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
 
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Page 876

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

UNITED STATES of America, Appellant,

v.

Jose GUADALUPE-GARZA, Appellee.

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.

Page 877

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...

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