                 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.




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