Denton v. United States, 17820.

• Citation: 310 F.2d 129
• Decision Date: 16 November 1962
• Docket Number: No. 17820.,17820.
• Parties: Ronald Edward DENTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

310 F.2d 129 (1962)

Ronald Edward DENTON, Appellant, v. UNITED STATES of America, Appellee.

No. 17820.

United States Court of Appeals Ninth Circuit.

November 16, 1962.

George W. Oglesby, Nogales, Ariz., for appellant.

Charles A. Muecke, U. S. Atty., and Jo Ann D. Diamos, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before CHAMBERS and JERTBERG, Circuit Judges, and CLARK, District Judge.

CHASE A. CLARK, District Judge.

After waiver of indictment on December 12, 1961, information was filed against the Defendant, Appellant here, containing two counts.

Count one charges: "On or about the 3rd day of December 1961, within the District of Arizona, Ronald Edward Denton did, in violation of 21 USCA 174, fraudulently and knowingly import, and cause to be imported, and bring into the United States of America, contrary to law, approximately thirteen (13) grams of heroin, a narcotic drug".

Count two charges: "on or about the 3rd day of December 1961, within the District of Arizona, the Defendant, Ronald Edward Denton, in violation of 18 USC 111, wilfully, knowingly and forceably resisted, opposed and assaulted Robert J. Eyman, a Customs Agent, well knowing said agent was engaged in the performance of his official duties, to-wit: conducting a border search of the said defendant, said Robert J. Eyman having been a duly appointed and qualified Customs Agent of the United States Government".

On December 28, 1961, Motion to Suppress Evidence was filed.

On January 5 and 6, 1962, hearing on said motion was had and at the conclusion of the hearing the motion was denied.

Defendant waived trial by jury and on January 11, 1962, the defendant was tried before the Court and convicted on both counts of the information. The matter is here on appeal from this conviction.

Appellant's assignment of error is: "The Court erred in holding that the search of the defendant was legal and in refusing to grant defendant's motion to suppress the evidence".

We find nothing in appellant's brief which attacks the validity of the judgment of conviction imposed on appellant under Count 2 of the Information which charges a violation of 18 U.S.C. § 111, which in substance charges the appellant with having assaulted a federal officer while in the performance of his duties. So we need only concern ourselves with appellant's one and only assignment of error, which goes to Count 1 of the information.

The matter was submitted to this Court on briefs, without oral argument.

The evidence submitted to the trial Court at the hearing on the motion to suppress, and at the trial discloses the following facts: Robert J. Eyman an investigator with the United States Treasury Department, on the evening of December 3, 1961, was advised by an informant, who, according to Agent Eyman, had furnished reliable information on previous occasions, — that a person answering the description of the defendant, as to physical characteristics and clothing worn, had been seen talking to a known narcotic peddler in Nogales, Sonora, Mexico, and negotiating for the purchase of a quantity of heroin.

Agent Eyman immediately placed lookouts at two inspection stations at Nogales, Arizona; Moberly Avenue station and Grand Avenue station.

Later during the evening of December 3, 1961, defendant approached the Grand Avenue Station, from Mexico. Ray Melvin Tudor, inspecting agent or officer on duty at the Grand Avenue Station at the time, observed the defendant approach on foot, recognizing him from Agent Eyman's description. Officer Tudor inquired of the defendant if he was bringing anything from Mexico and was told by the defendant that he didn't have anything. Agent Eyman, who was also at the Grand Avenue station at the time of the arrival of the defendant, asked defendant to place his personal effects on a counter, this was done and the effects were examined by Agent Eyman. Defendant was asked to disrobe, which he did, and examination of defendant's person was made by Agent Eyman, who testified that he saw a shiny clear substance, similar to vaseline, in and around the rectal area of the defendant. Agent Eyman asked the defendant if he was carrying any narcotics and defendant stated that he was not and also stated that he had never been in Nogales before. Agent Eyman asked defendant if he would object to a physical examination by a doctor and the defendant agreed to such examination. Defendant contends that he did not consent to such examination.

Agent Eyman asked Customs Agent Leonard Viles and Doctor Alvin George Koslin, United States Public Health Physician to come to Grand Avenue inspection station. Upon arrival at the station Viles recognized defendant as a suspected smuggler whom he had searched some five months previously, stating that at that time he had not been examined by a physician. When Doctor Koslin arrived he, the defendant, Agent Eyman and Agent Viles walked to the Public Health Office which is in the Immigration Building adjacent to the Grand Avenue inspection station. Upon arrival at Doctor Koslin's office defendant stated that he objected to the examination. In fact the record discloses that he, thereafter, continued to object to the examination. The record also discloses that Agent Eyman at about that time had a telephone conversation with the United States District Attorney, and it was decided that the examination would be made, forcibly if necessary, and Agent Eyman so advised the defendant.

Doctor Koslin attempted several times to make an examination of the rectum and anal canal. At times during the attempted examination the defendant stood up, which action terminated the attempt. On one occasion the defendant stood up suddenly, causing the Doctor to fall to his knees. He also pushed Agent Eyman aside, at which time Agent Eyman placed the defendant under arrest for assaulting an officer.

Doctor Koslin used accepted medical procedures and techniques in the attempted examinations. On one attempt he felt a foreign object of rubbery consistency.

Doctor Koslin called Doctor Potzler, a duly licensed, qualified, practicing physician and upon arrival Doctor Potzler asked the defendant if he would submit to another rectal examination, defendant agreed. This examination was not successful nor completed because of the noncooperative attitude of the defendant.

Doctor Potzler requested permission to insert a suppository in an effort to produce a bowel movement. At this time the defendant agreed but later objected generally to the entire proceedings. However, a suppository was inserted and in the following thirty or forty minutes of waiting, no bowel movement resulted. Doctor Potzler then made one more unsuccessful attempt at a rectal examination.

Doctor Potzler then requested permission to give the defendant some nembutal, intravenously. It was explained to the defendant that the dosage would not be enough to put him to sleep, and the defendant agreed. Nembutal is classed as a fast acting sedative, of short duration and not an anesthetic. While the injection was going on the defendant verbally objected and physically resisted, at one time suddenly throwing up his hands. He picked up the surgical table and threw it in the direction of the officers, and also struck Agent Eyman with his fist. The record shows that at no time was the defendant struck by any of the officers or agents. After the defendant became quiet and settled, Doctor Potzler attempted another rectal examination, at this time he felt a foreign object.

After these attempted examinations defendant was told to put on his clothes and was then taken to the Santa Cruz County Jail by Agent Viles,...