The Second Circuit issued a published opinion on September 11, 2017 in United States v. Pabon, No. 16-1754 (Cabranes, Livingston, Pauley), a case arising from an interesting set of facts involving the warrantless arrest of an individual suspected of body-packing narcotics who behaved erratically while in police custody. On appeal, the defendant argued that evidence he had been body-packing narcotics should have been suppressed because it was obtained only after probable cause to detain him had dissipated. In the alternative, the defendant argued that suppression was warranted because police allegedly failed obtain a probable cause determination from a neutral magistrate in a timely fashion (typically 48 hours).
Although the appeal raised several interesting issues of first impression regarding suppression and an arrestee’s right to a prompt probable cause determination, the court largely avoided addressing these issues given the evidence in the record and affirmed the defendant’s conviction.
On March 16, 2014, a Vermont State Trooper pulled over a vehicle driven by an individual named Jaiden Paige. Roberto Pabon was a passenger in the vehicle along with another occupant, Emily Degrandi. During the stop, the trooper deployed a police canine that was trained to detect narcotics, and the dog alerted to the car. Pabon and Paige were not arrested after several consent searches failed to reveal any drugs.
Over the course of the next four days, the trooper who pulled over Paige’s vehicle learned that Paige was a suspected narcotics trafficker who frequently transported drugs by car from Connecticut to Vermont. The trooper also learned that Paige often would not carry the drugs himself, but would instead have an associate “body-pack” the drugs for the trip (a euphemism for an unpleasant method of drug smuggling). The trooper received a tip that Paige was planning to rent a car from a Vermont car rental business in a few days, which he had used in the past for suspected drug runs. Vermont State Troopers monitored the car rental location and eventually pulled Paige over around 1 a.m. on March 21 after he obtained a rental car from the location and subsequently committed a traffic violation. Pabon was in the passenger seat of the rental car when it was pulled over. During the stop, the police again deployed a canine trained to detect narcotics, which alerted to the passengers-side door where Pabon had been sitting. Paige and Pabon were then brought to the local police barracks for further investigation.
At the barracks, Pabon gave equivocal responses to requests from police officers and behaved erratically. He removed all of his clothing at one point without being asked to do so, and he was placed in a holding cell for safety reasons after becoming confrontational. While in the holding cell, Pabon made an urgent request to use the bathroom and threatened to relieve himself on the floor. When Pabon was told by officers that they would have to turn off the toilet’s water flow before he went, he suddenly claimed that he no longer needed to use the restroom.
While Pabon was in custody, police sought two search warrants—one permitting a more thorough search of the rental car and the other permitting a search of Pabon’s person and clothing and an x-ray of his lower abdomen. A local judge issued both search warrants about seven hours after the initial stop of Pabon and Paige. Officers promptly searched the rental car and during that search the police canine alerted to several places in the vicinity of where Pabon had been seated. The search of Pabon’s person revealed nothing of interest.
When Pabon was taken to the hospital for x-rays, he went to the bathroom to urinate and attempted to flush the toilet despite being warned by officers not to do so because they suspected he was body-packing. He was then examined by two doctors, who noted that x-rays revealed several shaded masses in his pelvic area. One of the doctors explained to officers that the masses were most likely stool; however, he qualified that conclusion and noted that x-rays were not necessarily the best test for uncovering evidence of body-packing. Pabon was discharged from the hospital about fourteen hours after the traffic stop, at which point police began preparing an application for a search warrant to bring Pabon back to the hospital for a CT scan, which would be more reliable than the x-rays.
During this time, Pabon’s erratic behavior continued and he was taken back to the hospital after he attempted to injure himself. Doctors at the hospital ordered a CT scan out of concern that a bag Pabon had been body-packing may have punctured, but Pabon vehemently objected to the scan. By the time Pabon was discharged from the hospital a second time, the local court had denied the officers’ application for a warrant to perform the CT scan in light of the written assessments prepared by the doctors who reviewed Pabon’s x-rays. However, police were able to submit a revised application to the court based on Pabon’s continued erratic behavior, and the court issued the requested warrant approximately 20 hours after Paige and Pabon had been stopped.
The CT scan revealed evidence of body-packing and, upon the advice of medical personnel, Pabon agreed to ingest oral laxatives. Pabon subsequently passed three packages of narcotics just over 24 hours after the initial traffic stop. He continued to pass narcotics packages for the next several days. Approximately two and a half days after the initial traffic stop, officers contacted the local court to obtain a determination that there was probable cause to detain Pabon. The court found that there was probable cause and Pabon was arraigned three days later. A suppression hearing was held sometime thereafter, and at that hearing the district court found that the officers’ conduct had not violated Pabon’s Fourth Amendment rights. Pabon subsequently pleaded guilty while reserving the right to appeal the district court’s ruling on his suppression motion.
The Court first addressed Pabon’s contention that all evidence discovered after doctors indicated that his x-rays did not reveal evidence of body-packing should be suppressed because probable cause to detain had “dissipated” after the doctors arrived at this conclusion. The Court quickly dismissed this argument, however, finding that the record as a whole established that there was probable cause for Pabon’s continued detention even after doctors had indicated that the x-rays did not reveal evidence of body-packing. The court highlighted Pabon’s erratic behavior and the multiple instances where the police canine alerted to drugs in Pabon’s vicinity as evidence that probable cause persisted throughout Pabon’s detention. The Court also noted that doctors had not ruled out the possibility of body-packing based on the x-ray results and had acknowledged to officers at the time that it was not a surefire method for detecting body-packing.
The Court then addressed Pabon’s contention that suppression was also warranted because the police unreasonably delayed obtaining a judicial determination that there was probable cause to detain him, in violation of Gerstein v. Pugh, 420 U.S. 103 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Pabon first argued that suppression was warranted because he was not provided with a probable cause determination within 48 hours of his arrest, in contravention of McLaughlin’s directive that the government must demonstrate the existence of a “bona fide emergency or other extraordinary circumstance” where an arrested individual does not receive a probable cause determination within 48 hours of arrest. While it acknowledged that neither the Supreme Court nor the Second Circuit had decided whether suppression was an appropriate remedy for violation of McLaughlin’s 48-hour rule, the Court was able to sidestep the issue because almost all of the evidence that Pabon sought to suppress had been discovered within 48 hours of his arrest. Because there was no causal link between the alleged violation and the evidence at issue, the Court found that suppression was not warranted.
In what the Court called a “closer question,” Pabon also argued that suppression was warranted because law enforcement allegedly knew that there was insufficient evidence to establish probable cause to detain him after his initial discharge from the hospital and officers therefore improperly delayed seeking a probable cause determination while they sought additional evidence to support his arrest. He contended that suppression was warranted under these circumstances. Again, the Court rejected Pabon’s argument on the facts, noting that there was nothing in the record to indicate that the police investigation following Pabon’s first hospital discharge was meant to buttress the officers’ probable cause in order to justify arrest. The Court emphasized that the police “at all points had probable cause to believe that Pabon was transporting narcotics.” It noted, however, that it was not deciding whether continuing probable cause is sufficient to defeat an inference that an ongoing investigation was designed to permit the police to gather additional evidence to buttress their case before a magistrate.
Though it seems that the impact of Pabon will be limited given the unique facts of the case, the opinion nevertheless contains noteworthy dicta that defense counsel should keep in mind going forward. Most notably, the Court left open the possibility that suppression may be the appropriate remedy in appropriate cases where police have uncovered evidence only after violating a defendant’s rights under Gerstein or McLaughlin. If the government reads this decision as approving of detentions beyond 48 hours in the ordinary case, they will likely see evidence suppressed in another case. In addition, although the Court rejected Pabon’s dissipation argument, the Court alluded to the existence of circumstances where law enforcement would be required to release a detainee arrested without a warrant where probable cause has “unequivocally dissipated.” When might probable cause unequivocally dissipate? The Court does not really say, citing only to a Section 1983 case. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996). Perhaps if an individual is arrested out of a well-founded belief that there are drug or drug proceeds in his van, but when the van is torn apart by federal agents, no drugs are found? A bank robber is believed to have stolen money, but in fact was using a gun and mask while withdrawing funds legally held by the robber in his account, without threats of violence? It is hard to say; it may be the stuff of law school exam hypotheticals. A hollow victory for Pabon to see his own conviction affirmed while having convinced the Court that these circumstances may lead to reversal in another case, but in a future case with better facts, the Court may be forced to address these important questions.