368 F.2d 703 (9th Cir. 1966), 20556, Rivas v. United States

Docket Nº:20556.
Citation:368 F.2d 703
Party Name:Moises RIVAS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 08, 1966
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 703

368 F.2d 703 (9th Cir. 1966)

Moises RIVAS, Appellant,

v.

UNITED STATES of America, Appellee.

No. 20556.

United States Court of Appeals, Ninth Circuit.

November 8, 1966

Page 704

James R. Hagan, Menlo Park, Cal., for appellant.

Manuel L. Real, U.S. Atty., John K. Van de Kamp, Robert L. Brosio, Phillip W. Johnson, Asst. U.S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and CECIL, [*] Circuit Judges.

BARNES, Circuit Judge:

This is an appeal from the two count conviction of appellant (a) of the unlawful importation of narcotics, and (b) of the unlawful concealment of narcotics, knowingly brought into the United States in violation of law. (21 U.S.C. 174). The 'narcotic' was twenty-nine Percodan tablets. Appellant was sentenced to two five-year concurrent sentences, with a recommendation for treatment for narcotic addiction, and for vocational training.

Jurisdiction existed below pursuant to 18 U.S.C. 3231, and exists here under 28 U.S.C. 1291, 1294.

Two errors are charged by appellant. One is in the instructions relating to the alleged narcotic; the second is the introduction into evidence of alleged narcotics obtained through an unlawful search of appellant's rectum. 1

Page 705

We first consider the lawfulness of the search. The legal question presented is whether the search here made of appellant's rectum goes so far beyond the limits defined by previous decisions in this troubled area, that the search became unlawful as violative of the reasonableness required by Article IV of the Amendments to our United States Constitution.

This issue was raised in a timely manner below, and a hearing on appellant's motion to suppress the evidence was had. The trial court made findings of fact and conclusions of law, holding the search reasonable.

We quote both the trial judge's findings, and his conclusions on the motion to suppress evidence (see also, oral findings; R.T. p. 69, line 9 to p. 73, line 12):

13'FINDINGS OF FACT

I

'The defendant crossed the international border from Mexico into the United States on April 16, 1965, about 2:40 p.m., and at that time he presented a registration certificate pursuant to Title 18, United States Code, Section 1407. The purpose of this statute was to make a classification of persons who were narcotic prone in order that they might be given suitable attention at the border when they entered the United States.

II

'That when this certificate was presented to Customs Inspector Lloyd Hanson, he observed the defendant to be nervous and he observed the defendant's arms and saw what he believed to be fresh needle marks. Therefore, he called Customs Agent Paul Samaduroff to make a further investigation of the matter.

III

'Prior to Customs Agent Samaduroff's arrival at the border, Inspector Hanson made a personal search of the defendant, MOISES RIVAS. During this inspection, the defendant refused to spread his buttocks cheeks in order that an observation might be made of his rectum. Due to this refusal, Inspector Hanson concluded that the defendant might possibly be concealing something in his rectum. As a result, the defendant was taken by Customs Agents Samaduroff and Gore to the office of Dr. Paul Salerno.

IV

'The defendant, MOISES RIVAS, went willingly and without objection to the doctor's office. At the time he was transported to the doctor's office, he was not then under arrest but was in custody pursuant to procedures for a border search.

V

'At the doctor's office the defendant consented to an examination, made by the doctor, of his arms and eyes. Upon termination of said examination, the doctor formed an opinion that due to observing fresh needle marks and scarring on the defendant's arms and the defendant's sluggish pupil response to light variations, the defendant was under the influence of a narcotic drug. This information was passed on to and was then known by the Customs agents.

VI

'That due to this information and the defendant's refusal to allow Inspector Hanson to observe the rectal area of the defendant, the Customs agents requested Dr. Salerno to make a search of the defendant's rectal area. The defendant stated he would not consent to such a rectal examination. Due to this refusal the Customs agents called for additional assistance and Customs Agent Melvin Moore arrived at the doctor's office. The defendant was again informed that a rectal examination would be made and he stated, 'You will have to force me to submit to a rectal examination.'

Page 706

VII

'That after this refusal by the defendant to consent to the rectal examination, the Customs agents informed the defendant of Title 18, United Stated Code, Section 111, impeding or assaulting a federal officer. The defendant was told that it was their right and duty to have a digital examination made and that when he resisted this examination, the Customs officers then placed the defendant under arrest for impeding a federal officer in the performance of his duty.

VIII

'This was a lawful arrest whereas the rectal examination was not made incidental to said arrest. The rectal examination was made upon the information obtained from Customs Inspector Hanson and Dr. Paul Salerno. The arrest for impeding a federal officer was a legal arrest which produced a further right to search as well as the continued right of a border search.

IX

'That after this arrest the defendant continued to refuse to permit the rectal examination but with the information that the defendant was nervous when he entered the United States, that he had come back as a registrant under Section 1407 of Title 18 of the United States Code, that needle marks were observed on his arms both by Inspector Hanson and subsequently by Dr. Salerno, and Dr. Salerno determined that the needle marks were fresh and that the defendant was under the influence of narcotics, the Customs agents ordered physical force to be used to conduct the rectal examination.

X

'The rectal examination was performed with a single lubricated rubber-gloved finger of the same manner and type of digital examination made when a male patient goes to a doctor's office for a prostrate examination, which examinations are conducted continuously in doctor's offices throughout the country.

XI

'That during this examination some slight discomfort in connection with insertion of the finger into the rectum results. It is more painful to insert foreign objects into the rectum than it is to remove objects from it. The defendant was not hurt in body or tissue but was forcibly detained while the search was being made. That as a result of this search, contraband was obtained.

XII

'The Fourth Amendment of the United States Constitution does not protect defendants against a border search. Although this case differs from Blackburn and other cases cited, there was in this case sufficient grounds to constitute a search.

XIII

'The search was not inhuman nor did it offend the sense of decency or humane treatment of the defendant as guaranteed by the Fifth Amendment of the United States Constitution. The Lefkowitz case does not apply inasmuch as this was a border search and border searches are permitted to assure the integrity of the country from materials which might be brought in from abroad. The search is to prevent any sort of contraband, such as diamonds, watches, narcotics, or even espionage material, from being introduced into the United States. It is the right of the agents to protect the borders of the United States.

XIV

'There was no evidence that a doctor was available at the border and reasonable conduct by the Customs agent was to contact a doctor and take the defendant there immediately. The only delay that occurred was in the transportation of the defendant from the border to the doctor's office, besides the delay while awaiting an additional Customs agent to arrive inasmuch as defendant said he would not consent to the search. Thus, there was no illegal detention which might make inadmissible the evidence

Page 707

obtained in the search as it was conducted in a reasonable time after the entry of the defendant into the United States and made in reasonable conditions.

'CONCLUSIONS OF LAW

WHEREFORE, this Court makes the following conclusions of law:

I

'The arrest of the defendant for violation of Title 18, United States Code, Section 111, was a lawful arrest.

II

'The search made by Dr. Salerno was a legal search.

III

'The search made by Dr. Salerno was made in a medically approved manner and did not shock the conscience or offend a sense of justice.

IV

'The search made was a continuing border search with respect to time and distance from the border.

V

'The United States Government has an absolute right to a border search and no probable cause is necessary.

'JUDGMENT

'IT IS THE JUDGMENT OF THIS COURT that the motion of defendant MOISES RIVAS to suppress the evidence in Case No. 34815-SD, be, and the same is, hereby denied.' (C.T. pp. 20-25.)

After the completion of the evidence for the government, the defendant renewed his motion to suppress by moving for a judgment of acquittal on both counts, raising both the issue raised on this appeal. The motion was denied.

The trial court twice found (once by inference) 'sufficient grounds,' i.e., reasonable grounds, for making the search. (See oral findings, R.T. 71, lines 18-20.) In considering such trial court finding, we are required 'to give due weight to it.' Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407 (1963); Hernandez v. United States, 353 F.2d 624, 627 (9th Cir. 1965). Having given 'due weight' to the trial court's findings, we arrive at the same conclusion as did the trial judge.

In our review of the facts, we have examined the record thoroughly. The recital of facts in the briefs differs between the two parties. Accepting, as we must, the most favorable interpretation which fairly represents the facts in the record,...

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