John Emilio Blefare and Donald Michel v. United States

362 F.2d 870, 1966 U.S. App. LEXIS 5895

Opinions

POWELL, District Judge:

Appellants were convicted of smuggling heroin into the United States from Mexico. They seek reversal of their conviction on the ground that evidence which was admitted at their trial was illegally obtained in violation of their rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States of America.

The trial was by the court without a jury. Motion was made on behalf of Blefare only to suppress the narcotics and objection was made on behalf of each defendant to its introduction. The evidence consisted of two packets of 30% pure heroin expelled from the stomach of appellant Blefare and three packets of 30% pure heroin expelled from the stomach of appellant Michel. The evidence was admitted over objection and the appellants convicted. The sole question on this appeal is whether the evidence was illegally acquired.

We accept the principle that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case. Ker v. State of California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

The determination was made on conflicting evidence. We must consider this evidence in the light most favorable to the Government to see whether it would support the determination of the trial court that the evidence was properly admissible over objection and that the judgment of conviction is supported by substantial evidence. Noto v. United States, 367 U.S. 290, 296, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961).

Prior to March 27, 1964, Customs Agent Quinlan of San Diego was advised of a meeting in Vancouver, British Columbia, Canada, at which there were present some members of the Royal Canadian Mounted Police and the appellant Blefare. At that meeting Blefare stated that on a previous trip on February 21, 1964, he had brought back from Tijuana, Mexico, to Canada about an ounce of heroin in his stomach. He stated that he and other people were aware of rectal probes being used and that they were now swallowing heroin to bring it across the border. All of the above information was related to Agent Quinlan by Agent Underwood of Seattle, Washington, who was personally present at the meeting in Vancouver.

Agent Quinlan confirmed that Blefare had in fact been in Tijuana on February 21, 1964, and when he crossed the border had been subjected to a rectal probe which was negative. Agent Quinlan talked to Agents Gates and Maxey who had questioned Blefare on February 21, 1964.

Agent Quinlan called the agent at Blaine, Washington, and as a result information reached Quinlan that Blefare and a companion, whose name was unknown, were down in the Tijuana area. Information was also received that Ble-fare was smuggling narcotics from Mexico through the United States into Canada and peddling them there. The license and description of Blefare’s rented automobile were obtained and a lookout was posted at the port of entry.

About 11:15 p. m. March 27, 1964, the automobile of appellants was observed coming from Mexico. It was stopped by the customs inspector at the border crossing at San Ysidro, California. Ble-fare was driving and Michel was seated beside him. They stated they were Canadian citizens and were bringing no merchandise from Mexico.

Appellants were taken to the search room and disrobed. A search of the clothing was negative. The arms of both appellants were heavily marked with needle marks and the experienced agents testified they evidenced the use of narcotics. Some venous marks were of recent origin. They were turned over to Agent Quinlan who accused them of carrying narcotics in their rectums or stomachs. This they denied and stated they would not object to being examined by a doctor. There was no indication of the nature of the examination.

The appellants were taken to the office of Dr. Paul R. Salerno in San Diego, about 12 miles from the border. He was a qualified physician and licensed to practice in California. He had a degree in medicine and also one in pharmacology. The doctor noted the old and new puncture marks on both arms of both appellants. He administered a rectal probe on each appellant with their consent but without result.

Saline solution was then given the appellants to drink to produce vomiting. They did not drink it as directed but sipped it without objection. Blefare was seen by the doctor to have regurgitated an object and reswallowed it. Dr. Salerno suggested the use of a tube procedure to recover the object.

The procedure used is to pass a soft polyethylene tube, four millimeters in diameter through the nose, down the throat and into the stomach. Fluid is allowed to flow by gravity into the stomach and vomiting is induced. There is no pump. The same procedure is medically approved to remove a substance from the stomach of a child. There is no pain but some discomfort.

Footnotes

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Blefare stated if he were allowed to rest he would not resist the use of the tube. He talked to Agent Gore alone and said that he, Blefare, had nothing in his stomach but that Michel had three bundles of heroin in his. When asked about his reswallowing he said he was only faking to allow Michel to regurgitate and stash the substance when the officers’ backs were turned.

Blefare did not consent to the use of the tube. Two agents held his arms while a third held his head and the doctor inserted the tube. The tube was passed into his stomach and the solution passed through it. In a few seconds he expelled two packets containing the evidence in question. The same procedure was used on Michel, who did not object or resist, and resulted in the recovery of three packets containing the evidence here objected to.

No objection was made by Michel to the anal search or drinking of the saline solution or the insertion of the tube. He was not held. (RT 129) He agreed to “an examination” by the doctor, but the details of the proposed examination were not explained to him. There was a conflict in the evidence as to whether handcuffs were applied prior to and during the recovery of the narcotics.

The doctor testified the objects were recovered in an approved manner under sanitary conditions and the same procedure would be used on an infant that had swallowed a toxic substance.² Blefare testified he intended to remove the heroin from his stomach by induced vomiting or by the same method the doctor used.³

Alternatives to the use of the stomach tube were discussed in the doctor’s testimony. He testified that he considered and rejected the use of an enema. (RT 170). The use of a laxative would be dangerous. (RT 170, 172, 175). At the least one (the larger) of the two packets, marked as Exhibit 1, would not have passed through the pyloric sphincter, or the opening between the stomach and duodenum or small intestine, even with the use of laxatives. (RT 171).

The three packets of Exhibit 2 might not pass through this pyloric sphincter because of the variation in its size in different individuals. (RT 172). The average size of a pyloric sphincter is approximately the diameter of a writing pencil. (RT 175). In not knowing the exact size of the various packets, or the exact time they had been placed in the stomach juices, it would not be “safe medical practice” to await their possible passage even with the use of a laxative.

The rubber containers can be destroyed by the action of gastric juices as they are high in hydrochloric acid content. Once the container is decomposed the heroin would be liberated into the stomach. There is risk of this occurring within 48 hours. The result would be death. Once the material is liberated, the absorption is rapid. The outer layer of the container retrieved from Blefare’s stomach was already somewhat eroded.

A fluoroscope was not available in the doctor’s office. To use it effectively the patient would be required to swallow barium. (RT 187, 188). If he resisted, the barium would have to be placed in his stomach through the same tube as was used to insert the saline solution. The examination by fluoroscope would not remove the packets. It would only confirm what the agent and doctor knew to a reasonable certainty, that the packets were there. All of these events occurred about 1:30 a. m. on a Saturday morning, March 28, 1964.

To summarize, the agents knew before the search that Blefare had crossed the border five weeks earlier and had been searched without results, and that he stated he at that time had heroin in his stomach. They knew both appellants were addicts. Blefare was suspected of smuggling dope into Canada and selling it and Blefare told them Michel had heroin in his stomach and Blefare was seen to vomit and reswallow an object.

The search that resulted in the recovery of the questioned evidence was a border search. While it occurred at a place removed by 12 miles from the border, the process was a continuing one and the search was not so removed in time and distance as to cause it to lose its character as a border search. Such searches have been repeated subjects of judicial inquiry.

Ng Pui Yu v. United States, 352 F.2d 626, 630 (9th Cir. 1965);

Taylor v. United States, 352 F.2d 328, 329 (9th Cir. 1965);

King v. United States, 348 F.2d 814, 816-818 (9th Cir. 1965), cert. den’d 382 U.S. 926, 86 S.Ct. 314, 15 L.Ed.2d 339;

Bible v. United States, 314 F.2d 106, 107-108 (9th Cir. 1963), cert. den’d 375 U.S. 862, 84 S.Ct. 131, 11 L.Ed.2d 89;

Murgia v. United States, 285 F.2d 14, 16, (9th Cir. 1960).

In King v. United States, 348 F.2d 814, 817 (9 Cir. 1965) Judge Hamlin says:

“This being a border search, special rules are applicable. The statutes involved are set out in the margin.4 (Footnote 4 quotes pertinent parts of 19 U.S.C. § 482 and § 1581.) As we said in Witt v. United States, 287 F.2d 389 at 391 (9th Cir. 1961):

‘No question of whether there is probable cause for a search exists when the search is incidental to the crossing of an international border, for there is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone. That the customs authorities do not search every person crossing the border does not mean they have waived their right to do so, when they see fit. Here a precise description of the automobile in which appellant rode across the border (though not of its passengers) had been passed to the border guards as one being a possible bearer of heroin. This it was ultimately found to be. Mere suspicion has been held enough cause for a search at the border. Cervantes v. United States, 9 Cir., 1959, 263 F.2d 800, 803, note 5.’ ” (Emphasis original)

The use of body cavities to transport narcotics has become an accepted practice by experienced smugglers. This is evidenced by the frequency with which the cases have reached the courts. The Federal Courts have upheld a number of searches of the person in which rubber or cellophane bags of narcotics were taken from the anus of the arrested person and used in evidence against him. See:

Blackford v. United States, 247 F.2d 745 (9th Cir. 1957) cert. denied 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586; People v. Woods, 139 Cal.App.2d 515, 293 P.2d 901 (1956), cert. denied 352 U.S. 1006, 77 S.Ct. 566, 1 L.Ed.2d 550; Application of Woods, 154 F.Supp. 932 (N.D.Cal.1957), aff’d, 9 Cir., 249 F.2d 614, cert. denied Woods v. Heinze, 356 U.S. 921, 78 S.Ct. 705, 2 L.Ed.2d 716; Murgia v. United States, 285 F.2d 14 (9th Cir. 1960), cert. denied 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265; 376 U.S. 946, 84 S.Ct. 803, 11 L.Ed.2d 769;

Denton v. United States, 310 F.2d 129 (9th Cir. 1962);

Ng Pui Yu v. United States, 352 F.2d 626 (9th Cir. 1965).

The smuggler who swallows narcotics has not been so frequently prosecuted. This may be due in part to the difficulty of detection. Some knowledge of the presence of the narcotics in the stomach of the suspect is necessary. Here the circumstances gave rise to the strong presumption that narcotics were present.

The courts have approved the use of an emetic to retrieve narcotics which have been swallowed. The following are cases in which objects have been recovered in that manner on border searches:

United States v. Michel, 158 F.Supp. 34 (S.D.Tex.1957), affirmed as King v. United States, 258 F.2d 754 (5th Cir. 1958), cert. denied 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639. (Emetic) United States v. Willis, 85 F.Supp. 745 (S.D.Cal.1949). (Evidence held inadmissible. Stomach pump)

Lane v. United States, 321 F.2d 573 (5th Cir. 1963), cert. denied 377 U.S. 936, 84 S.Ct. 1340, 12 L.Ed.2d 299 (Emetic)

Barrera v. United States, 276 F.2d 654 (5th Cir. 1960). (Emetic)

In Rochin v. People of State of California, 342 U.S. 165, 72 S.Ct. 205, 96 L. Ed. 183 (1952) it is stated that three deputy sheriffs went to the two-story dwelling in which Roehin lived. The outside door was open and they entered and then forced open the door of Roehin’s room on the second floor. He was sitting on the side of the bed. On the night stand beside him two capsules were seen by the deputies, who asked “Whose stuff is this?” Roehin seized the capsules and put them in his mouth. The three officers then “jumped upon him” and attempted to extract the capsules, without result. He was handcuffed and taken to a hospital. At the direction of one officer a doctor forced an emetic solution through a tube into Rochin’s stomach against his will. The two capsules were vomited, which were proved to contain morphine.

In the Roehin opinion the court reversed the conviction of the defendant in the State Courts of California, holding that the evidence was illegally obtained. After a discussion of the principles involved, Mr. Justice Frankfurter said:

“Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”

There are many facts that make Roehin different than this case. It was not a border search. The officers were in the dwelling wrongfully. They forced their way into Rochin’s room. They attempted by force to retrieve the capsules which he swallowed. In furtherance of their illegal entry and search they then took him to a hospital where an emetic was forced into his stomach. The opinion demonstrates that it was the entire sequence of events that shocked the conscience. It was the illegal invasion of the privacy of Rochin’s home and the strug gle to open his mouth and remove what was there that started the chain of events.

Here a border search was in progress. The officers had every right to search for contraband. They had knowledge from which they were entitled to conclude that narcotics were present in the stomach of the two suspects. Although the appellants falsely denied the presence of narcotics in their stomachs, the officers knew they were addicts, that one stated the other had narcotics in his stomach, and one was seen to regurgitate an object and reswallow it.

The appellants, who appeared at the border Friday night at 11:00 p.m., were taken to the doctor and requested to drink a saline solution. They did not drink it as directed. There is no evidence of brutality. Each appellant was restrained with only the force necessary to permit an emetic to be delivered into his stomach to remove its contents. A similar method would be used on a five year old child.

It would shock the conscience of law abiding citizens if the officers, with the knowledge these officers had, were frustrated in the recovery and use of this evidence. It is shocking to know that these appellants swallowed narcotics to smuggle it into and through the United States for sale for profit, and chose to run the risk of the lethal substance being freed in their stomachs.

To paraphrase Judge Kaufman in United States v. Guerra, 334 F.2d 138, 147 (2 Cir. 1964):

“If we were mechanically to invoke Massiah (Rochin) to reverse this conviction, we would transform a meaningful expression of concern for the rights of the individual into a meaningless mechanism for the obstruction of justice.”

The medical testimony, which is undisputed, leads to the conclusion that the method used to recover the narcotics from appellants caused no more pain or discomfort than a rectal probe which was challenged in Blackford, supra.

We find here no violation of appellants’ constitutional rights.

Judgment is affirmed.

References in the footnotes to RT refer to Reporter’s Transcript of Proceedings, which include hearing on the Motion to Suppress Evidence, and the trial, the pages being numbered consecutively.

1

. RT 178-179 (Dr. Salerno)

“THE WITNESS: When the tube is passed through the nose, it is felt momentarily in the throat, which produces some sensation of discomfort, a gagging effect, and as soon as the subject swallows the tube, it is passed into the esophagus and down into the stomach, there is a minimal discomfort. This is a procedure that is followed routinely postoperatively, for example, after surgery, where the tube may be left in this position for many days.

“THE COURT: Is there any pain in connection with the passing of the tube from the nose to the esophagus?

“THE WITNESS: No, sir, I would not describe it as pain. I have had the tube passed on myself, and there is a minimal discomfort once it is passed.”

2

. RT 35-37

“Q. Doctor, considering your experience and knowledge as a physician, was the removal of these objects from the stomach of Mr. Blefare accomplished in a medically approved manner?

“A. Yes, sir. The procedure that was followed was the same as that followed on infants and other patients who have swallowed some toxic material, where it was deemed advisable or necessary to provoke emesis to empty the stomach of such material.

“Q. What steps were taken on this particular occasion with Mr. Blefare?

“A. He was first given a solution of saline in water, five per cent, to drink with the intent to provoke emesis in this manner.

“Q. And what happened, Doctor, at that point?

“A. He took the saline solution, but did not drink it down as directed. He just sipped it, taking a very small quantity, and it was noticed that after the material was taken down there was an emesis, with the material held in the mouth and re-swallowed.

“Q. How many times, Doctor?

“A. On one occasion this was definitely what had happened, and it is possible that it had happened in one or two other instances when I could not be certain that the material had been brought into the mouth.

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“Q. Then what happened, Doctor?

“A. It was decided to use a polyethyline tube to deliver the salt solution into the stomach quickly and effectively, and to elicit emesis with a minimum of further procedure.

“Q. Would you describe that tube as to diameter, doctor?

“A. This is a polyethyline (sic) tube, graded number ten. It is about four millimeters in diameter. It is the same size that would be used on a five or six year old child.

“Q. Is that procedure painful, Doctor?

“A. I would not describe it as painful. There is a momentary discomfort as the tube passes down into the pharynx and it is swallowed.

“Q. Then what type of fluid was permitted in the tube, and what happened?

“A. About ten ounces of chilled five percent sodium chloride or salt solution and water was delivered by gravity into the stomach.

“Q. Then what happened, Doctor?

“A. After it was delivered, the tube was removed, and vomiting occurred within a few seconds.

“Q. And then what happened?

“A. With the first vomitus there was expelled a rubber encased packet containing the material in question.”

3

. RT 8-9

“THE COURT: How did you plan to get the heroin out of your stomach?

“THE WITNESS: Throw it back up.

“BY MR. JOHNSON: Q. How were you going to cause yourself to throw it up?

“A. Stick my hand in my throat. There are numerous ways I could throw up.

“Q. What other ways than sticking your hand in your throat?

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“Q. What are these numerous ways, other than using your hands?

“THE COURT: Oh, I think you have covered that.

“THE WITNESS: Well, the stuff the doctor gave me.

“BY MR. JOHNSON: Q. Was this like the doctor gave you, the same sort of thing?

“A. Well, I don’t know what it was, but that is what it was supposed to do.

“Q. You mean the doctor was there with the Customs Agents?

“A. Yes.”