406 F.2d 366 (9th Cir. 1968), 21518, Huguez v. United States

Docket Nº:21518.
Citation:406 F.2d 366
Party Name:Oscar John HUGUEZ, Appellant, v. UNITED STATES of America, Appellee.
Case Date:September 30, 1968
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 366

406 F.2d 366 (9th Cir. 1968)

Oscar John HUGUEZ, Appellant,

v.

UNITED STATES of America, Appellee.

No. 21518.

United States Court of Appeals, Ninth Circuit.

September 30, 1968

         Rehearing En Banc Denied Feb. 12, 1969.

Page 367

         John H. Ely (argued), San Diego, Cal., for appellant.

         Phillip Johnson (argued), Asst. U.S. Atty., Edwin Miller, U.S. Atty., San Diego, Cal., for appellee.

         Before BARNES and ELY, Circuit Judge, and HAUK, [*] District Judge.

         HAUK, District Judge:

         Here raised in this appeal is an issue which is coming before this and other Federal Appellate Courts with increasing frequency-- the validity and constitutionality of border searches conducted without a search warrant by forcible and intrusive invasion of an intimate human body cavity. In this case the appellant's rectum was searched by forcible digital insertion and manipulation in locating and extracting four narcotic packets which were seized and introduced in evidence at appellant's trial.

         This issue necessarily raises the questions of 'reasonableness' of the search and seizure under the Fourth Amendment to the United States Constitution 1 and

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the permissibility of the techniques used under the 'due process' clause of the Fifth Amendment. 2

         Appellant Huguez (with a codefendant alleged to have aided and abetted him) was charged in two counts of a four count indictment with knowingly importing four ounces of heroin into the United States from Mexico, and with concealing and transporting it in violation of 21 U.S.C. § 174. 3 The third and fourth counts, charging the codefendant and appellant respectively with failing to register as narcotics addicts or users upon entry into the United States, in violation of 18 U.S.C. § 1407, 4 were both dismissed upon motion of the Government. 5

         On the day of trial in the District Court, Southern District of California, May 26, 1966, appellant filed a motion to suppress the use of the heroin in evidence, pursuant to Rule 41(e), Fed.R.Crim.P., supporting it with his affidavit

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and claiming that the heroin was inadmissible because: 6

         (a) It was seized without a search warrant;

         (b) The heroin was seized in an 'unreasonable' search which was constitutionally invalid; and

         (c) The heroin was obtained by the use of methods and techniques violative of 'due process'.

         This motion was impliedly overruled throughout the trial when the Court permitted the introduction of the heroin into evidence and at the end of the trial was formally denied. 7

         After the nonjury trial, the appellant was found guilty of the offenses charged in the first two counts; the Government agreed to and later did dismiss count three as to the codefendant, 8 and count four as to appellant. 9

         A seven-year sentence was then imposed upon appellant on each of the two counts, to be served concurrently.

         Jurisdiction below rested on 18 U.S.C. §§ 1407 10 and 3231, 11 and 21 U.S.C. § 174. 12 Our jurisdiction is established by 28 U.S.C. §§ 1291 13 and 1294. 14

         The substantive error urged on this appeal is the denial of the motion to suppress and the subsequent admission into evidence of the four ounces of heroin seized in the intrusive search of appellant's rectum. We find that the specification of error is well taken because readily apparent upon close analysis of the facts contained in the record, considering the evidence in the light most favorable to the Government, as we are obliged to do, and disregarding only such testimony as shown by the whole record to be palpably unworthy of belief.

         A careful reading of the Transcript of Record in this case leads us chronologically and inevitably to a four-step summary of what occurred from the beginning of the border crossing through the naked strip and skin search on to the final forcible intrusion of the rectal cavity:

         1. The border crossing and initial detention by Inspector Teela;

         2. The secondary area examination and strip and skin search by Inspectors Teela and Lasher;

         3. The forcible and intrusive rectal cavity invasion by Dr. Salerno and the three customs agents-- Gates, Maxcy and Spohr.

         4. The absence of any emergency or compelling urgency.

Page 370

         I. THE FACTS

         1. The Border Crossing and Initial Detention by Inspector Teela.

         At 8:50 p.m. on the evening of May 13, 1966, appellant Huguez and a companion, codefendant Baros, attempted to enter the United States at the San Ysidro border crossing, San Diego County, California, after traveling by automobile from Tijuana, Baja California, Mexico. 15 At the primary inspection point, Customs Inspector Thomas N. Teela approached the automobile and engaged the two men in routine border questioning. 16

         Huguez responded to the questions by stating that he was a citizen of the United States, had been born in Los Angeles, California, and was bringing in some mascara which he had purchased for his wife in Mexico. 17 He declared this merchandise but did not declare any narcotics, nor did he register as a narcotic addict or user under 18 U.S.C. § 1407, 18 nor did he present any registration certificate as required by this statute. 19

         Nonetheless, Inspector Teela became 'somewhat suspicious' that the two men were under the influence of narcotics when he observed, with the aid of the fluorescent lighting in the inspection area and a flashlight which he focused upon the men during the inquiry, that their eyes appeared to be 'glassy and pinpointed'. 20

         During the trial, Inspector Teela admitted on cross examination that, since he had not seen either of the men an any previous occasion and was not trained or experienced in medical matters, he had 'no way of knowing' the normal size of their pupils nor the reflective effect that fluorescent lighting and flashlights would have upon their eyes. 21 On this basis Teela reached the conclusion that appellant and codefendant Baros were under the influence of narcotics, and thereupon entered the passenger side of the automobile and directed the suspects to proceed to the secondary area. 22

         2. The Secondary Area Examination and Strip and Skin Search by Inspectors Teela and Lasher.

         Inspector Teela escorted the suspects to the secondary area where the windowless search rooms are located, and after entering one of the rooms Huguez was instructed to take off his clothes. 23 With the assistance of Supervisor Inspector Lasher, Teela then conducted a personal clothing and skin search of the naked Huguez and later of the codefendant Baros. The strip and skin search failed to produce narcotics or other contrabrand, but did reveal what Lasher said was the presence of 'needle marks on their arms' as well as what Teela said was a 'greasy substance' on appellant's buttocks. 24

         Inspector Lasher subsequently turned the two men over to Assistant Customs Agent-in-Charge Walter A. Gates and Customs Agent John D. Maxcy. 25 Gates was informed by Inspector Lasher only of the needle marks on the suspects' arms and, for some reason not at all apparent, Teela failed to say anything at all to either Gates or Maxcy about:

         (1) the 'greasy substance' he had allegedly observed on Huguez's buttocks;

         (2) the United States citizenship of Huguez and his failure to register or present a certificate as a narcotic user or addict under 18 U.S.C. § 1407; or

         (3) the 'glassy and pinpointed eyes'.

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         Nor did Teela, Lasher or anyone else suggest to Gates that the doctor examine the appellant. 26

         3. The Forcible and Intrusive Rectal Cavity Invasion by Dr. Salerno and the Three Customs Agents-- Gates, Maxcy and Spohr.

         Agents Gates and Maxcy took the two men, now fully dressed again, from the windowless search room to the baggage area across the street and into one of the rooms in this baggage area 27 -- not a medical room nor even a room, so far as the record discloses, equipped with any of the usual hygienic and sterilized equipment found in the physician's customary office, but evidently only a bare baggage room with 'an examination table' in it. 28 Dr. Paul R. Salerno proceeded to examine codefendant Baros and then appellant Huguez, 29 while Inspector Lasher leaned against the wall watching the proceedings. 30 Neither Agent Gates, nor Agent Maxcy, nor Inspector Lasher, nor anyone else passed on to Dr. Salerno any information about the physical condition of Huguez and Baros. The doctor was not told of the 'glassy and pinpointed eyes' which Teela claims made him 'somewhat suspicious'; nor of the 'needle marks' which Lasher had noticed; nor of the alleged 'greasy substance' that Teela claims he saw on Huguez's buttocks. 31 And the record does not show that the doctor was ever told that Huguez was a United States citizen and had not registered or presented a narcotic user or addict registration certificate under 18 U.S.C. § 1407.

         Yet, starting from scratch, without a search warrant, which it is clear (and the Government admits) was not issued or served, without any prior information of any kind whatsoever, Dr. Salerno took it upon himself to conduct the forcible body and intrusive rectal cavity invasion to locate and extract the four packets which were later introduced in evidence at the trial and are now the basis of appellant's contention of reversible error.

         After appellant had removed his shirt as directed, Dr. Salerno then for the first time became aware of the small needle marks on Huguez's...

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