(dissenting):
I respectfully dissent. Here, again, we confront a disgusting and saddening episode at the Mexican border involving the disrobing and search of a woman by United States border police. That the woman so degraded herself as to offend the sensibilities of any decent citizen is not questioned. Nevertheless, if we are to continue to safeguard the innocent and virtuous from the potential degradation and humiliation of “strip searches”, we cannot permit our revulsion at one woman’s acts to induce our Court to depart from its established principles. “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).
In 1969,1 took note of
“the disturbing, even appalling, information that ‘80 to 85 percent’, at least four fifths, of all border transients whose bodily cavities are invaded by the border police are innocent of the suspected wrongdoing.1 Morales v. United States, 406 F.2d 1298, 1300 n. 2 (9th Cir. 1969).”
Thompson v. United States, 411 F.2d 946, 948 (9th Cir. 1969) (original emphasis). Now, four years later, we have updated information. Recent hearings conducted by California’s Representative Edward Roybal disclosed the following information drawn from an available sample:
“[0]f the 1,800 women stripped and searched [during a certain period] only 285 [approximately 16 percent] were found carrying any contraband, and very few concealing it in body cavities.
“[S]everal women testifed that they were subjected to humiliating body, cavity probes by nonmedical personnel under the most unsanitary conditions.”
Metropolitan News, June 28, 1972, at 1, col. 3 (emphasis added). The distinguished Congressman reached this conclusion :
“It became evident from the testimony presented not only by the accusers but by customs officials as well that the procedures used at the border have failed to protect a person’s right to privacy. .■ . .”
Id.
I remain firmly persuaded that rudimentary concepts of fundamental fair*95ness, the right to be free from unreasonable searches and seizures, and the right of privacy emanating from various constitutional guarantees compel antecedent judicial authorization for a border cavity search.1 Authorization would not, of course, be conditioned upon a finding of probable cause but only upon a showing of a clear indication or plain suggestion that contraband may be located in a body cavity. Thompson v. United States, supra, at 947; Huguez v. United States, 406 F.2d 366, 383, 384 (9th Cir. 1968) (concurring opinion); Blefare v. United States, 362 F.2d 870, 880-888 (9th Cir. 1966) (dissenting opinion). While our Court has not yet adopted this view, it is encouraging to note the number of commentators who share my position. E. g., Comment, Intrusive. Border Searches—Is Judicial Control Desirable? 115 U.Pa.L.Rev. 276 (1966) ; Note, 21 Rutgers L.Rev. 513 (1967) ; 18 Case W.Res.L.Rev. 1007 (1967); 19 Fla.L.Rev. 374 (1966). See Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007 (1968). While the Supreme Court has not yet chosen to address this problem, my position is, I believe, suggested by dicta in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966):
“[W]e are satisfied that the test chosen [extraction of blood samples] to measure petitioner’s blood-alcohol level was a reasonable one. [F]or most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing.
“Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment— for example, if it were administered by police in the privacy of the station-house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
“ . The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions."
384 U.S. at 771-772, 86 S.Ct. at 1836 (emphasis added) (footnotes omitted).
I am well aware, of course, that the search challenged here was, at least at its inception, a strip search and not a cavity probe, and that, consequently, reasonableness must be measured against strip search standards. Compare, e. g., United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir. 1970) (strip search) with Henderson v. United States, 390 F.2d 805 (9th Cir. 1967) (cavity probe). But I am equally aware that a strip search presents similar potential for abuse. Moreover, it requires no exceptional imagination to recognize that the judicial demarcation between justification for strip searches and cavity probes may, to the average border po*96liceman, likely become obscure. That strip searches sometimes, according to the police seem to “reveal” objects protruding from cavities, thereby obviating the stricter requirements for cavity probes, does not assuage my concern for the countless numbers of innocent travelers who may be subjected to abusive humiliation.
In undertaking to protect innocent men and women, our Court has adopted stringent requirements for a strip search. In United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970) (emphasis added), Judge Hufstedler, for our Court, wrote:
“In Henderson v. United States (9th Cir. 1967) 390 F.2d 805, 808, we recognized that, even though probable cause is not required to initiate a border search, ‘mere suspicion’ would not justify initiating a strip search. The customs official must have ‘at least a real suspicion, directed specifically to that person,’ to sustain such a search. But neither Henderson nor our decisions following it have further defined the ‘real suspicion’ test stated there. We do so now.
“ ‘Real suspicion’ justifying the initiation of a strip search is subjective suspicion supported by objective, ar-ticulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law.
“The objective, articulable facts must bear some reasonable relationship to suspicion that something is concealed on,.the body of the person to be searched; otherwise, the scope of the search is not related to the justification for its initiation, as it must be to meet the reasonableness standard of the Fourth Amendment.” [Citing Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring)].
While the record before us may give rise to a reasonable suspicion that appellant was keeping company with undesirable characters, I cannot perceive sufficient “objective articulable facts [that bore] some reasonable relationship to suspicion that something was concealed on the body . . .’’of appellant. Surely her nervousness could not be such a fact, for I daresay even the most law-abiding travelers are often nervous in the presence of border guards. Many fear, if not denudation and the possible gouging and probing of their recta and vaginae, the possibility that they may have innocently forgotten to declare some small foreign article placed in their ransacked luggage. The majority also notes with significance that the automobile in which appellant was riding bore out-of-state license plates and that appellant made no purchases in Mexico. It frankly escapes me how these admittedly objective facts gave rise to a reasonable suspicion that the appellant was concealing contraband on her person.
Finally, my Brothers appear to ascribe some importance to the discovery of a condom in the woman’s purse. To infer from this that another contraceptive containing contraband might have been concealed within one of her body cavities reflects either startling naiveté or an unwillingness to recognize the sexual mores of many of our citizens in these times. Moreover, even if the inference be possible, it is irrelevant to the reasonableness of a strip search, since such a limited search could never confirm or dissipate the suspicion arguably raised.
Appellant was, in effect, stripped and searched becauge of her nervousness, her choice of companions, and her decision not to buy any souvenirs in Mexico. If these be objective, articulable facts sufficient to justify one of the most over*97whelming personal incursions allowable under law, then the dignity and sanctity of the individual in our society stand gravely threatened.2
I would reverse.
. These statistics reflect the experience of a physician, who according to the records of our court, frequently assists the border police in their searches of bodily cavities. I think it not unreasonable to believe that in situations wherein the police may not seek medical assistance, an even greater percentage of innocent persons are offended.
. I think, moreover, that my Brothers may have overlooked the significant threat to our national fiscal interest. It is not unlikely that many victims of border abuse have legitimate claims for substantial damages against our Government. See District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) (dictum) ; Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
. The second paragraph in the majority’s first footnote, which was added after my dissent was originally circulated, serves —if no other purpose — to emphasize the substance of my greatest concern. If the addition is intended to bolster the majority’s legal posture by fleshing out our Circuit’s definition of “objective, articula-ble facts”, then the impetus is misdirected. I have little doubt that, as my Brother Wallace ably and carefully observes, prior decisions of this Court demonstrate that the combination of factors cited by the majority constitute “objective, articulable facts”, sufficient under our Court’s current approach, to legitimize the search of appellant. But the focus of my concern is that the flimsy cast some of our decisions, including the majority’s opinion here, have given to “objective, articulable facts” provides the innocent with but a fragile shield with which to fend off offensive, if not abusive, bodily invasions by the border police.