Upon her arrival at Los Angeles International Airport on a
flight from Bogota, Colombia, respondent was detained by customs
officials when after examination of her passport and the contents
of her valise and questioning by the officials, she was suspected
of being a "balloon swallower,"
i.e., one who attempts to
smuggle narcotics into this country hidden in her alimentary canal.
She was detained incommunicado for almost 16 hours before the
officials sought a court order authorizing a pregnancy test (she
having claimed to be pregnant), an x-ray, and a rectal examination.
During those 16 hours, she was given the option of returning to
Colombia on the next available flight, agreeing to an x-ray, or
remaining in detention until she produced a monitored bowel
movement. She chose the first option, but the officials were unable
to place her on the next flight, and she refused to use the toilet
facilities. Pursuant to the court order, a pregnancy test was
conducted at a hospital and proved negative, and a rectal
examination resulted in the obtaining of 88 cocaine-filled balloons
that had been smuggled in her alimentary canal. Subsequently, after
a suppression hearing, the District Court admitted the cocaine in
evidence against respondent, and she was convicted of various
federal narcotics offenses. The Court of Appeals reversed, holding
that respondent's detention violated the Fourth Amendment because
the customs officials did not have a "clear indication" of
alimentary canal smuggling at the time respondent was detained.
Held: The detention of a traveler at the border, beyond
the scope of a routine customs search and inspection, is justified
at its inception if customs agents, considering all the facts
surrounding the traveler and her trip, reasonably suspect that the
traveler is smuggling contraband in her alimentary canal; here, the
facts, and their rational inferences, known to the customs
officials clearly supported a reasonable suspicion that respondent
was an alimentary canal smuggler. Pp.
473 U. S.
536-544.
(a) The Fourth Amendment's emphasis upon reasonableness is not
consistent with the creation of a "clear indication" standard to
cover a case such as this as an intermediate standard between
"reasonable suspicion" and "probable cause." Pp.
473 U. S.
537-541.
(b) The "reasonable suspicion" standard effects a needed balance
between private and public interests when law enforcement officials
must
Page 473 U. S. 532
make a limited intrusion on less than probable cause. It thus
fits well into situations involving alimentary canal smuggling at
the border: this type of smuggling gives no external signs, and
inspectors will rarely possess probable cause to arrest or search,
yet governmental interests in stopping smuggling at the border are
high. Pp.
473 U.S.
541-542.
(c) Under the circumstances, respondent's detention, while long,
uncomfortable, and humiliating, was not unreasonably long.
Alimentary canal smuggling cannot be detected in the amount of time
in which other illegal activity may be investigated through brief
stops. When respondent refused an x-ray as an alternative to simply
awaiting her bowel movement, the customs inspectors were left with
only two practical alternatives: detain her for such time as
necessary to confirm their suspicions or turn her loose into the
interior of the country carrying the reasonably suspected
contraband drugs. Moreover, both the length of respondent's
detention and its discomfort resulted solely from the method that
she chose to smuggle illicit drugs into this country. And in the
presence of an articulable suspicion of alimentary canal smuggling,
the customs officials were not required by the Fourth Amendment to
pass respondent and her cocaine-filled balloons into the interior.
Pp.
473 U. S.
542-544.
731 F.2d 1369, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined. STEVENS, J., filed an opinion concurring in the judgment,
post, p.
473 U. S. 545.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
473 U. S.
545.
JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Rosa Elvira Montoya de Hernandez was detained by
customs officials upon her arrival at the Los Angeles Airport on a
flight from Bogota, Colombia. She was found to be smuggling 88
cocaine-filled balloons in her alimentary
Page 473 U. S. 533
canal, and was convicted after a bench trial of various federal
narcotics offenses. A divided panel of the United States Court of
Appeals for the Ninth Circuit reversed her convictions, holding
that her detention violated the Fourth Amendment to the United
States Constitution because the customs inspectors did not have a
"clear indication" of alimentary canal smuggling at the time she
was detained. 731 F.2d 1369 (1984). Because of a conflict in the
decisions of the Courts of Appeals on this question and the
importance of its resolution to the enforcement of customs laws, we
granted certiorari. 469 U.S. 1188. We now reverse.
Respondent arrived at Los Angeles International Airport shortly
after midnight, March 5, 1983, on Avianca Flight 080, a direct
10-hour flight from Bogota, Colombia. Her visa was in order, so she
was passed through Immigration and proceeded to the customs desk.
At the customs desk, she encountered Customs Inspector Talamantes,
who reviewed her documents and noticed from her passport that she
had made at least eight recent trips to either Miami or Los
Angeles. Talamantes referred respondent to a secondary customs desk
for further questioning. At this desk, Talamantes and another
inspector asked respondent general questions concerning herself and
the purpose of her trip. Respondent revealed that she spoke no
English and had no family or friends in the United States. She
explained in Spanish that she had come to the United States to
purchase goods for her husband's store in Bogota. The customs
inspectors recognized Bogota as a "source city" for narcotics.
Respondent possessed $5,000 in cash, mostly $50 bills, but had no
billfold. She indicated to the inspectors that she had no
appointments with merchandise vendors, but planned to ride around
Los Angeles in taxicabs visiting retail stores such as J. C. Penney
and K-Mart in order to buy goods for her husband's store with the
$5,000.
Respondent admitted that she had no hotel reservations, but
stated that she planned to stay at a Holiday Inn. Respondent could
not recall how her airline ticket was purchased.
Page 473 U. S. 534
When the inspectors opened respondent's one small valise, they
found about four changes of "cold weather" clothing. Respondent had
no shoes other than the high-heeled pair she was wearing. Although
respondent possessed no checks, waybills, credit cards, or letters
of credit, she did produce a Colombian business card and a number
of old receipts, waybills, and fabric swatches displayed in a photo
album.
At this point, Talamantes and the other inspector suspected that
respondent was a "balloon swallower," one who attempts to smuggle
narcotics into this country hidden in her alimentary canal. Over
the years, Inspector Talamantes had apprehended dozens of
alimentary canal smugglers arriving on Avianca Flight 080.
See App. 42;
United States v. Mendez-Jimenez, 709
F.2d 1300, 1301 (CA9 1983).
The inspectors requested a female customs inspector to take
respondent to a private area and conduct a patdown and strip
search. During the search, the female inspector felt respondent's
abdomen area and noticed a firm fullness, as if respondent were
wearing a girdle. The search revealed no contraband, but the
inspector noticed that respondent was wearing two pairs of elastic
underpants with a paper towel lining the crotch area.
When respondent returned to the customs area and the female
inspector reported her discoveries, the inspector in charge told
respondent that he suspected she was smuggling drugs in her
alimentary canal. Respondent agreed to the inspector's request that
she be x-rayed at a hospital, but in answer to the inspector's
query, stated that she was pregnant. She agreed to a pregnancy test
before the x-ray. Respondent withdrew the consent for an x-ray when
she learned that she would have to be handcuffed en route to the
hospital. The inspector then gave respondent the option of
returning to Colombia on the next available flight, agreeing to an
x-ray, or remaining in detention until she produced a monitored
bowel movement that would confirm or rebut the inspectors'
Page 473 U. S. 535
suspicions. Respondent chose the first option, and was placed in
a customs office under observation. She was told that, if she went
to the toilet she would have to use a wastebasket in the women's
restroom in order that female customs inspectors could inspect her
stool for balloons or capsules carrying narcotics. The inspectors
refused respondent's request to place a telephone call.
Respondent sat in the customs office, under observation, for the
remainder of the night. During the night, customs officials
attempted to place respondent on a Mexican airline that was flying
to Bogota via Mexico City in the morning. The airline refused to
transport respondent because she lacked a Mexican visa necessary to
land in Mexico City. Respondent was not permitted to leave, and was
informed that she would be detained until she agreed to an x-ray or
her bowels moved. She remained detained in the customs office under
observation, for most of the time curled up in a chair leaning to
one side. She refused all offers of food and drink, and refused to
use the toilet facilities. The Court of Appeals noted that she
exhibited symptoms of discomfort consistent with "heroic efforts to
resist the usual calls of nature." 731 F.2d at 1371.
At the shift change at 4:00 o'clock the next afternoon, almost
16 hours after her flight had landed, respondent still had not
defecated or urinated or partaken of food or drink. At that time,
customs officials sought a court order authorizing a pregnancy
test, an x-ray, and a rectal examination. The Federal Magistrate
issued an order just before midnight that evening, which authorized
a rectal examination and involuntary x-ray, provided that the
physician in charge considered respondent's claim of pregnancy.
Respondent was taken to a hospital and given a pregnancy test,
which later turned out to be negative. Before the results of the
pregnancy test were known, a physician conducted a rectal
examination and removed from respondent's rectum a balloon
containing a foreign substance. Respondent was then placed
Page 473 U. S. 536
formally under arrest. By 4:10 a.m. respondent had passed 6
similar balloons; over the next four days, she passed 88 balloons
containing a total of 528 grams of 80% pure cocaine
hydrochloride.
After a suppression hearing, the District Court admitted the
cocaine in evidence against respondent. She was convicted of
possession of cocaine with intent to distribute, 21 U.S.C. §
841(a)(1), and unlawful importation of cocaine, 21 U.S.C. §§
952(a), 960(a).
A divided panel of the United States Court of Appeals for the
Ninth Circuit reversed respondent's convictions. The court noted
that customs inspectors had a "justifiably high level of official
skepticism" about respondent's good motives, but the inspectors
decided to let nature take its course rather than seek an immediate
magistrate's warrant for an x-ray. 731 F.2d at 1372. Such a
magistrate's warrant required a "clear indication" or "plain
suggestion" that the traveler was an alimentary canal smuggler
under previous decisions of the Court of Appeals.
See United
States v. Quintero-Castro, 705 F.2d 1099 (CA9 1983);
United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (CA9
1983);
but cf. South Dakota v. Opperman, 428 U.
S. 364,
428 U. S. 370,
n. 5 (1976). The court applied this required level of suspicion to
respondent's case. The court questioned the "humanity" of the
inspectors' decision to hold respondent until her bowels moved,
knowing that she would suffer "many hours of humiliating
discomfort" if she chose not to submit to the x-ray examination.
The court concluded that, under a "clear indication" standard,
"the evidence available to the customs officers when they
decided to hold [respondent] for continued observation was
insufficient to support the 16-hour detention."
731 F.2d at 1373.
The Government contends that the customs inspectors reasonably
suspected that respondent was an alimentary canal smuggler, and
this suspicion was sufficient to justify the detention. In support
of the judgment below, respondent
Page 473 U. S. 537
argues,
inter alia, that reasonable suspicion would not
support respondent's detention, and in any event the inspectors did
not reasonably suspect that respondent was carrying narcotics
internally.
The Fourth Amendment commands that searches and seizures be
reasonable. What is reasonable depends upon all of the
circumstances surrounding the search or seizure and the nature of
the search or seizure itself.
New Jersey v. T. L. O.,
469 U. S. 325,
469 U. S.
337-342 (1985). The permissibility of a particular law
enforcement practice is judged by "balancing its intrusion on the
individual's Fourth Amendment interests against its promotion of
legitimate governmental interests."
United States v.
Villamonte-Marquez, 462 U. S. 579,
462 U. S. 588
(1983);
Delaware v. Prouse, 440 U.
S. 648,
440 U. S. 654
(1979);
Camara v. Municipal Court, 387 U.
S. 523 (1967).
Here, the seizure of respondent took place at the international
border. Since the founding of our Republic, Congress has granted
the Executive plenary authority to conduct routine searches and
seizures at the border, without probable cause or a warrant, in
order to regulate the collection of duties and to prevent the
introduction of contraband into this country.
See United States
v. Ramsey, 431 U. S. 606,
431 U. S.
616-617 (1977), citing Act of July 31, 1789, ch. 5, 1
Stat. 29. This Court has long recognized Congress' power to police
entrants at the border.
See Boyd v. United States,
116 U. S. 616,
116 U. S. 623
(1886). As we stated recently:
"'Import restrictions and searches of persons or packages at the
national border rest on different considerations and different
rules of constitutional law from domestic regulations. The
Constitution gives Congress broad comprehensive powers '[t]o
regulate Commerce with foreign Nations,' Art. I, § 8, cl. 3.
Historically, such broad powers have been necessary to prevent
smuggling and to prevent prohibited articles from
Page 473 U. S. 538
entry.'"
Ramsey, supra, at
431 U. S.
618-619, quoting
United States v. 12 200-Ft. Reels
of Film, 413 U. S. 123,
413 U. S. 125
(1973)
Consistently, therefore, with Congress' power to protect the
Nation by stopping and examining persons entering this country, the
Fourth Amendment's balance of reasonableness is qualitatively
different at the international border than in the interior. Routine
searches of the persons and effects of entrants are not subject to
any requirement of reasonable suspicion, probable cause, or
warrant, [
Footnote 1] and
first-class mail may be opened without a warrant on less than
probable cause,
Ramsey, supra. Automotive travelers may be
stopped at fixed checkpoints near the border without individualized
suspicion, even if the stop is based largely on ethnicity,
United States v. Martinez-Fuerte, 428 U.
S. 543,
428 U. S.
562-563 (1976), and boats on inland waters with ready
access to the sea may be hailed and boarded with no suspicion
whatever.
United States v. Villamonte-Marquez, supra.
These cases reflect longstanding concern for the protection of
the integrity of the border. This concern is, if anything,
heightened by the veritable national crisis in law enforcement
caused by smuggling of illicit narcotics,
see United States v.
Mendenhall, 446 U. S. 544,
446 U. S. 561
(1980) (POWELL, J., concurring), and in particular by the
increasing utilization of alimentary canal smuggling. This
desperate practice appears to be a relatively recent addition to
the smugglers' repertoire of deceptive practices, and it also
appears to be exceedingly difficult
Page 473 U. S. 539
to detect. [
Footnote 2]
Congress had recognized these difficulties. Title 19 U.S.C. § 1582
provides that
"all persons coming into the United States from foreign
countries shall be liable to detention and search authorized. . .
[by customs regulations]."
Customs agents may "stop, search, and examine" any "vehicle,
beast or person" upon which an officer suspects there is contraband
or "merchandise which is subject to duty." § 482;
see also
§§ 1467, 1481; 19 CFR §§ 162.6, 162.7 (1984).
Balanced against the sovereign's interests at the border are the
Fourth Amendment rights of respondent. Having presented herself at
the border for admission, and having subjected herself to the
criminal enforcement powers of the Federal Government, 19 U.S.C. §
482, respondent was entitled to be free from unreasonable search
and seizure. But not only is the expectation of privacy less at the
border than in the interior,
see, e.g., Carroll v. United
States, 267 U. S. 267
U.S.
Page 473 U. S. 540
132, 154 (1925);
cf. Florida v. Royer, 460 U.
S. 491,
460 U. S. 515
(1983) (BLACKMUN, J., dissenting), the Fourth Amendment balance
between the interests of the Government and the privacy right of
the individual is also struck much more favorably to the Government
at the border.
Supra at
473 U. S.
538.
We have not previously decided what level of suspicion would
justify a seizure of an incoming traveler for purposes other than a
routine border search.
Cf. Ramsey, 431 U.S. at
431 U. S. 618,
n. 13. The Court of Appeals held that the initial detention of
respondent was permissible only if the inspectors possessed a
"clear indication" of alimentary canal smuggling. 731 F.2d at 1372,
citing
United States v. Quintero-Castro, 705 F.2d 1099
(CA9 1983);
cf. United States v. Mendez-Jimenez, 709 F.2d
1300 (CA9 1983). This "clear indication" language comes from our
opinion in
Schmerber v. California, 384 U.
S. 757 (1966), but we think that the Court of Appeals
misapprehended the significance of that phrase in the context in
which it was used in
Schmerber. [
Footnote 3] The Court of Appeals viewed "clear
indication" as an intermediate standard between "reasonable
suspicion" and "probable cause."
See Mendez-Jimenez,
supra, at 1302. But we think that the words in
Schmerber were used to indicate the necessity for
particularized suspicion that the evidence sought might be found
within the body of the individual, rather than as enunciating still
a third Fourth Amendment threshold between "reasonable suspicion"
and "probable cause."
No other court, including this one, has ever adopted
Schmerber's "clear indication" language as a Fourth
Amendment standard.
See, e.g., 470 U. S.
Lee, 470 U.S.
753,
Page 473 U. S. 541
470 U. S.
759-763 (1985) (surgical removal of bullet for
evidence). Indeed, another Court of Appeals, faced with facts
almost identical to this case, has adopted a less strict standard
based upon reasonable suspicion.
See United States v.
Mosquera-Ramirez, 729 F.2d 1352, 1355 (CA11 1984). We do not
think that the Fourth Amendment's emphasis upon reasonableness is
consistent with the creation of a third verbal standard in addition
to "reasonable suspicion" and "probable cause"; we are dealing with
a constitutional requirement of reasonableness, not
mens rea,
see United States v. Baley, 444 U. S. 394,
444 U. S.
403-406 (1980), and subtle verbal gradations may
obscure, rather than elucidate, the meaning of the provision in
question.
We hold that the detention of a traveler at the border, beyond
the scope of a routine customs search and inspection, is justified
at its inception if customs agents, considering all the facts
surrounding the traveler and her trip, reasonably suspect that the
traveler is smuggling contraband in her alimentary canal. [
Footnote 4]
The "reasonable suspicion" standard has been applied in a number
of contexts, and effects a needed balance between private and
public interests when law enforcement officials must make a limited
intrusion on less than probable cause. It thus fits well into the
situations involving alimentary canal smuggling at the border: this
type of smuggling gives no external signs, and inspectors will
rarely possess probable cause to arrest or search, yet governmental
interests in stopping smuggling at the border are high indeed.
Under this standard, officials at the border must have a
"particularized and objective basis for suspecting the particular
person" of alimentary
Page 473 U. S. 542
canal smuggling.
United States v. Cortez, 449 U.
S. 411,
449 U. S. 417
(1981);
id. at
449 U. S. 418,
citing
Terry v. Ohio, 392 U. S. 1,
392 U. S. 21, n.
18 (1968).
The facts, and their rational inferences, known to customs
inspectors in this case clearly supported a reasonable suspicion
that respondent was an alimentary canal smuggler. We need not
belabor the facts, including respondent's implausible story, that
supported this suspicion,
see supra, at
473 U. S.
533-536. The trained customs inspectors had encountered
many alimentary canal smugglers, and certainly had more than an
"inchoate and unparticularized suspicion or
hunch,'" Terry,
supra, at 392 U. S. 27,
that respondent was smuggling narcotics in her alimentary canal.
The inspectors' suspicion was a "`common-sense conclusio[n] about
human behavior' upon which `practical people,' -- including
government officials, are entitled to rely." T. L. O., 469
U.S. at 469 U. S. 346,
citing United States v. Cortez, supra.
The final issue in this case is whether the detention of
respondent was reasonably related in scope to the circumstances
which justified it initially. In this regard, we have cautioned
that courts should not indulge in "unrealistic second-guessing,"
United States v. Sharpe, 470 U. S. 675,
470 U. S. 686
(1985), and we have noted that
"creative judge[s], engaged in
post hoc evaluations of
police conduct, can almost always imagine some alternative means by
which the objectives of the police might have been
accomplished."
Id. at
470 U. S.
686-687. But
"[t]he fact that the protection of the public might, in the
abstract, have been accomplished by 'less intrusive' means does
not, in itself, render the search unreasonable."
Id. at
470 U. S. 687,
citing
Cady v. Dombrowski, 413 U.
S. 433,
413 U. S. 447
(1973). Authorities must be allowed "to graduate their response to
the demands of any particular situation."
United States v.
Place, 462 U. S. 696,
462 U. S. 709,
n. 10 (1983). Here, respondent was detained incommunicado for
almost 16 hours before inspectors sought a warrant; the warrant
then took a number of hours to procure, through no apparent
fault
Page 473 U. S. 543
of the inspectors. This length of time undoubtedly exceeds any
other detention we have approved under reasonable suspicion. But we
have also consistently rejected hard-and-fast time limits,
Sharpe, supra; Place, supra, at
462 U. S. 709,
n. 10. Instead, "common sense and ordinary human experience must
govern over rigid criteria."
Sharpe, supra, at
470 U. S.
685.
The rudimentary knowledge of the human body which judges possess
in common with the rest of humankind tells us that alimentary canal
smuggling cannot be detected in the amount of time in which other
illegal activity may be investigated through brief
Terry-type stops. It presents few, if any, external signs;
a quick frisk will not do, nor will even a strip search. In the
case of respondent, the inspectors had available, as an alternative
to simply awaiting her bowel movement, an x-ray. They offered her
the alternative of submitting herself to that procedure. But when
she refused that alternative, the customs inspectors were left with
only two practical alternatives: detain her for such time as
necessary to confirm their suspicions, a detention which would last
much longer than the typical
Terry stop, or turn her loose
into the interior carrying the reasonably suspected contraband
drugs.
The inspectors in this case followed this former procedure. They
no doubt expected that respondent, having recently disembarked from
a 10-hour direct flight with a full and stiff abdomen, would
produce a bowel movement without extended delay. But her visible
efforts to resist the call of nature, which the court below labeled
"heroic," disappointed this expectation, and in turn caused her
humiliation and discomfort. Our prior cases have refused to charge
police with delays in investigatory detention attributable to the
suspect's evasive actions,
see Sharpe, 470 U.S. at
470 U. S.
687-688;
id. at
470 U. S. 697
(MARSHALL, J., concurring in judgment), and that principle applies
here as well. Respondent alone was responsible for much of the
duration and discomfort of the seizure.
Page 473 U. S. 544
Under these circumstances, we conclude that the detention in
this case was not unreasonably long. It occurred at the
international border, where the Fourth Amendment balance of
interests leans heavily to the Government. At the border, customs
officials have more than merely an investigative law enforcement
role. They are also charged, along with immigration officials, with
protecting this Nation from entrants who may bring anything harmful
into this country, whether that be communicable diseases,
narcotics, or explosives.
See 8 U.S.C. §§ 1182(a)(23),
1182(a)(6), 1222; 19 CFR §§ 162.4-162.7 (1984).
See also
19 U.S.C. § 482; 8 U.S.C. § 1103(a). In this regard, the detention
of a suspected alimentary canal smuggler at the border is analogous
to the detention of a suspected tuberculosis carrier at the border:
both are detained until their bodily processes dispel the suspicion
that they will introduce a harmful agent into this country.
Cf. 8 U.S.C. § 1222; 42 CFR pt. 34 (1984); 19 U.S.C. §§
482, 1582.
Respondent's detention was long, uncomfortable, indeed,
humiliating; but both its length and its discomfort resulted solely
from the method by which she chose to smuggle illicit drugs into
this country. In
Adams v. Williams, 407 U.
S. 143 (1972), another
Terry-stop case, we said
that
"[t]he Fourth Amendment does not require a policeman who lacks
the precise level of information necessary for probable cause to
arrest to simply shrug his shoulders and allow a crime to occur or
a criminal to escape."
Id. at
407 U. S. 145.
Here, by analogy, in the presence of articulable suspicion of
smuggling in her alimentary canal, the customs officers were not
required by the Fourth Amendment to pass respondent and her 88
cocaine-filled balloons into the interior. Her detention for the
period of time necessary to either verify or dispel the suspicion
was not unreasonable. The judgment of the Court of Appeals is
therefore
Reversed.
Page 473 U. S. 545
[
Footnote 1]
See United States v. Ramsey, 431 U.S. at
431 U. S.
616-619;
Almeida-Sanchez v. United States,
413 U. S. 266,
413 U. S.
272-273 (1973);
id. at
413 U. S. 288
(WHITE, J., dissenting). As the Court stated in
Carroll v.
United States, 267 U. S. 132,
267 U. S. 154
(1925):
"Travellers may be so stopped in crossing an international
boundary because of national self-protection reasonably requiring
one entering the country to identify himself as entitled to come in
and his belongings as effects which may be lawfully brought
in."
[
Footnote 2]
See United States v. DeMontoya, 729 F.2d 1369 (CA11
1984) (required surgery; swallowed 100 cocaine-filled condoms);
United States v. Pino, 729 F.2d 1357 (CA11 1984) (required
surgery; 120 cocaine-filled pellets);
United States v.
Mejia, 720 F.2d 1378 (CA5 1983) (75 balloons);
United
States v. Couch, 688 F.2d 599, 605 (CA9 1982) (36 capsules);
United States v. Quintero-Castro, 705 F.2d 1099 (CA9 1983)
(120 balloons);
United States v. Saldarriaga-Marin, 734
F.2d 1425 (CA11 1984);
United States v. Vega-Barvo, 729
F.2d 1341 (CA11 1984) (135 condoms);
United States v.
Mendez-Jimenez, 709 F.2d 1300 (CA9 1983) (102 balloons);
United States v. Mosquera-Ramirez, 729 F.2d 1352 (CA11
1984) (95 condoms);
United States v. Castrillon, 716 F.2d
1279 (CA9 1983) (83 balloons);
United States v.
Castaneda-Castaneda, 729 F.2d 1360 (CA11 1984) (2 smugglers;
201 balloons);
United States v. Caicedo-Guarnizo, 723 F.2d
1420 (CA9 1984) (85 balloons);
United States v.
Henao-Castano, 729 F.2d 1364 (CA11 1984) (85 condoms);
United States v. Ek, 676 F.2d 379 (CA9 1982) (30
capsules);
United States v. Padilla, 729 F.2d 1367 (CA11
1984) (115 condoms);
United States v. Gomez-Diaz, 712 F.2d
949 (CA5 1983) (69 balloons);
United States v. D'Allerman,
712 F.2d 100 (CA5 1983) (80 balloons);
United States v.
Contento-Pachon, 723 F.2d 691 (CA9 1984) (129 balloons).
[
Footnote 3]
In that case we stated:
"The interests in human dignity and privacy which the Fourth
Amendment protects forbid any such intrusion [beyond the body's
surface] on the mere chance that desired evidence might be
obtained. In the absence of a clear indication that, in fact, such
evidence will be found, these fundamental human interests require
law officers to suffer the risk that such evidence may disappear
unless there is an immediate search."
384 U.S. at
384 U. S.
769-770.
[
Footnote 4]
It is also important to note what we do
not hold.
Because the issues are not presented today, we suggest no view on
what level of suspicion, if any, is required for nonroutine border
searches such as strip, body cavity, or involuntary x-ray searches.
Both parties would have us decide the issue of whether aliens
possess lesser Fourth Amendment rights at the border; that question
was not raised in either court below, and we do not consider it
today.
JUSTICE STEVENS, concurring in the judgment.
If a seizure and a search of the person of the kind disclosed by
this record may be made on the basis of reasonable suspicion, we
must assume that a significant number of innocent persons will be
required to undergo similar procedures. The rule announced in this
case cannot, therefore, be supported on the ground that
respondent's prolonged and humiliating detention "resulted solely
from the method by which she chose to smuggle illicit drugs into
this country."
Ante at
473 U. S.
544.
The prolonged detention of respondent was, however, justified by
a different choice that respondent made; she withdrew her consent
to an x-ray examination that would have easily determined whether
the reasonable suspicion that she was concealing contraband was
justified. I believe that customs agents may require that a
nonpregnant person reasonably suspected of this kind of smuggling
submit to an x-ray examination as an incident to a border search. I
therefore concur in the judgment.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
We confront a "disgusting and saddening episode" at our Nation's
border. [
Footnote 2/1] Shortly
after midnight on March 5, 1983, the respondent Rosa Elvira Montoya
de Hernandez was detained by customs officers because she fit the
profile of an "alimentary canal smuggler." [
Footnote 2/2] This profile did not, of course, give the
officers probable cause to believe that De Hernandez
Page 473 U. S. 546
was smuggling drugs into the country, but, at most, a
"reasonable suspicion" that she might be engaged in such an
attempt. After a thorough strip search failed to uncover any
contraband, De Hernandez agreed to go to a local hospital for an
abdominal x-ray to resolve the matter. When the officers approached
with handcuffs at the ready to lead her away, however, "she crossed
her arms by her chest and began stepping backwards shaking her head
negatively," protesting: "You are not going to put those on me.
That is an insult to my character." [
Footnote 2/3]
Stymied in their efforts, the officers decided on an alternative
course: they would simply lock De Hernandez away in an adjacent
manifest room "until her peristaltic functions produced a monitored
bowel movement." [
Footnote 2/4] The
officers explained to De Hernandez that she could not leave until
she had excreted by squatting over a wastebasket pursuant to the
watchful eyes of two attending matrons. De Hernandez responded: "I
will not submit to your degradation, and I'd rather die." [
Footnote 2/5] She was locked away with the
matrons.
De Hernandez remained locked up in the room for almost
24
hours. Three shifts of matrons came and went during this time.
The room had no bed or couch on which she could lie, but only hard
chairs and a table. The matrons told her that, if she wished to
sleep, she could lie down on the hard, uncarpeted floor. De
Hernandez instead "sat in her chair clutching her purse,"
"occasionally putting her head down on the table to nap." [
Footnote 2/6] Most of the time, she simply
wept and pleaded "to go home." [
Footnote 2/7] She repeatedly begged for permission "to
call my husband and tell him what you are doing to
Page 473 U. S. 547
me." [
Footnote 2/8] Permission
was denied. Sobbing, she insisted that she had to "make a phone
call home so that she could talk to her children and to let them
know that everything was all right." [
Footnote 2/9] Permission again was denied. In fact, the
matrons considered it highly "unusual" that "each time someone
entered the search room, she would take out two small pictures of
her children and show them to the person." [
Footnote 2/10] De Hernandez also demanded that her
attorney be contacted. [
Footnote
2/11] Once again, permission was denied. As far as the outside
world knew, Rosa de Hernandez had simply vanished. And although she
already had been stripped and searched and probed, the customs
officers decided about halfway through her ordeal to repeat that
process -- "to ensure the safety of the surveilling officers. The
result was again negative." [
Footnote
2/12]
After almost 24 hours had passed, someone finally had the
presence of mind to consult a Magistrate and to obtain a court
order for an x-ray and a body cavity search. [
Footnote 2/13] DeHernandez,
Page 473 U. S. 548
"very agitated," was handcuffed and led away to the hospital.
[
Footnote 2/14] A rectal
examination disclosed the presence of a cocaine-filled balloon. At
approximately 3:15 on the morning of March 6,
almost 27 hours
after her initial detention, De Hernandez was formally placed
under arrest and advised of her
Miranda rights. Over the
course of the next four days, she excreted a total of 88
balloons.
"[T]hat the [respondent] so degraded herself as to offend the
sensibilities of any decent citizen is not questioned." [
Footnote 2/15] That is not the issue we
face. For
"[i]t 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,
339 U. S. 69
(1950) (Frankfurter, J., dissenting). The standards we fashion to
govern the ferreting out of the guilty apply equally to the
detention of the innocent, and "may be exercised by the most unfit
and ruthless officers as well as by the fit and responsible."
Brinegar v. United States, 338 U.
S. 160,
338 U. S. 182
(1949) (Jackson, J., dissenting). [
Footnote 2/16] Nor is the issue whether there is a
"veritable
Page 473 U. S. 549
national crisis in law enforcement caused by smuggling of
illicit narcotics."
Ante at
473 U. S. 538.
There is, and "[s]tern enforcement of the criminal law is the
hallmark of a healthy and self-confident society."
Davis v.
United States, 328 U. S. 582,
328 U. S. 615
(1946) (Frankfurter, J., dissenting).
"But in our democracy, such enforcement presupposes a moral
atmosphere and a reliance upon intelligence whereby the effective
administration of justice can be achieved with due regard for those
civilized standards in the use of the criminal law which are
formulated in our Bill of Rights."
Ibid.
The issue, instead, is simply this: Does the Fourth Amendment
permit an international traveler, citizen or alien, to be subjected
to the sort of treatment that occurred in this case without the
sanction of a judicial officer, and based on nothing more than the
"reasonable suspicion" of low-ranking investigative officers that
something might be amiss? The Court today concludes that the Fourth
Amendment grants such sweeping and unmonitored authority to customs
officials. It reasons that
"[t]he permissibility of a particular law enforcement practice
is judged by"
"balancing its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental
interests."
Ante at
473 U. S. 537.
The Court goes on to assert that the "balance of reasonableness is
qualitatively different at the international border," and that
searches and seizures in these circumstances may therefore be
conducted without probable cause or a warrant.
Ante at
473 U. S. 538.
Thus, a traveler at the Nation's border may be detained for
criminal investigation merely if the authorities "reasonably
suspect that the traveler is smuggling contraband."
Ante
at
473 U.S. 541. There are
no "hard-and-fast time limits" for
Page 473 U. S. 550
such investigative detentions, because "
common sense and
ordinary human experience must govern over rigid criteria.'"
Ante at 473 U. S. 543.
Applying this "reasonableness" test to the instant case, the Court
concludes that the "[r]espondent alone was responsible for much of
the duration and discomfort of the seizure."
Ibid.
JUSTICE STEVENS takes a somewhat different tack. Apparently
convinced that the health effects of x-irradiation on human beings
stand established as so minimal as to be little cause for concern,
he believes that low-ranking customs officials, on their own
initiative, may require nonpregnant international travelers to
submit to warrantless x-rays on nothing more than suspicion if such
travelers wish to avoid indeterminate warrantless detentions.
Because De Hernandez withdrew her consent to proceed in handcuffs
to such an examination, "[t]he prolonged detention of respondent
was . . . justified."
Ante at
473 U. S. 545
(concurring in judgment).
I dissent. Indefinite involuntary incommunicado detentions "for
investigation" are the hallmark of a police state, not a free
society.
See, e.g., Dunaway v. New York, 442 U.
S. 200 (1979);
Brown v. Illinois, 422 U.
S. 590 (1975);
Davis v. Mississippi,
394 U. S. 721
(1969). In my opinion, Government officials may no more confine a
person at the border under such circumstances for purposes of
criminal investigation than they may within the interior of the
country. The nature and duration of the detention here may well
have been tolerable for spoiled meat or diseased animals, but not
for human beings held on simple suspicion of criminal activity. I
believe such indefinite detentions can be "reasonable" under the
Fourth Amendment only with the approval of a magistrate. I also
believe that such approval can be given only upon a showing of
probable cause. Finally, I believe that the warrant and probable
cause safeguards equally govern JUSTICE STEVENS' proffered
alternative of exposure to x-irradiation for criminal investigative
purposes.
Page 473 U. S. 551
I
Travelers at the national border are routinely subjected to
questioning, patdowns, and thorough searches of their belongings.
These measures, which involve relatively limited invasions of
privacy and which typically are conducted on all incoming
travelers, do not violate the Fourth Amendment given the interests
of
"national self-protection reasonably requiring one entering the
country to identify himself as entitled to come in, and his
belongings as effects which may be lawfully brought in."
Carroll v. United States, 267 U.
S. 132,
267 U. S. 154
(1925). [
Footnote 2/17]
Individual travelers also may be singled out on "reasonable
suspicion" and briefly held for further investigation.
Cf.
Terry v. Ohio, 392 U. S. 1 (1968).
[
Footnote 2/18] At some point,
however, further investigation involves such severe intrusions on
the values the Fourth Amendment protects that more stringent
safeguards are required. For example, the length and nature of a
detention may, at least when conducted for criminal investigative
purposes, ripen into something approximating a full-scale custodial
arrest -- indeed, the arrestee, unlike the detainee in cases such
as this, is at least given such basic rights as a telephone call,
Miranda warnings, a bed, a prompt hearing before the
nearest federal magistrate, an appointed attorney, and
consideration of bail. In addition, border detentions may involve
the use of such highly intrusive investigative techniques as body
cavity searches, x-ray searches, and stomach pumping. [
Footnote 2/19]
Page 473 U. S. 552
I believe that detentions and searches falling into these more
intrusive categories are presumptively "reasonable" within the
meaning of the Fourth Amendment only if authorized by a judicial
officer.
"Though the Fourth Amendment speaks broadly of 'unreasonable
searches and seizures,' the definition of 'reasonableness' turns,
at least in part, on the more specific commands of the warrant
clause."
United States v. United States District Court,
407 U. S. 297,
407 U. S. 315
(1972).
"The point of the Fourth Amendment, which often is not grasped
by zealous officers, is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate, instead
of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. . . . When the right of privacy
must reasonably yield to the right of search is, as a rule, to be
decided by a judicial officer, not by a policeman or government
enforcement agent."
Johnson v. United States, 333 U. S.
10,
333 U. S. 13-14
(1948). Accordingly, the Court repeatedly has emphasized that the
Fourth Amendment's Warrant Clause is not mere "dead language" or a
bothersome
"inconvenience to be somehow 'weighed' against the claims of
police efficiency. It is, or should be, an important working part
of our machinery of government, operating as a matter of course to
check the 'well-intentioned but mistakenly overzealous executive
officers' who are a part of any system of law enforcement."
United States v. United States District Court, supra,
at
407 U. S. 315;
Coolidge v. New Hampshire, 403 U.
S. 443,
403 U. S.
473-484 (1971). [
Footnote
2/20]
Page 473 U. S. 553
We have, to be sure, held that executive officials need not
obtain prior judicial authorization where exigent circumstances
would make such authorization impractical and counterproductive. In
so holding, however, we have reaffirmed the general rule that "the
police must, whenever practicable, obtain advance judicial approval
of searches and seizures through the warrant procedure."
Terry
v. Ohio, supra, at
392 U. S. 20. And
even where a person has permissibly been taken into custody without
a warrant, we have held that a prompt probable cause determination
by a detached magistrate is a constitutional "prerequisite to
extended restraint of liberty following arrest."
Gerstein v.
Pugh, 420 U. S. 103,
420 U. S. 114
(1975). [
Footnote 2/21]
Cf.
Mallory v. United States, 354 U. S. 449,
354 U. S.
451-452 (1957);
McNabb v. United States,
318 U. S. 332,
318 U. S. 342
(1943); 18 U.S.C. § 3501(c); Fed.Rule Crim.Proc. 5.
Page 473 U. S. 554
There is no persuasive reason not to apply these principles to
lengthy and intrusive criminal investigative detentions occurring
at the Nation's border. To be sure, the Court today invokes
precedent stating that neither probable cause nor a warrant ever
have been required for border searches.
See ante at
473 U. S. 537,
citing
United States v. Ramsey, 431 U.
S. 606 (1977). If this is the law as a general matter, I
believe it is time that we reexamine its foundations. [
Footnote 2/22] For while the power of
Congress to authorize wide-ranging detentions and searches
for
purposes of immigration and customs control is unquestioned,
the Court previously has emphasized that far different
considerations apply when detentions and searches are carried out
for purposes of investigating suspected criminal activity.
See Wong Wing v. United States, 163 U.
S. 228,
163 U. S. 231,
163 U. S.
235-236,
163 U. S. 238
(1896);
see also Abel v. United States, 362 U.
S. 217,
362 U. S. 250
(1960) (BRENNAN, J., dissenting). And even if the Court is correct
that such detentions for purposes of criminal investigation were
viewed as acceptable a century or two ago,
see ante at
473 U. S. 537,
we repeatedly have stressed that
"this Court has not simply frozen into constitutional law those
law enforcement practices that existed at the time of the Fourth
Amendment's passage."
Payton v. New York, 445 U. S. 573,
445 U. S. 591,
n. 33 (1980);
see also Tennessee v. Garner, 471 U. S.
1,
471 U. S. 13
(1985).
The Government contends, however, that, because investigative
detentions of the sort that occurred in this case need not be
supported by probable cause, no warrant is required, given the
phraseology of the Fourth Amendment's Warrant
Page 473 U. S. 555
Clause.
See Brief for United States 29, n. 26.
[
Footnote 2/23] Even assuming
that border detentions and searches that become lengthy and highly
intrusive need not be supported by probable cause,
but see
473 U. S.
infra, this reasoning runs squarely contrary to the
Court's administrative warrant cases. We have repeatedly held that
the Fourth Amendment's purpose of safeguarding "the privacy and
security of individuals against arbitrary invasions by government
officials" is so fundamental as to require, except in "certain
carefully defined classes of cases," a magistrate's prior
authorization even where "[p]robable cause in the criminal law
sense is not required."
Camara v. Municipal Court,
387 U. S. 523,
387 U. S. 528
(1967);
Marshall v. Barlow's, Inc., 436 U.
S. 307,
436 U. S. 312,
436 U. S. 320
(1978). We have applied this requirement to fire, health, and
housing code inspections,
Camara v. Municipal Court, supra; See
v. Seattle, 387 U. S. 541
(1967), to occupational health and safety inspections of the
workplace,
Marshall v. Barlow's, Inc., supra, and to arson
investigations,
Michigan v. Clifford, 464 U.
S. 287 (1984) (plurality opinion);
Michigan v.
Tyler, 436 U. S. 499
(1978).
See also Almeida-Sanchez v. United States,
413 U. S. 266,
413 U. S.
279-285 (1973) (POWELL, J., concurring) (prior judicial
authorization is required for area-wide roving searches near the
border);
United States v. United States District Court,
407 U.S. at
407 U. S.
322-324 (prior judicial authorization of national
security wiretaps).
Something has gone fundamentally awry in our constitutional
jurisprudence when a neutral and detached magistrate's
authorization is required before the authorities may inspect "the
plumbing, heating, ventilation, gas, and electrical
Page 473 U. S. 556
systems" in a person's home, [
Footnote 2/24] investigate the back rooms of his
workplace, or poke through the charred remains of his gutted
garage, but
not before they may hold him in indefinite
involuntary isolation at the Nation's border to investigate whether
he might be engaged in criminal wrongdoing. No less than those who
conduct administrative searches, those charged with investigative
duties at the border "should not be the sole judges of when to
utilize constitutionally sensitive means in pursuing their tasks,"
because
"unreviewed executive discretion may yield too readily to
pressures to obtain incriminating evidence and overlook potential
invasions of privacy."
Id. at
407 U. S. 317.
And unlike administrative searches, which typically involve
"relatively limited invasion[s]" of individual privacy interests,
Camara v. Municipal Court, supra, at
387 U. S. 537,
many border searches carry grave potential for "arbitrary and
oppressive interference by enforcement officials with the privacy
and personal security of individuals,"
United States v.
Martinez-Fuerte, 428 U. S. 543,
428 U. S. 554
(1976);
see also United States v. Ortiz, 422 U.
S. 891,
422 U. S. 895
(1975);
Almeida-Sanchez v. United States, supra, at
413 U. S.
273-275. The conditions of De Hernandez' detention in
this case -- indefinite confinement in a squalid back room cut off
from the outside world, the absence of basic amenities that would
have been provided to even the vilest of hardened criminals,
repeated strip searches -- in many ways surpassed the conditions of
a full custodial arrest. Although the Court previously has declined
to require a warrant for border searches involving "minor
interference with privacy resulting from the mere stop for
questioning,"
United States v. Martinez-Fuerte, supra, at
428 U. S. 565,
surely there is no parallel between such "minor" intrusions and the
extreme invasion of personal privacy and dignity that occurs in
detentions and searches such as that before us today.
Page 473 U. S. 557
Moreover, the available evidence suggests that the number of
highly intrusive border searches of suspicious-looking but
ultimately innocent travelers may be very high. One physician who
at the request of customs officials conducted many "internal
searches" -- rectal and vaginal examinations and stomach pumping --
estimated that he had found contraband in only 15 to 20 percent of
the persons he had examined. [
Footnote 2/25] It has similarly been estimated that
only 16 percent of women subjected to body cavity searches at the
border were in fact found to be carrying contraband. [
Footnote 2/26] It is precisely to
minimize the risk of harassing so many innocent people that the
Fourth Amendment requires the intervention of a judicial officer.
See, e.g., Coolidge v. New Hampshire, 403 U.S. at
403 U. S. 481.
And even if the warrant safeguard were somehow a mere inconvenient
nuisance to be "
weighed' against the claims of police
efficiency," ibid., the Government points to no unusual
efficiency concerns suggesting that this safeguard should be
overridden in the run of such intrusive border search cases.
Certainly there were no "exigent circumstances" supporting the
indefinite warrantless detention here, and the Government's
interest in proceeding expeditiously could have been achieved by
obtaining a telephonic
Page 473 U. S. 558
search warrant -- a procedure "ideally suited to the peculiar
needs of the customs authorities" and one that ultimately was used
in this case a full day after De Hernandez was first detained.
[
Footnote 2/27]
The Court supports its evasion of the warrant requirement,
however, by analogizing to the
Terry line of cases
authorizing brief detentions based on reasonable suspicion. It
argues that no "hard-and-fast time limits" can apply in this
context because
"alimentary canal smuggling cannot be detected in the amount of
time in which other illegal activity may be investigated through
brief
Terry-type stops."
Ante at
473 U. S. 543.
I have previously set forth my views on the proper scope and
duration of Terry stops, [
Footnote
2/28] and need not repeat those views in detail today. It is
enough for present purposes to note that today's opinion is the
most extraordinary example to date of the Court's studied effort to
employ the
Terry decision as a means of converting the
Fourth Amendment into a general "reasonableness" balancing process
-- a process "in which the judicial thumb apparently will be
planted firmly on the law enforcement side of the scales."
United States v. Sharpe, 470 U. S. 675,
470 U. S. 720
(1985) (BRENNAN, J., dissenting). We previously have emphasized
that
Terry allows the authorities
briefly to
detain an individual for investigation and questioning, but that
"any
further detention or search must be based on consent
or probable cause."
United States v. Brignoni-Ponce,
422 U. S. 873,
422 U. S. 882
(1975) (emphasis
Page 473 U. S. 559
added). Allowing such warrantless detentions under
Terry suggests that the authorities might hold a person on
suspicion for "however long it takes" to get him to cooperate, or
to transport him to the station where the "legitimate" state
interests more fully can be pursued, or simply to lock him away
while deciding what the State's "legitimate" interests require. But
the Fourth Amendment flatly prohibits such "wholesale intrusions
upon the personal security" of individuals, and any application of
Terry, even by analogy, to permit such indefinite
detentions "would threaten to swallow" the basic probable cause and
warrant safeguards.
Dunaway v. New York, 442 U.S. at
442 U. S. 213;
see Davis v. Mississippi, 394 U.S. at
394 U. S. 726.
[
Footnote 2/29] It is simply
staggering that the Court suggests that
Terry would even
begin to sanction a
27-hour criminal investigative
detention, even one occurring at the border.
The Court argues, however, that the length and "discomfort" of
De Hernandez' detention "resulted
solely from the method
by which she chose to smuggle illicit drugs into this country," and
it speculates that only her "
heroic'" efforts prevented the
detention from being brief and to the point. Ante at
473 U. S. 544
(emphasis added). Although we now know that De Hernandez was indeed
guilty of smuggling drugs internally, such post hoc
rationalizations have no place in our Fourth Amendment
jurisprudence, which demands that we "prevent hindsight from
coloring the evaluation of the reasonableness of a search or
seizure." United States v. Martinez-Fuerte, 428 U.S. at
428 U. S. 565.
See also Beck v. Ohio, 379 U. S. 89,
379 U. S. 96
(1964). At the time, the authorities simply had, at most, a
reasonable suspicion that De Hernandez
Page 473 U. S. 560
might be engaged in such smuggling. Neither the law of the land
nor the law of nature supports the notion that petty government
officials can require people to excrete on command; indeed, the
Court relies elsewhere on "[t]he rudimentary knowledge of the human
body" in sanctioning the "much longer than . . . typical" duration
of detentions such as this.
Ante at
473 U. S. 543.
And, with all respect to the Court, it is not "`unrealistic
second-guessing,'"
ante at
473 U. S. 542,
to predict that an innocent traveler, locked away in incommunicado
detention in unfamiliar surroundings in a foreign land, might well
be so frightened and exhausted as to be unable so to "cooperate"
with the authorities. [
Footnote
2/30]
The Court further appears to believe that such investigative
practices are "reasonable," however, on the premise that a
traveler's "expectation of privacy [is] less at the border than in
the interior."
Ante at
473 U. S. 539.
This may well be so with respect to routine border inspections, but
I do not imagine that decent and law-abiding international
travelers have yet reached the point where they "expect" to be
thrown into locked rooms and ordered to excrete into wastebaskets,
held incommunicado until they cooperate, or led away in handcuffs
to the nearest hospital for exposure to various medical procedures
-- all on nothing more than the "reasonable" suspicions of
low-ranking enforcement agents. In fact, many people from around
the world travel to our borders precisely to escape such unchecked
executive investigatory discretion. What a curious first lesson in
American liberty awaits them
Page 473 U. S. 561
on their arrival.
Cf. Olmstead v. United States,
277 U. S. 438,
277 U. S. 485
(1928) (Brandeis, J., dissenting). [
Footnote 2/31]
Finally, I disagree with JUSTICE STEVENS that De Hernandez'
alternative "choice" of submitting to abdominal x-irradiation at
the discretion of customs officials made this detention
"justified."
Ante at
473 U. S. 545
(concurring in judgment). Medical x-rays are of course a common
diagnostic technique; that is exactly why there is such a sharp
debate among the medical community concerning the cellular and
chromosomal effects of routine reliance on x-rays, both from the
perspective of individual health (it having been estimated that a
routine medical x-ray takes about six days off a person's life
expectancy [
Footnote 2/32]) and
from the perspective of successive generations. The "additivity"
factor -- the cumulative effect of x-rays on an individual's
biological and genetic wellbeing -- has been the subject of
particularly disturbing debate. [
Footnote 2/33]
Page 473 U. S. 562
But these dangers are not the gravamen of my dispute with
JUSTICE STEVENS; the Court has concluded that medical practices far
more immediately intrusive than this may, in carefully limited
circumstances, be employed as a tool of criminal investigation.
Cf. Winston v. Lee, 470 U. S. 753
(1985). Rather, the crux of my disagreement is this: we have
learned in our lifetimes, time and again, the inherent dangers that
result from coupling unchecked "law enforcement" discretion with
the tools of medical technology. Accordingly, in this country at
least,
"[t]he importance of informed, detached and deliberate
[judicial] determinations of the issue whether or not to invade
another's body in search of evidence of guilt is indisputable and
great."
Schmerber v. California, 384 U.
S. 757,
384 U. S. 770
(1966). Because
"[s]earch warrants are ordinarily required for searches of
dwellings, . . .
absent an emergency, no less could be
required where intrusions into the human body are concerned."
Ibid. (emphasis added). This should be so whether the
intrusion is by incision, by stomach pumping, or by exposure to
x-irradiation. Because no exigent circumstances prevented the
authorities from seeking a magistrate's authorization so to probe
De Hernandez' abdominal cavity, the proffered alternative "choice"
of a warrantless x-ray was just as impermissible as the 27-hour
detention that actually occurred.
II
I believe that De Hernandez' detention violated the Fourth
Amendment for an additional reason: it was not supported by
probable cause. In the domestic context, a detention of the sort
that occurred here would be permissible only if there were probable
cause at the outset.
See, e.g., Hayes v. Florida,
470 U. S. 811,
470 U. S. 815
(1985);
Dunaway v. New York, 442 U.S. at
442 U. S.
207-208,
442 U. S.
212-216;
Brown v. Illinois, 422 U.S. at
422 U. S. 602,
422 U. S. 605;
Davis v. Mississippi, 394 U.S. at
394 U. S.
726-727. This
Page 473 U. S. 563
same elementary safeguard should govern border searches
when
carried out for purposes of criminal investigation.
To be sure, it is commonly asserted that, as a result of the
Fourth Amendment's "border exception," there is no requirement of
probable cause for such investigations. [
Footnote 2/34] But the justifications for the border
exception necessarily limit its breadth. The exception derives from
the unqestioned and paramount interest in
"national self-protection reasonably requiring one entering the
country to identify himself as entitled to come in, and his
belongings as effects which may be lawfully brought in."
Carroll v. United States, 267 U.S. at
267 U. S. 154.
See also Almeida-Sanchez v. United States, 413 U.S. at
413 U. S. 272
(border exception is a reasonable condition for those "seeking to
cross our borders");
United States v. 12 200-Ft. Reels of
Film, 413 U. S. 123,
413 U. S. 125
(1973) (border exception is a reasonable condition "to prevent
prohibited articles from entry"). Subject only to the other
applicable guarantees of the Bill of Rights, this interest in
"national self-protection" is plenary. Thus, as the Court notes, a
suspected tuberculosis carrier may be detained at the border for
medical testing and treatment as a condition of entry.
Ante at
473 U. S. 544.
As a condition of entry, the traveler may be subjected to
exhaustive processing and examinations, and his belongings may be
scrutinized with exacting care. [
Footnote 2/35] I have no doubt as well that,
as a
condition of entry, travelers, in appropriate circumstances,
may be required to excrete their bodily wastes for further scrutiny
and to submit to diagnostic x-rays.
Contrary to the Court's reasoning, however, the Government, in
carrying out such immigration and customs functions, does not
simply have the two stark alternatives of either forcing
Page 473 U. S. 564
a traveler to submit to such procedures or allowing him to "pass
. . . into the interior."
Ante at
473 U. S. 544.
There is a third alternative: to instruct the traveler who refuses
to submit to burdensome but reasonable conditions of entry that he
is free to turn around and leave the country. In fact, I believe
that the "reasonableness" of any burdensome requirement for entry
is necessarily conditioned on the potential entrant's freedom to
leave the country if he objects to that requirement. Surely the
Government's manifest interest in preventing potentially excludable
individuals carrying potential contraband from crossing our borders
is fully vindicated if those individuals voluntarily decided not to
cross the borders. This does not, of course, mean that such
individuals are not fully subject to the criminal laws while on
American soil. If there is probable cause to believe they have
violated the law, they may be arrested just like any other person
within our borders. And if there is "reasonable suspicion" to
believe they may be engaged in such violations, they may briefly be
detained pursuant to
Terry for further investigation,
subject to the same limitations and conditions governing
Terry stops anywhere else in the country. [
Footnote 2/36] But if such
Terry
suspicion does not promptly ripen into probable cause, such
travelers must be given a meaningful choice: either agree to
further detention as a condition of eventual entry or leave the
country. The Government disagrees. We were advised at oral argument
that it "definitely" is the policy of customs authorities "not to
allow such people, if they're reasonably suspected of drug
smuggling, to return before that suspicion can be checked out," and
that, whether citizen, resident alien, or alien, "[w]e would not
simply let them go back." Tr. of Oral Arg. 5, 48. The result is to
sanction an authoritarian twilight zone on the border. The
suspicious-looking traveler may not enter the country. Nor may he
leave. Instead, he
Page 473 U. S. 565
is trapped on the border. Because he is on American soil, he is
fully subject "to the criminal enforcement powers of the Federal
Government."
Ante at
473 U. S. 539,
citing 19 U.S.C. § 482. But notwithstanding that he is on American
soil, he is not fully protected by the guarantees of the Bill of
Rights applicable everywhere else in the country. To be sure, a
watered-down "reasonableness" requirement will technically govern
such detentions, but it will accommodate itself to assaults on
privacy and personal autonomy that would not for one moment pass
constitutional muster anywhere else in the country, and that would
surely provide grounds for an open-and-shut damages action for
violations of basic civil rights if conducted anywhere but on the
border.
Nothing in the underlying premises of the "border exception"
supports such a ring of unbridled authoritarianism surrounding
freedom's soil. If the traveler does not wish to consent to
prolonged detentions or intrusive examinations, the Nation's
customs and immigration interests are fully served by sending the
traveler on his way elsewhere. If the authorities nevertheless
propose to detain the traveler for purposes of subjecting him to
criminal investigation and possible arrest and punishment, they may
do so only pursuant to constitutional safeguards applicable to
everyone else in the country.
See Wong Wing v. United
States, 163 U.S. at
163 U. S.
236-238;
Abel v. United States, 362 U.S. at
362 U. S. 250
(BRENNAN, J., dissenting). [
Footnote
2/37] Chief among those safeguards is the requirement
Page 473 U. S. 566
that, except in limited circumstances not present here,
custodial detentions occur only on probable cause. The probable
cause standard rests on "a practical, nontechnical conception
affording the best compromise that has been found for
accommodating" the "often opposing" interests of law enforcement
and individual liberty.
Brinegar v. United States, 338
U.S. at
338 U. S. 176
(Jackson, J., dissenting).
See also New Jersey v. T. L.
O., 469 U. S. 325,
469 U. S.
361-362 (1985) (BRENNAN, J., dissenting). That standard
obviously is not met, and was not met here, simply by courier
profiles, "common rumor or report, suspicion, or even
strong
reason to suspect.'" Henry v. United States, 361 U. S.
98, 361 U. S. 101
(1959). Because the contraband in this case was the fruit of the
authorities' indefinite detention of Rosa de Hernandez without
probable cause or a warrant, I would affirm the judgment of the
Court of Appeals for the Ninth Circuit reversing her
conviction.
III
In my opinion, allowing the Government to hold someone in
indefinite, involuntary, incommunicado isolation without
Page 473 U. S. 567
probable cause and a judicial warrant violates our
constitutional charter whether the purpose is to extract ransom or
to investigate suspected criminal activity. Nothing in the Fourth
Amendment permits an exception for such actions at the Nation's
border. It is tempting, of course, to look the other way in a case
that so graphically illustrates the "veritable national crisis"
caused by narcotics trafficking.
Ante at
473 U. S. 538.
But if there is one enduring lesson in the long struggle to balance
individual rights against society's need to defend itself against
lawlessness, it is that
"[i]t is easy to make light of insistence on scrupulous regard
for the safeguards of civil liberties when invoked on behalf of the
unworthy. It is too easy. History bears testimony that by such
disregard are the rights of liberty extinguished, heedlessly at
first, then stealthily, and brazenly in the end."
Davis v. United States, 328 U.S. at
328 U. S. 597
(Frankfurter, J., dissenting). I dissent.
[
Footnote 2/1]
United States v. Holtz, 479 F.2d 89, 94 (CA9 1973)
(Ely, J., dissenting) (
re "the disrobing and search of a
woman by United States border police").
[
Footnote 2/2]
Specifically, De Hernandez
"had paid cash for her ticket, came from a source port of
embarcation, carried $5,000 in U.S. currency, had made many trips
of short duration into the United States, had no family or friends
in the United States, had only one small piece of luggage, had no
confirmed hotel reservations, did not speak English, and said she
was planning to go shopping using taxis for transportation."
731 F.2d 1369, 1371, n. 3 (CA9 1984).
[
Footnote 2/3]
Declaration of Teodora A. Mendoza � 6 (Mendoza Declaration),
App. 58; Declaration of Jose Angel Serrato � 10 (Serrato
Declaration), App. 47.
[
Footnote 2/4]
731 F.2d at 1371.
See also App. 18-20, 25, 28, 58.
[
Footnote 2/5]
Serrato Declaration � 17, App. 48
[
Footnote 2/6]
Id., � 19, App. 48; Declaration of Marilee S. Morgan �
3 (Morgan Declaration), App. 49.
[
Footnote 2/7]
Declaration of Jerome Gonzales � 20 (Gonzales Declaration), App.
55.
See also id., � 15, App. 54.
[
Footnote 2/8]
Serrato Declaration � 12, App. 47.
See also Morgan
Declaration � 5, App. 49.
[
Footnote 2/9]
Gonzales Declaration � 21, App. 55.
[
Footnote 2/10]
Morgan Declaration � 4, App. 49.
See also Gonzales
Declaration � 15, App. 54.
[
Footnote 2/11]
Serrato Declaration � 14, App. 47.
[
Footnote 2/12]
Stipulation Re Trial and Order Thereon, App. 64.
[
Footnote 2/13]
A customs inspector had initially suggested that a court order
for an x-ray examination be obtained, but his supervisor vetoed the
idea on the grounds that (1) it was not Government policy to seek
judicial authorization in such circumstances,
id. at
22-23, and (2) "they did not have sufficient facts to support the
issuance of the order," 731 F.2d at 1373. The inspector called
several hours later and reiterated his suggestion; again it was
denied.
Ibid. Not until 16 hours had elapsed did the
supervisor begin to consider obtaining a court order. App. 23.
Another eight hours passed before the supervisor got around to
contacting a Federal Magistrate, who, after putting the supervisor
under oath and listening to the available evidence, promptly issued
a telephonic order to proceed with the x-ray examination.
Declaration of Kyle E. Windes � 11, App. 40.
See also id.
at 44-45;
473
U.S. 531fn2/27|>n. 27,
infra.
The Magistrate's order was based largely on the observations by
customs officials of De Hernandez' behavior during her detention.
See App. 42. As the Ninth Circuit concluded, because the
unlawful detention produced the "additional evidence" that was used
to obtain the order, the contraband discovered in implementing the
order was tainted, and therefore improperly introduced at De
Hernandez' trial. 731 F.2d at 1372.
[
Footnote 2/14]
Morgan Declaration � 9, App. 50.
[
Footnote 2/15]
United States v. Holtz, 479 F.2d at 94 (Ely, J.,
dissenting).
[
Footnote 2/16]
Justice Jackson also noted in
Brinegar:
"We must remember that the extent of any privilege of search and
seizure without warrant which we sustain, the officers interpret
and apply themselves, and will push to the limit. We must remember,
too, that freedom from unreasonable search differs from some of the
other rights of the Constitution in that there is no way in which
the innocent citizen can invoke advance protection. For example,
any effective interference with freedom of the press, or free
speech, or religion, usually requires a course of suppressions
against which the citizen can and often does go to the court and
obtain an injunction. Other rights, such as that to an impartial
jury or the aid of counsel, are within the supervisory power of the
courts themselves. Such a right as just compensation for the taking
of private property may be vindicated after the act in terms of
money."
"But an illegal search and seizure usually is a single incident,
perpetrated by surprise, conducted in haste, kept purposely beyond
the court's supervision, and limited only by the judgment and
moderation of officers whose own interests and records are often at
stake in the search. There is no opportunity for injunction or
appeal to disinterested intervention. The citizen's choice is
quietly to submit to whatever the officers undertake or to resist
at risk of arrest or immediate violence."
338 U.S. at
338 U. S. 182
(dissenting opinion).
[
Footnote 2/17]
See generally 3 W. LaFave, Search and Seizure § 10.5,
pp. 276-281 (1978) (LaFave).
[
Footnote 2/18]
See generally id., § 10.5, at 281-286.
[
Footnote 2/19]
See generally id., § 10.5, at 286-295; Note, From Bags
to Body Cavities: The Law of Border Search, 74 Colum.L.Rev. 53
(1974); Comment, Intrusive Border Searches -- Is Judicial Control
Desirable?, 115 U.Pa.L.Rev. 276 (1966); Note, Border Searches and
the Fourth Amendment, 77 Yale L.J. 1007 (1968).
[
Footnote 2/20]
See Katz v. United States, 389 U.
S. 347,
389 U. S. 354
(1967);
Berger v. New York, 388 U. S.
41,
388 U. S. 57,
388 U. S. 60
(1967);
Beck v. Ohio, 379 U. S. 89,
379 U. S. 96-97
(1964);
Wong Sun v. United States, 371 U.
S. 471,
371 U. S.
481-482 (1963);
Agnello v. United States,
269 U. S. 20,
269 U. S. 33
(1925).
See also New Jersey v. T. L. O., 469 U.
S. 325,
469 U. S. 357
(1985) (BRENNAN, J., dissenting) (emphasis in original):
"To require a showing of some extraordinary governmental
interest before dispensing with the warrant requirement is not to
undervalue society's need to apprehend violators of the criminal
law. To be sure, forcing law enforcement personnel to obtain a
warrant before engaging in a search will predictably deter the
police from conducting some searches that they would otherwise like
to conduct. But this is not an unintended
result of the
Fourth Amendment's protection of privacy; rather, it is the very
purpose for which the Amendment was thought necessary.
Only where the governmental interests at stake exceed those
implicated in any ordinary law enforcement context -- that is, only
where there is some extraordinary governmental interest involved --
is it legitimate to engage in a balancing test to determine whether
a warrant is indeed necessary."
[
Footnote 2/21]
"Once the suspect is in custody, . . . the reasons that justify
dispensing with the magistrate's neutral judgment evaporate. There
no longer is any danger that the suspect will escape or commit
further crimes while the police submit their evidence to a
magistrate. And, while the State's reasons for taking summary
action subside, the suspect's need for a neutral determination of
probable cause increases significantly. The consequences of
prolonged detention may be more serious than the interference
occasioned by arrest. . . . When the stakes are this high, the
detached judgment of a neutral magistrate is essential if the
Fourth Amendment is to furnish meaningful protection from unfounded
interference with liberty."
Gerstein v. Pugh, 420 U.S. at
420 U. S.
114.
[
Footnote 2/22]
Others agree.
See, e.g., 3 LaFave § 10.5, at 325
(
Ramsey offered only "a flimsy and not particularly
satisfying explanation" for refusing to apply the warrant
requirement); Note, 74 Colum.L.Rev.
supra, 473
U.S. 531fn2/19|>n.19, at 82-86; Comment, 115 U.Pa.L.Rev.
supra, 473
U.S. 531fn2/19|>n.19, at 277.
See also United States v.
Holtz, 479 F.2d at 94 (Ely, J., dissenting);
Blefare v.
United States, 362 F.2d 870, 880 (CA9 1966) (Ely, J.,
dissenting).
[
Footnote 2/23]
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized."
[
Footnote 2/24]
LaFave, Administrative Searches and the Fourth Amendment: The
Camara and See Cases, 1967 S.Ct.Rev. 1, 19.
[
Footnote 2/25]
Thompson v. United States, 411 F.2d 946, 948 (CA9
1969);
see also Morales v. United States, 406 F.2d 1298,
1300, n. 2 (CA9 1969).
[
Footnote 2/26]
United States v. Holtz, 479 F.2d at 94 (Ely, J.,
dissenting) (citing testimony from congressional hearings). It was
suggested at oral argument that "with all the experience the
government has had in the intervening years with increasing drug
traffic," there might be "a little more skill in detection today."
Tr. of Oral Arg. 38. There are, however, no published statistics
more recent than the information discussed in text. It is, of
course, the Government's burden to muster facts demonstrating the
reasonableness of its investigative practices.
See, e.g.,
Florida v. Royer, 460 U. S. 491,
460 U. S. 500
(1983) (plurality opinion). The Government advised the Court at
argument that it has more recent statistical evidence respecting
the number of innocent travelers who are subjected to x-ray
searches, but did not disclose that evidence because "it's not in
the record, and it's not public." Tr. of Oral Arg. 23.
[
Footnote 2/27]
Note, 74 Colum.L.Rev.
supra, 473
U.S. 531fn2/19|>n.19, at 85;
see 473
U.S. 531fn2/13|>n. 13,
supra. The Government
argues, however, that
"[a] warrant requirement would be especially inappropriate in
this context, because the suspect would have to be detained while
the officer obtained the warrant. . . ."
Brief for United States 29-30, n. 26. Coming from the Government
in a case in which it is seeking to defend a 27-hour detention,
this expression of purported concern for travelers' rights is
simply incredible.
[
Footnote 2/28]
See, e.g., United States v. Sharpe, 470 U.
S. 675,
470 U. S. 702
(1985) (dissenting);
United States v. Place, 462 U.
S. 696,
462 U. S. 710
(1983) (concurring in result);
Kolender v. Lawson,
461 U. S. 352,
461 U. S. 362
(1983) (concurring);
Florida v. Royer, supra, at
460 U. S. 509
(concurring in result).
[
Footnote 2/29]
See also Florida v. Royer, supra, at
460 U. S. 499,
460 U. S.
505-506 (plurality opinion);
Brown v. Illinois,
422 U. S. 590,
422 U. S. 605
(1975) ("The impropriety of the arrest was obvious. . . . The
arrest, both in design and in execution, was investigatory. The
detectives embarked upon this expedition for evidence in the hope
that something might turn up. The manner in which Brown's arrest
was effected gives the appearance of having been calculated to
cause surprise, fright, and confusion").
[
Footnote 2/30]
As De Hernandez' counsel observed at argument:
"What if an innocent traveler, just because they have had a long
flight, was unable to excrete, and found themselves in a position
where a border agent said well, we wish you to excrete [on]
command, so that we will be sure that you're not carrying anything
internally. An innocent person might be unable to do that on
command, and it wouldn't be heroic efforts in that case. . . . It's
certainly possible that a person who is nervous or afraid anyway
because they are being confined would be unable to excrete for a
lengthy period of time, but that wouldn't necessarily mean evidence
of guilt."
Tr. of Oral Arg. 28-29.
[
Footnote 2/31]
As I have written in the analogous context of searches of
children conducted by school authorities:
"We do not know what class petitioner was attending when the
police and dogs burst in, but the lesson the school authorities
taught her that day will undoubtedly make a greater impression than
the one her teacher had hoped to convey. I would grant certiorari
to teach petitioner another lesson: that the Fourth Amendment
protects '[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.' . . . Schools cannot expect their students to learn the
lessons of good citizenship when the school authorities themselves
disregard the fundamental principles underpinning our
constitutional freedoms."
Doe v. Renfrow, 451 U. S. 1022,
1027-1028 (1981) (dissenting from denial of certiorari).
See
also New Jersey v. T. L. O., 469 U.S. at
469 U. S. 354
(BRENNAN, J., dissenting);
id. at
469 U. S.
373-374 (STEVENS, J., dissenting).
Cf. 8 U.S.C.
§ 1423(2) (as a condition of naturalization, a person must have "a
knowledge and understanding of the fundamentals of the history, and
of the principles and form of government, of the United
States").
[
Footnote 2/32]
Gregg, Effects of Ionizing Radiations on Humans, in 2 Handbook
of Medical Physics 404 (R. Waggener ed.1982).
[
Footnote 2/33]
See generally id. at 375-411; H. Cember, Introduction
to Health Physics 177-199 (2d ed.1983); U.S. Department of Health
and Human Services, Food and Drug Administration, Public Health
Service, Possible Genetic Damage from Diagnostic X-Irradiation: A
Review (1980).
[
Footnote 2/34]
See, e.g., United States v. Ramsey, 431 U.
S. 606,
431 U. S. 616,
431 U. S. 619
(1977); 3 LaFave § 10.5, at 276-295.
[
Footnote 2/35]
See generally 8 U.S.C. § 1181
et seq.; 19
U.S.C. § 232
et seq., § 1701
et seq.
[
Footnote 2/36]
See, e.g., United State v. Place, 462 U.S. at
462 U. S.
707-710;
Florida v. Royer, 460 U.S. at
460 U. S.
499-500 (plurality opinion);
Dunaway v. New
York, 442 U. S. 200,
442 U. S.
210-216 (1979).
[
Footnote 2/37]
Although the Government now disavows those actions,
see
Tr. of Oral Arg. 5, 48, the customs authorities apparently sought
to arrange to have De Hernandez flown either to Mexico or back to
Colombia, but concluded that she would not be able to secure a
flight for at least two days.
See App. 18, 22, 28, 32;
Serrato Declaration � 17, App. 48; Gonzales Declaration � 20, App.
55; Mendoza Declaration � 18-10, App. 58. Even if the Government
had not repudiated these efforts, it is clear that, as the District
Court found, De Hernandez was subjected to exacting surveillance
during this time for purposes of criminal investigation and
possible arrest.
Id. at 37.
See also Serrato
Declaration � 18, App. 48 ("I told her also that, if while she is
in our custody, if she discharges anything illegally internally,
she will be placed under arrest and transported to a jail ward, and
be unable to leave the United States").
The Government argues that giving a traveler the option of
leaving the country, rather than being forced to undergo lengthy
custodial criminal investigations based on mere suspicion,
"is an unsatisfactory alternative because it would allow the
suspect to escape apprehension and return to repeat his smuggling
efforts another day. In addition, this approach would remove a
disincentive to smuggling activity by materially reducing the risk
of apprehension and prosecution."
Brief for United States 17-18, n. 9. This is exactly the same
argument made whenever courts enforce the safeguards of the Fourth
Amendment, and we have consistently stressed that, if
constitutionally permissible investigative stops do not promptly
uncover sufficient evidence to support an arrest, the detainee must
be released as a necessary consequence of constitutional liberty.
See, e.g., United States v. Place, supra, at
462 U. S.
709-710;
Florida v. Royer, supra, at
460 U. S. 499
(plurality opinion) ("the police [may not] seek to verify their
suspicions by means that approach the conditions of arrest");
Dunaway v. New York, supra, at
442 U. S.
211-216;
United States v. Brignoni-Ponce,
422 U. S. 873,
422 U. S.
881-882 (1975).