Charles E. Blackford v. United States

Appellant was indicted on charges of illegally importing (Count I) and concealing (Count II) narcotics. 1 He waived jury trial and was found guilty by the District Court. The narcotics consisted of one ounce three hundred and thirty-three grams of heroin, which was introduced in evidence. The heroin was carried over the Mexican border cached in appellant’s rectum. It was the prime evidence used to convict him. Appellant made a timely motion to suppress this evidence based on alleged deprivation of his constitutional rights under the Fourth and Fifth Amendments. The motion was denied. The only question before us is whether appellant’s consti *747 tutional rights were transgressed by the participation of federal law enforcement officers in two separate attempts to effect the removal of the narcotics. The facts upon which appellant’s claim is grounded are as follows.

On the night of July 31, 1956, appellant Charles Blackford, an American citizen, walked across the International Boundary Line at the San Ysidro, California, port of entry. He was stopped by the customs officer on duty inspecting pedestrian traffic, asked if he had acquired any article in Mexico, and upon replying in…

247 F.2d 745 Charles E. BLACKFORD, Appellant, v. UNITED STATES of America, Appellee. No. 15427. United States Court of Appeals Ninth Circuit. July 10, 1957. Rehearing Denied September 30, 1957. William F. Gavin, San Diego, Cal., for appellant. Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Howard R. Harris, Harry D. Steward, San Diego, Cal., Louis Lee Abbott, Asst. U. S. Attys., Los Angeles, Cal., for appellee. Before STEPHENS, CHAMBERS and BARNES, Circuit Judges. BARNES, Circuit Judge. 1 Appellant was indicted on charges of illegally importing (Count I) and concealing (Count II) narcotics. 1 He waived jury trial and was found guilty by the District Court. The narcotics consisted of one ounce three hundred and thirty-three grams of heroin, which was introduced in evidence. The heroin was carried over the Mexican border cached in appellant's rectum. It was the prime evidence used to convict him. Appellant made a timely motion to suppress this evidence based on alleged deprivation of his constitutional rights under the Fourth and Fifth Amendments. The motion was denied. The only question before us is whether appellant's constitutional rights were transgressed by the…

(concurring).

I concur in the opinion of Judge BARNES. If the only difference between Rochin’s case and this one is that Rochin was at one end of the alimentary canal and Blackford was at the other, then Judge BARNES is wrong. While Rochin was a 14th Amendment case, I am satisfied, whether a case is on the federal or state side, the Supreme Court, relying on one amendment to the Constitution or another, is not going to tolerate convictions based upon evidence obtained by abusive, “high handed” methods. When Rochin was announced I was enthusiastic about it. I still am.

But as I see it, the Supreme Court’s policy is to uphold human dignity. I cannot say that a man is devoid of dignity who, in the presence of officers about to arrest him, quickly swallows the contraband, as Rochin did.

But here it was Blackford who created, who first takes us into this disgusting sequence. He made the deposit in his body through the anal opening. The officers found incriminating real evidence on the exterior of Blackford’s body. He admitted that he had narcotics and where he had them. What the officers did was not torture or abuse. I do not say that the depraved have no rights. But I do say that…

(dissenting).

I am unable to go along with my associates. I agree that the narcotic problem is very serious and, of course, no sympathy can rightly be extended to the peddler or to the low creature who sneaks a narcotic across our borders.

But to authorize the ex parte star chamber invasion of body privacy by in *755 spectors at our ports is shocking and abhorrent and is fraught with almost certain abuse. I fully appreciate the high character of most of the inspectors and the very difficult duty which is theirs, but the power to subject one entering this country through its ports to the possibility of such an inquisition and manhandling seems on its face to come within the interdiction of the Fourth Amendment. I think the illustration set out in the opinion of the enforced opening of a closed hand, whatever may be right or wrong about it, is unfortunate and not apposite. And I do not see the Federal Courts dismissing an accused from custody by habeas corpus where the circumstances would reasonably point to the belief that the accused is concealing narcotics within his body and that nature would answer the question one way or another in a short period of time.