(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, upon the basis of a study which has been essentially factual, that “clear indication” that contraband was concealed in the rectum did not exist.1 My Brother Barnes, whose wisdom cannot be justly questioned, disagrees. The creators of multiple-judge appellate courts contemplated that each of the judges should conscientiously apply his own independent judgment in the resolution of disputes. Here the majority reaches a conclusion favorable to Hu-guez, but it is altogether possible that had another judge sat in the place of Judge Hauk or of me, the opinion of Judge Barnes would have prevailed.
None should deny that there should be uniformity in the application of legal principles. Huguez should not have the benefit of a decision which might possibly be denied to others in the same position. Moreover, the border police, already confronted with perplexing problems incident to their zealous efforts to protect the public, should be equipped with the clearest possible guidelines.
*384The foregoing considerations, which must be disturbing to all those charged with the responsibility of insuring equal, exact, and universal justice, lead me to reiterate the fixed belief which I so recently expressed in my dissenting opinion in Blefare v. United States, 362 F.2d 870, 880 (9th Cir. 1966). It is:
“When time permits and when the contemplated search procedure is extreme, if not shockingly offensive, the search, if made without authority therefor having been sought of a magistrate, is unreasonable within the meaning of the Fourth Amendment.”
362 F.2d at 887.
I do not maintain that the adoption of my proposed rule would always provide an ideal solution to the type of disturbing problem which is presented here and which we encounter with increasing frequency. Nor do I pretend to have devised it originally, without reliable markers set by jurists whose intellects command the utmost respect. See, e. g„ Mr. Justice Frankfurter’s dissenting opinion in United States v. Rabinowitz, 339 U.S. 56, 68, 70 S.Ct. 430, 94 L.Ed. 653 (1950). See also Mr. Justice Brennan’s comments in Schmerber. 384 U.S. at 770, 86 S.Ct. 1826.
Although my proposal was rejected by the majority in Blefare, it has been favorably received by some who labor in the field of legal scholarship. See Comment, Intrusive Border Searches — Is Judicial Control Desirable?, 115 U.Pa.L. Rev. 276 (1966); Note, “Search and Seizure at the Border — The Border Search,” 21 Rutgers L.Rev. 513 (1967); 19 Fla.L.Rev. 374 (1966); 18 W.Res.L.Rev. 1007 (1967). See also Note, “Border Searches and the Fourth Amendment,” 77 Yale L.J. 1007 (1968).
. Accepting the fact that Iiuguez presented the appearance of having used narcotics, I cannot believe that this appearance, of itself, constituted the required “clear indication” that he was then and there concealing narcotics in a particular cavity of his body. A human derelict is no less entitled to the law’s protection than the more respected individual, and the former is much more in need of it.
One of the officers testified that he observed a “greasy substance” on appellant’s buttocks, but the doctor who conducted the rectal probe testified that no such substance was present. It can hardly be doubted that the physician’s examination required the more advantageous view. A layman might easily, from visual observation alone, mistake perspiration for grease, whereas a physician conducting the closer examination would be far less likely to make such a mistake. The interrogation on this point called for expert opinion; hence, the only competent evidence, that of Dr. Salerno, favors Huguez.
The majority in Blefare was keenly impressed with the ojunions there expressed by Dr. Salerno. In his concurring opinion, my Brother Barnes deemed it worthwhile to set forth, in detail, the doctor’s qualifications. 362 F.2d at 879 n.3. Even did he not have an extensive educational background, Dr. Salerno must surely have looked at the many, many rectums which he has probed for the border police. While the lighting of the room in the baggage area may not have provided the visual aid ordinarily available in decent medical surroundings, the handicap was not such as to prevent the doctor’s unequivocal testimony, given quite positively, that the greasy substance, claimed to have been seen by the officer, was not there.