421 F.2d 876 (9th Cir. 1970), 23821, United States v. Guadalupe-Garza

Docket Nº:23821.
Citation:421 F.2d 876
Party Name:UNITED STATES of America, Appellant, v. Jose GUADALUPE-GARZA, Appellee.
Case Date:February 02, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 876

421 F.2d 876 (9th Cir. 1970)

UNITED STATES of America, Appellant,



No. 23821.

United States Court of Appeals, Ninth Circuit.

February 2, 1970

William J. Zumwalt (argued), San Diego, Cal., for appellant.

Shelby R. Gott (argued), Joseph A. Milchen, Asst. U.S. Attys., Edwin L. Miller, U.S. Atty., San Diego, Cal, for appellee.

Before ELY and HUFSTEDLER, Circuit Judges, and THOMPSON, [a1] District judge.

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HUFSTEDLER, Circuit Judge:

Appellant appeals from a judgment convicting him for a violation of 21 U.S.C. § 174 (smuggling heroin) and a violation of 18 U.S.C. § 111 (assaulting a federal officer). A five-year sentence was imposed on the first count, and a three-year sentence on the second, the sentences to run concurrently. A third count, charging him with a violation of 18 U.S.C. § 1407 (failure to register as a narcotics addict), was dismissed, after the District Court found him not guilty.

Appellant does not attack his conviction for violation of 18 U.S.C. § 111. We reverse the conviction for smuggling heroin for error in denying appellant's motion to suppress the admission of the heroin that was the product of an illegal search.

After 4 o'clock in the afternoon of September 2, 1968, appellant entered the United States from Mexico at Calexico, California. In response to Customs Inspector Jones' inquiries, appellant said he was an American citizen and that he was not bringing any merchandise into the United States from Mexico. Jones noticed nothing untoward about appellant and sent him on. Customs Inspector Baker, stationed at a secondary inspection point, observed appellant passing through the pedestrian inspection line. When he came within five feet of Inspector Baker, appellant tilted his head to one side and shied away from Baker. At Baker's request, appellant went into the customs office. Baker then asked appellant a few routine questions, and observed that appellant appeared nervous. Appellant told Baker that he had not brought anything from Mexico.

Baker thereupon directed appellant to disrobe, and he conducted a strip search of appellant. No contraband was discovered during the search, but Baker noticed that appellant's 'stomach was beating fast' 1 and he was 'sweating extensively.' The outside temperature was hot; the air-conditioned customs office was cooler. Baker also observed hypodermic needle marks on appellant's arm. There was no evidence that Baker saw any needle marks on appellant before he ordered the strip search. Baker called Customs Agent Goff to look at appellant. Goff observed some old, healed tracks on appellant's arms and some marks that appeared to be only three to four days old. Prior to giving appellant any advice about his constitutional rights, Goff interrogated appellant about the marks. Appellant responded that they were 'scratches.' At about 5 o'clock, Customs Agent Riggs joined Goff in interrogating appellant. Without any constitutional warnings, Riggs asked appellant how long he had been using narcotics. Appellant denied that he had been using narcotics.

Goff decided to take appellant to Imperial County Hospital 'to secure a medical opinion as to the nature of the marks on defendant's arms. * * *' The District Court found: 'The decision by Agent Goff to take defendant to the Imperial County Hospital for a medical examination of the marks on his arms was predicated on the following factors: (1) Baker's relation to Goff of the extremely nervous demeanor of the defendant, his physical condition (including the marks on defendant's left arm and the palpitations of his stomach), and the lack of discovery of any contraband during the personal search, (2) Goff's personal observation of the marks on defendant's left arm, which appeared to him to be marks left by injections of hypodermic needles, (3) defendant's nervous demeanor in the presence of Goff, (4) the unsatisfactory response of defendant to the questions relating to the nature of the marks on defendant's arms, his prior usage of narcotics, and his place of residence, (5) the hesitant and evasive manner in which defendant responded to those questions, and (6) Goff's experience that persons travel great distances to secure more readily

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available and cheaper narcotics in Mexico.'

At about 6 o'clock p.m., appellant was taken to the emergency room of the hospital. Dr. Aurbach, a licensed physician, visually inspected appellant. He identified the marks on appellant's arm and some old tracks on his left ankle as having been made by hypodermic needles. Upon Goff's direction, Dr. Aurbach probed appellant's rectal tract The result was negative. At 6:30 p.m. Dr. Aurbach ordered a vocational nurse to inject an emetic into appellant's hip to induce vomiting. Appellant 'regurgitated an insufficiently small amount.'

Between 6:30 and 7:00 p.m. appellant 'grabbed a hospital tray, and attempted to strike Agent Goff.' Goff deflected the blow. Appellant then kicked Goff on the left shin. Goff then arrested appellant for assaulting a federal officer and, for the first time, advised appellant of his constitutional rights.

At Goff's direction oral emetics were administered to appellant 'two or three times.' Appellant was handcuffed when he was caused to drink the emetics. About 8 o'clock p.m. appellant disgorged the contents of his stomach, including two balloons together containing almost 5 grams of heroin.

We turn to appellant's attack upon the constitutional validity of the searches of his person.

The constitutional safeguards found in the Fourth Amendment extend to persons crossing our borders as well as to persons crossing our streets. 'The Fourth Amendment protects people, not places.' (Terry v. Ohio (1968) 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, quoting ...

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