247 F.2d 745 (9th Cir. 1957), 15427, Blackford v. United States

Docket Nº:15427.
Citation:247 F.2d 745
Party Name:Charles E. BLACKFORD, Appellant, v. UNITED STATES of America, Appellee.
Case Date:July 10, 1957
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 745

247 F.2d 745 (9th Cir. 1957)

Charles E. BLACKFORD, Appellant,

v.

UNITED STATES of America, Appellee.

No. 15427.

United States Court of Appeals, Ninth Circuit.

July 10, 1957

Rehearing Denied Sept. 30, 1957.

body did not come within purview of testimonial compulsion and introduction of such evidence did not violate defendant's privilege against self-incrimination. U.S.C.A.Const. Amends. 4, 5.

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William F. Gavin, San Diego, Cal., for appellant.

Laughlin E. Waters, U.S. Atty., Los Angeles, Cal., Howard R. Harris, Harry D. Steward, San Diego, Cal., Louis Lee Abbott, Asst. U.S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, CHAMBERS and BARNES, Circuit Judges.

BARNES, Circuit Judge.

Appellant was indicted on charges of illegally importing (Count I) and concealing (Count II) narcotics. 1 He waived jury trial and was found guilty by the District Court. The narcotics consisted of one ounce three hundred and thirty-three grams of heroin, which was introduced in evidence. The heroin was carried over the Mexican border cached in appellant's rectum. It was the prime evidence used to convict him. Appellant made a timely motion to suppress this evidence based on alleged deprivation of his constitutional rights under the Fourth and Fifth Amendments. The motion was denied. The only question before us is whether appellant's constitutional

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rights were transgressed by the participation of federal law enforcement officers in two separate attempts to effect the removal of the narcotics. The facts upon which appellant's claim is grounded are as follows.

On the night of July 31, 1956, appellant Charles Blackford, an American citizen, walked across the International Boundary Line at the San Ysidro, California, port of entry. He was stopped by the customs officer on duty inspecting pedestrian traffic, asked if he had acquired any article in Mexico, and upon replying in the negative, was requested to, and did accompany the officer into the customs building for a personal examination. He was requested to, and did, remove his coat. He thereby revealed numerous puncture marks in the veins of his arms. Inquiry elicited the admission that Blackford was 'chippying' (i.e., using narcotics occasionally), and that he was then on parole from a California state conviction for possession of marijuana. He was then directed to disrobe entirely. This he willingly did. No contraband was discovered in his clothing or on his person at that time. However, the customs officer, joined by an associate, noticed a substantial quantity of foreign substance of a greasy nature outside appellant's rectum. Blackford, in answer to questioning, denied that he was carrying narcotics. Interrogation was continued.

According to the officers, Blackford then admitted that he had about a 'spoon' (meaning a tablespoon) of heroin encased in a rubber condom in his rectum. Pursuant to the officer's suggestion, appellant sought to remove it himself by forcing a bowel movement, but was unsuccessful. Appellant was then placed under arrest and handcuffed. According to Blackford, he never admitted at the border he was carrying narcotics, and he denied that he had endeavored to remove same. The trier of fact accepted the officers' version of the conversations and events that allegedly took place.

To return to the narrative, Customs Agent Polite, following Blackford's unsuccessful attempts at self-help, took him to the San Diego County Jail. There they awaited the arrival of Dr. Harry Depew, a qualified physician and surgeon, licensed to practice medicine by and in the State of California. Depew informed appellant that he planned to make a rectal examination. Appellant denied that he had secreted any narcotics and then he asked if he could object to the examination. He was apprised that he could protest but that the examination was going to be made anyway. Blackford undressed without assistance. Dr. Depew attempted manual removal of the object. Appellant refused to cooperate, largely by refusing to bend over, and tried by various movements to impede the examination. Dr. Depew was able to determine the presence of some foreign object in the anal cavity but was unable to effect its removal.

Agent Polite then took Blackford to the United States Naval Hospital at San Diego, California. Here appellant's resistance sharpened. Two hospital corpsmen were required to exert force to undress him and to hold his arms and to force him to bend his body to permit Agent Polite to remove his trousers and shouts, and Dr. Eugene B. Gregory, also a qualified physician, to make a manual examination. When unable to reach the cache manually, Dr. Gregory undertook to remove the object with the aid of an anoscope and forceps. A portion of an outer condom surrounding the narcotics tore during this attempt. This gravely alarmed appellant and he thenceforth cooperated fully. After a number of enemas were administered to appellant under Dr. Gregory's direction and supervision, in which proceedings appellant cooperated willingly, the object, namely, the heroin, within an inner and outer rubber sheath, was finally recovered.

The District Court found that appellant had consented to the preliminary examination at the customs building but not to the examinations by Doctors Depew and Gregory until appellant learned that the condom had broken, at which time he 'consented.' The District

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Court concluded that none of appellant's constitutional rights had been violated.

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. Though their ultimate goal be the same, the Amendments are the product of varied historical experience and they combat different evils. 2 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. We deal first with the Fourth Amendment.

The Fourth Amendment protects against invasion of the right of privacy. To effectuate its 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. 3 This is not a constitutional mandate, but a rule of evidence, and hence has no application to state prosecutions. 4 Thus, if Blackford's rights were infringed under this Amendment, the narcotics were inadmissible, and the judgment of conviction must be reversed. This is also true if his Fifth Amendment rights were violated. 5

Does this search and seizure transcend the bounds of the Fourth Amendment?

The Fourth Amendment has a rich heritage. Its genesis lies in the fervent discontent aroused in the American colonies in the period antedating the Revolution, by the flagrant abuse of 'writs of assistance.' It was the pernicious use of these writs which led James Otis, Attorney General of the Massachusetts Bay Colony, to resign in protest and utter an historic speech of which John Adams later wrote, 'American independence was then and there born.' 6 Resentment against the general search warrant ran high. Intense and widespread sentiment demanded relief from the ransacking of private dwellings. And so the Fourth Amendment was born. 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. 7

An ancient exception to the search and seizure prohibition is the right to search the person of an individual incident to a lawful arrest.

'* * * no one questions the right, without a search warrant, to search the person after a valid arrest. The right to search the person incident to arrest always has been recognized in this country and in England. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652. Where one had been placed in the custody of the law by valid action of officers, it was not

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unreasonable to search him.' United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653.

and,

'* * * whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.' Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543.

E.g., Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; United States v. Heitner, 2 Cir., 149 F.2d 105. The underlying rationale for the exception is that if the culprit, in the vernacular, 'be caught with the goods, ' the officers should have the right to disposes him of the instrumentalities or fruits of the criminal activity. See People v. Chiagles, 237 N.Y. 193, 196, 142 N.E. 583, 584, 32 A.L.R. 676. Another reason is, of course, to disarm the suspect. 8

That doctrine is applicable to the instant facts. The arrest was lawful. An arrest without warrant is valid if the officer has probable cause for believing that the suspect has or is committing a felony. United States v. Rabinowitz, supra; Carroll v. United States, supra; Cavness v. United States, 9 Cir., 187 F.2d 719. Probable cause exists where

'* * * 'the facts and circumstances within their (the officers') knowledge and of which they had reasonable trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.' Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, quoting Carroll v. United States, supra, 267 U.S. at page 162, 45 S.Ct. at page 288.

The customs officer...

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