John Emilio Blefare and Donald Michel v. United States

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…

(concurring).

As Judge Powell has so carefully and conscientiously pointed out, the facts in this case do not resemble those of the Rochin case ( 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952)), as my Brother Ely would have us believe, but more closely resemble Breithaupt v. Abram, 352 U.S. 432 , 77 S.Ct. 408 , 1 L.Ed.2d 448 (1957).

Rochin was clearly a case involving “physical abuse.” (See 342 U.S. at 167 , 72 S.Ct. at 207 ) There the officers “were guilty of unlawfully breaking into and entering defendant’s room and were guilty of unlawfully assaulting and battering defendant while in the .room,” and, after handcuffing him, the officers “were guilty of unlawfully assaulting, battering, torturing and falsely imprisoning the defendant at the alleged hospital.”

In Rochin this “conduct * * * shocked the conscience” of the Supreme Court. It shocks mine. It disclosed methods “too close to the rack and screw to permit constitutional differentiation.”

In Breithaupt, supra, the unconscious defendant was subjected to surgical procedure, without his consent. Yet, Mr. Justice Clark, writing for the Court, concluded :

That any invasion of the body is determinative of the due process…

(dissenting):

I dissent. The search procedure which my Brothers condone was, if not savage, so repugnant to the provisions of the Fourth and Fifth Amendments as to offend my judicial sensibility. That it was such as to “do more than offend some fastidious squeamishness or private sentimentalism” finds support in the recorded testimony of Agent Quinlan, the supervising officer, that during the procedure and when “they [the defendants] were retching and vomiting”, he himself suffered an “attack of nausea” and removed himself from the revolting scene.

*881 Even if this prearranged medical procedure, at an office twelve miles from the international frontier, constituted a “border search”, that conclusion supplies no justification for conduct which is a “shocking” violation of the prohibition of the Fifth Amendment and an “unreasonable search” in violation of the Fourth Amendment. That a search is a “border search” eliminates certain requirements which are usually demanded, but it does not and should not eliminate the fundamental requirements that searches not be “shocking” and that they not be “unreasonable.”

In attempting to justify its unprecedented decision, the majority places…

362 F.2d 870 John Emilio BLEFARE and Donald Michel, Appellants, v. UNITED STATES of America, Appellee. No. 19825. United States Court of Appeals Ninth Circuit. June 8, 1966. Carl L. Fabbroni, Richard E. Adams, San Diego, Cal., for appellants. Manule L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Sec., J. Brin Schulman, Asst. U.S. Atty., Asst. Chief, Crim. Sec., Phillip W. Johnson, Asst. U.S. Atty., Ls Angeles, Cal., for appellee. 1 Before BARNES and ELY, Circuit Judges, and POWELL, District Judge. POWELL, District Judge: 2 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. 3 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…