(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 great reliance upon the fact that both defendants did disgorge illicit contraband and thus were indeed guilty of a most degrading form of criminal activity. This emphasis, while understandable, does not, in my humble judgment, meet the issue. I share the attitude of my Brothers toward the detestable and depraved conduct in which the appellants engaged, but if the majority is implying that the procedure harmonized with constitutional requirements because contraband was recovered, then it would follow that had the physician cut into the bowels of the suspects with a knife and removed the narcotics by hand, or if the disgorging of the material should have been induced by the screw or the rack or any other form of torture, the recovery would have met the majority’s test of constitutionality.

There cannot, under the guiding principles of our democracy, be one law for the lawful and another for the lawless. The record reveals that at the border point here involved, “millions” of people enter the United States each year. I cannot be content with the prospect that a border officer may, independent of consultation with any judicial officer, make the unquestionable determination that any one of these transients who is under suspicion because of information deemed by the officer to be “reliable” may be subjected to such an extensive bodily intrusion as that which concerns us here.

In the majority opinion, as well as in the concurring opinion is. which my Brother Barnes seeks to fortify it, 1 there is a suggestion that the defendants may have “consented” to the search. It is said that they voiced no objection at the border itself or to the anal search at the doctor’s office twelve miles away or to the voluntary taking of the saline solution by mouth. But my Brothers can hardly find consent to the stomach pumping 2 process when during it, the victims *882 were forcibly manhandled by “at least” three officers and when it is the undenied fact that as to Michel, the forcing of the tube into his stomach was attended with such violence as to induce bleeding. The spectacle so revolted one of the participating officers, a man considerably experienced in the anal searches of border transients, that he, as has been mentioned, could not tolerate it and, sick and nauseated, left the room. The suggestion of “consent” would seem to have been put at rest by the district judge, who remarked, as to Blefare, “He has already said that he didn’t [consent], and I would not find that he did”, and, as to both defendants, “neither one of them consented or were in a position to object to the procedure that took place.”

It is said in the concurring opinion in our case that “More important, the doctor performed carefully, expertly and with medical propriety precisely that which the defendants proposed to do to themselves”. (Emphasis mine.) “Precisely” means “exactly”, and there is certainly no evidence that it was in the contemplation of either defendant that he be manhandled by armed officials and forcibly restrained while a tube was so imperfectly jammed through and into his nose and body as to produce torn tissue and consequent bleeding.

As I envision the struggles in the doctor’s office late in the nighttime, the violence which was necessary to inject the tubes, 3 the retching and vomiting and bleeding, and the absence of trained medical or nursing personnel to assist the doctor in the event of rupture of the esophagus or other organs, it is impossible for me to accept the majority’s depiction of the occurrence as a procedure to which “babies” are frequently subjected.

Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), teaches me that search by stomach pump is unlawful under the Fifth Amendment. Until now, there has been no authority to the contrary. My Brothers undertake to distinguish Roehin, Judge Powell writing, “It [the search in Roehin] was not a border search. The officers were in the dwelling wrongfully. They forced their way into Rochin’s room. They attempted by force to retrieve the capsules which he swallowed. In furtherance of their illegal entry and search they then took him to a hospital where an emetic was forced into his stomach.” As to the challenged conduct in Roehin, Mr. Justice Frankfurter wrote for the Supreme Court that it “shocks the conscience”. Do the factual distinctions to which Judge Powell has pointed in the quoted language relieve us from adherence to the critical determination of the Supreme Court in Roehin? I think not. I cannot believe *883 that in Rochin the Supreme Court was shocked by the fact that the search of Rochin was not a border search or that the officers were in the dwelling wrongfully or that they forced their way into Rochin’s room. Such procedures may be improper, but they are quite frequently followed by well meaning police officers zealous in the performance of their duties. They may be offensive, but they are not “shocking”. Surely, they are not such practices as described by Mr. Justice Frankfurter in Rochin as “methods too close to the rack and screw”. It was, I believe, the extreme invasion of Rochin’s body that shocked the conscience of the Supreme Court in Rochin just as it was the violent intrusion into the bodies of Blefare and Michel that, “too close to the rack and screw”, shocks my conscience in the case at bar.

This reaction would seem to harmonize with the views expressed in Breithaupt v. Abram, 352 U.S. 432 , 77 S.Ct. 408 , 1 L.Ed.2d 448 (1957). There, a sample of blood, later shown to have an alcoholic content, was withdrawn from the body of the unconscious defendant. It should be clear that the procedure would, because of the state of the victim, produce no pain whatsoever and was, from the standpoint of medical technique, far less drastic than the forcible employment of the process of stomach pumping. The majority, upholding the search, distinguished Rochin , but the Chief Justice, dissenting, construed the majority opinion to imply “that a different result might follow if petitioner had been conscious and had voiced his objection.” 352 U.S. at 441 , 77 S.Ct. at 413 . If this construction is valid, then, since there was resistance and objection in the case at bar, my views are consistent with the majority opinion in Breithaupt . The Chief Justice, with Mr. Justice Black and Mr. Justice Douglas, rejected the majority’s distinction of Rochin . Said the Chief Justice, “Since there clearly was no consent to the blood test, it is the nature of the invasion of the body that should be determinative of the due proe-ess question here presented.” 352 U.S. at 441 , 77 S.Ct. at 413 . In an additional comment, directly applicable to our specific problem, he wrote,

Mr. Justice Douglas, joined by Mr. Justice Black, interpreted the majority opinion in Breithaupt as did the Chief Justice, writing, “As I understand today’s decision there would be a violation of due process if the blood had been withdrawn from the accused after a struggle with the police.” 352 U.S. at 443 , 77 S. Ct. at 414 . Here, such struggles occurred, and apart from any question of consent, there were extreme violations of the sanctity of the bodies of two human beings. Here, the majority falls back upon the necessity of law enforcement, the importance of which no decent-thinking individual can deny, but, as has been frequently said in different ways, “If law enforcement were the chief value in our constitutional scheme, then due process would shrivel and become of little value in protecting the rights of the citizen.” 352 U.S. at 442-443 , 77 S.Ct. at 414 .

Turning from the Fifth to the Fourth Amendment, the issue challenges ability to attempt delicately to balance the public’s need for regulation of international border traffic with the individual’s right to be free from constitutionally proscribed police activity. The same responsibility confronted our court in Blackford v. United States, 247 F.2d 745 (1957), cert. denied, 356 U.S. 914 , 78 S.Ct. 672 , 2 L.Ed.2d 586 (1958), involving the alleged improper admission of evidence derived from a rectal probe conducted as an incident to a lawful border arrest. There, the reasonableness of the *884 procedures used was upheld, but the court limited its holding to the facts before it, thereby recognizing that no standard formula could be applied to solve the infinite variety of situations that might arise in encounters between border officials and suspected smugglers. Our court stated,

*

Thus, by its own precepts, Blackford does no more than to furnish guidelines to aid us here.

It must be clearly kept in mind that the procedures with which we are here concerned were, if not incident to a border search, exercised in the setting of a border search. Owing to the exigencies present and the vital national interest demanding the regulation of who and what traverse our borders, the classification of border searches, in many respects, falls into a category separate from that of other searches. Carroll v. United States, 267 U.S. 132, 154 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Denton v. United States, 310 F.2d 129, 131 (9th Cir. 1962); Witt v. United States, 287 F.2d 389, 391 (9th Cir.), cert. denied, 366 U.S. 950 , 81 S.Ct. 1904 , 6 L.Ed.2d 1242 (1961); Murgia v. United States, 285 F.2d 14,17 (9th Cir. 1960), cert. denied, 366 U.S. 977 , 81 S.Ct. 1946 , 6 L.Ed.2d 1265 (1961). A border search, for example, requires no showing of probable cause. Carroll v. United States, supra; Bible v. United States, 314 F.2d 106, 108 (9th Cir.), cert. denied, 375 U.S. 862 , 84 S.Ct. 131 , 11 L.Ed.2d 89 (1963); Denton v. United States, supra, 310 F.2d at 132 ; Witt v. United States, supra, 287 F.2d at 391 ; Murgia v. United States, supra, 285 F.2d at 17 . A contrary rule would frustrate the customary examinations conducted by customs officials as normal incidents of the meeting of their responsibilities. Nor, as a general rule, do border searches require a warrant or an arrest. Denton v. United States, supra, 310 F.2d at 132 ; Landau v. United States Attorney, 82 F.2d 285, 286 (2d Cir.), cert. denied, 298 U.S. 665 , 56 S.Ct. 747 , 80 L.Ed. 1389 (1936). These propositions are uniformly accepted by the federal courts.

Despite judicial recognition of the practical considerations which impel a distinctive treatment of border searches, the fact remains that all searches must comply with the constitutional mandate of reasonableness. The Fourth Amendment to the Constitution proscribes all unreasonable searches, of whatever kind. Thus, the concept of reasonableness should take into account the exigencies of the border situation, but the border search must, nevertheless, fit the constitutional standard of reasonableness. Marsh v. United States, 344 F.2d 317, 324 (5th Cir. 1965).

What constitutes a reasonable search in a given situation quite naturally depends upon all the circumstances surrounding the challenged police activity. It is the very circumstance’of the border setting that permits a border search without a warrant and upon the basis of mere suspicion. When, however, a search progresses beyond the conventional border inquiry and becomes one incident to a lawful border arrest, as it did and was in Blackford , the policy considerations excepting border searches from normal requirements become less relevant. At the same time, concern for the protection of the rights and dignity of an individual in an accusatory environment should be intensified.

In the present case, appellants were interrogated and searched at the border . in the customary manner, albeit with more than ordinary zeal. After denying that they carried contraband, they remained under detention, were subjected *885 to an intensive search in the customs office, and were subsequently transported some 12 miles for the purpose of compelling regurgitation, as has been described. At the time Dr. Salerno, with the physical assistance of the customs agents, engaged in the resisted operation, the events were substantially removed from the border setting. They would seem more nearly identifiable with ordinary environments of individuals charged with criminal offense. These factors must be weighed in considering the reasonableness of the police activity in question, although the mere fact that the search occurred some 12 miles from the border may not necessarily divorce it from classification as a border search. Murgia v. United States, supra, 285 F.2d at 16 .

The government submits a number of relevant factors in its effort to sustain the burden of proving that the search in question complied with the constitutional requirement of reasonableness. We agree that the problem of illicit narcotics is one of grave and distressing magnitude. The smuggling of narcotics into this country, producing consequent despair and destruction of human lives, is a despicable offense. Moreover, the court in Blackford, supra, 247 F.2d at 752 , took judicial notice that the Mexico-California border is one of the most concentrated points of illicit smuggling activities. It is undeniable that the national interest demands the apprehending and punishment of outlaws so evil as to engage in the smuggling of illicit and dangerous narcotic drugs.

The government also notes the reliability of the information that appellant Blefare would smuggle narcotics by transporting the contraband across the border in his stomach. The principal information was passed by a customs officer of Seattle, Washington, and not by a criminal informant seeking to curry favor for his own personal advantage. In addition, considerable time transpired between the initial warning from Seattle and appellant’s actual apprehension, enabling the San Diego Customs Office to conduct investigation to confirm the Seattle report and to enable positive identification of Blefare.

The argument which is most persuasive as justification for the government’s use of stomach tubes rests on its claim that there were no alternative means by which the stomachs of the suspects might be effectively searched. As the majority recites, the testimony touched upon certain theoretical alternatives. Enemas and laxatives were rejected as possible alternatives because the rubber containers enclosing the contraband were too large to pass through the pyloric sphincter between the stomach and the small intestine. The possibility that the use of a fluoroscope might have revealed the contraband was also considered by the District Court in its hearing on the motion to suppress. It is clear that this procedure, even if assumed to be effective in detection, would have required that the subject swallow barium. Had appellants refused to consent to swallowing that opaque substance, as they declined to take more than sips of the saline solution, the customs officials would yet have been faced with the decision of whether to use the tube process to inject barium into the stomachs. And had the presence of foreign contents in the stomachs been shown by the x-ray technique, there would have remained the problem of its expulsion. The only other considered alternative was that the suspects might have been confined within a “dry cell” to allow normal body functions to take their course so that the narcotics would pass by defecation. This plan would not have been feasible, thought the District Court, because the rubber containers were too large to have passed from the stomach into the intestines through the pyloric sphincter. Finally, the testimony indicated that had the containers dissolved within the stomachs, as they were in the process of doing when recovered, the *886 appellants would have died almost immediately from the released poison.

I must therefore agree that there was no feasible alternative procedure to enable the officers to search appellants’ stomachs. Contrary to the majority, however, I do not feel that this conclusion is dispositive of the specification of error. Holding it to be so now vests in all border officials, major and minor, trained and relatively untrained, an absolute, untrammeled discretion to engage in such drastic search procedure upon the basis of what might be shown to have been the merest whim or fancy. Since, as a general rule, neither a warrant nor the existence of probable cause is a necessary prerequisite for a border search, suspicion alone might legally justify the “stomach pumping”, or, quite conceivably, the cutting open by knife, of any person, alien or citizen, crossing a border into our country. Such a rule might find acceptance in lands of tyranny, but I cannot believe that it harmonizes with those ideals which are firmly planted in our Constitution and which command a decent respect for human dignity.

Is there another available avenue which is bounded by due regard for both the public’s interest and the individual’s right? I believe that there is and that my Brothers should have taken it with me.

In Blackford v. United States, supra, at 749-750, it was observed that a search might be “unreasonable”, within the prohibition of the Fourth Amendment, and yet not involve conduct so repugnant that it “shocks the conscience” or “offend [s] a sense of justice.” Rochin v. California, supra, 342 U.S. at 172, 173 , 72 S.Ct. at 209, 210 . Therefore, it was really unnecessary to determine whether the conduct of the customs officials in the case at bar offends civilized standards of decency and fair play within the meaning of the due process clause of the Fifth Amendment. If, under all the circumstances, the questioned searches were “unreasonable”, even if their manner was not so shocking to my Brothers as to constitute violations of the due process right, appellants’ convictions cannot be sustained.

The elements which distinguish a reasonable search from an unreasonable one are not susceptible to precise definition. The standard of reasonableness necessarily and traditionally embraces a flexible concept which permits various elements to be given varying degrees of significance depending upon the circumstances of a particular case. Certainly, one of the important factors to be first considered in judging the reasonableness of a given search is the character of the procedures used. Here, the government has established the absence of a reasonable alternative procedure for the search itself. On the other hand, it is apparent that the methods employed were severe, including physical force applied by several men. The methods were substantially more severe than those applied by the customs officials in Blackford . There, the evidence clearly demonstrated that the rectal probe involved a minimum of danger and discomfort and that “Blackford was treated civilly throughout”. 247 F.2d at 752 . I hold that the same cannot be said of the treatment afforded Blefare and Michel; however, it is unnecessary to indulge in conjecture. Another factor in the concept of reasonableness, when considered together with the other events and circumstances described in the record, should compel the decision that the search in question violated appellants’ rights as guaranteed by the Fourth Amendment. That factor is the ample time, even more than adequate, which would have enabled the customs officials to seek proper authorization and desirable guidance from a judicial officer.

The landmark Supreme Court opinion in United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 (1950), in expressly overruling Trupiano v. United States, 334 U.S. 699 , 68 S.Ct. 1229 , 92 L.Ed. 1663 (1948), held that the practicability of procuring a search warrant where a search was incident to a lawful *887 arrest was no longer the sole test of reasonableness. The Court explicitly stated:

In this pronouncement, however, the Supreme Court did not reject as a relevant consideration the practicability of procuring a search warrant in a given situation. Although Mr. Justice Frankfurter’s position that the practicability of procuring a search warrant was the decisive factor in the concept of reasonableness was not adopted in Rabinowitz , his dissent nevertheless underscores that the practicability of procuring a warrant should remain a relevant consideration in determining the reasonableness of a search.

A recent case, United States v. Bayley, 240 F.Supp. 649 (S.D.N.Y.1965), while noting the change in emphasis wrought by Rabinowitz , endorses the salutary principle that searches should be conducted under judicial authority when circumstances permit. The Court commented, at page 657,

The record under review reveals no justification for the customs officers’ failure to seek judicial approval and guidance before undertaking their extreme procedure of search. When time permits and when the contemplated search procedure is extreme, if not shockingly offensive, the search, if made without authority therefor having been sought of a magistrate, is unreasonable within the meaning of the Fourth Amendment. The customs agents in the case at bar had ample advance notice of the appellant Blefare’s intention and method of operation. They prearranged that a physician, selected by themselves, hold himself in readiness for the performing of the operations, which occurred near the midnight hour. It would hardly seem to impose a harsh burden that customs officers, bent on exploring a suspect’s stomach by means of an operative procedure, should be required to seek an objective, judicial evaluation, as envisioned by the writers of the Fourth Amendment, of the relative interests of the public and the individual. It is not unreasonable to assume that a magistrate might have agreed that, in the absence of feasible alternatives and in light of the reliability of advance information, the use of a stomach tube to search appellants’ persons would not have constituted unreasonable intrusion. Yet it is far more compatible with the philosophy of the Fourth Amendment that such a determination be made by an objective officer of the court rather than by intensely involved and immediately frustrated law enforcement officers. Furthermore, authorization by a magistrate would doubtless include guidance, protective to both the officers and the suspect, as to arrangements for the search, including the selection of a suitable fa *888 cility and of medically qualified assistants. A magistrate occupies a desirably removed position from which to reach decisions safeguarding the national interest while, at the same time, affording reasonable protection to the civil rights of individuals.

That customs officials should seek judicial authorization, where time permits, before engaging in extremely unusual invasions of the human body would appear to be a wholly reasonable requirement, a requirement which would protect the constitutional rights of individuals who cross our international borders and not significantly thwart the necessary regulation of border traffic.

In the light of the facts and the guiding principles as I see them, I am convinced that the forcible searches of appellants’ persons by use of stomach tubes, without judicial sanction, were unreasonable searches within the prohibition of the Fourth Amendment and shocking, unlawful conduct in violation of the Fifth Amendment. The motions to suppress the evidence, 4 illegally obtained, should have been granted.

I would reverse the judgments of conviction. 5

. None of the cases cited hv Judge Barnes treats of the employment against resistance of a stomach-pumping process, the insertion of a tube or other conduit into a suspect’s body as a means of injecting an emetic. The Supreme Oourt has condemned the method in Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952). Several of the cases cited in the concurring opinion are concerned with the legality of anal border searches. Denton v. United States, 310 F.2d 129 (9th Cir. 1962) ; Blackford v. United States, 247 F.2d 745 (9th Cir. 1957). Others, while involving the ingestion of emetics, reveal that the emetics were administered orally by swallowing. Lane v. United States, 321 F.2d 573 (5th Cir. 1963), cert. denied, 377 U.S. 936 , 84 S.Ct. 1340 , 12 L.Ed.2d 299 (1964); 381 U.S. 920 , 85 S.Ct. 1551 , 14 L.Ed.2d 440 (1965); Barrera v. United States, 276 F.2d 654 (5th Cir. 1960); King v. United States, 258 F.2d 754 (5th Cir. 1958), cert. denied, 359 U.S. 939 , 79 S.Ct. 652 , 3 L.Ed.2d 639 (1959). In two of them the court noted that the suspect voluntarily swallowed the substance. Lane v. United States, supra; King v. United States, supra. In none does it appear that a medical or surgical instrument was forced into a suspect’s body against his will, and in none of them was there, as here, such tearing of tissue as to induce bleeding. Therefore, I do not view the cases cited in the concurring opinion as constituting any valid authority whatsoever for the sanction of the extreme and radical search which the majority approves, and undertakes to justify, in the case at hand.

. The process did not involve the use of a pump in the sense of a mechanical device for the forcible propulsion of liquid; hence, the majority opinion carefully emphasizes, “There is no pump”. However, the process involving the insertion, *882 through the nasal passage, of a portion of a thirty-inch tube into the stomach and causing a solution poured into the open end of the tube to flow by gravity into the stomach is commonly called “stomach pumping” and is so called by various witnesses through the transcript of their testimony.

A similar method of gravitational flow of an emetic through a tube was under-consideration in Roehin v. California, supra, the record of which has been made available to me. There, however, there was less abusive variation, inasmuch as the tube was placed through the mouth of the victim rather than being forced through the nostrils as here. Nevertheless, the Justices of the Supreme Court have repeatedly referred to the process as “stomach pumping” and the use of a “stomach pump”, and that is why, despite the majority’s statement that “There is no pump”, I have adopted the common terminology.

. All witnesses agree that Blefare struggled violently and was forcibly restrained by “at least” three agents. One of the officers testified that Michel required no restraint, and upon this testimony is based the majority’s statement that Michel “did not object or resist” and “was not held”. Considering the entire record, I choose to rely on the doctor’s testimony. It was to the effect that he would have considered it unsafe medical practice to engage in the stomach-pumping operations if the subjects, being conscious, were not under restraint. He declared, repeatedly and unequivocally, that Michel was forcibly restrained in the same manner as was Blefare.

. Blefare filed a motion to suppress. Michel did not, apparently because his court-appointed counsel had not been named at the time when Blefare’s motion was heard. No prejudice resulted, inasmuch as the district judge held that Michel had not waived his objection and that the court’s decision as to the admissibility of the evidence against Michel would be rendered as if, in his behalf, there had also been a timely motion to suppress.

. The present concurring opinion of my Brother Barnes contains much amending language which was not present in the original draft to which my dissenting opinion made passing reference.

It is now said that I have, in expressing my views, employed “intemperate language” and that I have assumed “the role of doctor and advocate” and abandoned “that of an appellate judge”. As to the latter expression of my distinguished colleague and friend, I refuse to construe it as an accusation that I have abdicated my Constitutional duty and my moral responsibility.

If I have assumed the role of a “doctor”, I did not intend to do so. It would seem to be common knowledge that there is a difference between “swallowing” a tube and having one jammed through the nasal passages and that when there is “bleeding” there must necessarily be laceration or rupture of tissue. Constitutional rights should not, in my considered view, be made to depend for their application upon the quantity of the blood which is shed.

If I have reflected myself in the role of “advocate”, it is only because of abiding belief that one privileged to engage in a judge’s undertaking must endeavor to advocate, even to his Brothers, the guiding principles which, within the limitations of his ability to interpret, he deems to be just and controlling.

Whatever “intemperate language” I have employed cannot with propriety, be defended by me. Its character should properly rest upon the evaluation and historical judgment of minds more objective than mine is, for the moment, claimed to be.

Judge Barnes rather vigorously challenges my representation that one of the officers testified that he suffered an “attack of nausea”. The basis of my representation is found at page 135 of the Reporter’s Transcript where, in the testimony of Customs Agent Quinlan, there appears the following:

“Q. Will you tell the Court at what time this attack of semi-nausea or wheeziness occurred in relation to the trip to Dr. Salerno’s office, and your presence there?

“A. My attach of nausea?

“Q. Yes.

“A. Other than this attack of nausea—

“Q. Or attack of semi-nausea.

“A. Well, when they were retching and vomiting.

“Q. And by ‘they’, you mean—

“A. Both defendants.

“Q. Both of them?

“A. Yes, sir.”

(Emphasis added.)