*2 KENNEDY, Before HUFSTEDLER and Judges, THOMPSON,* Circuit District Judge. KENNEDY,
ANTHONY M. Circuit Judge:
Appellant Kenneth Cameron was by tried stipulated the district court on facts and guilty found a controlled sub- of 21 stance violation U.S.C. §§ 963. The sole issue at & trial and on this admissibility is the appeal evidence dis- covered in a search of the defendant’s rectal cavity, under the circumstances described below. 11, 1974,
On November
the appellant at-
tempted to enter the United States from
Ysidro,
Mexico at the San
California port of
stopped
entry.
inspec-
He was
Harmon,
tor
who ascertained that Camer-
vehicle was listed on
on’s
the customs bu-
computer as one requiring special
reau’s
The inspector
attention.
asked appellant
citizenship and importation,
about
and in so
doing
eyes
noted that his
“pinpointed”
speech
and that his
was slurred.
Inspector
Harmon directed Cameron to drive secondary inspection area. Upon checking
appellant’s
arms
needle marks and dis-
several,
covering
including a mark estimat-
Nevada,
Thompson,
Judge
R.
for the District of
sit
Bruce
District
* Honorable
designation.
ting
old,1
Boyd
one hour
In-
authorized Dr.
perform
Richard
approximately
an
ed to
internal
search for
Harmon concluded
concealed contra-
spector
nar-
under the influence of
“definitely”
Boyd
by giving
band. Dr.
commenced
ap-
examination,
general physical
pellant
cotics.
nothing
observed
unusual. Cameron stated
thereupon
permission
received
Harmon
problems
that he had abdominal and rectal
Gaudur,
Inspector
supervisor,
from his
*3
taking
had been
some medication
and
body
sometimes
a visual
conduct
them,
he refused
but
to elaborate when the
strip
a
search. Harmon discovered
called
further.
questioned
doctor
contraband,
signs
but observed clear
of
no
appellant’s
probe
other lubricant
of the
cavity by
vaseline or
An initial
rectal
all
inspector
Boyd
by appellant’s
area. The
inferred from
was frustrated
rectal
Dr.
re-
foregoing
carry-
Boyd attempted
that Cameron was
Dr.
a second
of
sistance.5
contraband,
again
cavi-
ing
probe
appellant
complained
concealed
his rectal
and
and
Inspector
sharp physical
Gaudur confirmed Harmon’s
resistance.
ty.2
offered
Two cus-
appellant
and noted that
was
subdued
They
toms officers
Cameron.
observations
legs against
looked scared. Gaudur
re-
his
nervous and
forced his
chest until Dr.
spread
successfully completed
his buttocks
quested
Boyd
probe.
that Cameron
Dr.
inspection,
foreign object
visual
but
Boyd
more detailed
determined
was con-
comply.
rectum,
not
cealed in Cameron’s
but
Cameron
was unable
to remove
called Assistant United
Inspector Gaudur
Attorney
rejected
Thomas Coffin
tele-
Boyd
Dr.
the possibility
using
States
of
authorization for a
request
proctoscope
or
phone
sigmoidoscope in removing
cavity
object
search. Coffin ascertained that
these
since
instruments cannot
awaiting
was free on bond while
safely
patient’s
be used
without the
Cameron
cooper-
charges
trial on
controlled
he
ation.
Instead
ordered a warm water
enema,
several months earlier.3 Coffin
it
substance
and was
administered
a nurse
judge of the
supervision.
that a
Southern
doctor’s
determined
under the
Appellant
objected,
had advised Cameron
loudly
complained
District of California
pain,
morning
very
conditions of his
had to be restrained with force by the cus-
bond,
prohibition on travel
including a
agents.
toms
second enema was adminis-
thereupon instructed In-
approximately
later,
Mexico. Coffin
tered
15 minutes
under
appellant
to detain the
Gaudur
spector
the same conditions. Neither enema caused
bond, regardless of whether
of his
violation
the contraband to be flushed
appel-
from
found,4
was
and further
any contraband
body.
lant’s
a body cavity
authorized Gaudur to conduct
Boyd
replaced
Dr.
was
midnight
at
by Dr.
search.
Approximately
Groves.
one or two hours
agents
later,
took Cameron to the commu-
prescribed
she
an oral
laxative to
Vista,
hospital at
nity
Chula
California and
speed up appellant’s processes of elimina-
Inspector Harmon testified that he
date,
1.
had been a
In a memorandum issued this
years,
law enforcement officer
for over five
Cameron,
75-2029,
we
States v.
have af-
year
including nearly one
with the Customs
conviction.
firmed that
Service,
training
he had received
to deter-
marks,
age of needle
and that
mine the relative
immediately telephoned
mag-
4. Coffin
a federal
the arms of known
he examined
narcotics ad-
him of
istrate and informed
the circumstances
dicts three or four times a week.
suspected
of the
bond
violation
the latter
detaining
order
confirmed the
Cameron.
2.
Harmon based this conclusion on his
Officer
“many body
experience
plants
with the
[dis-
Boyd
proper
5. Dr.
testified that a
examination
port.”
explained
He
at
covered]
side,
required
subject
to lie on his
with his
frequently used to
lubricant
facilitate
pulled
knees
to his chest. Cameron’s action of
plant
cavity.
into a
insertion of
straightening
legs
out his
made continuation of
probe impossible.
subsequently
guilty
Appellant was
found
charges
stemming from this earlier
incident.
it, and
plain
refused to drink
indication or
suggestion
tion.
that the indi
history
of abdom-
that because
vidual
stated
involved in the importation
difficulty he should not take medicine
inal
contraband.
Henderson
consulting
physician. Ap- States,
his own
without
(9th
1967);
Cir.
see
told he would have to swallow
pellant
was
refused, an
it,
attempt
1966),
when he
was
his throat:
several
pour
it down
(1967).
made
L.Ed.2d 875
In this
legs,
held his arms
following
officers
case the
facts
fully
suffi
back,
pushed
forcing
his
head
a plain
his
cient to constitute
indication that
open. Appellant
acquiesced
then
mouth
was smuggling narcotics and to
the medicine. He was left alone
and drank
a visual scan
body:
the com
sleep.
and went to
puter
appellant’s
identification of
automo
bile, see
v. Carter,
was then
Cameron
awakened at 4:00 a.m.
1973);
indications of nar
*4
port
entry.
back to the
Later
and taken
cotic influence from
pinpointed
Cameron’s
morning
transported
he was
eyes,
speech,
slurred
and recent needle
in
Diego
marshal’s office
San
where he
marks,
v. Velasquez,
United States
469 F.2d
arrived about 10:30 a.m. Approximately 45
264,
(9th
1972),
265-66
Cir.
denied,
cert.
410
requested
later he
minutes
to use the toilet.
945,
1399,
U.S.
93 S.Ct.
under the determining a search amendment. whether the fourth that in held of the requirements comports with subjected Cameron to two forced di- scope par amendment fourth “[t]he enemas, gital probes, two and forced to conduct, intrusion, manner of its ticular laxative. liquid drink a Execution of these it must initiating justification and the several, procedures, intrusive enduring v. Gua considered.” all be part through night, the better of one dalupe-Garza, bring question propriety sufficient that the sus 1970). a clear indication Thus the search. does not au concealing contraband pect Moreover, less intrusive means of obtain- officials to resort government thorize ing the evidence properly have been disposal at their to re means any and all time, the considered. contraband in the Indeed, the fourth amendment trieve cavity might have been rectal eliminated standard on the “means imposes a stricter naturally. Blackford See search than does procedures” of F.2d at (Stephens, J., 754-55 Compare clause. Schmer process the due dissenting). federal had or- 757, 768, California, 384 U.S. S.Ct. ber Cameron held for violation dered (1966), with id. at 16 L.Ed.2d bond, could have been so Cameron confined 1826; 759-60, Blackford v. United 86 S.Ct. recovery of drugs.7 observed for 1957), States, 247 F.2d 749-51 Finally, even one were to assume a 356 U.S. justified here, this extent was search of we (1958). Any body if it L.Ed.2d *5 government agents find that the did not with the reasonableness stan comport is to steps allay take reasonable to the amendment, anxieties of the fourth must be dard suspect. and concerns of the These medical subject’s regard pri for the conducted procedures were initiated without careful designed to minimize emotional vacy and be of consideration Cameron’s claim physical trauma. that he and supervision medical was under for stomach and In addition fears anxie problems. and rectal No doctor was suspects, person most the ties harbored liquid when the present laxative was ad- concealing of contraband within his accused ministered. prospect with the real .that body is faced portions anatomy intimate evaluating the most In the reasonableness of and that he will suffer in which will be invaded the manner the search was con ducted, resulting pain physical or even harm. As in that government we consider the us, suspect usually before the faces the case failed to obtain warrant. The law of this assistance, circuit, although without surrounded it has provoked this ordeal often dis sents, procedure per who administer the on that there is no by persons requirement is se government appear the and thus to conduct a body behalf of for warrant search in overriding crossing to have as their motive cases. to him border States Ma convict, son, to obtaining (9th Cir.), of evidence 564 & n.l the 480 being. In personal well a situation 414 94 not his (1973); potential States, laden with the for fear and thus L.Ed.2d include, anxiety, supra, a reasonable search will at 368 F.2d 710-11. But we have procedural requirements, usual beyond the noted the failure to obtain a warrant steps mitigate anxiety, determining the reasonable course of such a search to have discomfort, suspect and humiliation that the been conducted in an unreasonable manner. States, proce we find that the may Huguez suffer. Since 406 F.2d 374- 1969). employed lacking in these here dures custody length 7. The fact that Cameron was otherwise ordered not be held in for the of time custody only underscores the availabili- held in pro- to conduct all reasonable search imply ty We do not that a this alternative. of cedures. person suspected can- of contraband perpetrated that a dimensions of that certifying upon the addition to In can as- case justified, a warrant also in this underscores the seri- reasonably problem. in a reasonable the We it is conducted ousness of are also aware that sure case strongly peddlers in this that will narcotic not hesitate to manner. consistently protested illegality pervert own bodies to smuggle drugs their country. practices such circumstances his into this In Such would be procedures. totally were not encouraged procedures that service were not fear A warrant can an adequate understandable. allowed to conduct detection lawful is It apprehensions. advises the program. dispel for the search that authorization suspect deciding matter, the instant we were judicial'officer, obtained from been has in our somewhat limited inquiry by the that search is presumptively hence unavailability of data body cavity defines the scope The warrant lawful. crossing in border searches cases. Govern- so know will stated at oral argument ment counsel he faces. warrant serv- procedures what he did have such not information. Because may well purposes secure the co- ing these implicated of the serious interests on both suspect, an reluctant otherwise operation sides, agency charge conducting rendering painful. less the search thus the searches and the United States Attor- ney closely incidence, should scrutinize Further, this case there was no extent, rate of success of these requiring instant emergency seizure of the disturbing searches. It indeed to note California, Compare Schmerber evidence. rate the success cavity 770-71, 86 384 U.S. at S.Ct. 1826.8 It searches be as low as percent. 15 or 20 difficult not have been obtain should See Morales v. United warrant, for the United States 1969). n. See also United Attorney already had the United States Guadalupe-Garza, supra, States v. aspects called as to other the case. been (fewer n.2, n.4 at 879 than one out of a warrant must be do not hold that We persons subjected three to strip searches cavity prior all searches. obtained contraband). found to It may well be However, the of a warrant is an absence *6 that excesses in both the incidence assessing in the reasona important factor extent searches are inherent in the the authorities acted. which bleness manner which the agency in conducts its dispose These considerations suffice case, procedures. If that is the this would are, however, We trou- case before us. highly relevant in weighing the effect of nature of the recurring question bled failure to obtain a warrant any particu- in presented. We have noted elsewhere here lar case. people cross our borders thousands of We suggest agency keep that the careful of course over- every year and that statistics henceforth and make them whelming majority do not contra- availa- Attorney. ble to the United States Henderson Infor- band. the incidence potentially body cavity F.2d at 808. Each is ex- mation on contraband, constituting a af- searches and what posed any, to search serious bodily personal digni- case is integrity recovered in each if we are front the affront can in ty. fully The fact that take to be advised determining whether supra. 9. See indicating note 5 This case further illus- facts on the record 8. There no trates kind of that a careful assistance the heroin consti- that failure remove magistrate might give. here case, suspect. any danger tute a since have considered alternative methods responsi- have been himself would and, upon being for a search alerted to the any risk, only showing ble for problems, suspect’s inquired claimed medical greatest harm would intrusive imminent Additionally, magis- further that matter. into drug. purpose for the of removal of the action requiring might trate have considered a doc- report upon return of tor’s the warrant. the rule that a warrant is not a to adhere to in
per requirement se cases. AND REMANDED.
REVERSED THOMPSON, R. District Judge
BRUCE
(concurring). opinion only
I concur in the because of special circumstance this case which lawfully to be
permitted defendant held
custody reasons unrelated to the for deten- body cavity search. There
tion for the emergency. If the independent ground
no existed, custody retention in had not I it
would think incumbent on the officers to
complete dispatch. the search with BROOKS, Petitioner, E.
David
NATIONAL LABOR RELATIONS
BOARD, Respondent, Bayliner Corporation, Marine Intervenor. Herring (argued), Neil M. of Finkel & 75-1148. Herring, Angeles, Cal., Los petitioner. Appeals, States Court of Charles A. Shaw (argued), B., N. L. R. Ninth Circuit. C., Washington, respondent. D.
June Before MERRILL *7 WRIGHT, Circuit CRARY,*
Judges, and District Judge. PER CURIAM: Petitioner seeks review of a portion of order, reported the Board’s at 215 NLRB 11, which concluded that his discharge from employment was not motivated anti-un- ion animus and consequently did not violate 8(a)(1) (3) §§ National Labor Act, Relations 29 U.S.C. § The Board reversing the administrative judge’s law * Avery Crary, Judge Honorable E. Senior United States District of Cali- the Central District fornia, by designation. sitting