United States v. Kenneth Malcolm Cameron

538 F.2d 254, 1976 U.S. App. LEXIS 8447
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 21, 1976
Docket75-2030
StatusPublished
Cited by70 cases

This text of 538 F.2d 254 (United States v. Kenneth Malcolm Cameron) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kenneth Malcolm Cameron, 538 F.2d 254, 1976 U.S. App. LEXIS 8447 (9th Cir. 1976).

Opinions

OPINION

Before HUFSTEDLER and KENNEDY, Circuit Judges, and THOMPSON,* District Judge.

ANTHONY M. KENNEDY, Circuit Judge:

Appellant Kenneth Cameron was tried by the district court on stipulated facts and found guilty of importing a controlled substance in violation of 21 U.S.C. §§ 952, 960 & 963. The sole issue at trial and on this appeal is the admissibility of evidence discovered in a search of the defendant’s rectal cavity, under the circumstances described below.

On November 11, 1974, the appellant attempted to enter the United States from Mexico at the San Ysidro, California port of entry. He was stopped by customs inspector Harmon, who ascertained that Cameron’s vehicle was listed on the customs bureau’s computer as one requiring special attention. The inspector asked appellant about citizenship and importation, and in so doing noted that his eyes were “pinpointed” and that his speech was slurred. Inspector Harmon directed Cameron to drive to the secondary inspection area. Upon checking appellant’s arms for needle marks and discovering several, including a mark estimat[256]*256ed to be approximately one hour old,1 Inspector Harmon concluded that appellant was “definitely” under the influence of narcotics.

Harmon thereupon received permission from his supervisor, Inspector Gaudur, to conduct a visual body search, sometimes called a strip search. Harmon discovered no contraband, but observed clear signs of vaseline or other lubricant in appellant’s rectal area. The inspector inferred from all of the foregoing that Cameron was carrying contraband, concealed in his rectal cavity.2 Inspector Gaudur confirmed Harmon’s observations and noted that appellant was nervous and looked scared. Gaudur requested that Cameron spread his buttocks for more detailed visual inspection, but Cameron would not comply.

Inspector Gaudur called Assistant United States Attorney Thomas Coffin by telephone to request authorization for a body cavity search. Coffin ascertained that Cameron was free on bond while awaiting trial on charges of importing a controlled substance several months earlier.3 Coffin determined that a judge of the Southern District of California had advised Cameron that very morning of the conditions of his bond, including a prohibition on travel to Mexico. Coffin thereupon instructed Inspector Gaudur to detain the appellant for violation of his bond, regardless of whether any contraband was found,4 and further authorized Gaudur to conduct a body cavity search.

The agents took Cameron to the community hospital at Chula Vista, California and authorized Dr. Richard Boyd to perform an internal body search for concealed contraband. Dr. Boyd commenced by giving appellant a general physical examination, and observed nothing unusual. Cameron stated that he had abdominal and rectal problems and had been taking some medication for them, but he refused to elaborate when the doctor questioned further.

An initial probe of the rectal cavity by Dr. Boyd was frustrated by appellant’s resistance.5 Dr. Boyd attempted a second probe and appellant again complained and offered sharp physical resistance. Two customs officers subdued Cameron. They forced his legs against his chest until Dr. Boyd successfully completed the probe. Dr. Boyd determined a foreign object was concealed in Cameron’s rectum, but was unable to remove it.

Dr. Boyd rejected the possibility of using a proctoscope or sigmoidoscope in removing the object since these instruments cannot be used safely without the patient’s cooperation. Instead he ordered a warm water enema, and it was administered by a nurse under the doctor’s supervision. Appellant loudly objected, complained of pain, and had to be restrained with force by the customs agents. A second enema was administered approximately 15 minutes later, under the same conditions. Neither enema caused the contraband to be flushed from appellant’s body.

Dr. Boyd was replaced at midnight by Dr. Groves. Approximately one or two hours later, she prescribed an oral laxative to speed up appellant’s processes of elimina[257]*257tion. Appellant refused to drink it, and stated that because of his history of abdominal difficulty he should not take medicine without consulting his own physician. Appellant was told he would have to swallow it, and when he refused, an attempt was made to pour it down his throat: several customs officers held his arms and legs, and his head was pushed back, forcing his mouth open. Appellant then acquiesced and drank the medicine. He was left alone and went to sleep.

Cameron was then awakened at 4:00 a.m. and taken back to the port of entry. Later that morning he was transported to the marshal’s office in San Diego where he arrived about 10:30 a.m. Approximately 45 minutes later he requested to use the toilet. When he finished, a condom containing heroin was found in the previously empty commode.

The Justification for Initiating the Search

Appellant first argues the heroin should be suppressed because there was no justification for initiating the search which led to its discovery. We cannot agree. We find that at every step of the way law enforcement officers were aware of sufficient, concrete, articulable facts to justify further inquiry and, ultimately, a search.

It is settled that certain border searches may be conducted even absent any suspicion of wrongdoing. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Detailed questioning of appellant in the secondary search area and a physical examination of his arms were proper under this rule.

But we have further held that searches involving a “serious invasion of personal privacy and dignity,” such as close scrutiny of intimate portions of the body, may proceed only when there is a clear indication or plain suggestion that the individual may be involved in the importation of contraband. Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967); see Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967). In this case the following facts were fully sufficient to constitute a plain indication that appellant was smuggling narcotics and to justify a visual scan of the body: the computer identification of appellant’s automobile, see United States v. Carter, 480 F.2d 981, 983 (9th Cir. 1973); indications of narcotic influence from Cameron’s pinpointed eyes, slurred speech, and recent needle marks, United States v. Velasquez, 469 F.2d 264, 265-66 (9th Cir. 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1399, 35 L.Ed.2d 612 (1973); United States v. Shields, 453 F.2d 1235, 1236 (9th Cir.), cert. denied, 406 U.S. 910, 92 S.Ct.

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Bluebook (online)
538 F.2d 254, 1976 U.S. App. LEXIS 8447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kenneth-malcolm-cameron-ca9-1976.