United States v. Samuel Glover , 353 F. App'x 314 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 19, 2009
No. 09-12813 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-21166-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL GLOVER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 19, 2009)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Samuel Glover appeals his conviction for possession with intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C. § 841. On appeal, he
contends that the district court improperly denied his motion to suppress the
evidence seized on the ground that customs officials lacked reasonable suspicion
that he was an internal carrier. After a thorough review of the record, we affirm.
I. Background 1
On December 12, 2008, U.S. Customs and Border Patrol officer Alfred
Marino received information from a passenger analytical unit that a person would
be arriving at Miami International Airport from Trinidad around 7 p.m. The
individual, identified as Glover, was flying in and out of Miami but lived in
Jacksonville, had made the same trip several times, and recently had obtained a
new passport. Although the information identified Glover specifically, Marino and
other customs officers questioned all the passengers on the flight consistent with
policy when dealing with flights arriving from high-drug-trafficking locations. As
the officers were questioning the passengers, there was a TV film crew recording
the officers and passengers. While waiting in line to be questioned, Glover was
sweating, standing rigidly, and his carotid artery was pulsating. Marino and
Officer Vargas removed Glover from the line and escorted him to baggage,
advising him that they wished to search his luggage for contraband. Glover had
1
These facts are taken from the testimony at the suppression hearing, viewed in the light
most favorable to the government. United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008).
2
difficulty identifying his bag and checked several other bags of different colors
before locating his bag, which was black. Once Glover retrieved the bag, Marino
and Vargas took Glover to an enforcement area, where a pat-down search of
Glover and a search of the bags uncovered nothing.
Glover seemed nervous and continued to sweat even though the room was
cool. During the interview, Marino and Vargas offered Glover food and, although
Glover stated he was hungry, he ate only a few bites of the donut he was given
before throwing it away. He also declined food from Burger King.
As Glover described his travel arrangements, he was unable to remember the
last names of people involved, even though he claimed to have known these people
for years. Vargas’s attempts to contact Glover’s friends did not resolve the
inconsistencies.
Glover’s conduct made Marino suspicious. Marino and Vargas asked
Glover if he would consent to an x-ray. After Glover refused, Marino and Vargas
advised Glover that they could take him to the hospital and wait until he had three
bowel movements to ensure he was not carrying contraband. Around midnight,
after Glover refused consent, the officers transferred him to the hospital.
Officer Wilfredo Gonzalez was assigned to monitor Glover at the hospital
and retrieve any contraband. The hospital refused to admit Glover without an x-
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ray, per its policy. Because Glover could not be admitted, he was handcuffed to a
wheelchair in the hospital’s hallway. He was intermittently allowed to walk
around and was given water upon request.
Around mid-morning, Officer Stevenson spoke with Glover for about an
hour. Stevenson then advised Gonzalez that Glover was ready to consent to the x-
ray. Glover signed the consent form at about 1:57 p.m. on December 13. The x-
ray revealed that Glover was carrying numerous pellets, which were later
determined to be cocaine.
Glover was indicted for importation of 500 grams or more of cocaine, in
violation of 21 U.S.C. § 952 (Count 1), and possession with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 841 (Count 2). He moved to
suppress the evidence, alleging that customs officials lacked any reasonable
suspicion to detain him and force him to consent to an x-ray.
Following the testimony at the suppression hearing,2 the magistrate judge
2
Glover also testified at the hearing. In his testimony, Glover explained that he was nervous
and was sweating because the TV crew was filming and their lights were hot. He stated that the film
crew handed him a blank form to sign and told him it was for consent to be searched. Glover
accompanied the officers to find his bag. He had to check several other dark colored bags to find
his bag, which was blue, and it took about thirty minutes. After Glover retrieved his bag, the
officers took him to another room, searched him and his bag, and questioned him. Although Glover
asked for a lawyer, the officers denied his request. He was kept in the interview room from 7 p.m.
until 10:30 p.m., when he was taken to the hospital after refusing to consent to an x-ray. At the
hospital, officers and nurses would speak to him and tell him that he was not going to get any food
and that he would begin to feel sick and could die. The following day, Officer Stevenson spoke with
him for about an hour, telling him that an x-ray would speed things along and that he could not leave
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recommended denying the motion to suppress because, although Glover’s consent
to the x-ray was not voluntary, the officers had reasonable suspicion to detain him.
The district court adopted the recommendation, over Glover’s objections, and
denied the motion to suppress. Thereafter, Glover entered a conditional plea,
reserving the right to appeal the denial of his motion to suppress and was sentenced
to 33 months’ imprisonment.3 This appeal followed.
II. Standard of Review
In reviewing a district court’s denial of a motion to suppress, we review the
district court’s factual findings for clear error and its application of the law to those
facts de novo. United States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008).
We construe all facts in the light most favorable to the government as the
prevailing party. Id. at 1074.
III. Discussion
In general, there is no constitutional violation when customs officials first
encounter an individual seeking entry into the United States, stop the person, and
conduct a preliminary border search. Denson v. United States, 574 F.3d 1318,
if he did not consent. Stevenson warned Glover that he had seen other internal body carriers die.
Glover was told that he would not be allowed to enter the United States until customs officials
confirmed that he was not carrying anything illegal.
3
Although there was a mandatory minimum sentence of five years, Glover qualified for a
reduction under the safety-valve provision. The court also imposed a downward variance to arrive
at the term of imprisonment.
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1340 (11th Cir. 2009) (citing United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct.
1972, 1980, 52 L.Ed.2d 617 (1977)). The officer may conduct routine questioning,
check luggage, and conduct a pat-down search without any level of suspicion. Id.;
see also United States v. Vega-Barvo, 729 F.2d 1341, 1344-45 (11th Cir. 1984).
“If, after conducting initial questioning and a preliminary search . . . , the
officer has reasonable suspicion that the traveler is smuggling drugs [internally],
the Fourth Amendment permits the Customs officer to detain the individual and
conduct a more intrusive search.” United States v. Montoya de Hernández, 473
U.S. 531, 541-42, 105 S.Ct. 3304, 3310-11, 87 L.Ed.2d 381 (1985) (allowing
detention of traveler based on reasonable suspicion of smuggling contraband in her
alimentary canal); United States v. Pino, 729 F.2d 1357, 1359 (11th Cir. 1984)
(finding the use of x-ray to search traveler constitutional where reasonable
suspicion exists that the person is concealing drugs internally). Similarly, once an
officer gains reasonable suspicion that a traveler is smuggling drugs internally, it is
constitutionally reasonable for the officer to detain the traveler for a period of time
necessary to either verify or dispel his suspicion. Montoya de Hernández, 473 U.S.
at 544, 105 S.Ct. at 3312; Denson, 574 F.3d at 1341; United States v. Rodriguez,
74 F.3d 1164, 1164-65 (11th Cir. 1996).
Glover argues that there was no reasonable suspicion to justify his detention
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because the airport search and interrogation dispelled any suspicion.4 In support of
his argument, he cites Brent v. Ashley, 247 F.3d 1294 (11th Cir. 2001).
Upon review, we conclude that the customs officials had reasonable
suspicion based on the facts presented. Glover’s nervousness, his recently renewed
passport, his other trips to Trinidad, which was known to be a high drug trafficking
location, and the fact that he traveled in and out of Miami but lived in Jacksonville
all support reasonable suspicion. Additionally, Glover had trouble identifying his
bag and found it necessary to check several different bags of varying colors before
finding the one with his name. When Glover was questioned, he could not tell
authorities the last name of the friend who had driven him to Miami or the friend
who had purchased the ticket in cash, even though he claimed to have known these
men for years. When the officers attempted to contact these friends, they were
unable to confirm Glover’s story. See Vega-Barvo, 729 F.2d at 1343 (considering
4
Glover’s argument focuses on the time he was detained at the hospital until he submitted
to the x-ray. He does not appear to contest the time he was initially questioned, asserting instead
that the interview and search at the airport dispelled reasonable suspicion. Glover also argues, for
the first time on appeal, that the delay in presenting him to a magistrate judge was unreasonable and
requires that any statements he made be suppressed. Arguments raised for the first time on appeal
are subject to plain error review. United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005).
Under Fed. R. Crim. P. 5(a), “[a] person making an arrest within the United States must take the
defendant without unnecessary delay before a magistrate judge . . . .” Fed. R. Crim. P. 5(a). This
court considers the reasons for the delay to determine whether the rule has been violated. United
States v. Purvis, 768 F.2d 1237, 1239 (11th Cir. 1985). In this case, we conclude there was no
violation under the rule, as the government could not allow Glover to leave the hospital while
carrying drugs internally.
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as part of reasonable suspicion the inability to confirm the defendant’s story); see
also Denson, 574 F.3d at 1342 (citing United States v. Gonzalez-Rincon, 36 F.3d
859 (9th Cir. 1994) for the proposition that there was reasonable suspicion where
the passenger arrived from a source country, paid for her ticket in cash, carried
only one piece of luggage although she planned to stay two weeks, appeared
nervous, and used a passport reflecting several entries into the United States). The
officers also found it suspicious that Glover claimed to be hungry, yet ate only a
few bites of a donut and declined any other food.
Furthermore, the fact that the luggage and pat-down search did not reveal
drugs did not dispel the reasonable suspicion; rather, it added to the suspicion that
Glover was an internal smuggler. Denson, 574 F.3d at 1343. These facts, taken
together, are sufficient to establish reasonable suspicion.
We are not persuaded that Brent requires a different result. In Brent, the
court concluded the government lacked reasonable suspicion based on the
defendant’s arrival from a source country and nervousness. 247 F.3d at 1301-02.
Here, as noted, there were more facts leading to reasonable suspicion.
Therefore, because the totality of the circumstances gave the customs
officials reasonable suspicion, Glover’s detention was proper. Accordingly, we
AFFIRM Glover’s conviction.
AFFIRMED.
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