Oscar John Huguez v. United States

(dissenting):

I respectfully but firmly dissent. The majority opinion, it might be said, “goes through the motions” of respecting the trial court’s conclusion that the evidence discloses a reasonable search (p. 13), and even purports to examine the evidence “in the light most favorable to the Government, as we are obliged to do” (p. 13) and then immediately proceeds to do neither. It does this by quoting at length the self-serving language of the defendant, and finding any contradictory testimony “palpably unworthy of belief.” (p. 13).

It is actually impossible for me to recognize the facts, the conduct, and even certain physical objects described in the majority opinion when I compare its language with the transcript of testimony heard by the trial court. Florid, argumentative, and dramatic language is used to color judgment and to emphasize certain facts, and to de-emphasize others.

*385 I therefore prefer to draw my own statement of facts which I sincerely believe is more accurate, and decidedly more fair, than that appearing in the majority opinion.

Appellant Huguez (with a codefendant alleged to have aided and abetted him) was charged in two counts of a four-count…

(concurring):

I agree with the disposition reached by Judge Hauk in his principal opinion, although his route to the end result is perhaps more winding than that which I would have selected. My concurrence stems from conviction, shared by Judge Hauk and based upon all the circumstances, that (1) the overbearing manner of the forceable bodily invasion, in the environment in which it was made, was shockingly offensive under the teaching of Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), and (2) in support of the type of search, there was not that “clear indication” or “plain suggestion” required by recent controlling precedents, principally, the Supreme Court’s case of Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), and our own cases of Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. denied, 386 U.S. 945 , 87 S.Ct. 980 , 17 L.Ed.2d 875 (1967), and Henderson v. United States, 390 F.2d 805 (9th Cir. 1967).

I am moved to record my view that the “clear indication” test, somewhat nebulous in concept, does not satisfy me, even though, to be sure, I do, as I must, now respect it. Judge Hauk and I have here concluded,…

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 Constitution 1 and *368 the permissibility of the techniques used under the “due process” clause of the Fifth Amendment.

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…

On Petition ORDER For Rehearing

The petition for rehearing is denied. Judge BARNES would grant the petition.

A judge in regular active service having requested that the court be polled on the question of in banc rehearing, the requested poll was taken. A majority of the court’s judges in regular active service has determined that a rehearing in banc shall not be conducted, and it is so ordered.

Four of the court’s judges in regular active service, Judges CHAMBERS, BARNES, KOELSCH, and JAMES M. CARTER, have directed that it be noted herein that they would have reheard the case in banc.

406 F.2d 366 Oscar John HUGUEZ, Appellant, v. UNITED STATES of America, Appellee. No. 21518. United States Court of Appeals Ninth Circuit. September 30, 1968. Rehearing En Banc Denied February 12, 1969. 1 John H. Ely (argued), San Diego, Cal., for appellant. 2 Phillip Johnson (argued), Asst. U. S. Atty., Edwin Miller, U. S. Atty., San Diego, Cal., for appellee. 3 Before BARNES and ELY, Circuit Judge, and HAUK, * District Judge. HAUK, District Judge: 4 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. 5 This issue necessarily raises the questions of "reasonableness" of the search and seizure under the Fourth Amendment to the United States Constitution 1 and the permissibility of the techniques used under the "due process" clause of…