
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          June 30, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                            ____________________            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                                            ____________________            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.                            ___ ___                                            ____________________            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                                            ____________________            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-
