Henderson v. United States

• Citation: 390 F.2d 805
• Decision Date: 15 December 1967
• Docket Number: No. 21190.,21190.
• Parties: Barbara Jean HENDERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

390 F.2d 805 (1967)

Barbara Jean HENDERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 21190.

United States Court of Appeals Ninth Circuit.

July 7, 1967.

Rehearing Denied December 15, 1967.

Howard E. Beckler, Hollywood, Cal., for appellant.

Edwin L. Miller, Jr., U. S. Atty., Phillip W. Johnson, Asst. U. S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS, HAMLEY and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

This case raises but one issue, the validity of a border search of appellant. In spite of her violent resistance, she was compelled to submit to a procedure whereby a medical doctor removed from her vagina two rubber packets, each about two inches in diameter, together containing 93 grams of heroin.

This court has repeatedly upheld border searches of body cavities,¹ including such searches carried out in spite of the violent resistance of the person searched.² However, for reasons that will appear, we do not reach such issues here. The only question we decide is whether initiation of the search was lawful.

We have repeatedly said that a border search can be undertaken without probable cause,³ but we have also held that even in such cases, the officers must act reasonably.⁴ Our recent decision in Rivas v. United States, supra, n. 1, establishes that in the case of a search of body cavities, "`there must be a clear indication of the possession of narcotics,'" or a "plain suggestion" of the smuggling, which must be "over and beyond `a mere suspicion.'"⁵Rivas requires, when body cavities are searched, something more than was required in the earlier decisions, which said that "mere suspicion" is enough.⁶ The Rivas requirement is based upon language used by the Supreme Court in Schmerber v. State of California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.

Schmerber upheld the taking of a blood sample from a person validly arrested for drunken driving, over his objection. The court held that the Fourth Amendment prohibition of unreasonable searches and seizures applies to an invasion of the body, but that the invasion there involved was not unreasonable. In so holding, the court said:

"The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. In Wolf⁷ we recognized `the security of one\'s privacy against arbitrary intrusion by the police\' as being `at the core of the Fourth Amendment\' and `basic to a free society.\' 338 U.S. at 27, 69 S.Ct. 1359. We reaffirmed that broad view of the Amendment\'s purpose in applying the federal exclusionary rule to the States in Mapp."⁸

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"That Amendment expressly provides that `the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.\' (Emphasis added.) It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of `persons,\' and depend antecedently upon seizures of `persons\' within the meaning of that Amendment." 384 U.S. at 767, 86 S.Ct. at 1834.

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"We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment\'s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness." 384 U.S. at 768, 86 S.Ct. at 1834.

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"The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search." 384 U.S. at 769-770, 86 S.Ct. at 1835.

We think that, while the language quoted deals specifically with an invasion, rather than an examination, of one's body, its implications are broader. The decision emphasizes that the purpose of the Fourth Amendment is "to protect personal privacy and dignity against unwarranted intrusion by the state." To us, this means that every search must be examined in the light of the Amendment's requirement that it not be "unreasonable." And we think that this requirement applies to border searches.

This does not at all mean that border searches are not different from others. On the contrary, it is too well established to require citation of authority that such searches are unique, that the mere fact that a person is crossing the border is sufficient cause for a search. Thus every person crossing our border may be required to disclose the contents of his baggage, and of his vehicle, if he has one. The mere crossing of the border is sufficient cause for such a search. Even "mere suspicion" is not required. We assume that the same rule would apply to the contents of his or her purse, wallet, or pockets. If, however, the search of the person is to go further, if the party, male or female, is to be required to strip, we think that something more, at least a real suspicion, directed specifically to that person, should be required. And if there is to be a more than casual examination of the body, if in the course of the search of a woman there is to be a requirement that she manually open her vagina for visual inspection to see if she has something concealed there, we think that we should require more than a mere suspicion. Surely, to require such a performance is a serious invasion of personal privacy and dignity, and so unlawful if "unwarranted". Surely, in such a case, to be warranted, the official's action should be backed by at least the "clear indication", the "plain suggestion", required in Schmerber and in Rivas.

We have several times taken judicial notice of the fact that narcotics are being smuggled across the border in body cavities.⁹ There is testimony in this case that between December 19 of 1963 and May 2 of 1966, at the port of entry at San Ysidro, California, there were 17 seizures of narcotics found in vaginas of women crossing the border from Mexico. This number includes the present case. There was also an unknown number of cases in which a woman, confronted with the prospect of a search, voluntarily removed the narcotic from her vagina. Counsel for appellant stipulated "that this particular method of importing contraband is common and known to Agent Maxcy." We recognize that this presents a serious problem of law enforcement, to be weighed against the individual's right to human dignity and privacy as protected by the Fourth Amendment. See Breithaupt v. Abram, 1957, 352 U.S. 432, 439-440, 77 S.Ct. 408, 1 L.Ed.2d 448.

On the other hand, the record does not show how many women who crossed the border during the same time were subjected to similar searches as a result of which nothing was found. We can also take judicial notice that many thousands of women crossed the border during the same period, and that the vast majority were not carrying narcotics in their body cavities or elsewhere. Agent Maxcy testified that he could not even make an accurate estimate of the number of women who had crossed the border during that period. He agreed that it would be absurd for him to attempt to say. These women are certainly entitled to their dignity and privacy; their interests, too, are to be weighed. That is why we think that the Schmerber test should be applied to the inspection to which appellant was subjected.

Appellant crossed the border in an automobile driven by one Banks. The customs officers had not received any information in relation to the car or to Banks or to appellant that would alert them to the possibility that they might be carrying narcotics. Such information did exist in Denton, Blefare and Witt, supra, n. 1. Neither appellant nor Banks was a known user of narcotics, or required to register as a person convicted of a narcotics offense, as in Murgia and Rivas, supra, n. 1. Neither was under the influence of narcotics, nor did either bear the needle marks on the arms that characterize users, as was the case in Blackford, Blefare and Rivas, supra, n. 1. Neither did either of them do or say anything to arouse suspicion, so far as appears. The agents had not been told, by appellant or anyone else, that appellant had anything concealed in her body, as was the case in Blackford and Murgia, supra, n. 1.

The government, on the motion to suppress, did not call Customs Inspector Trumble, who was on duty when the car crossed the border, and stopped the car. It appears by hearsay testimony of another agent, Maxcy, that Trumble, who is described as an experienced agent, ranked "at least number one or number two in the apprehension of narcotic violators at the Port of Entry," "believed that he had seen, stopped and caused to be searched Mrs. Henderson on the previous occasion, at which time a gun, a small quantity of dangerous drugs, and a marijuana cigarette were found in her purse." This was about three or four weeks before. Trumble's recollection was based upon appellant's appearance, not her name. We do not know whether this was what caused him to ask her to leave the car and go to the office, or whether he first thought he recognized her when she was in the office. But it is conceded that this recollection was the sole reason for his having Inspectress Lohman, a woman, search appellant.

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