United States v. Forde

Opinion

USCA1 Opinion

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                                [NOT FOR PUBLICATION]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

-3-

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

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            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

                                         -4-

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).

                                         -5-

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

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            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.

                                         -6-

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.
                                _____

                                         -7-

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.
                            ___ ___

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            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.

                                         -8-

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

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            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

                                         -9-

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.

                                         -10-

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.
                 _________

-11-