Oscar John Huguez, Appellant, v. United States of America, Appellee, 406 F.2d 366 (9th Cir. 1969)

John H. Ely (argued), San Diego, Cal., for appellant.

Phillip Johnson (argued), Asst. U.S. Atty., Edwin Miller, U.S. Atty., San Diego, Cal., for appellee.

Before BARNES and ELY, Circuit Judge, and HAUK,^*  District Judge.

HAUK, District Judge:

Here raised in this appeal is an issue which is coming before this and other Federal Appellate Courts with increasing frequency-- the validity and constitutionality of border searches conducted without a search warrant by forcible and intrusive invasion of an intimate human body cavity. In this case the appellant's rectum was searched by forcible digital insertion and manipulation in locating and extracting four narcotic packets which were seized and introduced in evidence at appellant's trial.

This issue necessarily raises the questions of 'reasonableness' of the search and seizure under the Fourth Amendment to the United States Constitution¹  and the permissibility of the techniques used under the 'due process' clause of the Fifth Amendment.² 

Appellant Huguez (with a codefendant alleged to have aided and abetted him) was charged in two counts of a four count indictment with knowingly importing four ounces of heroin into the United States from Mexico, and with concealing and transporting it in violation of 21 U.S.C. 174.³  The third and fourth counts, charging the codefendant and appellant respectively with failing to register as narcotics addicts or users upon entry into the United States, in violation of 18 U.S.C. 1407,⁴  were both dismissed upon motion of the Government.⁵ 

On the day of trial in the District Court, Southern District of California, May 26, 1966, appellant filed a motion to suppress the use of the heroin in evidence, pursuant to Rule 41(e), Fed. R. Crim. P., supporting it with his affidavit and claiming that the heroin was inadmissible because:⁶ 

(a) It was seized without a search warrant;

(b) The heroin was seized in an 'unreasonable' search which was constitutionally invalid; and

(c) The heroin was obtained by the use of methods and techniques violative of 'due process'.

This motion was impliedly overruled throughout the trial when the Court permitted the introduction of the heroin into evidence and at the end of the trial was formally denied.⁷ 

After the nonjury trial, the appellant was found guilty of the offenses charged in the first two counts; the Government agreed to and later did dismiss count three as to the codefendant,⁸  and count four as to appellant.⁹ 

A seven-year sentence was then imposed upon appellant on each of the two counts, to be served concurrently.

Jurisdiction below rested on 18 U.S.C. 1407¹⁰  and 3231,¹¹  and 21 U.S.C. 174.¹²  Our jurisdiction is established by 28 U.S.C. 1291¹³  and 1294.¹⁴ 

The substantive error urged on this appeal is the denial of the motion to suppress and the subsequent admission into evidence of the four ounces of heroin seized in the intrusive search of appellant's rectum. We find that the specification of error is well taken because readily apparent upon close analysis of the facts contained in the record, considering the evidence in the light most favorable to the Government, as we are obliged to do, and disregarding only such testimony as shown by the whole record to be palpably unworthy of belief.

A careful reading of the Transcript of Record in this case leads us chronologically and inevitably to a four-step summary of what occurred from the beginning of the border crossing through the naked strip and skin search on to the final forcible intrusion of the rectal cavity:

1. The border crossing and initial detention by Inspector Teela;

2. The secondary area examination and strip and skin search by Inspectors Teela and Lasher;

3. The forcible and intrusive rectal cavity invasion by Dr. Salerno and the three customs agents-- Gates, Maxcy and Spohr.

4. The absence of any emergency or compelling urgency.

1. The Border Crossing and Initial Detention by Inspector Teela.

At 8:50 p.m. on the evening of May 13, 1966, appellant Huguez and a companion, codefendant Baros, attempted to enter the United States at the San Ysidro border crossing, San Diego County, California, after traveling by automobile from Tijuana, Baja California, Mexico.¹⁵  At the primary inspection point, Customs Inspector Thomas N. Teela approached the automobile and engaged the two men in routine border questioning.¹⁶ 

Huguez responded to the questions by stating that he was a citizen of the United States, had been born in Los Angeles, California, and was bringing in some mascara which he had purchased for his wife in Mexico.¹⁷  He declared this merchandise but did not declare any narcotics, nor did he register as a narcotic addict or user under 18 U.S.C. 1407,¹⁸  nor did he present any registration certificate as required by this statute.¹⁹ 

Nonetheless, Inspector Teela became 'somewhat suspicious' that the two men were under the influence of narcotics when he observed, with the aid of the fluorescent lighting in the inspection area and a flashlight which he focused upon the men during the inquiry, that their eyes appeared to be 'glassy and pinpointed'.²⁰ 

During the trial, Inspector Teela admitted on cross examination that, since he had not seen either of the men an any previous occasion and was not trained or experienced in medical matters, he had 'no way of knowing' the normal size of their pupils nor the reflective effect that fluorescent lighting and flashlights would have upon their eyes.²¹  On this basis Teela reached the conclusion that appellant and codefendant Baros were under the influence of narcotics, and thereupon entered the passenger side of the automobile and directed the suspects to proceed to the secondary area.²² 

2. The Secondary Area Examination and Strip and Skin Search by Inspectors Teela and Lasher.

Inspector Teela escorted the suspects to the secondary area where the windowless search rooms are located, and after entering one of the rooms Huguez was instructed to take off his clothes.²³  With the assistance of Supervisor Inspector Lasher, Teela then conducted a personal clothing and skin search of the naked Huguez and later of the codefendant Baros. The strip and skin search failed to produce narcotics or other contrabrand, but did reveal what Lasher said was the presence of 'needle marks on their arms' as well as what Teela said was a 'greasy substance' on appellant's buttocks.²⁴ 

Inspector Lasher subsequently turned the two men over to Assistant Customs Agent-in-Charge Walter A. Gates and Customs Agent John D. Maxcy.²⁵  Gates was informed by Inspector Lasher only of the needle marks on the suspects' arms and, for some reason not at all apparent, Teela failed to say anything at all to either Gates or Maxcy about:

(1) the 'greasy substance' he had allegedly observed on Huguez's buttocks;

(2) the United States citizenship of Huguez and his failure to register or present a certificate as a narcotic user or addict under 18 U.S.C. 1407; or

(3) the 'glassy and pinpointed eyes'.

Nor did Teela, Lasher or anyone else suggest to Gates that the doctor examine the appellant.²⁶ 

3. The Forcible and Intrusive Rectal Cavity Invasion by Dr. Salerno and the Three Customs Agents-- Gates, Maxcy and Spohr.

Agents Gates and Maxcy took the two men, now fully dressed again, from the windowless search room to the baggage area across the street and into one of the rooms in this baggage area²⁷  -- not a medical room nor even a room, so far as the record discloses, equipped with any of the usual hygienic and sterilized equipment found in the physician's customary office, but evidently only a bare baggage room with 'an examination table' in it.²⁸  Dr. Paul R. Salerno proceeded to examine codefendant Baros and then appellant Huguez,²⁹  while Inspector Lasher leaned against the wall watching the proceedings.³⁰  Neither Agent Gates, nor Agent Maxcy, nor Inspector Lasher, nor anyone else passed on to Dr. Salerno any information about the physical condition of Huguez and Baros. The doctor was not told of the 'glassy and pinpointed eyes' which Teela claims made him 'somewhat suspicious'; nor of the 'needle marks' which Lasher had noticed; nor of the alleged 'greasy substance' that Teela claims he saw on Huguez's buttocks.³¹  And the record does not show that the doctor was ever told that Huguez was a United States citizen and had not registered or presented a narcotic user or addict registration certificate under 18 U.S.C. 1407.

Yet, starting from scratch, without a search warrant, which it is clear (and the Government admits) was not issued or served, without any prior information of any kind whatsoever, Dr. Salerno took it upon himself to conduct the forcible body and intrusive rectal cavity invastion to locate and extract the four packets which were later introduced in evidence at the trial and are now the basis of appellant's contention of reversible error.

After appellant had removed his shirt as directed, Dr. Salerno then for the first time became aware of the small needle marks on Huguez's arms which, according to the doctor's testimony, suggested that Huguez had recently used narcotics.³²  During the examination, Dr. Salerno also concluded that Huguez's pupils responded sluggishly to darkness, that the deep tendon reflexes of the lower extremity were hyperactive, and that his pulse rate was accelerated. On the basis of this examination, and admittedly having failed to administer either one of the ordinary and easily given Nalline or urine tests, the doctor arrived at the opinion that Huguez was a user and at that time under the influence of narcotic drugs.³³  And after arriving at this opinion the doctor made the request 'to conduct a routine digital or rectal examination'.³⁴ 

Thereupon Huguez was ordered to lower his trousers so that Dr. Salerno could conduct a digital rectal probe to determine whether any material was concealed in the anal cavity,³⁵  despite the fact that the doctor had not received any information at all from the agents or from anyone else regarding the 'greasy substance' that Teela claimed he saw on Huguez's buttocks.³⁶  As we have said, he gave this order to Huguez to lower his trousers and began the rectal cavity invasion without a search warrant of any kind having been sought, issued or served.

Upon Huguez's refusal to lower his trousers, Dr. Salerno told him 'We're going to have to do it the hard way.' Whereupon the three customs agents-- Gates, Maxcy and Spohr-- forcibly pulled Huguez's pants down.³⁷ 

Dr. Salerno then started his 'digital or rectal examination' by using a plastic glove and inserting his index finger up Huguez's anus and into his rectum.³⁸  Parenthetically we note, and it is a curious circumstance indeed, that when Dr. Salerno examined Huguez's buttocks and rectal area prior to inserting his finger, he found absolutely no evidence of the 'greasy substance' which Teela claimed he saw. In fact, the doctor testified that there was no 'foreign chemical substance' or 'lubrication' in the rectal and buttock area at all. And he so testified both on direct and on cross examination.³⁹  Incidentally, Huguez also testified that there was no 'greasy substance' on or in the area of his buttocks.⁴⁰ 

As the doctor's finger was inserted, Huguez did not at first physically resist,⁴¹  but when the doctor persisted in the digital manipulation, Huguez behemently protested:

'I told him that I wasn't going to relax, that he was just running over my constitutional rights. He couldn't go up my rectum without my consent.'⁴² 

And then Huguez began to resist with all the strength he could muster. As Dr. Salerno put it, 'he forcibly constricted his external sphincter; he also reached around with one of his hands in an effort to remove my finger from the examining position.'⁴³  And he continued his struggling resistance against the combined efforts of at least three agents there in the room with Dr. Salerno.⁴⁴ 

At this critical juncture of the struggle, the agents handcuffed Huguez and threw him onto a table.⁴⁵  Agent Gates was then able to break Huguez's will to resist by pulling forward on the handcuffs and exerting enough pressure on Huguez's head, shoulders and back to keep him bending over forward and forcing his chest to remain on the table.⁴⁶  Gates said Huguez's hands were cuffed behind his body and were pulled up and forward to force his upper body prone on the table,⁴⁷  while Huguez claimed he was cuffed with his hands and arms in front.⁴⁸  In any event, sufficient pressure was exerted to bring Huguez against the table and flat down on it from hips to head.⁴⁹ 

Agent Gates admitted having noticed 'red streaks' on Huguez's wrist following his protests that the handcuffs were applied too tightly.⁵⁰  Huguez elaborated that the continuous pulling on the handcuffs caused 'metal to bite into the flesh' and 'the skin was peeled', resulting in 'cuts on my wrists'.⁵¹  And Agent Spohr admitted that he observed at least 'a red spot on the one wrist.'⁵² 

While Agent Gates pulled on the handcuffs to control the shoulders and head area, the other officers were applying pressures to the rest of Huguez's body.⁵³  Agent Maxcy controlled the small of his back in pressing down with arms and hands. Huguez's legs were stretched and pulled apart by Agent Spohr who controlled Huguez's left leg with the weight of his own right leg, and by Dr. Salerno who controlled Huguez's right leg with his own right arm.⁵⁴  Eventually the agents succeeded in breaking appellant's resistance and Dr. Salerno was finally able to extract the four large spherical packets, each measuring approximately one to one and one-half inches in diameter which, with the doctor's finger, constituted in each case a mass of approximately two inches in diameter when being removed form the rectal cavity through the anus and external sphincter, requiring a stretching of the sphincter.⁵⁵  The packets were later determined and stipulated to contain four ounces of the narcotic, heroin.⁵⁶ 

This 'force process', as Agent Gates characterized it, took about five minutes, although the appellant declared it was something more like ten, fifteen or twenty minutes.⁵⁷  Needless to say, this 'force process', simultaneously applied by the three custom agents in restraining Huguez and by Dr. Salerno in locating and removing the packets, caused the appellant considerable discomfort and pain.⁵⁸  Throughout it all, Huguez's pleas and protestations went unheeded. 'I told them to stop. It was hurting. And they just laughed * * * They just made like a wisecrack out of it.'⁵⁹  And throughout it all, the appellant was never put under arrest.

4. The Absence of Any Emergency or Compelling Urgency.

Dr. Salerno's testimony clearly revealed that there was no emergency necessitating or justifying the brutal 'force process' to which Huguez was subjected in the conduct of the intrusive rectal cavity invasion. According to Dr. Salerno, it is entirely possible for a person to retain packets of heroin within the rectal cavity for a period of several days even though some degree of discomfort might be experienced during that period.⁶⁰  Moreover, according to the doctor, the frequency of a normal bowel movement is about once a day and the administration of an oral laxative ordinarily would entail a waiting period of no more than six or eight hours.⁶¹  And finally the doctor agreed that even though the rubber balloon material with which the packets were covered might eventually deteriorate and cause some health hazard to Huguez, possibly even death upon direct contact and absorption by the rectal cavity, there would be no such hazard for at least six to eight hours.⁶²  The inference is clear, then, that no emergency or compelling urgency existed for at least a six to eight hour period during which the government agents could have obtained the issuance and service of a search warrant.

II

THE INTRUSIVE INVASION OF APPELLANT'S RECTAL CAVITY EXCEEDS THE CONSTITUTIONAL LIMITATIONS OF THE FOURTH AMENDMENT ON BORDER SEARCHES WITHOUT A WARRANT, BECAUSE THERE WAS NO 'CLEAR INDICATION' THAT THE CAVITY CONTAINED NARCOTICS.

No constitutional right is more basic or fundamental than the right of privacy, protected by the Fourth Amendment restriction against 'unreasonable searches and seizures' which violate 'the right of the people to be secure in their persons, houses, papers and effects.' Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886).

In its historical and inevitable development, this constitutional right has been enforced by exclusion of evidence obtained illegally in contravention of the Fourth Amendment.⁶³ 

With scientific advances and the development of the telephone and electronic gear, the Supreme Court has been zealous to protect this right against invasions by wiretapping⁶⁴  and electronic eavesdropping.⁶⁵ 

Our Ninth Circuit has summed it up: 'The Fourth Amendment protects against invasion of the right of privacy. To effectuate this basic purpose and policy, the prohibitory language has been implemented by the Federal exclusionary rule. Evidence illegally obtained in contravention of the Fourth Amendment is inadmissible in a federal prosecution.' Blackford v. United States, 247 F.2d 745, 748 (9th Cir. 1957).

Pointing out that the Fourth Amendment has a rich heritage and the 'its genesis lies in the fervent discontent aroused in the American colonies in the period antedating the Revolution by the flagrant abuses of 'writs of assistance", the Court added: 'It represents recognition and embodiment in our fundamental framework of government of the precept that a man's property and person are inviolable to search except upon due cause.' Blackford, supra, at 748.

Just last year this Court distilled the essence of the Fourth Amendment by quoting the Supreme Court in Schmerber v. State of California,384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)⁶⁶  and concluding: 'The decision emphasizes that the purpose of the Fourth Amendment is 'to protect personal privacy and dignity against unwarranted intrusion by the state'. To us, this means that every search must be examined in the light of the Amendment's requirement that it not be 'unreasonable'. And we think that this requirement applies to border searches.' Henderson v. United States, 390 F.2d 805, 807. (9th Cir. 1967).

We are indeed mindful that, as so aptly put in Blackford, supra, 247 F.2d 745 at 751:

'There is no slide-rule formula yet devised for ascertaining whether specific conduct is or is not reasonable. Each case must turn on its own relevant facts and circumstances. United States v. Rabinowits, supra; Harris v. United States, 331 U.S. 145, 150, 67 S. Ct. 1098, 91 L. Ed. 1399; Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S. Ct. 153, 75 L. Ed. 374. 'Reasonableness is in the first instance for the District Court to determine.' United States v. Rabinowitz, 339 U.S. 56 at page 63, 70 S. Ct. 430 at page 434, 94 L. Ed. 653. The determination by that court of a constitutional question is not binding upon us, but is entitled to weight.'

Along with Blefare v. United States, 362 F.2d 870, 871 (9th Cir. 1966), we 'accept the principle that the reasonableness of the search is, in the first, instance, a substantive determination to be made by the trial court from the facts and circumstances of the case. Ker v. State of California,374 U.S. 23, 33, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).'

However, we note that when the trial court here in Huguez made its determination on May 26, 1966-- the date of the one-day nonjury trial-- holding the intrusive invasion of appellant's rectal cavity a 'reasonable search', the opinion in Blackford (July 10, 1957)⁶⁷  was the only effectively determinative decisional authority in either the Ninth Circuit or the Supreme Court. Since that date, the cases of Blefare (June 8, 1966),⁶⁸  Schmerber (June 20, 1966),⁶⁹  Rivas (November 8, 1966)⁷⁰  and Henderson (July 7, 1967)⁷¹  have laid down additional guidelines unavailable to the District Court at the time of the Huguez trial, but now controlling and imperative upon us.

It is, therefore, our duty to test the facts of the Huguez intrusive body cavity invasion, not only by the earlier exposition of Blackford, but by the more recent teachings.

In doing so, and without any implication of criticism of the learned trial judge, we find that the intrusive search of appellant's rectum here in Huguez exceeded the constitutional limitations of the Fourth Amendment.

Parenthetically, we should add that we 'take judicial notice of the fact that the Mexico-California border is one of the major centers for importation of narcotic drugs into the United States' and of the continuing increase, to what is now virtually a common practice, of the use of body cavities by experienced smugglers to transport narcotics across the Mexican border. Blackford, supra, 247 F.2d at 752. Not only does other decisional literature to date so advise us,⁷²  but we also find here in Huguez, testimony that between July 1, 1965 and May 26, 1966, there were approximately 20 reported instances in which narcotics had been recovered from body cavities (rectums or vaginas) in border searches at the San Ysidro, California, crossing into the United States from Tijuana, Mexico.⁷³ 

That this common practice makes effective border patrol difficult is undeniable. Yet that it must be curbed within the confines of the Fourth Amendment prohibition against unreasonable searches and seizures is unassailable.

The most recent decision of this Ninth Circuit agrees 'that this presents a serious problem of law enforcement, to be weighed against the individual's right to human dignity and privacy as protected by the Fourth Amendment.' Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967). In the words of Henderson at 806-807:

'This court has repeatedly upheld border searches of body cavities⁷⁴  including such searches carried out in spite of the violent resistance of the person searched.⁷⁵  However, for reasons that will appear, we do not reach such issues here. The only question we decide is whether initiation of the search was lawful.

'We have repeatedly said that a border search can be undertaken without probable cause.⁷⁶  but we have also held that even in such cases, the officers must act reasonably.⁷⁷  Our recent decision in Rivas v. United States, supra n. 1 (74) establishes that in the case of a search of body cavities, "there must be a clear indication of the possession of narcotics," or a 'plain suggestion' of the smuggling, which must be 'over and beyond 'a mere suspicion."⁷⁸  Riveas requires, when body cavities are searched, something more than was required in the earlier decisions, which said that 'mere suspicion' is enough.⁷⁹  The Rivas requirement is based upon language used by the Supreme Court in Schmerber v. State of California, 1966, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908.'

Recognizing as too well established to require citation of authority that border searches are different from other searches, that they are unique, that the mere fact a person is crossing the border is sufficient cause for a search of his baggage, vehicle and contents of purse, wallet or bags, Henderson then lays down the restrictions that must govern a naked strip and skin search and an intrusive body cavity invasion:

'If, however, the search of the person is to go further, if the party, male or female, is to be required to strip, we think that something more, at least a real suspicion, directed specifically to that person, should be required. And if there is to be a more than casual examination of the body, if in the course of the search of a woman there is to be a requirement that she manually open her vagina for visual inspection to see if she has something concealed there, we think that we should require more than a mere suspicion. Surely, to require such a performance is a serious invasion of personal privacy and dignity, and so unlawful lawful if 'unwarranted'. Surely, in such a case, to be warranted, the official's action should be backed by at least the 'clear indication', the 'plain suggestion', required in Schmerber and Rivas.' (390 F.2d at 808).

As in Henderson, we, too, believe that the Schmerber-Rivas test should be applied to the rectal cavity invasion here in Huguez and for the same reasons, namely, we take judicial notice that many thousands of men and women crossed the California-Mexico border during the same year's period during which the record discloses there were 20 reported instances of recovery of narcotics from rectums or vaginas; that the vast majority were obviously not carrying narcotics in their body cavities or elsewhere; that there is no disclosure in the record how many men and women crossing the border in that period were subjected to similar searches as a result of which nothing was found; and that these men and women were 'certainly entitled to their dignity and privacy and their interests, too, are to be weighed.' Henderson, supra, 390 F.2d at 808.

Here in Huguez as in Henderson, appellant crossed the border with another person in an automobile. The customs officers had not received any advance information with respect to the car, to the other person or to Huguez that would alert the officers to the possibility that they might possess or be carrying narcotics. Contrariwise, there was such information, and from reliable informants, in Denton, Blefare and Witt, supra, note 74. Neither Huguez nor his companion was a known, convicted and registered user of narcotics, as the defendants were in Murgia and Rivas; neither of them did or said anything to arouse suspicion. The agents had not been told by Huguez or anyone else that he had anything concealed in his body, as was the case in Blackford and Murgia.

It is true, and the record indicates, Teela did become 'somewhat suspicious' that the two men were under the influence of narcotics when he observed that their eyes appeared to be glassy and pinpointed.⁸⁰  This, under the test of Schmerber, Rivas and Henderson, might be sufficient to justify the initial detention by Inspector Teela, since it probably can be interpreted as a 'mere suspicion'. It might also, for the same reason, be sufficient to support the examination of the personal clothing and the strip and skin search of the naked Huguez and his companion by Inspectors Teela and Lasher in the secondary area and its windowless search room, during which they discovered what Lasher said was the presence of 'needle marks on their arms' as well as what Teela said was a 'greasy substance' on appellant's buttocks.⁸¹ 

But when the two men were turned over to Agents Gates and Maxcy, Lasher informed Gates only of the 'needle marks', and Teela failed completely to say anything at all to either Gates or Maxcy about the 'greasy substance' he had allegedly observed on Huguez's buttocks, or about the 'glassy and pinpointed eyes', or about the United States citizenship of Huguez and his failure to register or present a certificate as a narcotic user or addict.

Any 'mere suspicion' that Inspector Teela had was never in any way communicated to Gates or Maxcy, and when Gates and Maxcy took Huguez and his companion from the windowless search room to the baggage area across the street where the brutal and painful intrusive rectal cavity invasion was conducted, Gates and Maxcy did not and could not have even the 'mere suspicion' that Inspector Teela had, let alone any 'clear indication' or 'plain suggestion' of any cache of narcotics in Huguez's rectum, as required by Schmerber, Rivas and Henderson.

Therefore Gates and Maxcy did not and could not have passed on to Dr. Salerno and Agent Spohr any information about the physical condition of Huguez and his companion that could raise the slightest real suspicion in these two other participants in the 'force process' of the intensive body cavity search.

Without a search warrant, without any 'clear indication' or 'plain suggestion' that Huguez carried narcotics in his rectal cavity, and in fact without the slightest real suspicion of any such rectal cavity cache, Dr. Salerno proceeded to conduct the examination on his own initiative without any request or suggestion that he do so, but with the aid of the three customs agents-- Gates, Maxcy and Spohr. He followed up with his digital rectal probing without having observed any 'greasy substance', and then Huguez was handcuffed, thrown on the table, pressured flat down and pulled by the handcuffs until the metal bit into his flesh and the skin was peeled, resulting in cuts on his wrists. In these circumstances, the 'medical examination' degenerated into a 'force process', so aptly termed by Agent Gates, which cannot be condoned, justified or upheld as a constitutional border search. Rather, it is a brutal invasion of privacy, an illegal and frightening example of unlawful law enforcement. The evidence so gained should have been suppressed and excluded in the prosecution of Huguez. That not having been done, our duty and obligation is to apply the Schmerber-Rivas-Henderson test. And so doing we must and do reverse appellant's conviction.

III

THE 'FORCE PROCESS' EXERTED ON APPELLANT EXCEEDS THE CONSTITUTIONAL LIMITATIONS OF THE FIFTH AMENDMENT.

Here again we start with the most apposite case available to the District Court at the Huguez trial in May, 1966, in determining the test which should be applied under the Fifth Amendment. Blackford v. United States, 247 F.2d 745 (9th Cir. 1957).

We agree that 'the Fourth and Fifth Amendments are companion pillars in the Bill of Rights structure which protects the individual against arbitrary government invasion of personal freedom and liberty.' (247 F.2d at 748). And that though their ultimate goal is the same, they combat different evils:

'The Fourth Amendment safeguards the right to be free from unreasonable searches and seizures; the Fifth Amendment guarantees the individual against being compelled to give evidence against himself and also assures to him under the Due Process proviso, fair and humane treatment by federal law enforcement officers.' (247 F.2d at 748)

If Huguez's Fifth Amendment rights were violated, the narcotics were inadmissible at his trial and the judgment of conviction must be reversed. Rochin v. People of State of California, 342 U.S. 165, 172, 72 S. Ct. 205, 96 L. Ed. 2d 183 (1952), reversing conviction; Breithaupt v. Abram, 352 U.S. 432, 435, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957), affirming conviction; but compare dissenting opinions of Warren, C.J. at 440, 77 S. Ct. at 412 and Douglas, J. at 442, 77 S. Ct. at 414.

Our Ninth Circuit carefully distinguishes Blackford from Rochin and identifies it with Breithaupt. While Rochin was abused and his rights violated by forcible attacks, Blackford was treated civilly throughout the rectal examination; there was only a suspicion that Rochin had swallowed pills whereas Blackford admitted he had a cache of narcotics in his rectal cavity, an admission corroborated by the presence of a greasy type substance around the anus; whereas the regurgitation in Rochin was induced by the application of intense physical pressure and enforced stomach pumping, the physical examinations and rectal extraction in Blackford were by 'qualified physicians, under sanitary conditions, with the use of medically approved procedures' in the San Diego County Jail and the United States Naval Hospital at San Diego. Blackford, supra, 247 F.2d at 747, 752.

The test of Rochin-Breithaupt as followed in Blackford was stated to be 'whether the alleged activity of law enforcement officers in obtaining the questioned evidence fell short of civilized standards of decency and fair play', or was 'so unconscionable that it 'shocks the conscience' or 'offend(s) a sense of justice". Blackford, supra, at 750.

But again, in considering Fifth Amendment restrictions and just as we did in discussing Fourth Amendment limitations, we cannot stop with Blackford, even though it was the compelling authority for the District Court here in Huguez at the time of trial. We must turn to and are necessarily bound by the later and more authoritative decisions for guidance in determining the impact of the Fifth Amendment upon intrusive body cavity invasions conducted during border searches.

In doing so we emphasize it is not essential to our decision that we find a violation of the Fifth Amendment. We have already found a violation of the Fourth Amendment since the initiation of the intrusive body cavity search was unjustified because of the lack of any 'clear indication' or 'plain suggestion' in the minds of Dr. Salerno and his rectal invasion squad members, that Huguez had any narcotics cached in his rectal cavity.

In Blefare v. United States, 362 F.2d 870 (9th Cir. 1966), the methods used and the conduct pursued therein are distinguished from the methods used and the conduct pursued in Rochin. The examination of Blefare and his codefendant took place in the doctor's office in San Diego some 12 miles from the border; defendant Blefare willingly acquiesced in a rectal examination and in drinking an emetic, consented to be searched by a physician and protested only at the swallowing of a tube through which a saline solution was introduced into his stomach; defendant Michel did not object to the anal examination, the saline water swallowing or the saline solution introduced by tube; and a doctor performed carefully, expertly and with medical propriety, precisely what each of the defendants proposed to do for and to himself. Blefare at 872, 874, 877-878. Further, it was clear that the officers had reliable information from the Royal Canadian Mounted Police that Blefare had admitted prior smuggling from Mexico to Canada of an ounce of heroin in his stomach. The doctors, therefore, started their examinations with reasonable certainty that the narcotics were in appellants' stomachs at the time of the examinations. On this basis, the judgments of conviction in Blefare were affirmed despite the vigorous dissent that the facts in Blefare were much closer to Rochin than to Breithaupt.

Then we have the Supreme Court's ruling in a nonborder case, Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), that the Fifth Amendment applies to bodily intrusions yet does not require reversal of a judgment of conviction based on the introduction into evidence of a chemical analysis for alcohol content of a blood sample extracted from the body of the defendant over his protest, by a physician in the hospital where the defendant had been taken for treatment of injuries received in an auto accident. The Court enlarged on the Rochin-Breithaupt test of 'reasonableness' in the following language:

'Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment-- for example, ample, if it were administered by the police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

'It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.' (Schmerber, 384 U.S. at 771-772, 86 S. Ct. at 1836)

Once again in the Ninth Circuit, Rivas⁸²  reiterates the Fifth Amendment limitations on body cavity border searches by distinctions from Rochin, comparisons with Breithaupt and references to Schmerber:

'This is not a Rochin case, with its assault on a defendant, both before the stomach pumping, and at the time of its occurrence. It was the physical assault in Rochin which caused reversal and which 'led to a result in Rochin contrary to that in Wolf (Wolf v. (People of State of) Colorado, 338 U.S. 25 (69 S. Ct. 1359, 93 L. Ed. 1782) (1949)). Although Rochin raised the search-and-seizure question, this Court studiously avoided it and never once mentioned the Wolf case. Obviously it thought the illegal search and seizure alone did not call for reversal.' Irvine v. People of State of California, 347 U.S. 128, 133, 74 S. Ct. 381, 382, 98 L. Ed. 561 (1954). See also, Blefare v. United States, 362 F.2d 870, 876-877, n. 1 (9th Cir. 1966). 1966).

'Here the evidence shows a technical physical assault (in that hands were laid upon appellant), but no degrading or shameful physical assault upon him, in the sense the Supreme Court found in Rochin, supra. It was a technical assault similar to that upheld as proper in Blackford, supra. Again, technically, the physical assault, the 'gentle' probing of the rectum, was not as pronounced an assault, medically, as the puncture of the skin in Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957). In Breithaupt, the blood was taken while the appellant was unconscious. But 'the taking of blood by a skilled technician' is not 'conduct that shocks the conscience,' nor such a method of obtaining evidence as offends a 'sense of justice,' said the Supreme Court, citing and distinguishing Rochin, supra, and Brown v. State of Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936). Cf. Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).⁸³ 

'The use of the evidence in this case, like Rochin, Schmerber, Blackford, et al. (in fact, in any case where a body cavity is gently, in a medically approved manner, searched), does not (a) involve evidence of a testimonial nature; (b) require a defendant to testify against himself; (c) constitute a denial of due process. (See discussion of these points in Schmerber, supra, 384 U.S. pp. 768-771, 86 S. Ct. 1826.)' (368 F.2d at 710-711)

Applying what we may call the Rochin-Breithaupt-Schmerber-Rivas test of reasonableness of place, methods and conduct to the intrusive body cavity invasion here in Huguez, we cannot help but find that appellant has been deprived of his due process rights under the Fifth Amendment. Instead of fair, humane and civil treatment by federal law enforcement officers, and a medical examination in a hospital under sanitary conditions by a qualified physician with the use of scientifically and medically approved procedures, as in Blackford, Huguez was subjected to a brutal, painful and degrading 'force process' in the non-antiseptic, non-hygienic surroundings of a bare baggage room, furnished with an 'examination table' upon which he was thrown, pressured prone, and forcefully pulled by handcuffs that bit into his flesh, peeled his skin and cut his wrists.

Instead of willingly acquiescing in a rectal examination and in drinking an emetic; instead of consenting to be searched by a physician; instead of protesting only at the swallowing of a tube at the doctor's own office some 12 miles from the border; instead of a procedure performed by a doctor carefully, expertly and with medical propriety as well as precisely in a manner that the defendant proposed to do for and to himself, all as in Blefare; contrariwise here in Huguez the defendant violently resisted the rectal examination, refused to consent to the physician's probe, and vociferously protested at all stages prior to and throughout the 'force process' carried on in a baggage room at the border 12 miles from the doctor's office, in a procedure conducted violently, unhygienically, without medical propriety and with laughter and jokes.

Incidentally, the same physician was involved in both Blefare and Huguez-- Dr. Paul R. Salerno-- but operating in methods and surroundings strikingly dissimilar.

Instead of the use of a medical technique by a physician in a hospital environment according to accepted medical practices as in Schmerber, here we are presented with serious questions of unconstitutionality arising from the use of a rudimentary medical technique in 'other than a medical environment', in the non-antiseptic and non-hygienic atmosphere of a baggage room with the unjustified element of personal risk of infection and pain. Surely this is no 'minor intrusion(s) into an individual's body under stringently limited conditions' approved in Schmerber, 384 U.S. at 772, 86 S. Ct. at 1836, but rather a grievous, dangerous, unjustified and unjustifiable assault upon the integrity, privacy and dignity of a human being who, for all his faults, as a person and a citizen of the United States, was entitled to but did not receive the constitutional protection of the Fifth Amendment.⁸⁴ 

The evidence against him so obtained should not have been admitted at the trial and for this reason, in addition to the violation of the Fourth Amendment, Huguez's conviction cannot stand. The judgment is reversed and the cause is remanded to the District Court for further proceedings.⁸⁵ 

ELY, Circuit Judge (concurring):

I agree with the disposition reached by Judge Hauk in his principal opinion, although his route to the end result is perhaps more winding than that which I would have selected. My concurrence stems from conviction, shared by Judge Hauk and based upon all the circumstances, that (1) the overbearing manner of the forceable bodily invasion, in the environment in which it was made, was shockingly offensive under the teaching of Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), and (2) in support of the type of search, there was not that 'clear indication' or 'plain suggestion' required by recent controlling precedents, principally, the Supreme Court's case of Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), and our own cases of Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S. Ct. 980, 17 L. Ed. 2d 875 (1967), and Henderson v. United States, 390 F.2d 805 (9th Cir. 1967).

I am moved to record my view that the 'clear indication' test, somewhat nebulous in concept, does not satisfy me, even though, to be sure, I do, as I must, now respect it. Judge Hauk and I have other searches, that they are unique, that which has been essentially factual, that 'clear indication' that contraband was concealed in the rectum did not exist.¹  My Brother Barnes, whose wisdom cannot be justly questioned, disagrees. The creators of multiple-judge appellate courts contemplated that each of the judges should conscientiously apply his own independent judgment in the resolution of disputes. Here the majority reaches a conclusion favorable to Huguez, but it is altogether possible that had another judge sat in the place of Judge Hauk or of me, the opinion of Judge Barnes would have prevailed.

None should deny that there should be uniformity in the application of legal principles. Huguez should not have the benefit of a decision which might possibly be denied to others in the same position. Moreover, the border police already confronted with perplexing problems incident to their zealous efforts to protect the public, should be equipped with the clearest possible guidelines.

The foregoing considerations, which must be disturbing to all those charged with the responsibility of insuring equal, exact, and universal justice, lead me to reiterate the fixed belief which I so recently expressed in my dissenting opinion in Blefare v. United States, 362 F.2d 870, 880 (9th Cir. 1966). It is:

'When time permits and when the contemplated search procedure is extreme, if not shockingly offensive, the search, if made without authority therefor having been sought of a magistrate, is unreasonable within the meaning of the Fourth Amendment.'

362 F.2d at 887.

I do not maintain that the adoption of my proposed rule would always provide an ideal solution to the type of disturbing problem which is presented here and which we encounter with increasing frequency. Nor do I pretend to have devised it originally, without reliable markers set by jurists whose intellects command the utmost respect. See e.g., Mr. Justice Frankfurter's dissenting opinion in United States v. Rabinowitz, 339 U.S. 56, 68, 70 S. Ct. 430, 94 L. Ed. 653 (1950). See also Mr. Justice Brennan's comments in Schmerber. 384 U.S. at 770, 86 S. Ct. 1826.

Although my proposal was rejected by the majority in Blefare, it has been favorably received by some who labor in the field of legal scholarship. See Comment, Intrusive Border Searches-- Is Judicial Control Desirable?, 115 U. Pa. L. Rev. 276 (1966); Note, 'Search and Seizure at the Border-- The Border Search,' 21 Rutgers L. Rev. 513 (1967); 19 Fla.L.Rev. 374 (1966); 18 W.Res.L.Rev. 1007 (1967). See also Note, 'Border Searches and the Fourth Amendment,' 77 Yale L.J. 1007 (1968).

BARNES, Circuit Judge (dissenting):

I respectfully but firmly dissent. The majority opinion, it might be said, 'goes through the motions' of respecting the trial court's conclusion that the evidence discloses a reasonable search (p. 13), and even purports to examine the evidence 'in the light most favorable to the Government, as we are obliged to do' (p. 13) and then immediately proceeds to do neither. It does this by quoting at length the self-serving language of the defendant, and finding any contradictory testimony 'palpably unworthy of belief.' (p. 13).

It is actually impossible for me to recognize the facts, the conduct, and even certain physical objects described in the majority opinion when I compare its language with the transcript of testimony heard by the trial court. Florid, argumentative, and dramatic language is used to color judgment and to emphasize certain facts, and to de-emphasize others.¹

I therefore prefer to draw my own statement of facts which I sincerely believe is more accurate, and decidedly more fair, than that appearing in the majority opinion.

Appellant Huguez (with a codefendant alleged to have aided and abetted him) was charged in two counts of a four-count indictment with knowingly smuggling four ounces of heroin into this country from Mexico, and with transporting and concealing the same heroin in this country. 21 U.S.C. 174 (1964). After a trial in the District Court for the Southern District of California, appellant was convicted on both counts. The third and fourth counts, which charged the codefendant and the appellant with failing to register as narcotics addicts or users upon entry into the United States, were dismissed as to appellant by the trial court. The sentences imposed upon appellant relating to the two counts upon which he was convicted were ordered to be served concurrently.

Jurisdiction below rested on 18 U.S.C. 1407, 3231 (1964), and 21 U.S.C. 174 (1964). Our jurisdiction over this appeal is established by 28 U.S.C. 1291, 1294 (1964).

The only error urged by appellant concerns the failure of the trial court to grant his motion to suppress the heroin, which was introduced as evidence by the Government. Fed. R. Crim. P. 41(e). Suppression was allegedly called for because:

(a) the heroin was seized without a search warrant;

(b) there was no probable cause to believe that the search by means of which the heroin was discovered would yield any contraband; and

(c) the heroin was procured through the unconscionable use of force.

In view of the judgment below, the record must of course be considered in the light most favorable to the Government. With this point in mind, I feel that the following facts are established:

Appellant entered the United States by automobile from Mexico on March 13, 1966, with one companion. The entry was made at San Ysidro, San Diego County, California. The two men declared no narcotics to the United States Customs Inspector Thomas N. Teela, who met them at the primary inspection point.

Inspector Teela, who had been a customs inspector at San Ysidro for eight years and had had experience observing narcotics violators during that period, observed that appellant's eyes, as well as those of his companion, seemed to be pinpointed and glassy. Appellant 'appeared to be under the influence of narcotics.' R.T. 77-78, 81.

Appellant was searched in a secondary area search room. To Inspector Teela, who with the assistance of an Inspector Lasher conducted the search, a greasy substance was 'plainly apparent' on appellant's buttocks, near the anus. R.T. 79, 82-83. Appellant was then taken across the street to an examination room, where Dr. Paul R. Salerno examined him. R.T. 28, 31, 39. Dr. Salerno was licensed to practice medicine in the state of California and had had considerable experience in examining and identifying drug addicts.^1a

An examination of appellant's arms disclosed to the doctor (a) small needlepuncture marks on the right arm, at the base of the thumb, and over the superficial vein of the lateral wrist; and (b) a two-inch scarred 'tract' of superficial vein over the left lower forearm. Three of the marks were recent, and there was a hematoma formation. R.T. 31. A careful examination of appellant's eyes showed an incomplete and sluggish reaction of the pupils to darkness. The pupillary diameter was three millimeters in the darkness. The deep tendon reflexes of appellant's lower extremity were hyperactive, and his pulse was accelerated (130 per minte). R.T. 32.

On the basis of his examination, Dr. Salerno reached the opinion that appellant was a user of narcotic drugs who was then under the influence of such a drug. R.T. 31-32. After this opinion was reached, but without obtaining a search warrant, the doctor conducted a rectal examination to determine whether any material was concealed in the rectal cavity. Using a lubricated glove finger, he located four packets of heroin, which were then similarly extricated. The probe was similar to the rectal examination that is part of any complete physical examination for an adult male, and was made-- as was the removal of the packets-- in a medically approved manner. Appellant began to resist only when the material was palpated, after which time it was necessary for agents forcibly to restrain him while the packets were removed. No blows were struck and there was no bleeding.

Dr. Salerno testified that in the absence of voluntary resistance by contraction of the external sphincter of the anus, the sensation accompanying removal of the packets 'would not be expected to be any more uncomfortable than that experienced with a constipated or hard bowel movement.' R.T. 39. In his opinion, the introduction of such packets into the rectal cavity would involve greater discomfort than their removal, provided that resistance was not offered in either case.

The doctor further testified that there would be a mechanical or chemical attack upon the rubber containers in the rectum over a period of time; that the release of the heroin into the rectum could result in death; that leaving the packets in the rectum for more than six to eight hours 'would certainly be hazardous,' (R.T. 43); that a man in a prison cell might possibly hold similar (though somewhat smaller) objects in his rectum for several days; that it would take approximately eight to ten hours for an oral laxative to achieve effective results; that there are sometimes health hazards involved in the use of laxatives; that an X-ray machine or a fluoroscope would not distinguish between the packaged material and normal fecal contents; that at any rate X-ray machines and fluoroscopes should be operated only by radiologists; and that no radiologist was available.

After the packets were removed, appellant admitted that he had been sent from Los Angeles to pick up the heroin and that he had secreted it in his rectum; insertion of the packets was, he later testified, accomplished by the use of soap and water, which acted as lubricants. Appellant suffered a slight abrasion on one wrist, caused by handcuffs employed during the rectal search; when he made this fact known, the handcuffs were loosened. R.T. 90, 103-04. He did not complain of any other injuries.

Between July 1, 1965, and May 26, 1966, customs officials at San Ysidro reported twenty instances in which narcotics had been recovered from body cavities. R.T. 100-01, 122.

In considering the propriety of the search thus made of appellant, I first note that it was a border search, made within a few feet of an international boundary of the United States. Such searches constitute, in terms of the application of the fourth amendment to the Constitution, a unique category. They do not require a showing of probable cause. Blefare v. United States, 362 F.2d 870. 874 (9th Cir. 1966); King v. United States, 348 F.2d 814, 817 (9th Cir.) cert. denied, 366 U.S 926, 86 S. Ct. 314, 15 L. Ed. 2d 339 (1965); Witt v. United States, 287 F.2d 389, 391 (9th Cir.), cert. denied, 366 U.S. 950, 81 S.Ct 1904, 6 L. Ed. 2d 1242 (1961);² Murgia v. United States, 285 F.2d 14, 17 (9th Cir.), cert. denied, 366 U.S. 977, 81 S. Ct. 1946, 6 L. Ed. 2d 1265 (1961); Decca v. United States, 346 F.2d 158 (5th Cir. 1965) (per curiam); Mansfield v. United States, 308 F.2d 221 (5th Cir. 1962).³  'The mere crossing of the border is sufficient cause for such a search.' Henderson v. United States, 390 F.2d 805 (9th Cir. 1967). Such border checks are also excepted-- along with those incident to a lawful arrest or justified by the 'exigent circumstances' or 'emergency' principle, see Schmerber v. California, 384 U.S. 757, 770-771, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)-- from the general requirement that searches be made pursuant to judicially issued warrants; nor is consent or a 'reliable informant' or a supporting arrest required in order for such a search to be sanctioned. Alexander v. United States, 362 F.2d 379, 382 (9th Cir.), cert. denied, 385 U.S. 977, 87 S. Ct. 519, 17 L. Ed. 2d 439 (1966), and cases cited therein; Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967); Valadez v. United States, 358 F.2d 721, 722 (5th Cir. 1966).

This extremely flexible application of the fourth amendment finds both illustration and support in federal border control legislation, which grants to border officials authority of the 'broadest possible scope.' United States v. Rodriguez, 195 F. Supp. 513, 515 (S.D. Tex. 1960), aff'd, 292 F.2d 709 (5th Cir. 1961); cf. King v. United States, 348 F.2d 814 (9th Cir.), cert. denied, 382 U.S. 926, 86 S. Ct. 314, 15 L. Ed. 2d 339 (1965); Denton v. United States, 310 F.2d 129, 132 (9th Cir. 1962); Witt v. United States, 287 F.2d 389, 391 (9th Cir.) cert. denied, 366 U.S. 950, 81 S. Ct. 1904, 6 L. Ed. 2d 1242 (1961); Morales v. United States, 378 F.2d 187 (5th Cir. 1967); Thomas v. United States, 372 F.2d 252 (5th Cir. 1967); Marsh v. United States, 344 F.2d 317, 324 (5th Cir. 1965); Kelly v. United States, 197 F.2d 162 (5th Cir. 1952); Landau v. United States, Attorney, 82 F.2d 285, 286 (2d Cir.), cert. denied, 298 U.S. 665, 56 S. Ct. 747, 80 L. Ed. 1389 (1936); United States v. Yee Ngee How, 105 F. Supp. 517, 519-520 (N.D. Cal. 1952). Customs officials are authorized by 19 U.S.C. 482 (1964) to: 'stop, search, and examine * * * any vehicle, beast, or person, on which or whom * * * they shall suspect there is merchandise which is subject to duty * * *.' And 19 U.S.C 1581(a) (1964) authorizes such officials to 'examine, inspect and search * * * any person' on board a vessel or in any vehicle within a customs-enforcement area. See also 19 U.S.C. 1582 (1964), and as to immigration officials, 8 U.S.C. 1357(c) (1964). The extraordinary extent of these powers has been justified by reference to traditional principles of sovereignty and to the paramount interest of any country in 'national self preservation.' Carroll v. United States, 267 U.S. 132, 154, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Fernandez v. United States, 321 F.2d 283, 285 (9th Cir. 1963), and embodies congressional authorization of long standing. As the Supreme Court has recognized, the same Congress which 'proposed for adoption the original amendments to the constitution' enacted the first statute giving broad authority to customs agents to search for and seize contraband, thus indicating that 'the members of that body did not regard searches and seizures of this kind as 'unreasonable' * * *.' Boyd v. United States, 116 U.S. 616, 623, 6 S. Ct. 524, 29 L. Ed. 746 (1886).

What has been said does not mean, however, that every border search, no matter what its justification, scope, or methods, is totally exempt from the requirements of the fourth amendment. Henderson v. United States, 390 F.2d 805 (9th Cir. 1967); Rivas v. United States, 368 F.2d 703, 710-712 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S. Ct. 980, 17 L. Ed. 2d 875 (1967); Thomas v. United States, 372 F.2d 252, 254 (5th Cir. 1967); Marsh v. United States, 344 F.2d 317, 324 (5th Cir. 1965). Practical considerations, of course, properly play a large part in any determination whether, in particular circumstances, a search meets that amendment's requirements. See Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); Hernandez v. United States, 353 F.2d 624, 628 (9th Cir.), cert. denied, 384 U.S. 1008, 86 S. Ct. 1972, 16 L. Ed. 2d 1021 (1966).

III. THE REASONABLENESS OF THE SEARCH IN LIGHT OF THE INFORMATION KNOWN BY THE OFFICERS

In making his argument that the search to which he was subjected was unreasonable, appellant of course emphasizes the fact that the heroin was taken from a body cavity. This factor, he contends, renders inapplicable the rules governing 'routine' border searches.

In Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) the Supreme Court outlined its position with regard to searches below the surface of the body in a situation analogous to that involved here. In Schmerber there had been a lawful arrest, a circumstance which ordinarily makes proper a thorough search of an individual arrested, even though there exists neither a warrant not probable cause to believe that contraband, weapons, or relevant evidence will be found. In that sense, a search pursuant to a proper arrest is similar to a border search. The extraction of a blood sample that was involved in Schmerber was held, however, to be governed by a somewhat more restrictive rule:

'We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body * * * the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but intrusions which are not justified in the circumstances, or which are made in an improper manner. * * *

' * * * * '* * * The interests in human dignity and privacy which the Fourth Amendment protects forbid any such (bodily) intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.'

384 U.S. at 768-770, 86 S. Ct. at 1834

In Rivas v. United States, 368 F.2d 703, 710-712 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S. Ct. 980, 17 L. Ed. 2d 875 (1967), and Henderson v. United States, 390 F.2d 805 (9th Cir. 1967), while admitting the difficulty of defining such a 'clear indication' standard precisely, we interpreted that language to mean that something less than 'probable cause,' yet more than 'mere suspicion,' is required to justify a body cavity search; and we held that rule to apply even to searches made at an international border.

The trial court concluded that there was evidence in the record sufficient to constitute such a 'clear indication.' I agree.

Appellant argues that Inspector Teela's observation of a greasy substance on appellant's buttocks cannot be attributed to the officer who apparently ordered the rectal probe, see R.T. 41, 70, 89-90, and that that information therefore cannot be considered as a part of the evidence with reference to which the 'clear indication' standard is to be applied. I may adopt this position arguendo, without passing upon the reasoning urged in support of it,⁴  since I feel that even apart from this observation made by Teela a reasonable man could conclude there existed a clear indication that appellant was hiding narcotics within his body-- and, therefore, that the resulting rectal search was a reasonable one.

First: appellant's arms bore the telltale needle marks that characterize the veins of an addict, or a habitual user of narcotics.

Second: there was every indication that appellant and his companion were under the influence of narcotics when they crossed the border. The informed lay opinion of Inspector Teela and other officers to this effect was confirmed by Dr. Salerno's diagnosis, which was based on much substantiating data. In particular, three fresh needle marks were observed, indicating that an injection had recently been made-- 'within hours.'

Third: appellant presented no certificate of registration under 18 U.S.C. 1407 (1964) as a narcotics user or addict. R.T. 77.⁵ 

Fourth: as the experienced trial judge indicated, one the conclusion is reached that an American citizen crossing into this country at San Ysidro is a user of narcotic drugs-- particularly when he has not registered under 18 U.S.C. 1407 and when he is then under the influence of narcotics-- there is a reasonable basis for the inference that he is 'carrying narcotics somewhere, because the supply is easy to get in Tijuana, it is cheap,' R.T. 132-33, and the value of such drugs is much greater in this country than in Mexico.

Fifth: appellant's car, R.T. 79, as well as his clothes and his person, had been searched, so that the possibility of his carrying narcotics anywhere other than within his body-- either in his stomach or in his rectum-- was negligible.

Bearing in mind that the 'clear indication' standard of Rivas and Henderson is somewhat less stringent than that of 'probable cause,' I believe that these factors in combination provide a clear indication that appellant was hiding contraband narcotics in either his stomach or his rectum; and this conclsuion justifies the rectal probe conducted by Dr. Salerno, rendering it in that respect 'reasonable.' The possibility that appellant had swallowed narcotics, intending to regurgitate them later was much less likely than that he had hidden them in his rectum. The testimony of Dr. Salerno, R.T. 38, suggests what is undoubtedly common knowledge among persons who traffic in narcotics-- that the rectum is a considerably safer repository for such drugs than the stomach; the acidic nature of the gastric juices in the latter organ makes the swallowing of almost any flexible container of narcotics quite dangerous. Cf. Blefare v. United States, 362 F.2d 870, 873, 873-874 (9th Cir. 1966). It is perhaps for this reason that-- insofar as the cases we have had before us over the past decade provide a basis for judgment-- by far the majority of those persons who utilize body cavities in attempting to bring narcotics into this country hide the contraband drugs in their rectums (or, in the case of women, in their vaginas). Compare Henderson v. United States, 390 F.2d 805 (9th Cir. 1967) (vagina); Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S. Ct. 980, 17 L. Ed. 2d 875 (1967) (rectum); Denton v. United States, 310 F.2d 129 (9th Cir. 1962) (rectum); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960), cert. denied, 366 U.S. 977, 81 S. Ct. 1946, 6 L. Ed. 2d 1265 (1961) (rectum); and Blackford v. United States, 247 F.2d 745 (9th Cir. 1957); cert. denied, 356 U.S. 914, 78 S. Ct. 672, 2 L. Ed. 2d 586 (1958) (rectum), with Blefare v. United States, 362 F.2d 870 (9th Cir. 1966) (stomach).⁶ 

It is true that our opinion in Rivas makes some mention that it would be 'better' if findings of 'clear indication' were made by the judiciary rather than by law enforcement authorities. 368 F.2d at 711. However, it is not clear how much weight should properly be given to this language, for its premise would seem to be in conflict with the holding in that case, since endorsed in Henderson v. United States, 390 F.2d 805 (9th Cir. 1967), to the effect that the 'clear indication' standard is less stringent than that of probable cause. According to the fourth amendment, a warrant may issue only on a showing which meets the latter standard. In any case, I believe that the threat to appellant's health caused by the danger that the hidden narcotics would be absorbed by his body constituted an 'emergency'-- similar to those relied on in Rivas and Schmerber-- justifying a warrantless search.

Appellant's first two allegations of error must thus be rejected, and the only remaining question concerns whether there was an unconscionable use of force in the search.

IV. THE REASONABLENESS OF THE METHODS USED IN THE SEARCH

Even when initiation of a body cavity search is justified, of course, excessive or unreasonable techniques may not be used in carrying out such a search. The evidence cited in part I of this opinion indicates clearly, I believe, that the search was not improper in terms of the methods used. Of prime significance is the fact that, as was the case with respect to the blood sample in Schmerber, removal of the heroin was made by a doctor using medically accepted methods. Moreover, a rectal probe is a relatively ordinary and uncomplicated procedure. It may well be that appellant experienced some pain during the extraction. However, it seems clear that to a considerable extent such pain was a direct result of his own resistance-- a circumstance which certainly lessens the significance of that fact. Although the analogy is not exact, it may be noted that there are many ways in which individuals can cause normal law enforcement procedures to have painful consequences for themselves: it would not, for instance, necessarily be improper for police to refuse to remove handcuffs from a prisoner who, by vigorously twisting his hands and arms, managed intentionally to lacerate his wrists. Furthermore, although it relates primarily to the justification for continuing the probe, the fact that the appellant began to resist physically only after Dr. Salerno had palpated the packets in his rectum is not entirely irrelevant to the reasonableness of the methods used. Finally, the possibility that heroin left in appellant's rectum would seriously threaten his life-- certainly bears on the reasonableness of the methods used; and the impact of this possibility is only diminished, not destroyed, by the fact that belief regarding the heroin's presence was based on inference rather than actual knowledge. Cf. Schmerber v. State of California, 384 U.S. 757, 770-771, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), with respect to the foreseeable effects of time on the alcohol content of the arrestee's blood in that case.

The abrasion on appellant's wrist is of relatively minor significance. It cannot be inferred that the 'redness' testified to by several witnesses was serious, or that it was anything but the incidental result of the chafing of appellant's handcuffs. Indeed, as soon as the attention of the officers was drawn to the matter, the handcuffs were loosened.

In view of these considerations, then, I cannot possibly categorize the officers' course of action here, as did Mr. Justice Frankfurter with respect to the police conduct involved in Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 210, 96 L. Ed. 183 (1952), as 'too close to the rack and the screw' to be permitted. The search to which appellant was subjected is quite different from those extreme measures which might be thought to 'shock the conscience.' Cf. Blefare v. United States, 362 F.2d 870, (9th Cir. 1966); Blackford v. United States, 247 F.2d 745 (9th Cir. 1957), cert. denied, 356 U.S. 914, 78 S. Ct. 672, 2 L. Ed. 2d 586 (1958); D. McIntyre & N. Chabraja, The Intensive Search of a Subject's Body and Clothing, 58 J.Crim.L.C.&P.S. 18, 22-23 (1967).⁷ 

Since the search was not unreasonable either with respect to its justification or in the methods used, the judgment of conviction should be affirmed.

On Petition ORDER For Rehearing

PER CURIAM:

The petition for rehearing is denied. Judge BARNES would grant the petition.

A judge in regular active service having requested that the court be polled on the question of in banc rehearing, the requested poll was taken. A majority of the court's judges in regular active service has determined that a rehearing in banc shall not be conducted, and it is so ordered.

Four of the court's judges in regular active service. Judges CHAMBERS, BARNES, KOELSCH, and JAMES M. CARTER, have directed that it be noted herein that they would have reheard the case in banc.