(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 not unlawful.
The agents at the time of the vaginal probe, were in possession of the following information.
1. The statement of Customs Inspector Trumble that he believed that he had caused appellant to be stopped in the recent past and that at such time a gun, a marijuana cigarette and a small quantity of a dangerous drug had been discovered in her possession;
2. The statement of Customs Inspector Lohman (a woman) that she believed that appellant was concealing something in her body cavity. Inspector Lohman reached this conclusion after having appellant strip and examining her in the nude. Appellant resisted the attempts of Mrs. Lohman to make a visual inspection of the area she, the inspector, suspected.
3. The discovery in appellant’s handbag of an automobile registration slip issued to one Otis Lee Kimble. Kimble, according to customs agents, was a known narcotics peddler who used women to bring his wares over the border. While the agents knew that Kimble had not been convicted, they knew that he had been arrested for narcotics violations and they were on the watch for him.
On the basis of the above information, the customs agents were correct in thinking that the presence of narcotics was clearly indicated. They acted properly in taking appellant to a qualified physician for the purpose of conducting the interior probe. That at the very time that the probe was being conducted the agents learned that a search of their records had revealed that appellant was not the woman stopped the previous month does not render the search vio-lative of the Fourth Amendment. By the time the agents learned of their original mistake, appellant was ferociously resisting the doctor’s examination. Her screaming and fighting were such that three women jail matrons and Inspector Lohman could not hold her without the help of two male police officers. Indeed appellant’s resistance was so fierce that she succeeded in drawing blood from the breast of one of the matrons.
I know of no rule that compels the conclusion that because the original good faith identification here proved to be faulty the doctor had to stop in the very act of drawing three and one half ounces *812of heroin from the body cavity. Nor does it make sense to require that customs agents must pause to verify every piece of information they receive before taking action. At a busy port of entry where both foot and vehicular traffic is heavy this would constitute too much of a burden.
The “clear indication” rule of Rivas, supra, is a good one. Anal and vaginal probes should not be carried out at an agent’s whim. But we must be careful not to make it difficult to initiate such searches where there is real suspicion. Great quantities of narcotics enter this country every year concealed in body cavities. To impose unreal standards on our border authorities insures that the smuggler, by degrading himself, can with impunity import a substance that will inevitably contribute to the degradation of others.
The majority’s decision is an erosion of Rivas, supra; Spears v. United States, 9 Cir., 270 F.2d 335; Blefare v. United States, 9 Cir., 362 F.2d 370; Denton v. United States, 9 Cir., 310 F.2d 129; Witt v. United States, 9 Cir., 287 F.2d 389; Blackford v. United States, 9 Cir., 247 F.2d 745. Before taking such a course, the case should go en banc, and I so vote.
Schmerber v. State of California, 384 U.S. 757. at 769. 770. 86 S.Ct. 1826.