Barbara Jean Henderson v. United States

This case raises but one issue, the validity of a border search of appellant. In spite of her violent resistance, she was compelled to submit to a procedure whereby a medical doctor removed from her vagina two rubber packets, each about two inches in diameter, together containing 93 grams of heroin.

This court has repeatedly upheld border searches of body cavities, 1 including such searches carried out in spite of the violent resistance of the person searched. 2 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 but we have also held that even in such cases, the officers must act reasonably. 4 Our recent decision in Rivas v. United States, supra, n. 1, 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 Rivas requires, when body cavities are searched, something more than was required in the earlier decisions, which said…

(dissenting) :

For the normal border search of such things as cars, suitcases and handbags no showing of probable cause, or even supported suspicion, is necessary. Cervantes v. United States, 9 Cir., 263 F.2d 800 . However, to conduct a border search involving intrusion beyond the body’s surface, it has recently been held that there must be a “clear indication” of narcotics possession. Rivas v. United States, 9 Cir., 368 F.2d 703 ; and see Schmerber v. State of California, 348 U.S. 757 , 86 S.Ct. 1826 .

The majority correctly concludes that the “clear indication” test should be applied here. I disagree with their holding that the information in the hands of customs agents was inadequate to constitute a “clear indication” that appellant was carrying narcotics. As I read the majority opinion it seems to me that the assumption is made that Schmerber, supra, prohibits strip searches. Both Schmerber, generally, and the “clear indication” test, specifically, are concerned with searches involving intrusions of the body, * not with strip searches. I find nothing in Schmerber to compel reversal of Witt v. United States, 9 Cir., 287 F.2d 389 , where this court held that a strip search was…

390 F.2d 805 Barbara Jean HENDERSON, Appellant, v. UNITED STATES of America, Appellee. No. 21190. United States Court of Appeals Ninth Circuit. July 7, 1967. Rehearing Denied December 15, 1967. Howard E. Beckler, Hollywood, Cal., for appellant. Edwin L. Miller, Jr., U. S. Atty., Phillip W. Johnson, Asst. U. S. Atty., San Diego, Cal., for appellee. Before CHAMBERS, HAMLEY and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge: 1 This case raises but one issue, the validity of a border search of appellant. In spite of her violent resistance, she was compelled to submit to a procedure whereby a medical doctor removed from her vagina two rubber packets, each about two inches in diameter, together containing 93 grams of heroin. 2 This court has repeatedly upheld border searches of body cavities, 1 including such searches carried out in spite of the violent resistance of the person searched. 2 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. 3 We have repeatedly said that a border search can be undertaken without probable cause, 3 but we have also held that even in such cases, the officers…