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421 F.2d 152

Docket Nos. 24145, 24146.

United States v. Caldera

Ninth Circuit Court of Appeals

Filed Jan. 19, 1970.

Ninth Circuit Court of Appeals · decided 1970-01-19

2 counsel of record

Relies on Rochin v. People of California · Henderson v. United States · Safeway Stores, Inc. v. Vance

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1970-01-19

How this case has been cited

Cited by 18 later decisions — most recently October 1995

7 federal appellate · 1 district · 8 state decisions

80197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*153Joseph H. Soble (argued), Tucson, Ariz., for Alonzo Pena Caldera, Paul E. Wolf (argued), Tucson, Ariz., for Lois Virginia Caldera, William C. Scott, Tucson, Ariz., for appellants.

¶2William C. Smitherman (argued), Asst. U. S. Atty., John L. Augustine, Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Tucson, Ariz., for appellee.

¶3Before MERRILL, KOELSCH and HUFSTEDLER, Circuit Judges.

¶4PER CURIAM:

¶5Under the standards articulated in a series of cases from this court dealing with border searches of body cavities,1 the Customs agents had sufficient indication of the presence of heroin to warrant subjecting Lois Virginia Caldera to an X-ray examination. Her refusal to submit to the X-ray and the fact that she was seen placing something in her mouth were sufficient to warrant a subsequent search of her mouth. No Fourth Amendment problem is presented.

¶6Nor do we find a Fifth Amendment problem akin to that in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The conduct of Mrs. Caldera required reasonable force to subdue her and to prevent her apparent attempt to swallow the evidence. See Blackford v. United States, 247 F.2d 745, 752 (9th Cir. 1957), cert. denied, 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586 (1958). We cannot say as matter of law that the force exerted was shocking or unreasonable under the circumstances.

¶7The totality of the evidence was sufficient to present a jury question as to whether appellants were engaged in a joint enterprise.

¶8As to both appellants judgment is affirmed.

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