United States v. Briones, 28205.

• Decision Date: 29 June 1970
• Docket Number: No. 28205.,28205.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio M. BRIONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 742 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Antonio M. BRIONES, Defendant-Appellant.

No. 28205.

United States Court of Appeals, Fifth Circuit.

March 13, 1970.

Rehearing Denied April 7, 1970.

Certiorari Denied June 29, 1970.

Robert O'Conor, Jr., Laredo, Tex., for appellant by appointment of the Court.

Nat B. King, Laredo, Tex., associate counsel under Rule 7(1) of this Court.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Ronald J. Blask, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before WISDOM, GOLDBERG, and INGRAHAM, Circuit Judges.

Certiorari Denied June 29, 1970. See 90 S.Ct. 2270.

PER CURIAM:

This case considers the question whether customs agents at the Mexican-American border had sufficient grounds to conduct a stomach search for narcotics. We conclude that they had sufficient grounds and affirm the conviction.

I.

A confidential informer who had proven reliable in the past informed Customs Agent Jordan at Laredo, Texas, that the appellant Briones and a companion were in Mexico, had purchased heroin, and would smuggle it into the United States in their stomachs. The customs agent knew that Briones was a narcotics addict. He was able to confirm the fact that Briones was in Mexico, for Briones had filed a 1047 registration form¹ as a convicted narcotics law violator before entering Mexico. As predicted by the informer, Briones and his companion returned to the United States at Laredo that day. Agents searched the two without success. When a doctor administered an emetic to Briones' companion, he regurgitated a container of heroin. Briones then talked by telephone with a lawyer. After he tried unsuccessfully to regurgitate on his own, an emetic was administered to him and he regurgitated two containers of heroin. Only after the regurgitation was Briones warned of his constitutional rights. He now appeals from his conviction of illegal importation, concealment and transportation of heroin hydrochloride.²

II.

Briones contends that this warrantless border search of his stomach was unconstitutional. Border searches have traditionally been subject to less stringent standards than those applied in testing the constitutionality of other searches.³ This Court has said that rather than traditional notions of probable cause a "mere suspicion" will justify such a search. Morales v. United States, 5 Cir. 1967, 378 F.2d 187, 189. Briones argues, however, that although the standard of probable cause need not be met, the Supreme Court case of Schmerber v. California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, requires that body cavity searches, whether at the border or not, be justified by more than a mere suspicion. The Ninth Circuit in Henderson v. United States, 1967, 390 F.2d 805, has raised its standard from that of mere suspicion to "a clear indication of the possession of the narcotics or a plain suggestion of the smuggling which must be over and above a mere suspicion". We consider it unnecessary to resolve this question, however, for we find that the search in this case was reasonable under either standard. The Government had received its informer's specific statement, knew of Briones' reputation as an addict, and confirmed that he was a narcotics law violator and was in Mexico as the informer had said. When Briones returned from Mexico with a companion as the informer had predicted, and his companion regurgitated a container of heroin, we conclude that the Government had sufficient grounds to justify the search.

In challenging the grounds for the search, Briones attacks the use of the informer's statement because the Government did not identify him, and the record does not sufficiently prove his past reliability or establish the sources of the informer's information. Briones also maintains that the record does not show that any one agent responsible for the search had sufficient information to justify the procedure. On the motion to suppress, the Government properly assumed the burden of justifying the warrantless search. At the hearing, Customs Agent Jordan testified that a confidential informer had given him...