BARNES, Circuit Judge.
The three appellants herein were convicted by the court below, sitting without a jury, of a conspiracy to import heroin, 18 U.S.C. § 371, and the illegal importation of narcotics, 70 Stat. 570 (1956) 21 U.S.C.A. § 174. (Two counts.) Murgia and Ramirez (also known as Hernandez) were sentenced to concurrent ten year terms; Carpió to concurrent five year terms. Upon filing a timely appeal, each appellant was permitted to proceed in forma pauperis. Each was represented below and on this appeal by able counsel.
Prior to September 9, 1959, custom agents at Calexico, California, had information that large quantities of narcotics were being imported into the United States concealed in body cavities;
that these narcotics were being taken to an abandoned house north of Calexico, and there removed and used. From evidence that need not be repeated, the rectum was the cavity usually used. The agents had information that Murgia was a known narcotics addict and that he registered as an addict upon frequent crossings of the border. On this date, Custom Agent Scott saw Murgia'enter the United States from Mexico on foot after having registered as a narcotics addict. Murgia was not searched at the border. Scott followed Murgia on foot for a distance of about four blocks. At this point, he saw Murgia enter a car in which were seated three other persons. Agent Scott identified one of the other occupants as Carpió, a convicted narcotics violator and known by the custom officers to be such. Agent Scott was then picked up in a government car by Agent Richards. Scott drove the car, and together they followed the car in which Murgia was riding.
Murgia was seated in the left rear seat, Ramirez or Hernandez in the right rear, Carpió was driving and one Lilly, a witness at the trial but not a defendant, was sitting in the right front seat.
The officers followed the Murgia car through Calexico and out to Highway 98. About a mile or a mile and one-half outside of Calexico, Scott sounded the siren on the government vehicle.
The siren was still being sounded when an arm extended from the right side of the defendants’ car and an object was thrown out from the car. Murgia’s car then stopped and all its occupants were lined up and searched for weapons.
•One officer retrieved the object which had been thrown from the car. It proved to be a narcotic addict’s “kit,” consisting of an hypodermic needle, eyedropper, a small burned aluminum metal cap, and a piece of paper, all enclosed in a dark cloth. When questioned at the scene about this kit, all four defendants denied knowledge of it.
At that time all four men were placed under arrest, and were returned to the Customs House where they were interrogated separately. Lilly confessed and
implicated the other three defendants. Lilly told the agents that Murgia then had narcotics concealed in his rectum.
At the Customs House Murgia had been asked if he had'any heroin concealed on his person or in his body, and he denied it. Customs Agent Richards then said, “Well, you will have no objection to going to see a doctor.” Murgia’s reply was non-responsive, but was, “I don’t have anything on me.” Murgia was then taken to the El Centro County Hospital in a government automobile. Murgia was physically touched by the agents in making the trip but no force was exerted in connection with this examination. Murgia offered no resistance in going to the hospital; he went along voluntarily and willingly. At the hospital, Agent Scott asked Murgia to . remove his trousers and Murgia declined to do so, upon which Agent Scott said, “Bend over and remove your trousers.” Murgia thereupon complied. Dr. Milligan then probed ;the rectum with his finger and withdrew the red balloon which contained heroin. Thus no question arises herein under the “brutal and offensive treatment” doctrine reemphasized recently by the Supreme Court.
All four participants had records as convicted narcotic addicts or narcotic violators. Ramirez had smuggled heroin into this country in 1956. Murgia and Carpió had been known to the border guards for four years; and had been under surveillance during 1959 — Murgia, particularly, having been trailed on foot. He was trailed on this occasion on foot to the automobile.
When Murgia joined his three companions in the auto, he stated “someone was on his tail” — that: “he thought someone was following him.”
Lilly had taken shots of heroin with either or both Murgia and Ramirez each day for “many” days during the three months prior to September 9,1959. Lilly had paid Murgia to obtain heroin for him, on numerous occasions, “more than five but less than ten.” Murgia had brought this heroin across the border concealed in his rectum.
Appellants urge that the search of Murgia was violative of the fourth and fifth amendments, and the heroin obtained in the search should have been suppressed.
We cannot agree. Appellants’ counsel urges that this was not a border search. Again we cannot agree. No customs search can be made precisely at the border. All must be made somewhere north of the border between Mexico and the United States. No real search of Murgia was made when he first crossed the border line. He was not asked to undress. But he was followed, or “tailed” until he made contact with individuals known to be narcotic addicts and/or users. The defendant Murgia, no longer on foot, was seen rapidly leaving the border by automobile. He knew he was being followed — presum-. ably by an officer of the law. It was necessary for the border patrol to follow him in an auto. When signaled to stop by the sounding of a siren, someone in the auto attempted to discard equipment used ordinarily for the taking of heroin, and for that purpose only. No defendant admitted ownership of the equipment. No search of the defendants, save for weapons, had up until that time been made. The ascertainment that that which was thrown away was narcotic equipment justified both the arrest of all defendants, and the further search of each, incident to the lawful arrest. Viewing this as a border search, which we do find it was up to the time of ascertaining what was in the discarded package, the stopping of the vehicle for the border search of Murgia was proper and in accordance with statutory law. After the ascertainment of the fact that one or more of the four defendants had had the narcotic equipment in their possession, severally or jointly, there was valid ground for the
search of all four. We need not pass on whether the defendants other than Murgia could have been searched as part of a border search had there been no attempted disposal of the narcotic equipment.
The right of border search does not depend on probable cause. Carroll v. United States, 1924, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543. Cf.: People v. Brown, 1955, 45 Cal.2d 640, 290 P.2d 528 ; Johnson v. United States, 1948, 333 U.S. 10, 16-17, 68 S.Ct. 367, 92 L.Ed. 436; People v.
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BARNES, Circuit Judge.
The three appellants herein were convicted by the court below, sitting without a jury, of a conspiracy to import heroin, 18 U.S.C. § 371, and the illegal importation of narcotics, 70 Stat. 570 (1956) 21 U.S.C.A. § 174. (Two counts.) Murgia and Ramirez (also known as Hernandez) were sentenced to concurrent ten year terms; Carpió to concurrent five year terms. Upon filing a timely appeal, each appellant was permitted to proceed in forma pauperis. Each was represented below and on this appeal by able counsel.
Prior to September 9, 1959, custom agents at Calexico, California, had information that large quantities of narcotics were being imported into the United States concealed in body cavities;
that these narcotics were being taken to an abandoned house north of Calexico, and there removed and used. From evidence that need not be repeated, the rectum was the cavity usually used. The agents had information that Murgia was a known narcotics addict and that he registered as an addict upon frequent crossings of the border. On this date, Custom Agent Scott saw Murgia'enter the United States from Mexico on foot after having registered as a narcotics addict. Murgia was not searched at the border. Scott followed Murgia on foot for a distance of about four blocks. At this point, he saw Murgia enter a car in which were seated three other persons. Agent Scott identified one of the other occupants as Carpió, a convicted narcotics violator and known by the custom officers to be such. Agent Scott was then picked up in a government car by Agent Richards. Scott drove the car, and together they followed the car in which Murgia was riding.
Murgia was seated in the left rear seat, Ramirez or Hernandez in the right rear, Carpió was driving and one Lilly, a witness at the trial but not a defendant, was sitting in the right front seat.
The officers followed the Murgia car through Calexico and out to Highway 98. About a mile or a mile and one-half outside of Calexico, Scott sounded the siren on the government vehicle.
The siren was still being sounded when an arm extended from the right side of the defendants’ car and an object was thrown out from the car. Murgia’s car then stopped and all its occupants were lined up and searched for weapons.
•One officer retrieved the object which had been thrown from the car. It proved to be a narcotic addict’s “kit,” consisting of an hypodermic needle, eyedropper, a small burned aluminum metal cap, and a piece of paper, all enclosed in a dark cloth. When questioned at the scene about this kit, all four defendants denied knowledge of it.
At that time all four men were placed under arrest, and were returned to the Customs House where they were interrogated separately. Lilly confessed and
implicated the other three defendants. Lilly told the agents that Murgia then had narcotics concealed in his rectum.
At the Customs House Murgia had been asked if he had'any heroin concealed on his person or in his body, and he denied it. Customs Agent Richards then said, “Well, you will have no objection to going to see a doctor.” Murgia’s reply was non-responsive, but was, “I don’t have anything on me.” Murgia was then taken to the El Centro County Hospital in a government automobile. Murgia was physically touched by the agents in making the trip but no force was exerted in connection with this examination. Murgia offered no resistance in going to the hospital; he went along voluntarily and willingly. At the hospital, Agent Scott asked Murgia to . remove his trousers and Murgia declined to do so, upon which Agent Scott said, “Bend over and remove your trousers.” Murgia thereupon complied. Dr. Milligan then probed ;the rectum with his finger and withdrew the red balloon which contained heroin. Thus no question arises herein under the “brutal and offensive treatment” doctrine reemphasized recently by the Supreme Court.
All four participants had records as convicted narcotic addicts or narcotic violators. Ramirez had smuggled heroin into this country in 1956. Murgia and Carpió had been known to the border guards for four years; and had been under surveillance during 1959 — Murgia, particularly, having been trailed on foot. He was trailed on this occasion on foot to the automobile.
When Murgia joined his three companions in the auto, he stated “someone was on his tail” — that: “he thought someone was following him.”
Lilly had taken shots of heroin with either or both Murgia and Ramirez each day for “many” days during the three months prior to September 9,1959. Lilly had paid Murgia to obtain heroin for him, on numerous occasions, “more than five but less than ten.” Murgia had brought this heroin across the border concealed in his rectum.
Appellants urge that the search of Murgia was violative of the fourth and fifth amendments, and the heroin obtained in the search should have been suppressed.
We cannot agree. Appellants’ counsel urges that this was not a border search. Again we cannot agree. No customs search can be made precisely at the border. All must be made somewhere north of the border between Mexico and the United States. No real search of Murgia was made when he first crossed the border line. He was not asked to undress. But he was followed, or “tailed” until he made contact with individuals known to be narcotic addicts and/or users. The defendant Murgia, no longer on foot, was seen rapidly leaving the border by automobile. He knew he was being followed — presum-. ably by an officer of the law. It was necessary for the border patrol to follow him in an auto. When signaled to stop by the sounding of a siren, someone in the auto attempted to discard equipment used ordinarily for the taking of heroin, and for that purpose only. No defendant admitted ownership of the equipment. No search of the defendants, save for weapons, had up until that time been made. The ascertainment that that which was thrown away was narcotic equipment justified both the arrest of all defendants, and the further search of each, incident to the lawful arrest. Viewing this as a border search, which we do find it was up to the time of ascertaining what was in the discarded package, the stopping of the vehicle for the border search of Murgia was proper and in accordance with statutory law. After the ascertainment of the fact that one or more of the four defendants had had the narcotic equipment in their possession, severally or jointly, there was valid ground for the
search of all four. We need not pass on whether the defendants other than Murgia could have been searched as part of a border search had there been no attempted disposal of the narcotic equipment.
The right of border search does not depend on probable cause. Carroll v. United States, 1924, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543. Cf.: People v. Brown, 1955, 45 Cal.2d 640, 290 P.2d 528 ; Johnson v. United States, 1948, 333 U.S. 10, 16-17, 68 S.Ct. 367, 92 L.Ed. 436; People v. Simon, 1955, 45 Cal.2d 645, 290 P.2d 531. “[The] searches of persons entering the United States from a foreign country are in a separate category from searches generally * * * [and] ‘are totally different things from a search for and seizure of a man’s private books and papers * * *.’ ” King v. United States, 5 Cir., 1958, 258 F.2d 754, at page 756, certiorari denied 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639, quoting Boyd v. United States, 1886, 116 U.S. 616, 623, 6 S.Ct. 524, 29 L.Ed. 746. Cf.: Blackford v. United States, 9 Cir., 1957, 247 F.2d 745, certiorari denied 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586; United States v. Yee Ngee How, D.C.N.D.Cal. 1952, 105 F.Supp. 517.
Appellants seek relief from the broad effect of the border search rule by certain language in Landau v. United States Attorney for Southern District, 2 Cir., 1936, 82 F.2d 285, 286, certiorari denied 298 U.S. 665, 56 S.Ct. 747, 80 L.Ed. 1389; and United States v. Yee Ngee How, supra. In both these cases, the right of a border search was upheld. In Landau, the court said: [82 F.2d 286] “The search which customs agents are authorized to conduct upon entry is of the broadest possible character * * *.” It was there upheld, even though no arrest occurred, and there was no warrant issued. In Yee Ngee How, supra, the court interprets the “vessel” mentioned in 19 U.S.C.A. § 1581
to include the pier as well, and continues: “Had the petitioner or his possessions been searched while he was off the ship and within the city [of San Francisco], the situation would have been different; but this was not done.” Id., 105 F.Supp. at page 523. Such language is dictum at best, and of course, not binding on this court.
To adopt appellants’ theory would require us to ignore the meaning of the broad language in each of the three statutes involved,
“at any place in the United
States,” 49 Stat. 521 (1935) 19 U.S.C.A. § 1581; “any vehicle * * * as well without as within their respective districts” 14 Stat. 178 (1866) 19 U.S.C.A. § 482, and “all persons coming into the United States from foreign countries shall be liable to detention and search * * * ” 46 Stat. 748 (1930) 19 U.S. C.A. § 1582.
We agree with appellants’ second legal point, that an arrest cannot be justified by what a later search discloses. But appellants were stopped as part of a lawful border search; arrested as result of, and only after, evidence which they had attempted to discard had been found
without a search;
and which evidence created probable cause for their arrest. They were convicted because of the foregoing, and because of evidence found in a subsequent lawful search. We do not find Johnson v. United States, supra, relied upon by appellants, applicable to the facts herein.
Nor is the border search and subsequent arrest governed by California law. To the' contrary, the federal law applies, as hereinabove quoted and decided. This was a search of a person entering the United States from a foreign country. We therefore need not reach the question of “probable cause” under California law.
As to Carpio’s conviction, we agree, as did the trial court, that a close question is presented by evidence, particularly with respect to count two (importation). But the trial court did find him guilty, and certainly there is sufficient evidence of his participation in a conspiracy under the one count. He drove the car; the four individuals all knew of Murgia’s intent and purpose in going to Mexico; Carpió waited until Murgia returned ; there was evidence that the narcotics kit had been carried openly on the floorboard in the front of the car. That was where Carpió sat. It could readily be inferred by the trier of fact that Carpió knew of the narcotics and the contents of the kit. This evidence, and not merely his previous record, convicted him on the conspiracy count. The sentence he received on each count was the same, and concurrent. Thus, if defendant Carpió was validly convicted under the conspiracy count (one), a reversal cannot be had regardless of the validity of the conviction on the importation count (two). Fuentes v. United States, 9 Cir., 1960, 283 F.2d 537; Sinclair v. United States, 1929, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; Winger v. United States, 9 Cir., 1956, 233 F.2d 440; King v. United States, 9 Cir., 1960, 279 F.2d 342.
The judgment of conviction as to each defendant is affirmed.