Centinela Medical Clinic where they continued to monitor him. He twice refused to take food or water. At 4:00 a.m. the following day, October 18, Chukwubike collapsed in his chair and became unconscious. Medical staff injected him with Narcan, a drug used to counteract drug overdoses. He regained consciousness and was transferred by ambulance to the emergency room of Daniel Freeman Marina Hospital.
At 7:00 a.m. the morning of October 18 he came under the care of Dr. Dean Steele who met with him for an hour and advised him that an x-ray of his abdominal area was necessary for medical purposes. Dr. Steele told him that he risked death if he refused the x-ray. Chukwubike refused to consent. Despite the refusal Dr. Steele took the x-ray at 8:40 a.m. It revealed 50 oval-shaped, balloon-like objects in Chukwubike's gastrointestinal tract. Customs agents were present and observed the results of the x-ray.
Later in the morning Chukwubike was transported to the Los Angeles County Medical Center Jail Ward. At 6:00 p.m. he lapsed into unconsciousness. The medical staff determined that it was medically necessary to remove balloons digitally from his rectal area. The doctors removed eight such balloons. Slicing open one of the balloons they discovered that it contained a fine white powdery substance. Medical tests of Chukwubike's urine revealed the presence of heroin.
Dr. Richard Gelb, a senior resident at Los Angeles County/U.S.C. Medical Center was now in charge of Chukwubike. He observed that Chukwubike had difficulty breathing and believed that he could be suffering from Adult Respiratory Distress Syndrome, a well-known side effect of an overdose of heroin. In order to investigate this hypothesis he employed a fiber optic camera to observe Chukwubike's stomach. With this instrument it was also possible to pass wires and pincers into the stomach to extract items from it. The ...