William Kenneth Thompson, Etc. v. United States

411 F.2d 946 William Kenneth THOMPSON, etc., Appellant, v. UNITED STATES of America, Appellee. No. 22643. United States Court of Appeals Ninth Circuit. May 20, 1969. Roger B. Dworkin (argued), San Diego, Calif., for appellant. Phillip Johnson (argued), Asst. U.S. Atty., Edwin L. Miller, U.S. Atty., San Diego, Cal., for appellee. Before BARNES and ELY, Circuit Judges, and THOMPSON, 1 District judge. PER CURIAM: 1 We affirm the judgment of conviction in this border crossing case, where a medically conducted search of the appellant's rectum disclosed a package of heroin. 2 As in Arciniaga v. United States, 409 F.2d 513 (9th Circuit, decided April 3, 1969), the facts and the trial court's findings in this case more closely resemble Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. den. 386 U.S. 945 , 87 S.Ct. 980 , 17 L.Ed.2d 875 (1967), than they do other 'alimentary canal cases' involving narcotics. Evidence was sufficient to establish a 'clear indication' of the possession of narcotics by appellant. 3 The other errors alleged as to introduction of evidence and sentencing we find without merit. ELY, Circuit Judge (dissenting): 4 I respectfully dissent. When this case was…

(dissenting):

I respectfully dissent. When this case was submitted, there was then pending our disposition of Huguez v. United States, 406 F.2d 366 (9th Cir. 1968), another case involving the probing exploration of the rectal cavity of one suspected of crossing the international frontier with narcotics concealed in that cavity. The published record reveals that all of the judges of our court gave long and careful consideration to the Huguez problem. The original panel of our court, with one judge dissenting, held that the search of Huguez was illegal. We held that the federal constitution was infringed because the procedure employed by the border officials, with the assistance of the same doctor who participated in this case, was shockingly offensive under the teaching of Rochin v. State of California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed.2d 183 (1952). More important, however, as it affects the present case, is our holding in Huguez that the border police were not aware, at the inception of the search procedure, of facts sufficient to provide the required “clear indication” that narcotics were concealed in Huguez’ rectal cavity. I have previously expressed my dissatisfaction…

We affirm the judgment of conviction in this border crossing case, where a medically conducted search of the appellant’s rectum disclosed a package of heroin.

As in Arciniaga v. United States, 409 F.2d 513 (9th Circuit, decided April 3, 1969), the facts and the trial court’s findings in this case more closely resemble Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. den. 386 U.S. 945 , 87 S.Ct. 980 , 17 L.Ed.2d 875 (1967), than they do other “alimentary canal cases” involving narcotics. Evidence was sufficient to establish a “clear indication” of the possession of narcotics by appellant.

The other errors alleged as to introduction of evidence and sentencing we find without merit.