362 F.2d 870 (9th Cir. 1966), 19825, Blefare v. United States

Docket Nº:19825.
Citation:362 F.2d 870
Party Name:John Emilio BLEFARE and Donald Michel, Appellants, v. UNITED STATES of America, Appellee.
Case Date:June 08, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 870

362 F.2d 870 (9th Cir. 1966)

John Emilio BLEFARE and Donald Michel, Appellants,

v.

UNITED STATES of America, Appellee.

No. 19825.

United States Court of Appeals, Ninth Circuit.

June 8, 1966

Carl L. Fabbroni, Richard E. Adams, San Diego, Cal., for appellants.

Manule L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Sec., J. Brin Schulman, Asst. U.S. Atty., Asst. Chief, Crim. Sec., Phillip W.

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Johnson, Asst. U.S. Atty., Ls Angeles, Cal., for appellee.

Before BARNES and ELY, Circuit Judges, and POWELL, District Judge.

POWELL, District Judge:

Appellants were convicted of smuggling heroin into the United States from Mexico. They seek reversal of their conviction on the ground that evidence which was admitted at their trial was illegally obtained in violation of their rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States of America.

The trial was by the court without a jury. Motion was made on behalf of Blefare only to suppress the narcotics and objection was made on behalf of each defendant to its introduction. The evidence consisted of two packets of 30% Pure heroin expelled from the stomach of appellant Blefare and three packets of 30% Pure heroin expelled from the stomach of appellant Michel. The evidence was admitted over objection and the appellants convicted. The sole question on this appeal is whether the evidence was illegally acquired.

We accept the principle that the reasonableness of a 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).

The determination was made on conflicting evidence. We must consider this evidence in the light most favorable to the Government to see whether it would support the determination of the trial court that the evidence was properly admissible over objection and that the judgment of conviction is supported by substantial evidence. Noto v. United States, 367 U.S. 290, 296, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961).

Prior to March 27, 1964, Customs Agent Quinlan of San Diego was advised of a meeting in Vancouver, British Columbia, Canada, at which there were present some members of the Royal Canadian Mounted Police and the appellant Blefare. At that meeting Blefare stated that on a previous trip on February 21, 1964, he had brought back from Tijuana, Mexico, to Canada about an ounce of heroin in his stomach. He stated that he and other people were aware of rectal probes being used and that they were now swallowing heroin to bring it across the border. All of the above information was related to Agent Quinlan by Agent Underwood of Seattle, Washington, who was personally present at the meeting in Vancouver.

Agent Quinlan confirmed that Blefare had in fact been in Tijana on February 21, 1964, and when he crossed the border had been subjected to a rectal probe which was negative. Agent Quinlan talked to Agents Gates and Marey who had questioned Blefare on February 21, 1964.

Agent Quinlan called the agent at Blaine, Washington, and as a result information reached Quinlan that Blefare and a companion, whose name was unknown, were down in the Tijuana area. Information was also received that Blefare was smuggling narcotics from Mexico through the United States into Canada and peddling them there. The license and description of Blefare's rented automobile were obtained and a lookout was posted at the port of entry.

About 11:15 p.m. March 27, 1964, the automobile of appellants was observed coming from Mexico. It was stopped by the customs inspector at the border crossing at San Ysidro, California. Blefare was driving and Michel was seated beside him. They stated they were Canadian Citizens and were bringing no merchandise from Mexico.

Appellants were taken to the search room and disrobed. A search of the clothing was negative. The arms of both appellants were heavily marked with needle marks and the experienced agents testified they evidenced the use of narcotics. Some venous marks were of recent origin. They were turned over to

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Agent Quinlan who accused them of carrying narcotics in their rectums or stomachs. This they denied and stated they would not object to being examined by a doctor. There was no indication of the nature of the examination.

The appellants were taken to the office of Dr. Paul R. Salerno in San Diego, about 12 miles from the border. He was a qualified physician and licensed to practice in California. He had a degree in medicine and also one in pharmacology. The doctor noted the old and new puncture marks on both arms of both appellants. He administered a rectal probe on each appellant with their consent but without result.

Saline solution was then given the appellants to drink to produce vomiting. They did not drink it as directed but sipped it without objection. Blefare was seen by the doctor to have regurgitated an object and reswallowed it. Dr. Salerno suggested the use of a tube procedure to recover the object.

The procedure used is to pass a soft polyethylene tube, four millimeters in diameter through the nose, down the throat and into the stomach. Fluid is allowed to flow by gravity into the stomach and vomiting is induced. There is no pump. The same procedure is medically approved to remove a substance from the stomach of a child. There is no pain but some discomfort. [*] 1

Blefare stated if he were allowed to rest he would not resist the use of the tube. He talked to Agent Gore alone and said that he, Blefare, had nothing in his stomach but that Michel had three bundles or heroin in his. When asked about his reswallowing he said he was only faking to allow Michel to regurgitate and stash the substance when the officers' backs were turned.

Blefare did not consent to the use of the tube. Two agents held his arms while a third held his head and the doctor inserted the tube. The tube was passed into his stomach and the solution passed through it. In a few seconds he expelled two packets containing the evidence in question. The same procedure was used on Michel, who did not object or resist, and resulted in the recovery of three packets containing the evidence here objected to.

No objection was made by Michel to the anal search or drinking of the saline solution or the insertion of the tube. He was not held. (RT 129) He agreed to 'an examination' by the doctor, but the details of the proposed examination were not explained to him. There was a conflict in the evidence as to whether handcuffs were applied prior to and during the recovery of the narcotics.

The doctor testified the objects were recovered in an approved manner under sanitary conditions and the same procedure would be used on an infant that had swallowed a toxic substance. 2

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Blefare testified he intended to remove the heroin from his stomach by induced vomiting or by the same method the doctor used. 3

Alternatives to the use of the stomach tube were discussed in the doctor's testimony. He testified that he considered and rejected the use of an enema. (RT 170). The use of a laxative would be dangerous. (RT 170, 172, 175). At the least one (the larger) of the two packets, marked as Exhibit 1, would not have passed through the pyloric sphincter, or the opening between the stomach and duodenum or small intestine, even with the use of laxatives. (RT 171).

The three packets of Exhibit 2 might not pass through this pyloric sphincter because of the variation in its size in different individuals. (RT 172). The average size of a pyloric sphincter is approximately the diameter of a writing pencil. (RT 175). In not knowing the exact sixe of the various packets, or the exact time they had been placed in the stomach juices, it would not be 'safe medical practice' to await their possible passage event with the use of a lavative.

The rubber containers can be destroyed by the action of gastric juices as they are high in hydrochloric acid content. Once the container is decomposed the

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heroin would be liberated into the stomach. There is risk of this occurring within 48 hours. The result would be death. Once the material is liberated, the absorption is rapid. The outer layer of the container retrieved from Blefare's stomach was already somewhat eroded.

A fluoroscope was not available in the doctor's officer. To use it effectively the patient would be required to swallow barium. (RT 187, 188). If he resisted, the barium would have to be placed in his stomach through the same tube as was used to insert the saline solution. The examination by fluoroscope would not remove the packets. It would only confirm what the agent and doctor knew to a reasonable certainty, that the packets were there. All of these events occurred about 1:30 a.m. on a Saturday morning, March 28, 1964.

To summarize, the agents knew before the search that Blefare had crossed the border five weeks earlier and had been searched without results, and that he stated he at that time had heroin in his stomach. They knew both appellants were addicts. Blefare was suspected of smuggling dope into Canada and selling it and Blefare told them Michel had heroin in his stomach and Blefare was seen to vomit and reswallow an object.

The search that resulted in the recovery of the questioned evidence was a border search. While it occurred at a place removed by 12 miles from the border, the process was a continuing one and the search was not so removed in time and distance as to cause it to lose its character as a border search. Such searches have been repeated subjects of judicial inquiry.

Ng Pui Yu v. United States, 352 F.2d 626, 630 (9th Cir. 1965); Taylor v. United States, 352 F.2d 328, 329 (9th Cir. 1965); King v. United States, 348 F.2d 814, 816-818 (9th Cir. 1965), cert. den'd 382 U.S. 926, 86 S.Ct. 314, 15 L.Ed.2d 339; ...

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