U.S. v. Cameron, 75-2030

• Decision Date: 21 June 1976
• Docket Number: No. 75-2030,75-2030
• Citation: 538 F.2d 254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Malcolm CAMERON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 254

538 F.2d 254

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Malcolm CAMERON, Defendant-Appellant.

No. 75-2030.

United States Court of Appeals, Ninth Circuit.

June 21, 1976.

Nelson P. Brav (argued), Brav & Schwartz, San Diego, Cal., for defendant-appellant.

Robert D. Krause, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

OPINION

Before HUFSTEDLER and KENNEDY, Circuit Judges, and THOMPSON, ^* District Judge.

ANTHONY M. KENNEDY, Circuit Judge:

Appellant Kenneth Cameron was tried by the district court on stipulated facts and found guilty of importing a controlled substance in violation of 21 U.S.C. §§ 952, 960 & 963. The sole issue at trial and on this appeal is the admissibility of evidence discovered in a search of the defendant's rectal cavity, under the circumstances described below.

On November 11, 1974, the appellant attempted to enter the United States from Mexico at the San Ysidro, California port of entry. He was stopped by customs inspector Harmon, who ascertained that Cameron's vehicle was listed on the customs bureau's computer as one requiring special attention. The inspector asked appellant about citizenship and importation, and in so doing noted that his eyes were "pinpointed" and that his speech was slurred. Inspector Harmon directed Cameron to drive to the secondary inspection area. Upon checking appellant's arms for needle marks and discovering several, including a mark estimated to be approximately one hour old, ¹ Inspector Harmon concluded that appellant was "definitely" under the influence of narcotics.

Harmon thereupon received permission from his supervisor, Inspector Gaudur, to conduct a visual body search, sometimes called a strip search. Harmon discovered no contraband, but observed clear signs of vaseline or other lubricant in appellant's rectal area. The inspector inferred from all of the foregoing that Cameron was carrying contraband, concealed in his rectal cavity. ² Inspector Gaudur confirmed Harmon's observations and noted that appellant was nervous and looked scared. Gaudur requested that Cameron spread his buttocks for more detailed visual inspection, but Cameron would not comply.

Inspector Gaudur called Assistant United States Attorney Thomas Coffin by telephone to request authorization for a body cavity search. Coffin ascertained that Cameron was free on bond while awaiting trial on charges of importing a controlled substance several months earlier. ³ Coffin determined that a judge of the Southern District of California had advised Cameron that very morning of the conditions of his bond, including a prohibition on travel to Mexico. Coffin thereupon instructed Inspector Gaudur to detain the appellant for violation of his bond, regardless of whether any contraband was found, ⁴ and further authorized Gaudur to conduct a body cavity search.

The agents took Cameron to the community hospital at Chula Vista, California and authorized Dr. Richard Boyd to perform an internal body search for concealed contraband. Dr. Boyd commenced by giving appellant a general physical examination, and observed nothing unusual. Cameron stated that he had abdominal and rectal problems and had been taking some medication for them, but he refused to elaborate when the doctor questioned further.

An initial probe of the rectal cavity by Dr. Boyd was frustrated by appellant's resistance. ⁵ Dr. Boyd attempted a second probe and appellant again complained and offered sharp physical resistance. Two customs officers subdued Cameron. They forced his legs against his chest until Dr. Boyd successfully completed the probe. Dr. Boyd determined a foreign object was concealed in Cameron's rectum, but was unable to remove it.

Dr. Boyd rejected the possibility of using a proctoscope or sigmoidoscope in removing the object since these instruments cannot be used safely without the patient's cooperation. Instead he ordered a warm water enema, and it was administered by a nurse under the doctor's supervision. Appellant loudly objected, complained of pain, and had to be restrained with force by the customs agents. A second enema was administered approximately 15 minutes later, under the same conditions. Neither enema caused the contraband to be flushed from appellant's body.

Dr. Boyd was replaced at midnight by Dr. Groves. Approximately one or two hours later, she prescribed an oral laxative to speed up appellant's processes of elimination. Appellant refused to drink it, and stated that because of his history of abdominal difficulty he should not take medicine without consulting his own physician. Appellant was told he would have to swallow it, and when he refused, an attempt was made to pour it down his throat: several customs officers held his arms and legs, and his head was pushed back, forcing his mouth open. Appellant then acquiesced and drank the medicine. He was left alone and went to sleep.

Cameron was then awakened at 4:00 a.m. and taken back to the port of entry. Later that morning he was transported to the marshal's office in San Diego where he arrived about 10:30 a.m. Approximately 45 minutes later he requested to use the toilet. When he finished, a condom containing heroin was found in the previously empty commode.

The Justification for Initiating the Search

Appellant first argues the heroin should be suppressed because there was no justification for initiating the search which led to its discovery. We cannot agree. We find that at every step of the way law enforcement officers were aware of sufficient, concrete, articulable facts to justify further inquiry and, ultimately, a search.

It is settled that certain border searches may be conducted even absent any suspicion of wrongdoing. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Detailed questioning of appellant in the secondary search area and a physical examination of his arms were proper under this rule.

But we have further held that searches involving a "serious invasion of personal privacy and dignity," such as close scrutiny of intimate portions of the body, may proceed only when there is a clear indication or plain suggestion that the individual may be involved in the importation of contraband. Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967); see Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967). In this case the following facts were fully sufficient to constitute a plain indication that appellant was smuggling narcotics and to justify a visual scan of the body: the computer identification of appellant's automobile, see United States v. Carter, 480 F.2d 981, 983 (9th Cir. 1973); indications of narcotic influence from Cameron's pinpointed eyes, slurred speech, and recent needle marks, United States v. Velasquez, 469 F.2d 264, 265-66 (9th Cir. 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1399, 35 L.Ed.2d 612 (1973); United States v. Shields, 453 F.2d 1235, 1236 (9th Cir.), cert. denied, 406 U.S. 910, 92 S.Ct. 1615, 31 L.Ed.2d 821 (1972); United States v. Summerfield, 421 F.2d 684, 685 (9th Cir. 1970). ⁶

The subsequent discovery of the following additional factors warranted the conclusion that narcotics might be concealed in the suspect's rectal cavity: the discovery of grease or lubricant in appellant's rectal area, as verified by a second experienced customs officer, see United States v. Velasquez, supra, 469 F.2d at 266; United States v. Sosa, 469 F.2d 271, 272 n.1, 273 (9th Cir., 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1399, 35 L.Ed.2d 612 (1973); the determination that the suspect had been charged with a similar offense on a previous occasion and had violated his bond by traveling to Mexico, see Rivas v. United States, supra, 368 F.2d at 710.

Government Conduct in Executing the Search

Finding the existence of sufficient cause, however, does not end our inquiry under the fourth amendment. We have held that in determining whether a search comports with the requirements of the fourth amendment "(t)he scope of the particular intrusion, the manner of its conduct, and the justification for initiating it must all be considered." United States v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir. 1970). Thus a clear indication that the suspect is concealing contraband does not authorize government officials to resort to any and all means at their disposal to retrieve it. Indeed, the fourth amendment imposes a stricter standard on the "means and procedures" of a body search than does the due process clause. Compare Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), with id. at 759-60, 86 S.Ct. 1826; Blackford v. United States, 247 F.2d 745, 749-51 (9th Cir. 1957), cert. denied, 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586 (1958). Any body search, if it is to comport with the reasonableness standard of the fourth amendment, must be conducted with regard for the subject's privacy and be designed to minimize emotional and physical trauma.

In addition to the fears and anxieties harbored by most suspects, the person accused of concealing contraband within his body is faced with the real prospect that the most intimate portions of his anatomy will be invaded and that he will suffer resulting pain or even physical harm. As in the case before us, the suspect usually faces this ordeal without assistance, surrounded by persons who administer the procedure on behalf of the government and thus appear to him to have as their overriding motive the obtaining of evidence to convict, and not his personal well being. In a situation thus laden with the potential for fear and anxiety, a reasonable search will include, beyond the usual procedural requirements, reasonable steps to mitigate the anxiety, discomfort, and humiliation that the suspect may suffer. Since we find that the procedures here employed were lacking in these respects, we hold that the search violated the ...