*1
Arciniaga
As in
v. United
(9th Circuit,
April 3,
decided
THOMPSON, etc.,
William Kenneth
1969),
and
the trial court’s
Appellant,
findings
closely
in this case more
resem
ble Rivas v. United
The other as to errors intro- sentencing duction evidence and we find without merit.
ELY,
Judge (dissenting):
Circuit
respectfully
dissent. When this
submitted,
pending
was
there
then
was
Huguez
an-
involving
probing explora-
other case
tion of the rectal
of one
crossing
the international
frontier
cavity.
with narcotics concealed in that
published
The
record
reveals that
gave long
of our court
and
Huguez
careful
consideration
original
problem.
panel
dissenting,
with one
held
illegal.
the search of
was
held that
We
the federal constitution was
infringed
procedure
em-
because
ployed by
officials,
border
Roger
(argued),
B. Dworkin
San
par-
assistance
same doctor who
Diego, Calif.,
appellant.
for
ticipated
case,
shockingly
in this
was
Phillip
(argued), Asst.
Johnson
S.U.
teaching
offensive under
of Rochin
Atty.,
Miller,
Atty.,
San
Edwin
U. S.
California,
v. State of
342 U.S.
Cal.,
Diego,
appellee.
for
S.Ct.
947
jurist,
bygone
not
name
do
whose
concept,
A
but
its nebulous
test and
tion”
something
the
know,
to
once wrote
accepted
Rivas v. Unit
it.
has
court
can endure and
that no nation
(9th
effect
Cir.
States,
F.2d 703
368
ed
through
is
life
denied,
prosper
into
U.S.
386
cert.
(1967);
v.
jus-
Henderson
equal
golden
L.Ed.2d 875
17
thread of
not found the
(9th
States,
Cir.
F.2d 805
390
free,
United
has,
perhaps, been set
tice.
judges first
1967).
three
Each
gains
no redress
here
while the
Huguez appeal ex
the
with
concerned
vestige
any
degrading
of
for the
violation
Following
separate
pressed
views.
his
might
dignity
to
have remained
of
which
opinions, the case
of these
issuance
the
him.
except the
of all
the attention
reached
more,
it
that
I must make
clear
judges
vote was
Once
our court. A
of
Senior
Huguez should be
judge
as to whether
a
is
to
taken
while not even
able
cast
rejected such
court
in banc. The
reheard
away
compassion
illness
that
which the
judges
rehearing,
of
ten
a
with four
invites,
of
share
narcotics addiction
recording
that we
publicly
the view
disgust
respectable
the
which all
individ
rehearing.
granted
such
should have
self-degradation
the
uals must hold for
formation as number subjected to de- transients had been who
grading searches of their cavities police. Now, we have the mistaken
disturbing, appalling, even information per cent”, at
that “80 to least four-
fifths, border transients whose
bodily cavities are invaded are innocent of the
wrongdoing!1 Morales v. United 1300n.2 suppose presume we should dig- personal
those who violated
nity of those innocent believed
that there were “clear indications” that
their would searches be fruitful!2
suspect, also, that the innocent individu-
als probed, rectums have been touring
well as the females whose va-
ginas have, explored, have been in most
instances, chosen to suffer their shame silent,
in silence. I cannot remain how-
ever, until our court or some other re-
sponsible agency undertakes to furnish safeguards
more effective
against indignities. the infliction of these reverse. experience 2. These reflect statistics crossed the border with physician, according companions. who to the rec two The rectums of all three frequently of our probed, ords assists were and if these searches were police in justified, justification their searches of rested think cavities. it not unreasonable same “clear indication.” Yet the search- po believe that situations wherein the appellant’s es the cavities of com- may assistance, panions lice seek an medical unproductive! greater percentage per even of innocent sons are offended.