*1 Before CHAMBERS and HUFSTED- LER, TAYLOR,* Circuit District America, UNITED STATES of Plaintiff-Appellee, PER CURIAM: CARPENTER, Everett Randall judgment of conviction for im- Defendant-Appellant. porting in a is re- No. 73-1910. proba- versed. find that there was United States Court of strip search, ble cause to undertake a particular but on the record before us a May 7, 1974. doctor been summoned. See (1966), Schmerber v. California 384 U. 1826, 757, S. L.Ed.2d 86 S.Ct. 16 908. CHAMBERS, Judge (concur- ring) : reluctantly.
I concur Carpenter apparently was a “mule” carrying up of heroin his condom, plastic derriére in rubber tube carrying not invented for narcotics. at disrobed the bor- searching der room, in inch or Honorable Fred M. sitting by designation. Taylor, Senior United States District for the Idaho, *2 “Why weakly queried, Then, I protruding, from the crushed. condom was of agent replied, you simply not?” He “Because took The customs anus. forgery. pulled anybody else can see that is object of the of the end only testify separate you thing when the can’t see awas it Inside the out. forgery your eye.” large finger. with naked package size of a about the pulled Eventually Carpenter have would Carpenter’s case is such case. When it with the it out or evacuated hand secreted, wholly the anus the condom is help sphincter of his muscle. re- should dilated for area above be thing is a con- moval. It ticklish the method Because the “hazard” of —the punc- origi- danger only stant that the will lightly on in the was touched always hearing suppress, the ture the condom is the to So nal on motion there. thing pull, if is a the wise is to first there the case to district we remanded hearing body, loose as- to on the hazard of end from the court hold a fighting suming prisoner the method the is not back. used. Carpenter help much, he Here didn’t but hearing, de- the court At the district didn’t resist. proctologist who was produced a fense The to have customs officer was entitled very positive a doctor that probable perform opera- assume the the the to summoned been —that using was one that went in trou- instruments. without much speaks of He tion. way. government and would come out the produced the doc- ble same the Then ordinarily to remove called tor who is analogy splinter. The is the If closest objects prospective defend- from such good sticking it the has a outside the latter examination direct ants. On skin, pulls out. one takes hold and it object used. On to the method didn’t One does not dilate. sum, cross-examination, to he seems in Except guilty go, Carpenter let to the agreed And, the defense. have the will decision cause little in harm San using he of instruments. even talks Diego. Doctors will be summoned with- thought on re- I that this would have So, out real need. shall we have no sim- have held the court could mand district again Diego. ilar case from San government’s direct on the doctor’s that testimony Carpenter But if is found re- at some was method extraction the perils place, leaving mote the the con- finds that But district court the safe. traption outweigh simple in will far have been the method used should not removal. repeated. Then the used and will be not filed, I opinion has been this proce- that the court relies on the fact go my he' and ask doctor what shall out to dure did no say, “I done. If he does not have would the seizure was reasonable. out,” the pulled I shall ask have would regard simply I ease as the one where government’s forgiveness. the defense outmaneuvered over- prosecutor, preceden-
worked and of no TAYLOR, District FRED M. except tial value record. a similar (concurring) : I think we deal with a matter where I to in constrained concur revers- am lay- one can as use his common sense ing appellant only be- the conviction man. the made on remand cause of court hear- to the district for a case in- I once a written remember ing regard to meth- expert. My the hazard handwriting in strument to a extracting od in used in the case docu- contention was It is unfortunate forgery. expert ment looked was a regrettable right. must said, that because It a' we at it and “You are is added, accept testimony med- forgery.” happy. he the idealistic Then I was experts, relying on ordi- testify ical instead “But I it is.” I can’t guilty ap- sense, nary common again pellant to traffic set free must be
in narcotics. original record,
On the basis remand, in prior I would been affirming It the conviction. favor of *3 clearly appears containing the the condom simple process removed pulling inspector of and condom cooperation appellant any intrusion was removed without any injury, and without significant pain INC., COOKE, CASTLE & Plaintiff- Appellant, WILLIAMS, Individually, Donald H. doing Supply business as Deseret Co., Defendants-Appellees. COOKE, INC., & CASTLE Plaintiff- Wills, Charles E. Wills Appellee, Mueth, & Angeles, Green Los Ed- Fenwick, Mason, Jr., ward G. Fen- WILLIAMS, Lawrence, Individually, Washington, Donald H. C., and wick & doing Supply Co., business as Deseret Cooke, & Castle Inc. Defendants-Appellants. Douglas Lyon (argued), Lyon R. & 71-2872, Nos. 71-3063. Lyon, Angeles, Cal., Los for Donald H. Williams. United States Court SNEED, Before CHAMBERS April 23, 1974. KING,*
Judge:
CHAMBERS, Circuit Cooke, Castle & owner and brought Seafoods, Bumble Bee this ac- against Williams, doing
tion business as Supply Company, alleging Deseret several marks used vari- Deseret infringed products ous food trademarks for which Castle Cooke held exclusive & King, Tlie Hawaii, Honorable Samuel P. United States District for the District of sit- ting by designation.