United States v. Sandra Denise Johnson

425 F.2d 630 UNITED STATES of America, Plaintiff-Appellee, v. Sandra Denise JOHNSON, Defendant-Appellant. No. 24563. United States Court of Appeals, Ninth Circuit. March 20, 1970, Rehearing Denied June 22, 1970. Howard E. Beckler (argued), Hollywood, Cal., for appellant. Warren Reese (argued), Asst. U.S. Atty., Harry D. Steward, U.S. Atty., San Diego, Cal., for appellee. Before HAMLEY and BROWNING, Circuit Judges, and BYRNE, * District judge. PER CURIAM: 1 Defendant was convicted of smuggling, concealing, and transporting narcotics in violation of 21 U.S.C. 173 and 174. Her sole contention on appeal is that the trial court erred in dismissing her motion to suppress the heroin introduced into evidence against her. She alleges that the evidence was the product of an illegal strip search of her person at the border. 2 The prosecution called two witnesses at the hearing on defendant's motion to suppress. The first, Richard L. McCown, testified that he was a customs inspector stationed at San Ysidro, California, that he had considerable experience in examining persons crossing the border for narcotics, and that on August 18, 1968, he had observed defendant and a female companion…

I respectfully dissent.

The majority reverses “in light of our subsequent decision in United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. Feb. 2, 1970).” .

Guadalupe-Garza is distinguishable from the instant case on two main grounds; (1) the factual settings of the cases are significantly different; and (2) the rule of “real suspicion” that was defined in Guadalupe-Garza has no application to the issues in the present case.

The Guadalupe-Garza court stated, “neither Henderson nor our decisions following it have further defined the ‘real suspicion’ test stated there. We do so now.” Reference to certain facts in Henderson as well as those in Guadalupe-Garza is necessary to a clear understanding of the decision in Guadalupe-Garza and what was intended as the definition of the “real suspicion” test stated in Henderson.

The crux of this court’s reversal in Henderson concerned the request by the Inspectress that the appellant bend over and “with her hands pull her buttocks apart and up to permit inspection of her vagina”. This was followed by the removal of narcotics from appellant’s va *633 gina. In the absence of needle marks on appellant’s body, vaseline around the vagina,…

Defendant was convicted of smuggling, concealing, and transporting narcotics in violation of 21 U.S.C. §§ 173 and 174. Her sole contention on appeal is that the trial court erred in dismissing her motion to suppress the heroin introduced into evidence against her. She alleges that the evidence was the product of an illegal strip search of her person at the border.

The prosecution called two witnesses at the hearing on defendant’s motion to suppress. The first, Richard L. McCown, testified that he was a customs inspector stationed at San Ysidro, California, that he had considerable experience in examining persons crossing the border for narcotics, and that on August 18, 1968, he had observed defendant and a female companion entering the United States by foot, had talked with them, and had then requested a female Customs agent to search defendant. Government counsel then asked, “Were you suspicious before you made that request?”; and Inspector McCown replied, “I was, yes, sir.”

The prosecution’s second witness was Netta W. Lohman, a part-time Customs inspectress. She testified that she had conducted the strip search of defendant and had found' the heroin in question hidden in…