King v. United States

• Decision Date: 05 September 1958
• Docket Number: No. 17027.,17027.
• Citation: 258 F.2d 754
• Parties: Donald Eugene KING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

258 F.2d 754 (1958)

Donald Eugene KING, Appellant, v. UNITED STATES of America, Appellee.

No. 17027.

United States Court of Appeals Fifth Circuit.

September 5, 1958.

Jacob G. Hornberger, Laredo, Tex., for appellant.

Charles L. Short, Asst. U. S. Atty., Laredo, Tex., Malcolm R. Wilkey, Asst. U. S. Atty., Washington, D. C., William B. Butler, U. S. Atty., Houston, Tex., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

Convicted upon a two-count indictment for importing and facilitating the transportation of heroin into the United States in violation of Section 174, Title 21 U.S.C.A. as amended,¹ appellant Donald Eugene King appeals, assigning one ground of error of the trial court, to-wit, its denial of his motion to suppress evidence that he was subjected to fluoroscopy at the hands of a government physician resulting in the discovery of a foreign object in his abdomen which, when recovered through the use of Epsom Salts, turned out to be one gram of heroin enclosed in a plastic container.² The court heard extensive oral testimony on the motion and decided it after consideration of briefs. The written opinion rendered by it³ contains a full statement of the facts and the law and, with what was there written, we are in complete agreement, finding, as we do, that the decision is amply supported by the evidence.⁴ Based upon the facts and the reasoning of the trial court's opinion, we think the motion to suppress was properly denied.

We feel constrained to supplement the opinion of the trial court in one or two particulars to comment upon phases of the case as it was presented to us. We are unable to agree with the casual disposition appellant seeks to make of some of the authorities upon which the trial court placed greatest reliance. Foremost among these is the decision of the Court of Appeals of the Ninth Circuit in Blackford v. United States, 1957, 247 F.2d 745⁵ (in which the Supreme Court has, since Judge Connally's opinion, denied certiorari, 1958, 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586). Of that decision appellant, in his brief, said: "The decision reached by the court in the Blackford case is a dangerous one and an incorrect one." We reject that statement in toto and we agree with the result there reached by the majority.

The reasoning of the majority opinion and the concurring opinion of Judge Chambers strike a fine balance between a strict regard for the rights of the individual and the avoidance of the sterility which would follow efforts at law enforcement if appellant's position should be accepted as sound.⁶

Blackford and the well reasoned and documented case of United States v. Yee Ngee How, D.C.N.D.Cal.1952, 105 F. Supp. 517, are particularly valuable in their careful analysis of the cases demonstrating that searches of persons entering the United States from a foreign country are in a separate category from searches generally. Both cases cite Boyd v. United States, 1886, 116 U.S. 616, at pages 623-624, 6 S.Ct. 524, at page 528, 29 L.Ed. 746, in which this language is used:

"The search for and seizure of * * * goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man\'s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not. * * * the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. * * *

"* * * in the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment; * * *"⁷

Appellant ignores entirely the well settled principle that detention and search are of the very essence of the enforcement of the laws governing entry of persons into this country and of the detection and punishment of smuggling.⁸ All of the action in this case took place between Saturday midnight and Sunday afternoon. Appellant was entering the United States, riding in a taxicab in company with another man. Everything done by the officers and the doctor was so clearly reasonable and within the letter and the spirit of the law governing search and capture of contraband that we do not feel that this opinion should be lengthened by discussing which of the recent cases of the Supreme Court⁹ developing the "brutal and offensive" doctrine applies most nearly to the facts here.

The judgment of the court below is, in all things,

Affirmed.

1 "Whoever...