Oscar John Huguez v. United States , 406 F.2d 366 ( 1969 )

HAUK, District Judge:

Here raised in this appeal is an issue which is coming before this and other Federal Appellate Courts with increasing frequency- — the validity and constitutionality of border searches conducted without a search warrant by forcible and intrusive invasion of an intimate human body cavity. In this case the appellant’s rectum was searched by forcible digital insertion and manipulation in locating and extracting four narcotic packets which were seized and introduced in evidence at appellant’s trial.

This issue necessarily raises the questions of “reasonableness” of the search and seizure under the Fourth Amendment to the United States Constitution¹ and the permissibility of the techniques used under the “due process” clause of the Fifth Amendment.²

Appellant Huguez (with a codefendant alleged to have aided and abetted him) was charged in two counts of a four-count indictment with knowingly importing four ounces of heroin into the United States from Mexico, and with concealing and transporting it in violation of 21 U.S.C. § 174.³ The third and fourth counts, charging the codefendant and appellant respectively with failing to register as narcotics addicts or users upon entry into the United States, in violation of 18 U.S.C. § 1407,⁴ were both dismissed upon motion of the Government.⁵

On the day of trial in the District Court, Southern District of California, May 26, 1966, appellant filed a motion to suppress the use of the heroin in evidence, pursuant to Rule 41(e), Fed.R.Crim.P., supporting it with his affidavit and claiming that the heroin was inadmissible because:⁶

(a) It was seized without a search ' warrant;

(b) The heroin was seized in an “unreasonable” search which was constitutionally invalid; and

(c) The heroin was obtained by the use of methods and techniques violative of “due process”.

This motion was impliedly overruled throughout the trial when the Court permitted the introduction of the heroin into evidence and at the end of the trial was formally denied.⁷

After the non jury trial, the appellant was found guilty of the offenses charged in the first two counts; the Government agreed to and later did dismiss count three as to the codefendant,⁸ and count four as to appellant.⁹

A seven-year sentence was then imposed upon appellant on each of the two counts, to be served concurrently.

Jurisdiction below rested on 18 U.S.C. §§ 1407¹⁰ and 3231,¹¹ and 21 U.S.C. § 174.¹² Our jurisdiction is established by 28 U.S.C. §§ 1291¹³ and 1294.¹⁴

The substantive error urged on this appeal is the denial of the motion to suppress and the subsequent admission into evidence of the four ounces of heroin seized in the intrusive search of appellant’s rectum. We find that the specification of error is well taken because readily apparent upon close analysis of the facts contained in the record, considering the evidence in the light most favorable to the Government, as we are obliged to do, and disregarding only such testimony as shown by the whole record to be palpably unworthy of belief.

A careful reading of the Transcript of Record in this case leads us chronologically and inevitably to a four-step summary of what occurred from the beginning of the border crossing through the naked strip and skin search on to the final forcible intrusion of the rectal cavity:

1. The border crossing and initial detention by Inspector Teela;

2. The secondary area examination and strip and skin search by Inspectors Teela and Lasher;

3. The forcible and intrusive rectal cavity invasion by Dr. Salerno and the three customs agents — Gates, Maxcy and Spohr.

4. The absence of any emergency or compelling urgency.

I. THE FACTS

1. The Border Crossing and Initial Detention by Inspector Teela.

At 8:50 p. m. on the evening of May 13, 1966, appellant Huguez and a companion, codefendant Baros, attempted to enter the United States at the San Ysidro border crossing, San Diego County, California, after traveling by automobile from Tijuana, Baja California, Mexico.¹⁵ At the primary inspection point, Customs Inspector Thomas N. Teela approached the automobile and engaged the two men in routine border questioning.¹⁶

Huguez responded to the questions by stating that he was 'a citizen of the United States, had been born in Los Angeles, California, and was bringing in some mascara which he had purchased for his wife in Mexico.¹⁷ He declared this merchandise but did not declare any narcotics, nor did he register as a narcotic addict or user under 18 U.S.C. § 1407,¹⁸ nor did he present any registration certificate as required by this statute.¹⁹

Nonetheless, Inspector Teela became “somewhat suspicious” that the two men were under the influence of narcotics when he observed, with the aid of the fluorescent lighting in the inspection area and a flashlight which he focused upon the men during the inquiry, that their eyes appeared to be “glassy and pinpointed”.²⁰

During the trial, Inspector Teela admitted on cross examination that, since he had not seen either of the men on any previous occasion and was not trained or experienced in medical matters, he had “no way of knowing” the normal size of their pupils nor the reflective effect that fluorescent lighting and flashlights would have upon their eyes.²¹ On this basis Teela reached the conclusion that appellant and codefendant Baros were under the influence of narcotics, and thereupon entered the passenger side of the automobile and directed the suspects to proceed to the secondary area.²²

2. The Secondary Area Examination and Strip and Skin Search by Inspectors Teela and Lasher.

Inspector Teela escorted the suspects to the secondary area where the windowless search rooms are located, and after entering one of the rooms Huguez was instructed to take off his clothes.²³ With the assistance of Supervisor Inspector Lasher, Teela then conducted a personal clothing and skin search of the' naked Huguez and later of the codefendant Baros. The strip and skin search failed to produce narcotics or other contra-brand, but did reveal what Lasher said was the presence of “needle marks on their arms” as well as what Teela said was a “greasy substance” on appellant’s buttocks.²⁴

Inspector Lasher subsequently turned the two men over to Assistant Customs Agent-in-Charge Walter A. Gates and Customs Agent John D. Maxcy.²⁵ Gates was informed by Inspector Lasher only of the needle marks on the suspects’ arms and, for some reason not at all apparent, Teela failed to say anything at all to either Gates or Maxcy about:

(1) the “greasy substance” he had allegedly observed on Huguez’s buttocks ;

(2) the United States citizenship of Huguez and his failure to register or present a certificate as a narcotic user or addict under 18 U.S.C. § 1407; or

(3) the “glassy and pinpointed eyes”.

Nor did Teela, Lasher or anyone else suggest to Gates that the doctor examine the appellant.²⁶

3. The Forcible and Intrusive Rectal Cavity Invasion by Dr. Salerno and the Three Customs Agents — Gates, Maxcy and Syohr.

Agents Gates and Maxcy took the two men, now fully dressed again, from the windowless search room to the baggage area across the street and into one of the rooms in this baggage area²⁷ — not a medical room nor even a room, so far as the record discloses, equipped with any of the usual hygienic and sterilized equipment found in the physician’s customary office, but evidently only a bare baggage room with “an examination table” in it.²⁸ Dr. Paul R. Salerno proceeded to examine codefendant Baros and then appellant Huguez,²⁹ while Inspector Lasher leaned against the wall watching the proceedings.³⁰ Neither Agent Gates, nor Agent Maxcy, nor Inspector Lasher, nor anyone else passed on to Dr. Salerno any information about the physical condition of Huguez and Baros. The doctor was not told of the “glassy and pinpointed eyes” which Teela claims made him “somewhat suspicious”; nor of the “needle marks” which Lasher had noticed; nor of the alleged “greasy substance” that Teela claims he saw on Huguez’s buttocks.³¹ And the record does not show that the doctor was ever told that Huguez was a United States citizen and had not registered or presented a narcotic user, or addict registration certificate under 18 U.S.C. § 1407.

Yet, starting from scratch, without a search warrant, which it is clear (and the Government admits) was not issued or served, without any prior information of any kind whatsoever, Dr. Salerno took it upon himself to conduct the forcible body and intrusive rectal cavity invasion to locate and extract the four packets which were later introduced in evidence at the trial and are now the basis of appellant’s contention of reversible error.

After appellant had removed his shirt as directed, Dr. Salerno then for the first time became aware of the small needle marks on Huguez’s arms which, according to the doctor’s testimony, suggested that Huguez had recently used narcotics.³² During the examination. Dr. Salerno also concluded that Huguez’s pupils responded sluggishly to darkness, that the deep tendon reflexes of the lower extremity were hyperactive, and that his pulse rate was accelerated. On the basis of this examination, and admittedly having failed to administer either one of the ordinary and easily given Nalline or urine tests, the doctor arrived at the opinion that Huguez was a user and at that time under the influence of narcotic drugs.³³ And after arriving at this opinion the doctor made the request “to conduct a routine digital or rectal examination”.³⁴

Thereupon Huguez was ordered to lower his trousers so that Dr. Salerno could conduct a digital rectal probe to determine whether any material was concealed in the anal cavity,³⁵ despite the fact that the doctor had not received any information at all from the agents or from anyone else regarding the “greasy substance” that Teela claimed he saw on Huguez’s buttocks.³⁶ As we have said, he gave this order to Huguez to lower his trousers and began the rectal cavity invasion without a search warrant of any kind having been sought, issued or served.

Upon Huguez’s refusal to lower his trousers, Dr. Salerno told him “We’re going to have to do it the hard way.” Whereupon the three customs agents— Gates, Maxcy and Spohr—forcibly pulled Huguez’s pants down.³⁷

Dr. Salerno then started his “digital or rectal examination” by using a plastic glove and inserting his index finger up Huguez’s anus and into his rectum.³⁸ Parenthetically we note, and it is a curious circumstance indeed, that when Dr. Salerno examined Huguez’s buttocks and rectal area prior to inserting his finger, he found absolutely no evidence of the “greasy substance” which Teela claimed he saw. In fact, the doctor testified that there was no “foreign chemical substance” or “lubrication” in the rectal and buttock area at all. And he so testified both on direct and on cross examination.³⁹ Incidentally, Huguez also testified that there was no “greasy substance” on or in the area of his buttocks.⁴⁰

As the doctor’s finger was inserted, Hu-guez did not at first physically resist,⁴¹ but when the doctor persisted in the digital manipulation, Huguez vehemently protested :

“I told him that I wasn’t going to relax, that he was just running over my constitutional rights. He couldn’t go up my rectum without my consent.” ⁴²

And then Huguez began to resist with all the strength he could muster. As Dr. Salerno put it, “he forcibly constricted his external sphincter; he also reached around with one of his hands in an effort to remove my finger from the examining position.”⁴³ And he continued his struggling resistance against the combined efforts of at least three agents there in the room with Dr. Salerno.⁴⁴

At this critical juncture of the struggle, the agents handcuffed Huguez and threw him onto a table⁴⁵ Agent Gates was then able to break Huguez’s will to resist by pulling forward on the handcuffs and exerting enough pressure on Huguez’s head, shoulders and back to keep him bending over forward and forcing his chest to remain on the table.⁴⁶ Gates said Huguez’s hands were cuffed behind his body and were pulled up and forward to force his upper body prone on the table,⁴⁷ while Huguez claimed he was cuffed with his hands and arms in front.⁴⁸ In any event, sufficient pressure was exerted to bring Huguez against the table and flat down on it from hips to head.⁴⁹

Agent Gates admitted having noticed “red streaks” on Huguez’s wrist following his protests that the handcuffs were applied too tightly.⁵⁰ Huguez elaborated that the continuous pulling on the handcuffs caused “metal to bite into the flesh” and “the skin was peeled”, resulting in “cuts on my wrists”.⁵¹ And Agent Spohr admitted that he observed at least “a red spot on the one wrist.” ⁵²

While Agent Gates pulled on the handcuffs to control the shoulders and head area, the other officers were applying pressures to the rest of Huguez’s body.⁵³ Agent Maxcy controlled the small of his back in pressing down with arms and hands. Huguez’s legs were stretched and pulled apart by Agent Spohr who controlled Huguez’s left leg with the weight of his own right leg, and by Dr. Salerno who controlled Huguez’s right leg with his own right arm.⁵⁴ Eventually the agents succeeded in breaking appellant’s resistance and Dr. Salerno was finally able to extract the four large spherical packets, each measuring approximately one to one and one-half inches in diameter which, with the doctor’s finger, constituted in each case a mass of approximately two inches in diameter when being removed from the rectal cavity through the anus and external sphincter, requiring a stretching of the sphincter.⁵⁵ The packets were later determined and stipulated to contain four ounces of the narcotic, heroin.⁵⁶

This “force process”, as Agent Gates characterized it, took about five minutes, although the appellant declared it was something more like ten, fifteen or twenty minués.⁵⁷ Needless to say, this “force process”, simultaneously applied by the three custom agents in restraining Hu-guez and by Dr. Salerno in locating and removing the packets, caused the appellant considerable discomfort and pain.⁵⁸ Throughout it all, Huguez’s pleas and protestations went unheeded. “I told them to stop. It was hurting. And they just laughed * * * They just made like a wisecrack out of it.”⁵⁹ And throughout it all, the appellant was never put under arrest. ■

4. The Absence of Any Emergency or Compelling Urgency.

Dr. Salerno’s testimony clearly revealed that there was no emergency necessitating or justifying the brutal “force process” to which Huguez was subjected in the conduct of the intrusive rectal cavity invasion. According to Dr. Salerno, it is entirely possible for a person to retain packets of heroin within the rectal cavity for a period of several days even though some degree of discomfort might be experienced during that period.⁶⁰ Moreover, according to the doctor, the frequency of a normal bowel movement is about once a day and the administration of an oral laxative ordinarily would entail a waiting period of no more than six or eight hours.⁶¹ And finally the doctor agreed that even though the rubber balloon material with which the packets were covered might eventually deteriorate and cause some health hazard to Huguez, possibly even death upon direct contact and absorption by the rectal cavity, there would be no such hazard for at least six to eight hours.⁶² The inference is clear, then, that no emergency or compelling urgency existed for at least a six to eight hour period during which the government agents could have obtained the issuance and service of a search warrant.

II

THE INTRUSIVE INVASION OF APPELLANT’S RECTAL CAVITY EXCEEDS THE CONSTITUTIONAL LIMITATIONS OF THE FOURTH AMENDMENT ON BORDER SEARCHES WITHOUT A WARRANT, BECAUSE THERE WAS NO “CLEAR INDICATION” THAT THE CAVITY CONTAINED NARCOTICS.

No constitutional right is more basic or fundamental than the right of privacy, protected by the Fourth Amendment restriction against “unreasonable searches and seizures” which violate “the right of the people to be secure in their persons, houses, papers and effects.” Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

In its historical and inevitable development, this constitutional right has been enforced by exclusion of evidence obtained illegally in contravention of the Fourth Amendment.⁶³

With scientific advances and the development of the telephone and electronic gear, the Supreme Court has been zealous to protect this right against invasions by wiretapping⁶⁴ and electronic eavesdropping.⁶⁵

Our Ninth Circuit has summed it up: “The Fourth Amendment protects against invasion of the right of privacy. To effectuate this basic purpose and policy, the prohibitory language has been implemented by the Federal exclusionary rule. Evidence illegally obtained in contravention of the Fourth Amendment is inadmissible in a federal prosecution.” Blackford v. United States, 247 F.2d 745, 748 (9th Cir. 1957).

Pointing out that the Fourth Amendment has a rich heritage and that “its genesis lies in the fervent discontent aroused in the American colonies in the period antedating the Revolution by the flagrant abuses of ‘writs of assistance’ ”, the Court added: “It represents recognition and embodiment in our fundamental framework of government of the precept that a man’s property and person are inviolable to search except upon due cause.” Blackford, supra, at 748.

Just last year this Court distilled the essence of the Fourth Amendment by quoting the Supreme Court in Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (196 6 ) ⁶⁶ and concluding: “The decision emphasizes that the purpose of the Fourth Amendment is ‘to protect personal privacy and dignity against unwarranted intrusion by the state’. To us, this means that every search must be examined in the light of the Amendment’s requirement that it not be ‘unreasonable’. And we think that this requirement applies to border searches.” (Emphasis added.) Henderson v. United

States, 390 F.2d 805, 807. (9th Cir. 1967).

We are indeed mindful that, as so aptly put in Blackford, supra, 247 F.2d 745 at 751:

“There is no slide-rule formula yet devised for ascertaining whether specific conduct is or is not reasonable. Each case must turn on its own relevant facts and circumstances. United States v. Rabinowitz, supra; Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 91 L.Ed. 1399; Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374. ‘Reasonableness is in the first instance for the District Court to determine.’ United States v. Rabino-witz, 339 U.S. 56 at page 63, 70 S.Ct. 430 at page 434, 94 L.Ed. 653. The determination by that court of a constitutional question is not binding upon us, but is entitled to weight.”

Along with Blefare v. United States, 362 F.2d 870, 871 (9th Cir. 1966), we “accept the principle that the reasonableness of the 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).”

However, we note that when the trial court here in Huguez made its determination on May 26, 1966 — the date of the one-day nonjury trial — holding the intrusive invasion of appellant’s rectal cavity a “reasonable search”, the opinion in Blackford (July 10, 1957) ⁶⁷ was the only effectively determinative decisional authority in either the Ninth Circuit or the Supreme Court. Since that date, the cases of Blefare (June 8, 1966),⁶⁸ Schmerber (June 20, 1966),⁶⁹ Rivas (November 8, 1966) ⁷⁰ and Henderson (July 7, 1967) ⁷¹ have laid down additional guidelines unavailable to the District Court at the time of the Huguez trial, but now controlling and imperative upon us.

It is, therefore, our duty to test the facts of the Huguez intrusive body cavity invasion, not only by the earlier exposition of Blackford, but by the more recent teachings.

In doing so, and without any implication of criticism of the learned trial judge, we find that the intrusive search of appellant’s rectum here in Huguez exceeded the constitutional limitations of the Fourth Amendment.

Parenthetically, we should add that we “take judicial notice of the fact that the Mexieo-California border is one of the major centers for importation of narcotic drugs into the United States” and of the continuing increase, to what is now virtually a common practice, of the use of body cavities by experienced smugglers to transport narcotics across the Mexican border. Blackford, supra, 247 F.2d at 752. Not only does other decisional literature to date so advise us,⁷² but we also find here in Huguez, testimony that between July 1, 1965 and May 26, 1966, there were approximately 20 reported instances in which narcotics had been recovered from body cavities (rectums or vaginas) in border searches at the San Ysidro, California, crossing into the United States from Tijuana, Mexico.⁷³

That this common practice makes effective border patrol difficult is undeniable. Yet that it must be curbed within the confines of the Fourth Amendment prohibition against unreasonable searches and seizures is unassailable.

The most recent decision of this Ninth Circuit agrees “that this presents a serious problem of law enforcement, to be weighed against the individual’s right to human dignity and privacy as protected by the Fourth Amendment.” Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967). In the words of Henderson at 806-807:

“This court has repeatedly upheld border searches of body cavities 1⁷⁴ in-eluding such searches carried out m spite of the violent resistance of the person searched.2 ⁷⁵ However, for reasons that will appear, we do not reach such issues here. The only question we decide is whether initiation of the search was lawful.

“We have repeatedly said that a border search can be undertaken without probable cause.3 ⁷⁶ but we have also held that even in such cases, the officers must act reasonably.4 ⁷⁷ Our recent decision in Rivas v. United-States, supra, n. 1 [74] establishes that in the case of a search of body cavities, ‘ “there must be a clear indication of the possession of narcotics,” ’ or a ‘plain suggestion’ of the smuggling, which must be ‘over and beyond “a mere suspicion.” ’5 ⁷⁸ Rivas requires, when body cavities are searched, something more than was required in the earlier decisions, which said that ‘mere suspicion’ is enough.6 ⁷⁹ The Rivas requirement is based upon language used by the Supreme Court in Schmerber v. State of California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.”

Recognizing as too well established to require citation of authority that border searches are different from other searches, that they are unique, that the mere fact a person is crossing the border is sufficient cause for a search of his baggage, vehicle and contents of purse, wallet or bags, Henderson then lays down the restrictions that must gov-era a naked strip and skin search and an intrusive body cavity invasion:

“If, however, the search of the person is to go further, if the party, male or female, is to be required to strip, we think that something more, at least a real suspicion, directed specifically to that person, should be required. And if there is to be a more than casual examination of the body, if in the course of the search of a woman there is to be a requirement that she manually open her vagina for visual inspection to see if she has something concealed there, we think that we should require more than a mere suspicion. Surely, to require such a performance is a serious invasion of personal privacy and dignity, and so unlawful if ‘unwarranted’. Surely, in such a case, to be warranted, the official’s action should be backed by at least the ‘clear indication’, the ‘plain suggestion’, required in Sehmerber and Rivas.” (390 F.2d at 808).

As in Henderson, we, too, believe that the Schmerber-Rivas test should be applied to the rectal cavity invasion here in Huguez and for the same reasons, namely, we take judicial notice that many thousands of men and women crossed the California-Mexieo border during the same year’s period during which the record discloses there were 20 reported instances of recovery of narcotics from rectums or vaginas; that the vast majority were obviously not carrying narcotics in their body cavities or elsewhere; that there is no disclosure in the record how many men and women crossing the border in that period were subjected to similar searches as a result of which nothing was found; and that these men and women were “certainly entitled to their dignity and privacy and their interests, too, are to be weighed.” Henderson, supra, 390 F.2d at 808.

Here in Huguez as in Henderson, appellant crossed the border with another person in an automobile. The customs' officers had not received any advance information with respect to the car, to the other person or to Huguez that would alert the officers to the possibility that they might possess or be carrying narcotics. Contrariwise, there was such information, and from reliable informants, in Denton, Blefare and Witt, supra, note 74. Neither Huguez nor his companion was a known, convicted and registered user of narcotics, as the defendants were in Murgia and Rivas; neither of them did or said anything to arouse suspicion. The agents had not been told by Huguez or anyone else that he had anything concealed in his body, as was the case in Blackford and Murgia.

It is true, and the record indicates, Teela did become “somewhat suspicious” that the two men were under the influence of narcotics when he observed that their eyes appeared to be glassy and pinpointed.⁸⁰ This, under the test of Schmerber, Rivas and Henderson, might be sufficient to justify the initial detention by Inspector Teela, since it probably can be interpreted as a “mere suspicion”. It might also, for the same reason, be sufficient to support the examination of the personal clothing and the strip and skin search of the naked Huguez and his companion by Inspectors Teela and Lash-er in the secondary area and its windowless search room, during which they discovered what Lasher said was the presence of “needle marks on their arms” as well as what Teela said was a “greasy substance” on appellant’s buttocks.⁸¹

But when the two men were turned over to Agents Gates and Maxcy, Lasher informed Gates only of the “needle marks”, and Teela failed completely to say anything at all to either Gates or Maxcy about the “greasy substance” he had allegedly observed on Huguez’s buttocks, or about the “glassy and pinpointed eyes”, or about the United States citizenship of Huguez and his failure to register or present a certificate as a narcotic user or addict.

Any “mere suspicion” that Inspector Teela had was never in any way communicated to Gates or Maxcy, and when Gates and Maxcy took Huguez and his companion from the windowless search room to the baggage area across the street where the brutal and painful intrusive rectal cavity invasion was conducted, Gates and Maxcy did not and could not have even the “mere suspicion” that Inspector Teela had, let alone any “clear indication” or “plain suggestion” of any cache of narcotics in Huguez’s rectum, as required by Schmerber, Rivas and Henderson.

Therefore Gates and Maxcy did not and could not have passed on to Dr. Salerno and Agent Spohr any information about the physical condition of Huguez and his companion that could raise the slightest real suspicion in these two other participants in the “force process” of the intensive body cavity search.

Without a search warrant, without any “clear indication” or “plain suggestion” that Huguez carried narcotics in his rectal cavity, and in fact without the slightest real suspicion of any such rectal cavity cache, Dr. Salerno proceeded to conduct the examination on his own initiative without any request or suggestion that he do so, but with the aid of the three customs agents — Gates, Maxcy and Spohr. He followed up with his digital rectal probing without having observed any “greasy substance”, and then Huguez was handcuffed, thrown on the table, pressured flat down and pulled by the handcuffs until the metal bit into his flesh and the skin 'was peeled, resulting in cuts on his wrists. In these circumstances, the "medical examination” degenerated into a “force process”, so aptly termed by Agent Gates, which cannot be condoned, justified or upheld as a constitutional border search. Rather, it is a brutal invasion of privacy, an illegal and frightening example of unlawful law enforcement. The evidence so gained should have been suppressed and excluded in the prosecution of Huguez. That not having been done, our duty and obligation is to apply the Schmerber-Rivas-Henderson test. And so doing we must and do reverse appellant’s conviction.

Ill

THE “FORCE PROCESS” EXERTED ON APPELLANT EXCEEDS THE CONSTITUTIONAL LIMITATIONS OF THE FIFTH AMENDMENT.

Here again we start with the most apposite case available to the District Court at the Huguez trial in May, 1966, in determining the test which should be applied under the Fifth Amendment. Blackford v. United States, 247 F.2d 745 (9th Cir. 1957).

We agree that “the Fourth and Fifth Amendments are companion pillars in the Bill of Rights structure which protects the individual against arbitrary government invasion of personal freedom and liberty.” (247 F.2d at 748). And that though their ultimate goal is the same, they combat different evils:

“The Fourth Amendment safeguards the right to be free from unreasonable searches and seizures; the Fifth Amendment guarantees the individual against being compelled to give evidence against himself and also assures to him under the Due Process proviso, fair and humane treatment by federal law enforcement officers.” (247 F.2d at 748)

If Huguez’s Fifth Amendment rights were violated, the narcotics were inadmissible at his trial and the judgment of conviction must be reversed. Rochin v. People of State of California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed.2d 183 (1952), reversing conviction; Breit-haupt v. Abram, 352 U.S. 432, 435, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), affirming conviction; but compare dissenting opinions of Warren, C. J. at 440, 77 S.Ct. at 412 and Douglas, J. at 442, 77 S.Ct. at 414.

Our Ninth Circuit carefully distinguishes Blackford from Rochin and identifies it with Breithaupt. While Rochin was abused and his rights violated by forcible attacks, Blackford was treated civilly throughout the rectal examination; there was only a suspicion that Rochin had swallowed pills whereas Blackford admitted he had a cache of narcotics in his rectal cavity, an admission corroborated by the presence of a greasy type substance around the anus; whereas the regurgitation in Rochin was induced by the application of intense physical pressure and enforced stomach pumping, the physical examinations and rectal extraction in Blackford were by “qualified physicians, under sanitary conditions, with the use of medically approved procedures” in the San Diego County Jail and the United States Naval Hospital at San Diego. Blackford, supra, 247 F.2d at 747, 752.

The test of Rochin-Breithaupt as followed in Blackford was stated to be “whether the alleged activity of law enforcement officers in obtaining the questioned evidence fell short of civilized standards of decency and fair play”, or was “so unconscionable that it ‘shocks the conscience’ or ‘offend[s] a sense of justice’ ”. Blackford, supra, at 750.

But again, in considering Fifth Amendment restrictions and just as we did in discussing Fourth Amendment limitations, we cannot stop with Black-ford, even though it was the compelling authority for the District Court here in Huguez at the time of trial. We must turn to and are necessarily bound by the later and more authoritative decisions for guidance in determining the impact of the Fifth Amendment upon intrusive body cavity invasions conducted during border searches.

In doing so we emphasize it is not essential to our decision that we find a violation of the Fifth Amendment. We have already found a violation of the Fourth Amendment since the initiation of the intrusive body cavity search was unjustified because of the lack of any “clear indication” or “plain suggestion” in the minds of Dr. Salerno and his rectal invasion squad members, that Huguez had any narcotics cached in his rectal cavity.

In Blefare v. United States, 362 F.2d 870 (9th Cir. 1966), the methods used and the conduct pursued therein are distinguished from the methods used and the conduct pursued in Rochin. The examination of Blefare and his codefendant took place in the doctor’s office in San Diego some 12 miles from the border; defendant Blefare willingly acquiesced in a rectal examination and in drinking an emetic, consented to be searched by a physician and protested only at the swallowing of a tube through which a saline solution was introduced into his stomach; defendant Michel did not object to the anal examination, the saline water swallowing or the saline solution introduced by tube; and a doctor performed carefully, expertly and with medical propriety, precisely what each of the defendants proposed to do for and to himself. Blefare at 872, 874, 877-878. Further, it was clear that the officers had reliable information from the Royal Canadian Mounted Police that Blefare had admitted prior smuggling from Mexico to Canada of an ounce of heroin in his stomach. The doctors, therefore, started their examinations with reasonable certainty that the narcotics were in appellants’ stomachs at the time of the examinations. On this basis, the judgments of conviction in Blefare were affirmed despite the vigorous dissent that the facts in Blefare were much closer to Rochin than to Breithawpt.

Then we have the Supreme Court’s ruling in a nonborder case, Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), that the Fifth Amendment applies to bodily intrusions yet does not require reversal of a judgment of conviction based on the introduction into evidence of a chemical analysis for alcohol content of a blood sample extracted from the body of the defendant over his protest, by a physician in the hospital where the defendant had been taken for treatment of injuries received in an auto accident. The Court enlarged on the Rochin-Breithaupt test of “reasonableness” in the following language ;

“Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by the police in the privacy of the station-house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

******

“It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” (Schmerber, 384 U.S. at 771-772, 86 S.Ct. at 1836)

Once again in the Ninth Circuit, Rivas ⁸² reiterates the Fifth Amendment limitations on body cavity border searches by distinctions from Rochin, comparisons with Breithaupt and references to Schmerber:

“This is not a Rochin case, with its physical assault on a defendant, both before the stomach pumping, and at the time of “its occurrence. It was the physical assault in Rochin which caused reversal and which ‘led to a result in Rochin contrary to that in Wolf [Wolf v. [People of State of] Colorado, 338 U.S. 25 [69 S.Ct. 1359, 93 L.Ed. 1782] (1949)]. Although Rochin raised the search-and-seizure question, this Court studiously avoided it and never once mentioned the Wolf case. Obviously it thought the illegal search and seizure alone did not call for reversal.’ Irvine v. People of State of California, 347 U.S. 128, 133, 74 S.Ct. 381, 382, 98 L.Ed. 561 (1954). See also, Blefare v. United States, 362 F.2d 870, 876-877, n. 1 (9th Cir. 1966). 1966).

“Here the evidence shows a technical physical assault (in that hands were laid upon appellant), but no degrading or shameful physical assault upon him, in the sense the Supreme Court found in Rochin, supra. It was a technical assault similar to that upheld as proper in Blackford, supra. Again, technically, the physical assault, the ‘gentle’ probing of the rectum, was not as pronounced an assault, medically, as the puncture of the skin in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). In Breithaupt, the blood was taken while the appellant was unconscious. But ‘the taking of blood by a skilled technician’ is not ‘conduct that shocks the conscience,’ nor such a method of obtaining evidence as offends a ‘sense of justice,’ said the Supreme Court, citing and distinguishing Rochin, supra, and Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). Cf. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).5 ⁸³

“The use of the evidence in this case, like Rochin, Schmerber, Blackford, et al. (in fact, in any case where a body cavity is gently, in a medically approved manner, searched), does not (a) involve evidence of a testimonial nature; (b) require a defendant to testify against himself; (c) constitute a denial of due process. (See discussion of these points in Schmerber, supra, 384 U.S. pp. 768-771, 86 S.Ct. 1826.)” (368 F.2d at 710-711)

Applying what we may call the Rochin-Breithaupt-Schmerber-Rivas test of reasonableness of place, methods and conduct to the intrusive body cavity invasion here in Huguez, we cannot help but find that appellant has been deprived of his due process rights under the Fifth Amendment. Instead of fair, humane and civil treatment by federal law enforcement officers, and a medical examination in a hospital under sanitary conditions by a qualified physician with the use of scientifically and medically approved procedures, as in Blackford, Huguez was subjected to a brutal, painful and degrading “force process” in the non-antiseptic, non-hygienic surroundings of a bare baggage room, furnished with an “examination table” upon which he was thrown, pressured prone, and forcefully pulled by handcuffs that bit into his flesh, peeled his skin and cut his wrists.

Instead of willingly acquiescing in a rectal examination and in drinking an emetic; instead of consenting to be searched by a physician; instead of protesting only at the swallowing of a tube at the doctor’s own office some 12 miles from the border; instead of a procedure performed by a doctor carefully, expertly and with medical propriety as well as precisely in a manner that the defendant proposed to do for and to himself, all as in Blefare; contrariwise here in Hu-guez the defendant violently resisted the rectal examination, refused to consent to the physician’s probe, and vociferously protested at all stages prior to and throughout the “force process” carried on in a baggage room at the border 12 miles from the doctor’s office, in a procedure conducted violently, unhygienically, without medical propriety and with laughter and jokes.

Incidentally, the same physician was involved in both Blefare and Huguez — ■ Dr. Paul R. Salerno — but operating in methods and surroundings strikingly dissimilar.

Instead of the use of a medical technique by a physician in a hospital environment according to accepted medical practices as in Schmerber, here we are presented with serious questions of unconstitutionality arising from the use of a rudimentary medical technique in “other than a medical environment”, in the non-antiseptic and non-hygienie atmosphere of a baggage room with the unjustified element of personal risk of infection and pain. Surely this is no “minor intrusion [s] into an individual’s body under stringently limited conditions” approved in Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836, but rather a grievous, dangerous, unjustified and unjustifiable assault upon the integrity, privacy and dignity of a human being who, for all his faults, as a person and a citizen of the United States, was entitled to but did not receive the constitutional protection of the Fifth Amendment.⁸⁴

The evidence against him so obtained should not have been admitted at the trial and for this reason, in addition to the violation of the Fourth Amendment, Huguez’s conviction cannot stand. The judgment is reversed and the cause is remanded to the District Court for further proceedings.⁸⁵

1 . U.S.Const. Amend. IV :

“ARTICLE [IV]

Tlie right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

2 . U.S.Const. Amend. V:

“ARTICLE [V]

No person shall be * * * deprived of life, liberty, or property, without due process of law.”

3 . 21 U.S.C. § 174:

“§ 174. Same; penalty; evidence Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any narcotic drug after being imported or brought in, knowing the same to have been imjmrted or brought into the United States contrary to law, or conspires to commit any of the such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under Section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than twenty or more than forty years and, in addition, may be fined not more than $20,000.”

4 . 18 U.S.C. § 1407:

“ § 1407. Border crossings —narcotic addicts and violators

(a) In order further to give effect to the obligations of the United States pursuant to the Hague convention of 1912, proclaimed as a treaty on March 3, 1915 (38 Stat. 1912), and the limitation convention of 1931, proclaimed as a treaty on July 10, 1933 (48 Stat. 1571), and in order to facilitate more effective control of the international traffic in narcotic drugs, and to prevent the spread of drug addiction, no citizen of the United States who is addicted to or uses narcotic drugs, as defined in section 4731 of the Internal Revenue Code of 1954, as amended (except a person using such narcotic drugs as a result of sickness or accident or injury and to whom such narcotic drug is being furnished, prescribed, or administered in good faith by a duly licensed physician in attendance upon such person, in the course of his professional practice) or who has been convicted of a violation of any of the narcotic or marihuana laws of the United States, or of any State thereof, the penalty for which is imprisonment for more than one year, shall depart from or enter into the United States, unless such person registers, under such rules and regulations as may be prescribed by the Secretary of the Treasury with a customs official, agent, or employee at a point of entry or a border customs station. Unless otherwise prohibited by law or Federal regulation such customs official, agent, or employee shall issue a certificate to any such person departing from the United States; and such person shall, upon returning to the United States, surrender such certificate to the customs official, agent, or employee present at the port of entry or border customs station.

(b) Whoever violates any of the provisions of this section shall be punished for each such violation by a fine of not more than $1,000 or imprisonment for not less than one nor more than three years, or both.”

5 . RT 24, 134. Reference is made to Reporter’s Transcript, referred to as “RT”, which is Volume II of the Transcript of Record herein and which contains the oral proceedings in the District Court.

6 . CT 13-25. Reference is made to Clerk’s Transcript, referred to as “CT”, which is Volume I of the Transcript of Record herein and which consists of the Indictment and other pleadings.

7 . RT 134.

8 . RT 24, 140.

9 . RT 134.

10 . See note 4, supra.

11 . 18 U.S.C. § 3231:

Ҥ 3231. District courts

The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.

Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.”

12 . See note 3, supra.

13 . 28 U.S.C. § 1291:

Ҥ 1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.”

14 . 28 U.S.C. § 1294:

Ҥ 1294. Circuits in lohich decisions revietoable

Appeals from reviewable decisions of the district and territorial courts shall be taken to the courts of appeals as follows:

(1) From a district court of the United States to the court of appeals for the circuit embracing the district.”

15 . RT 76, 108.

16 . RT 76, 77, 80.

17 . R,T 77, 80, 108-109.

18 . See note 4, supra.

19 . RT 77.

20 . RT 78, 81.

21 . RT 81, 82.

22 . RT 78, 82.

23 . RT 78-79, 110-111.

24 . RT 90, 79.

25 . RT 88-89.

26 . RT 89-90.

27 . RT 89.

28 . RT 49. We note that while Dr. Salerno referred to this room as “an examination room” (RT 31) and Agent Gates called it “the doctor’s office” (RT 49), it was still nothing more than a bare room in the baggage area with an “examination table” as the only medical equipment. RT 49.

29 . RT 30, 89.

30 . RT 92.

31 . R.T 89-90.

32 . RT 112, 31, 52.

33 . RT 31-33, 52.

34 . Direct examination of Dr. Salerno, RT 33:

“Q. After arriving at that opinion, sir, did you do anything else in connection with this defendant Mr. Huguez?

“A. After the opinion was made that he was under the influence of a narcotic drug and he was a user of narcotic drugs, the request was made to conduct a routine digital or rectal examination to determine the presence or absence of any concealed material in the rectal cavity.”

Direct examination of Agent Gates, RT 90:

“Q. Had anyone suggested to you, Mr. Gates, that the doctor examine this defendant?

“A. No one suggested to me, no, sir.”

35 . RT 112, 33.

36 . RT 89-90.

37 . RT 112. Dr. Salerno was equivocal on this point, first testifying that “the pants were lowered” and later testifying that “he lowered his trousers.” ET 50.

38 . RT 33.

39 . RT 41, 70.

40 . RT 114-115.

41 . RT 49-51.

42 . RT 113.

43 . RT 62.

44 . RT 62-63, 66, 93-95, 112-114.

45 . RT 112.

46 . RT 62, 68-69, 90-91, 93-94.

47 . RT 92-93.

48 . RT 112.

49 . RT 93, 112-113.

50 . RT 90.

51 . RT 116.

52 . RT 103.

53 . RT 94.

54 . RT 92, 94, 104-105, 69.

55 . RT 34, 40, 60, 65.

56 . R,T 36-37.

57 . RT 94, 113.

58 . RT 114, 116, 39.

59 . RT 114, 118. It should be noted that Agent Gates did not categorically deny that laughter occurred, but merely stated that he did not “recall” hearing anybody laugh. RT 123.

60 . R,T 43-44.

61 . RT 43-44.

62 . RT 42-43. Whether this six to eight hour period runs from the moment of insertion or the time of his examination, Dr. Salerno did not say. In either event, since it is reasonable to assume that the insertion was made immediately prior to the border crossing, there was no emergency.

63 . Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914): exclusion in Federal court prosecutions of evidence obtained by federal officers through unreasonable searches and seizures.

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961): similar exclusion in state prosecutions.

64 . Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1927) where Mr. Justice Brandéis in his famous dissent, which later became the majority rule in the Nardone cases [Nardone v. United States], 302 U.S. 379, 58 S..Ct. 275, 82 L.Éd. 314 (1937) and 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), passionately proclaimed:

“They (the Fourth and Fifth Amendments) conferred, as against the government, the right to be left alone— the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.” (277 U.S. at 478, 48 S.Ct. at 572)

65 . Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), per Mr. Justice Clark:

“The law, though jealous of individual privacy, has not kept pace with these advances in scientific knowledge. This is not to say that individual privacy has been relegated to second-class position for it has been held since Lord Camden’s day that intrusions into it are ‘subversive of all the comforts of society.’ Entick v. Carring-ton, 19 How.St.Tr. 1029, 1066 (1765).” (388 U.S. at 49, 87 S.Ct. at 1878) Katz v. United States, 389 U.S. 347,

88 S.Ct. 507, 19 L.Ed.2d 576 (1967), per Mr. Justice Stewart: “For the Fourth Amendment protects people, not places.” (389 U.S. at 351, 88 S.Ct. at 511.)

66 . Henderson v. United States, 390 F.2d 805, 807 (9th Cir. 1967):

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. In Wolf [Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 172] we recognized ‘[t]he security of one’s privacy against arbitrary intrusion by the police’ as being, ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’ 338 U.S. at 27, 69 S.Ct. 1359. We reaffirmed that broad view of the Amendment’s purpose in applying the federal exclusionary rule to the States in Mapp.”

* sf* * * *

“That Amendment expressly provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * (Emphasis added.) It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of ‘persons,’ and depend ante-cedently upon seizures of ‘persons’ within the meaning of that Amendment.” [384 U.S. at 767, 86 S.Ct. at 1834.]

*****

“We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.” [384 U.S. at 768, 86 S.Ct. at 1834.]

*****

“The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” [384 U.S. at 769-770, 86 S.Ct. at 1835.]

See also Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), where Mr. Justice White summarized: “The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” (387 U.S. at 528, 87 S..Ct. at 1731)

67 . Blackford v. United States, 247 F.2d 745 (9th Cir. 1957).

68 . Blefare v. United States, 362 F.2d 870 (9th Cir. 1966).

69 . Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

70 . Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. den. 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967).

71 . Henderson v. United States, 390 F.2d 805 (9th Cir. 1967).

72 . Denton v. United States, 310 F.2d 129, 132 (9th Cir. 1962); Blefare v. United States, 362 F.2d 870, 874, 885 (9th Cir. 1966); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967); and cases therein cited.

73 . RT 122.

74 . “Blackford v. United States, 9 Cir., 1957, 247 F.2d 745 (male, rectum.) ; In re Woods, 9 Cir., 1957, 249 F.2d 614, denying certificate of probable cause in Application of Woods, N.D. Cal. 1957, 154 F.Supp. 932 (male, rectum) ; Murgia v. United States, 9 Cir. 1960, 285 F.2d 14 (male, rectum); Denton v. United States, 9 Cir., 1962, 310 F.2d 129 (male, rectum) ; Blefare v. United States, 9 Cir., 1966, 362 F.2d 870 (male, stomach); Rivas v. United States, 9 Cir., 1966, 368 F.2d 703 (male, rectum); see also King v. United States, 5 Cir., 1958, 258 F.2d 754, affirming United States v. Michel, S.D.Texas, 1957, 158 F.Supp. 34 (male, stomach). Cf. Witt v. United States, 9 Cir., 1961, 287 F.2d 389 (female; narcotic in brassiere).”

75 . “Blackford v. United States, supra, n. 1[74]; Denton v. United States, supra, n. 1 [74]; Blefare v. United States, supra, n. 1[74]; Rivas v. United States, supra, n. 1 [74]; Application of Woods, supra, n. 1 [74].”

76 . “See cases cited in n. 1[74], supra.”

77 . “Blackford v. United States, supra, n. 1[74], 247 F.2d at 751; Denton v. United States, supra, n. 1[74], 310 F.2d at 132.”

78 . “Rivas v. United States, supra, n. 1 [74], 368 F.2d at 710.”

79 . “See Blefare v. United States, supra, n. 1[74], 362 F.2d at 875; cf. Witt v. United States, supra, n. 1[74], 287 F.2d at 391.”

80 . RT 78-81.

81 . RT 90, 79.

82 62. Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. den. 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1937).

83 . “In this connection we point out the following in appellant’s brief:

“ ‘Search of Rivas’ rectum was made by a physician in his office according to accepted medical practice. Therefore appellant has not challenged the manner and means used to carry out the search.’ ”

84 . We have considered but do not discuss the question of whether the doctor and the law enforcement officers here in Iluguez should have, because of the absence of any emergency or compelling urgency, procured and served a search warrant before attempting to initiate the rectal cavity examination.

Extreme internal body searches, especially forcible, intrusive rectal cavity invasions, such as occurred in Iluguez, if necessary or desired by law enforcement, and particularly by customs officials at border crossings, perhaps should be authorized only upon the issuance of search warrants under appropriate judicial scrutiny, unless a true emergency or compelling urgency is apparent. Why any less protection should be given to the human body than to the human home is difficult to explain, even in the context of a border search. Nor are the intimate internal areas of the physical habitation of mind and soul any less deserving of precious preservation from unwarranted and forcible intrusions than are the intimate internal areas of the physical habitation of wife and family. Is not the sanctity of the body even more important, and, therefore, more to be honored in its protection than the sanctity of the home, despite the obvious and proper distinction between inland dwelling searches and border rectal searches?

85 . No effort will be made herein to respond to the dissenting opinion’s caustic characterizations of the language of the majority. But the dissenting opinion does contain one statement which should not be left unchallenged. Referring to the possibility of the presence of narcotics in Huguez’s rectal cavity, the dissenter writes:

“The trial court concluded that there was evidence in the record sufficient to constitute such a ‘clear indication’.” (dissenting opinion, p. 389, infra)

As a matter of fact, the trial court did not make any such finding, and there was no reason why it should have done so. Schmerber had not then been decided, and this Court had not yet adopted the “clear indication” test announced in Rivas under Schmerber’s compulsion.

Rivas was not decided until November 8, 1966, more than five months after Iluguez was tried on May 26, 1966. The three other leading cases laying down guidelines in this field of intimate body cavity searches were also decided after the trial of Huguez — Blefare on June 8, 1966; Schmerber on June 20, 1966; and Henderson on July 7, 1967.

What the trial court did say was based on Judge Barnes’s opinion in Blackford, decided nine years earlier in 1957, and was clearly a finding of “suspicion” and not “clear indication”:

“ * * * I am sure that where there is a well-founded suspicion that he is using narcotics, it follows almost as night follows day that he is carrying narcotics somewhere, because the supply is easy to get in Tijuana, it is cheap, and they are going to bring it across.” (R..T. 132-133)