Respondents Brief — United States v. Montoya De Hernandez

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No. 84-755

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1984

UNITED STATES OF AMERICA,

Petitioner.

Vv.

Rosa ELvirA MonToya DE HERNANDEZ,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF FOR RESPONDENT

Perer M. HorsTMAN

Federal Public Defender

Centra! District of California

United States Courthouse, Suite 1508

312 North Spring Street

Los Angeles, California 90012-475%

(213) 688-6044

FTS 798-6044

Counsel for Re sponde nt

(Appointed by the Court)

Of Counsel:

JANET |. LEVINE

1900 Avenue of the Stars, Suite 2512

Los Angeles. California 90067

PRESS OF RAM PRINTING. HYATTSVILLE, MD 20781 (301) 864-6662

BEST AVAILABLE COPY

QUESTION PRESENTED FOR REVIEW

Whether respondent, who was suspected of attempting to

smuggle contraband drugs carried within her body and who

refused to submit to an x-ray, could lawfully be detained at the

border by customs officers for the period of time necessary to

examine her bodily wastes.

TABLE OF CONTENTS

Page

7aaes oF Agteessas CUED .occocecsecesssanne iii

7 Uk fl rae 1

SUUMET GF ARGUED oo ccccecseesessann ~

ARGUE .ccccccocoscesoceeescess 4

I. HISTORICAL AND LEGAL BACKGROUND ............ 4

Il. THe Detention or Ms. de HERNANDEZ Was Un.

SRAGSMAGES «co ccccceeeeceseneseesnnee 16

A. The Detention Of Ms. de Hernandez Was More

Intrusive Than A Full Custodial Arrest .... 17

B. The Purpose Of The Detention Was To Gather

Incriminating Evidence ................... 20

C. Ms. de Hernandez Did Not Consent To Be De-

rr 24

D. Ms. de Hernandez Was Entitled To The Same

Fourth Amendment Rights As A Returning

CREED co ccccccceeccoesesnneseennl 31

1. Aliens And Immigration Procedures 31

2. Aliens And The Criminal Sanction ..... 32

E. = Ae ved, The Police Procedure E ved

ould Have A Disproportionate Impact

_ Innocent Travelers ........cccccccees 37

F. The Level Of Articulable ion Possessed

By The Customs Officers In Case Would

Not Have Justified A Len ngthy Detention

Under The Standard Employed By Any Circuit

Caust Go AGUSEED ..«ccccccescnsenesennnen 39

CAURAMDE co cccccccccocceesceessese 43

ROUEMBTR cccccccccceccctocseseese la

TABLE OF AUTHORITIES

CASES: Page

Almeida-Sanchez v. United States, 413 U.S. 266

ee ae ea cicccceveccccces 10, 32, 35

Barrera v. United States, 276 F.2d 654 (5th Cir. 1960) 12

Bell v. Wolfish, 441 U.S. 520 (1979) ................. 34

Blackford v. United States, 247 F.2d 745 (9th Cir. 1957),

cert. denied, 356 U.S. 914 (1958) .......... 10, 22, 38

Blefare v. United States, 362 F.2d 870 (9th Cir. 1966) . 12

Bolling v. Sharpe, 347 U.S. 497 (1954) .............. 34

Boyd v. United States, 116 U.S. 616 (1886) ........ 19, 39

Breithaupt v. Abram, 352 U.S. 482 (1957) ........... 22

Brinegar v. United States, 338 U.S. 160 (1949) ....... 12

Brown v. Texas, 443 U.S. 47 (1979) ................. 25

Camara v. Municipal Court, 387 U.S. 523 (1967) .... 16

Carlson v. Landon, 342 U.S. 524 (1952) ............. 35

Carroll v. United States, 267 U.S. 132 (1925) ........ 10

Cervantes v. United States, 263 F.2d 800 (9th Cir. 1959) —10

Chimel v. California, 395 U.S. 752 (1968) ........... 43

Davis v. Mississippi, 394 U.S. 721 (1969) ........... 9, 19

Delaware v. Prouse, 440 U.S. 648 (1979) ............ 24

Doyle v. Ohio, 426 U.S. 610 (1976) ............0...... 26

Dunaway v. New York, 442 U.S. 200 (1979) ..... 9, 21, 22

Escobedo v. Illinois, 378 U.S. 478 (1964) ............ 17

Florida v. Royer, 460 U.S. 491 (1983) .......... 8, 17, 24

Hayes v. Florida, No. 83-6766 (Mar. 20, 1985) ... 9,17, 19

Henderson v. United States, 390 F.2d 805 (9th Cir. 1967) 38

INS v. z-Mendoza, ___. U.S. —__ (1984), 35

ED cc cccccccccsesccccces 35

Illinois v. Gates, 462 U.S. 213 (1983) ............... 22

Johnson v. United States, 333 U.S. 10 (1948) ........ 25

King v. United States, 258 F.2d 754 (5th Cir. 1958), cert.

Ee 12

Kleindienst v. Mandel, 408 U.S. 753 (1972) .......... 32

Table of Authorities Continued

Page

Kremen v. United States, 353 U.S. 346 (1957) ....... 23

Landon v. Plasencia, 459 U.S. 21 (1982) ....... 32, 33, 35

Lane v. United States, 321 F.2d 573 (5th Cir. 1963), cert.

denied, 377 U.S. 936 (1964) 2... .. 2. ccc eee eee 12

Leyra v. Denno, 347 U.S. 556 (1954) ... 2... 66. ee eee 18

Mallory v. United States, 354 U.S. 449 (1957) ....... 19

Mapp v. Ohio, 367 U.S. 643 (1961) .. 0.2... 34

Matthews v. Diaz, 426 U.S. 67 (1976) ............-. 32, 33

McNabb v. United States, 318 U.S. 332 (1942) ....... 19

Michigan v. Clifford, ___ U.S. —— (1984), 34

Crim.L.Rep. (BNA) 3007 ........... eee ee eee eee 36

Michigan v. Summers, 452 U.S. 692 (1981) .......... 19

Morales v. United States, 406 F.2d 1298 (9th Cir. 1969) 38

New Jersey v. T.L.O., —_— U.S. —— (1985), 36

Crim. L.Rep. (BNA) 3091 ...........: cece eee 17

O’Connor v. Donaldson, 422 U.S. 563 (1975) ......... 17

Plyler v. Doe, 457 U.S. 202 (1982) ......... 66. e eee 33

Reid v. Georgia, 448 U.S. 438 (1980) ............4.. 17, 42

Rivas v. United States, 368 F.2d 703 (9th Cir. 1966) 13, 22

Rochin v. California, 342 U.S. 165 (1952) ........... 12

Schmerber v. California, 384 U.S. 757 (1966) ...... 13, 18

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206

Simmons v. United States, 390 U.S. 377 (1968) ...... 27

Terry v. Ohio, 392 U.S. 1 (1968) ............0000ee 17, 23

United States v. Afanador, 567 F.2d 1325 (Sth Cir.

DEED éceokccackeconkccenedcesaundasneniesesen 8, 14

United States v. Aman, 624 F.2d 911 (9th Cir.

SED. cccenoweediedustanneseueseseees 12, 16, 22, 42

United States v. Ashbury, 586 F.2d 973 (2nd Cir. 1978) —:12

United States v. Brignoni-Ponce, 422 U.S. 873

CRUE cccecdscecens coddsésuceeenuubeseets 10, 17, 39

Table of Authorities Continued

Page

United States v. Briones, 423 F.2d 742 (5th Cir.

re ae, x Ms PO eee 12, 14

United States v. Cameron, 538 F.2d 254 (9th Cir.

RIPEN ae ae ane pun ee 12, 22, 42

United States v. Carter, 592 F.2d 402 (7th Cir.), cert.

denied, 441 U.S. 908 (1979) ............00. cee. 10

United States v. Castaneda-Castaneda, 729 F.2d 1260

I a a 40, 42

United States v. Cortez, 449 U.S. 411 (1981) ......... 16

United States v. Couch, 688 F.2d 599 (9th Cir.

DT tutwvedaminduexiutakodan bicuuce as 16, 21, 22, 42

United States v. De Montoya, 729 F.2d 1369 (11th Cir.

PER Se i ea Say TS eee 41

United States v. Di Re, 332 U.S. 581 (1948) ......... 23

United States v. Diaz, 503 F.2d 1025 (3rd Cir. 1974)... 12

United States v. Ek, 676 F.2d 379 (9th Cir.

Dt cdsdeitccabicasaakedadcadeadedcee 16, 21, 22, 29

United States v. Erwin, 625 F.2d 838 (9th Cir.

Dt Lekedhanekadectuntecseddeabusendeas 16, 21, 22

United States v. Espericueta-Reyes, 631 F.2d 616 (9th

Me ST Scrcccudadiedeuduancaadeeadaueeucete 16, 21

United States v. Faherty, 692 F.2d 1258 (9th Cir.

Se Astubsidaheasddutehdneiessudsatbweeascans 21, 22

United States v. Gouveia, __. U.S. ___._ (1984), 35

CE, GEUUUR UE cecccccccccccccccsecce 36

United States v. Guadalupe-Garza, 421 F.2d 876 (9th Cir.

GL utAGhh Conk een sed enbee nh eieeew icone. 12, 38

United States v. Harris, 331 U.S. 145 (1947) ......... 43

United States v. Henao-Castano, 729 F.2d 1364 (11th Cir.

SED bab Cdde sab deoduueetcbudbunsdencateadeecss 40

United States v. Himmelwright, 551 F.2d 991 (5th Cir.),

cert. denied, 434 U.S. 902 (1977) .............4.. 10

United States v. Jernigan, 582 F.2d 1211 (9th Cir. 1978) 19

Table of Authorities Continued

Page

United States v. King, 517 F.2d 350 (5th Cir. 1975) .. 11

United States v. Martinez-Fuerte, 428 U.S. 543

PD cnacaduvéacdesabedsuscdedesetassésisovces 11, 17

United States v. Mastberg, 503 F.2d 465 (9th Cir. 1974) 16

United States v. Mejia, 720 F.2d 1378 (5th Cir.

DEE éxddecodececdnsenencesdeesdesace 11, 13, 41, 42

United States v. Mendenhall, 446 U.S. 544 (1980) .. 17, 42

United States v. Mendez-Jimenez, 709 F.2d 1300 (9th Cir.

SEED Nb dedcaddndedcssccusvessioessess 13, 15, 16, 41

United States v. Mosquera-Ramirez, 729 F.2d 1352 (11th

GN GED cecdcacessccccccccssnccccscess 29, 40, 42

United States v. New York Telephone Company, 434

ee MP GRISED ccccccacccscesnccctccecccocnces

United States v. Ortiz, 422 U.S. 891 (1975) .......... 38

United States v. Padilla, 729 F.2d 1367 (11th Cir. 1984) 40

United States v. Pino, 729 F.2d 1357 (11th Cir.

a a a 12, 40, 41

United States v. Place, _. U.S. —._ (1983), 33

Crim.L.Rep. (BNA) 3186 ............... 9, 17, 23, 24

United States v. Purvis, 632 F.2d 94 (9th Cir. 1980) .. 16

United States v. Quintero-Castro, 705 F.2d 1099 (9th Cir.

PED 66606666 0860560 0c cdecedeseesdsccesecess 11, 16

United States v. Ramsey, 431 U.S. 606 (1977) ....... 9, 10

United States v. Sanders, 633 F.2d 1 (2nd Cir. 1981) . 13

United States v. Sandler, 644 F.2d 1163 (5th Cir. 1981)

DIL <Jcuntebunteneciabeueasend 8, 10, 11, 13, 14

United States v. Sharpe, No. 83-529 (Mar. 20, 1985)... 17

‘ United States v. Shreve, 697 F.2d 873 (9th Cir. 1983) 16, 41

United States v. Sotoj-Lopez, 603 F.2d 789(9th Cir. 1979) 19

United States v. Stornini, 443 F.2d 833 (1st Cir.), cert.

i cu ccdecete 12

United States v. Vega-Barvo, 729 F.2d 1341 (11th Cir.),

cert. denied, ___. U.S. —__._ (1984), 36 Crim. L. Rep.

SP SEE 06s cckecdéincnssddeneseadneaaces passim

vii

Table of Authorities Continued

Page

United States v. Villamonte-Ma =

(1983), 33 Crim.L.Rep. (BNA) 3173 ............ 9, 35

United States v. Willis, 85 F.Supp. 745 (S.D. Cal. 1949) 10

Winston v. Lee, No. 83-1334 (Mar. 20, 1985) ......... 17

Wong Wing v. United States, 163 U.S. 228 (1896) ... 34, 35

CONSTITUTION, STATUTES, REGULATIONS AND RULEs:

U.S. Const.:

DS dccedctiusdesusteedbendeusmensit 33

DT Neehiveneessedecdednsedenencediede passim

PE dotioddeskdecsucesuducecnddedses 33, 34, 35

SE SE cchuddaddccodestsnatccendecedinsacent 35

Dt i citkecctnghenenens atannéuneouseddia 35

tT t.ebdieesecneanenvenseaneanaedens 33, 34

All Writs Act, 28 U.S.C. § 1651 .................... 20

io oa pata diuscennnecsudeniee 19

SPREE igbucuvssssadcdéecccadéceusss 9, App. 2a

EE bide cect disittacenssidennde 9, App. 2a

Rule 5, Federal Rules of Criminal Procedure .. 19, App. 2a

Comprehensive Crime Control Act of 1984, Pub. L.No.

73, 98 Stat. 1837, H.J. Res. 648 (Oct. 12, 1984) 43

MISCELLANEOUS:

Webster's Ninth New Collegiate Dictionary, 1984 .... 27

STATEMENT OF THE CASE

Shortly after midnight on March 5, 1983, Rosa Elvira Mon-

toya de Hernandez arrived at the Los Angeles International

Airport on a flight from Bogota, Colombia. After deplaning,

Ms. de Hernandez proceeded to an immigratiori checkpoint

where her travel documents were inspected. J.A. 7-8. Her

passport and visa were found to be in order, and both Ms. de

Hernandez’ passport and the Immigration I-94 Form were

stamped “admitted.” J.A. 8. Having been cleared through

immigration, Ms. de Hernandez then proceeded to the customs

area. J.A. 7.

Customs officials reviewed her travel documents and

directed Ms. de Hernandez to a secondary inspection area for a

more thorough examination. There, United States Customs

Inspector Jose Serrato inspected Ms. de Hernandez’ passport,

visa and airline tickets, and questioned her about her trip tothe

United States. J.A. 46. Her travel documents were found to be

in order. She was traveling on a valid Colombian passport. J.A.

8. Inspector Serrato noticed that Ms. de Hernandez’ passport

reflected at least eight previous trips to the United States.

J.A. 46. Inspector Serrato asked Ms. de Hernandez about the

following topics:

1. The purpose of her trip.

2. How long will she stay.

3. Did she have any agricultural products.

4. Did she have $5000 in any currency. J.A. 46.

Ms. de Hernandez, who spoke no English, told Inspector

Serrato that she was coming to the United States on a short

business trip to buy merchandise, including clothing and small

appliances, for her husband’s store in Colombia, J.A. 14, and

that she had approximately $5000 in cash with which to make

her purchases. J.A. 57; E.R. 40. Ms. de Hernandez also

showed Inspector Serrato a book of invoices’ containing re-

' Exhibit 102, introduced into evidence at the suppression hearing in the

district court, is a part of the trial record to which respondent wishes to

ipts with her name on them, showing past buying trips at

retail outlets on previous occasions when she was in this cour-

try. J.A. 15. Inspector Serrato examined the portfolio of in-

voices and receipts. J.A. 15; E.R. 40. Ms. de Hernandez then

showed Inspector Serrato a business card from her husband’s

business in Colombia. J.A. 15-16.

ponse ions, Ms. de

In res to Inspector Serrato’s further questions, .

Hernandez told him that she would visit the stores in which she

wished to make purchases by taxi, that she had no family or

friends in the United States, and that although she had no

confirmed reservations, her intention was to stay at the Holi-

day Inn. J.A. 41, 62; E.R. 40.

Inspector Serrato next examined Ms. de Hernandez’ lug-

gage and purse and noted the following:

Ms. de Hernandez’ , at the time that she came into

Customs, contained the fi a ~ —y

ing lipstick, mascara, rouge, mirror, liner,

dow: a purse containing perfume, hand cream, ay

two children, a pen, and some U.S. currency; |

A suitcase containing nightgown, a5 note, a pair

two-piece suit, assorted bras, ties and socks, two

sweaters, and a brown skirt. J.A. 9.*

direct the Court's particular attention. Because Exhibit 102 was not deemed

Instead, the Clerk of this Court has obtained Exhibit 102 from the exhibits

clerk in the district court, and it is available in the Clerk's Office.

. :; : ; —

? Inspector Serrato’s sworn deciaration, deemed his testimony on direct

the suppression hearing (J.A. 5-6), contained the statement that. when he

examined Ms. de Hernandez’ luggage. he noticed “no toiletries.” J.A. 46. At

. the suppression hearing in the district court, this was shown to be false. J.A.

9, 31.

With respect to Serrato’s conclusion that Ms. de Hernandez had “little

clothing,” J.A. 46, compare, United States v. Padilla, 729 F.2d 1367 (Lith

Cir. 1984) (“a few pairs of dungarees, a couple of t-shirts, and very little (sic|

toiletries,” which was “considered unusual for a visit of ten days. ) 729 F.2d

at 1368.

Inspector Serrato noticed that Ms. de Hernandez had with her

only one pair of shoes, which she wore, and that she had no

billfold. J.A. 46, 62.

After summoning another customs inspector to seek his

advice, Inspector Serrato formed the opinion, based upon Ms.

de Hernandez’ responses and general demeanor, that she fit

the profile of persons suspected of carrying drugs concealed in

their bodies. J.A. 62.

Inspector Serrato thereupon directed that Ms. de Hernan-

dez be taken to a search area for a pat-down search by a female

customs inspector. J.A. 46, 57. This “pat-down” became a strip

search. J.A. 57. The strip search failed to produce any evidence

to support Inspector Serrato’s suspicions. J.A. 16-17, 27. Dur-

ing the course of the strip search, the female customs inspector

observed that Ms. de Hernandez was wearing two pairs of

elastic type panties. When Ms. de Hernandez pulled these

dow n she exposed “a paper towel placed in the crotch area to

absorb what seemed to be a vaginal discharge.” J.A. 57.

After the strip search, Serrato brought all the information

he had at that time to the attention of his supervisors and asked

them for permission to ask Ms. de Hernandez to consent to an

x-ray search. J.A. 46. Serrato received the approval of his

supervisors and “I asked passenger de Hernandez if she would

consent to an x-ray of her abdomen area, and she stated ‘yes.’ ”

J.A. 47. Serrato next asked her if she was pregnant. Ms. de

Hernandez responded that she believed she was. J.A. 47. “I

asked her how long and if she was sure, and she stated ‘about

one month. I just saw the doctor before my trip here.’ ”J.A. 47.

Serrato advised his supervisors of this information and it

was determined that possibly the doctors at the hospital could

assist in determining if indeed she was pregnant. E.R. 40.

Inspector Serrato then returned to Ms. de Hernandez and

asked her if she would consent to a doctor’s examination to

verify her pregnancy. Ms. de Hernandez agreed to do so. J.A.

47.

As the prepared to depart for the hospital, Inspector Serra-

to informed Ms. de Hernandez that regulations required that

she be placed in handcuffs and that her pant legs be taped

closed in order to be transported to the hospital. At this point,

Ms. de Hernandez became agitated and upset and withdrew

her consent for an x-ray examination. J.A. 47, 63; E.R. 40.

After Ms. de Hernandez withdrew her consent for an x-ray

examination, she requested permission to place a telephone

call to her husband. This request was refused. J.A. 47.

, tahoe

I or Serrato then informed his supervisors that s

ned sehanet consent because we had to handcuff her. J.A. 47.

The supervisors called the customs duty agent (Agent Windes)

“so we could obtain a court order.” J.A. 47; E.R. 40.

At about 1:30 a.m. on March 5, 1983, Agent Windes, wea

nt, received a telephone call from a customs supervisor,

who requested that he (Windes) obtain a court order for an

x-ray search of Ms. de Hernandez. J.A. 39. During this con-

versation, the customs supervisor related to Agent Windes

that Ms. de Hernandez met the profile developed for “balloon

swallowers” and was believed to be a narcotics courier. J.A.

39. Windes decided that the facts then known probably would

not support a court-ordered x-ray examination. Pet. App. 3a.

While the customs supervisors were requesting that Agent

Windes seek to obtain a court order, Ms. de Hernandez again

asked to be allowed to call her husband. Inspector Serrato

again denied her request. Ms. de Hernandez then asked if

Inspector Serrato would call her husband in order to verify the

information she had provided. She offered to give the inspector

* Thi i the Ninth Circuit Court of Appeals is supported by

one-half hov + later, after important incriminating evidence had been de-

veloped ove the course of a lengthy involuntary confinement, the same

of detention, did begin making efforts to apply for a court-ordered x-ray

examination, notwithstanding the fact that Ms. de Hernandez still refused to

consent to such an examination. J.A. 41-42.

the telephone number to do so. Inspector Serrato did not call

her husband. J.A. 18, 47.

After Agent Windes declined to seek a court order, he in-

structed the customs supervisors that if Ms. de Hernandez

would not cooperate, to “deport” her. J.A. 28, 58. The customs

supervisors returned from their conversation with Agent

Windes to advise Agent Serrato that Windes had declined to

seek a court order. Agent Serrato was instructed to detain Ms.

de Hernandez in customs’ custody and to deport her on the next

available flight back to Colombia, which was two days away.'

J.A. 19, 48; E.R. 40.

Agent Serrato then returned to Ms. de Hernandez and in-

formed her that the customs agents were “unable to obtain a

court order from the Magistrate” and that they had been

“instructed by Agent Windes to hold her until Monday and

deport her on the next Avianca flight.” J.A. 18, 48.

Inspector Serrato then informed Ms. de Hernandez that the

customs agents would remain with her “until Monday until we

deport her.” He also told her that “if while she is in our custody,

if she discharges anything illegal internally, she will be placed

‘Petitioner states that Ms. de Hernandez was “afforded the option| !” of

“returning to Colombia on the next available flight . . .” and that “(given

these choices, respondent opted to return to Colombia.” Br. for Pet. 5.

Petitioner's recitation is supported to some extent by the opinion of the court

of appeals below. Pet. App. 3a. The contention that Ms. de Hernandez was

given a choice of returning to Colombia on the next available flight, nd that

she voluntarily opted for that choice, is unsupported by the record below. If

this were true, Ms. de Hernandez could be said to have consented to any

period of detention reasonably incident to attempts to repatriate her. and by

implication to the lesser period of detention involve here. Although peti-

tioner does not argue in his brief that Ms. de Hernandez consented to be

detained pending the next available flight back to Colombia, respondent

believes that the facts in the record pertaining to this particular issue should

be clarified so that unnecessary time is not wasted on this point at oral

argument. The trial judge addressed this issue at the conclusion of the

testimony at the suppression hearing. J.A. 37.

under arrest and transported to a jail ward and be unable to

leave the United States.” J.A. 48.

At about 1:30 a.m. (while the supervisors were speaking

with Windes), Inspector Serrato and a female customs in-

spector took Ms. de Hernandez to a manifest room. Ms. de

Hernandez was held in custody in the manifest room until 8:30

a.m., March 5, 1983, a period of seven hours. J.A. 20. The

manifest room had a hard, uncarpeted floor, and did not have a

bed or a couch, but only typical office chairs with slightly

curved backs. J.A. 20, 25.

Present in the manifest room with Ms. de Hernandez were

Agent Serrato and two female customs inspectors. J.A. 48, 64.

The three custom inspectors sat observing Ms. de Hernandez

until 8:30 the next morning. At no time did they sleep or lose

sight of Ms. de Hernandez. J.A. 48. Ms. de Hernandez “sat in

her chair clutching her purse” for the entire time. J.A. 20, 48;

E.R. 40. She was not free to leave. J.A. 19. Ms. de Hernandez

was informed by Agent Serrato that should she desire to use

the restroom during the course of her detention, she would be

accompanied to the restroom by two female customs inspectors

and would be required to excrete into a waste basket under

their observation. J.A. 28-29, 58.

Surveillance of Ms. de Hernandez continued throughout the

next day. J.A. 64. At about 3:00 p.m., Ms. de Hernandez was

strip searched a second time. (“This was to insure the safety of

the surveilling officers.”) J.A. 64. Again, no contraband or

evidence of wrongdoing was found. J.A. 26, 50.

At approximately 4:00 p.m., March 5, 1983, Agent Windes

arrived at the area where Ms. de Hernandez was being in-

voluntarily confined. After being briefed, Agent Windes de-

‘ cided to begin efforts to seek a court order for an x-ray exami-

nation. J.A. 64. In preparing the affidavit in support of a

request for a court order, Agent Windes relied on facts elicited

during the previous sixteen hours of involuntary confinement,

namely, that Ms. de Hernandez had refused food and drink

over a sixteen hour period, that she had been sitting curled up

in a chair, leaning to one side, and that she refused to use the

restroom over that period of time. J.A. 41-43, 64.

Until approximately 4:00 p.m. on March 5, 1983, Agent

Windes took no affirmative steps to obtain a court order for an

X-ray examination of Ms. de Hernandez. J.A. 23, 40, 64.

The preparation of Windes’ affidavit and application for a

court order took from approximately 4:00 p.m. until 12:00

midnight. At midnight a magistrate was contacted and a court

order for an x-ray and body cavity search issued. J.A. 40.

Ms. de Hernandez was then transported, in custody, to the

Los Angeles Medical Center for a body cavity a X-ray

search. J.A. 64. At the hospital, after a urinalysis was taken for

purposes of a pregnancy test, but before its results were

known, a vaginal and rectal body cavity search was performed

by the doctor. At 3:00 a.m., during the course of the rectal

search, the doctor located a balloon-shaped object in Ms

Hernandez’ rectum. J.A. 51. ee

At approximately 3:15 a.m., March 6, 1983, almost 27 hours

after her initial detention, Ms. de Hernandez was formally

placed under arrest and advised of her Miranda rights. J.A.

51. During the next hour Ms. de Hernandez expelled six more

balloons from her rectum, all of which were determined to

contain cocaine. J.A. 51. Over the next four days, Ms. de

ja andes excreted a total of 88 balloons containing cocaine.

Ms. de Hernandez was detained in custody at the medical

center until March 10, 1983 when she was transported to Sybil

Brand Institute for Women. Ms. de Hernandez did not make

her initial appearance before a United States Magistrate until

Wwe 1983, one week after her initial detention had begun.

SUMMARY OF ARGUMENT

Routine searches by customs officers at the border are justi-

fied as an act of national sovereignty and may be conducted

with or without cause. As an investigation focuses on one

particular traveler who is singled out for a more intrusive

search. however, Fourth Amendment concerns are ~~

cated, and the government has the burden of showing that the

more intrusive search or seizure was reasonable under

cireumstances. Florida v. Royer, 460 U.S. 491, 500 (1983)

The cireuit courts of appeal have developed © comsmass

body of law applying the “reasonableness” requirement of the

Fourth Amendment to the more intrusive border se _

The approach taken by the circuit courts of appeal weighs

special needs of law enforcement officers at the border against

the Fourth Amendment rights of the individual.

circuits have established a “hierarchy of intrusiveness”

for these searches, and a “exible tes” which adjusts the

strength of suspicion necessary for a particular search to the

intrusiveness of the invasion Co. Ee ee oe

dignity in that particular one, Oultel Sie 6. Sa

Cir.), infra at 1166; United States v. Vega-Barvo, (11th —

infra at 1344. Thus, the amount of articulable suspicion s :

cient to justify a particular search may not suffice to justify

more intrusive or demeaning search. United States v. Afana-

dor, (5th Cir.), infra at 1328.

lengthy detention in this case exceeded the intrusive-

nese of a full-reale custodial arrest. Asa result, Ms. de Hernan-

dez suffered an invasion of Constitutionally protected privacy

under any standard of reasonableness.

Petitioner contends that once the customs agents developed

a suspicion that Ms. de Hernandez was internaliy smuggling

narcotics, they were entitled to detain her as long as was

necessary to confirm or dispel their suspicions. Br. for Pet.

20-21. Petitioner’s argument fails to consider that seizures of

persons valid at their inception may become unreasonable

because of the length or circumstances of the subsequent

detention. United States v. Place, infra. Moreover. lengthy

police detentions “for purposes of investigation” are the hall-

mark of a police state, not a free society, and have been repeat-

edly condemned by this Court. Dunaway v. New York. infra;

Davis v. Mississippi, infra; Hayes vy. Florida. infra.

ARGUMENT

I. HISTORICAL AND LEGAL BACKGROUND

This case presents for resolution the following question:

What balance is to be struck when the sovereign’s interest in

preventing the introduction of contraband at its border collides

with the individual's right to be free of unreasonable searches

and seizures?

Although this Court has never ruled on whether the Fourth

Amendment’ to the United States Constitution applies to bor-

der searches, it has on two occasions assumed that the

“reasonableness” guarantee of the Fourth Amendment is ap-

plicable to searches and seizures at the border.’

In United States v. Ramsey, 431 U.S. 606 (1977). this Court,

in dicta, interpreted the “border search exception” to mean

that border searches are “excepted” only from the warrant and

probable cause requirements of the Fourth Amendment. but

not from the Fourth Amendment's more general proscription

of unreasonable searches and seizures.” Although 19 U.S.C.

Sections 482 and 1582" appear to statutorily authorize a plena-

> App. la, infra.

* United States v. Ramsey, 431 U.S. 606, 622 (1977): United States v.

Villamonte-Marquez, __ U.S. ____ (1983). 38 Crim. L.Rep. (BNA) 3173,

3177.

* Ramsey, 431 U.S. at 615-619, 621-622.

* App. la-2a, infra.

ry customs power to seize and search individuals entering the

country without respect to the reasonableness of the search, no

Act of Congress can authorize a violation of the Constitution.’

Under what circumstances a border search would be deemed

“unreasonable” has never been addressed by this Court. ” The

circuit courts of appeal have addressed that very issue, how-

ever, and over the last 28 years'' have developed an extensive

and essentially consistent body of law which applies the Fourth

Amendment’s “reasonableness” standard to border searches.

The legal principles which have evolved are as follows:

routine border searches are per se reasonable even when based

upon “mere suspicion,” “unsupported suspicion,” or a subjec-

tive hunch.” An individual’s decision to cross our national

border is justification enough for the search. Such searches are

deemed reasonable simply by virtue of the fact that they occur

at the border." No articulable suspicion is required to justify

such a search."

The circuit courts of appeal have concluded that a “routine”

border search includes the following matter-of-course in-

cursions on an individual's liberty and privacy: the traveler

may be stopped and asked to identify himself. His passport.

» Almeida-Sanchez v. [ nited Sta% 4 ”

States v. Brignon:-Ponce Waa .

lw See, é.g.. Ramsey at 51" °

" Blackford v. United States 22° © - ,

356 U.S. 914 (1958); United Sta " a ,

During this period of tume. ‘he ene

a petition was filed.

12 United States we Sand er tee F CS + ou

* Cervantes v. United States, 2 F ld w) * ne

13 [’nited States v. Carter. 592 F 26 HR OM Te + denied. 441

U.S. 908 (1979).

4 United States v. Himmelwroght, 551 * 2d Wl, es “+ r . rf

denied, 434 U.S. G02 (1977): Carrol I’ weted States. 2H7 = [153-16

(1925): See also Almeida-Sanchez, 415 Us. at oe

visa and entry documents may be examined. He may be ques-

tioned briefly concerning the purpose of his trip and his esti-

mated length of stay. His luggage may be searched. He may be

asked to empty his pockets, to remove outer garments such as

a hat, a coat or shoes, and he may be patted down or frisked. An

individual may also be required to produce for inspection such

personal effects as the contents of his or her pockets, a purse or

a wallet.”

Such a detention and search is “routine” because its in-

trusiveness on the personal privacy and dignity of the individ-

ual is minimal. Although routine customs inspections can be

irksome to the impatient traveler, they do not subject the

individual to embarrassment, indignity, humiliation or fright.

All travelers are subject to the same inconvenience and may be

said to suffer in common." To some extent all travelers may be

said to be “on notice” of such routine procedures and may be

said to have given implied consent to some inconvenience as a

condition of international travel. As a result, international

travelers may have a reduced expectation of privacy because of

the notoriety of routine customs procedures."

Prolonged detentions, strip searches and body cavity

searches are not routine, and involve a greater invasion of an

individual’s personal privacy. “As [the] intrusiveness [of the

search] increases, the amount of suspicion necessary to justify

the search correspondingly increases.” United States v. Vega-

Barvo, 729 F.2d 1341, 1344 (11th Cir.), cert. denied, ___ U.S.

—— (1984), 36 Crim.L.Rep. (BNA) 4133; United States v.

Mejia, 720 F.2d 1378, 1382 (5th Cir. 1983); United States v.

Quintero-Castro, 705 F.2d 1099, 1100 (9th Cir. 1983).

'® See Sandler, 644 F.2d 1163, and the cases from other circuits collected

therein.

'T United States v. King, 517 F.2d 350, 353 (5th Cir. 1975).

Strip searches, where the traveler is asked to remove under-

garments and perhaps disrobe altogether, have generally been

held to be justified only by “reasonable suspicion” that the

traveler is engaged in wrongdoing. Although a lesser standard

than probable cause,” reasonable suspicion requires that the

customs agent have a particularized, articulable suspicion that

the traveler is engaged in illegal activity. More than a general-

ized subjective suspicion or “hunch” is necessary. The officer

must be able to point to objective facts indicating criminal

behavior.”

Body cavity searches, which involve a probing beyond the

surface and into body orifices, typically the rectum or the

vagina, are without exception considered to be more intrusive

than strip searches, and correspondingly require a higher level

of suspicion to justify their initiation.” Body cavity searches

would also include searches of the contents of the stomach

where an individual is forced to drink an emetic which produces

immediate vomiting.”

\S Probable cause exists where the facts and circumstances within the

officer's knowledge and of which he has reasonably trustworthy information

are sufficient in themselves to warrant a man of reasonable caution in the

belief that an offense has been or is being committed. Brinegar v. United

States, 338 U.S. 160, 175-76 (1949).

1% United States v. Stornini, 443 F.2d 833, 834 (Ist Cir.), cert. denied, 404

U.S. 861 (1971); United States v. Asbury, 586 F.2d 973, 975-76 (2nd Cir.

1978): United States v. Diaz, 503 F.2d 1025, 1026-27 (3rd Cir. 1974); United

States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970).

” Vega-Barvo, 729 F.2d at 1344-45; United States v. Pino, 729 F.2d 1357,

1359 (11th Cir. 1984); United States v. Aman, 624 F.2d 911, 912-13 (9th Cir.

1980).

_ 2! This is commonly referred to as “stomach pumping.” See Blefare v.

United States, 362 F.2d 870, 872, 881 n. 2 (9th Cir. 1966); United States v.

Cameron, 538 F.2d 254 (9th Cir. 1976); King v. United States, 258 F.2d 754

(5th Cir. 1958), cert. denied, 359 U.S. 939 (1959); United States v. Briones,

423 F.2d 742 (Sth Cir. 1970), cert. denied, 399 U.S. 933 ,1970); Barrera v.

United States, 276 F.2d 654 (5th Cir. 1960); Lane v. United States, 321 F.2d

573 (Sth Cir. 1963), cert. denied, 377 U.S. 936 (1964); See also Rochin v.

California, 342 U.S. 165 (1952).

The N inth Circuit Court of Appeals requires a “clear indica-

tion” or “plain suggestion” to justify a search of an individual’s

body cavities at the border.* The Ninth Circuit’s test is taken

from this Court’s opinion in Schmerber v. California, 384 U.S

757 (1966), where the Court stated, in deciding that a sample of

co n from a non-consenting indivi

been arrested for drunk driving: pines

Whatever the validity of {routine searches incident to a

valid arrest] they have little 7 ility with res

mes involv intrusions bey the body’s en

; why in human dignity and privacy which the

_ Amendment protects forbid any such intrusion on

mere chance that desired evidence might be obtained

In the absence of a clear indication that in fact such evi-

dence 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.

Id. at 769.

As the Ninth Circuit has defined “clear indication,” it is a

level of suspicion higher than the “reasonable suspicion” neces-

sary to justify a strip search, but something less than probable

cause justifying an arrest.”

Althougt “clear indication” has not been er:ploved

of words outside the Ninth Circuit, other circuit, Including the

Fifth and Eleventh Circuits, agree that body cavity searches

are more intrusive than strip searches and that a higher level of

suspicion is required to justify a body cavity search than would

be required for a strip search. The Fifth and Eleventh Cir-

= Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966).

* United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (9th Cir. 1983).

oa Sandler, 644 F.2d at 1167-68; Vega-Barvo, 729 F.2d at 1344 (“Fifth

ircuit cases prior to Oct. l, 1981 . . . together with Eleventh Circuit cases,

— - a hierarch y of intrusiveness of [border] searches.”): Mejia, 720

-2d at 1382; United States v. Sanders, 663 F 2d 1 (2nd Cir. 1981).

cuits use reasonable suspicion as a “flexible standard” which

adjusts the strength of suspicion necessary for a particular

search to the intrusiveness of the invasion in a particular case.

While “reasonable suspicion” will justify a strip search, more

“reasonable suspicion” is necessary for a body cavity search.”

‘the greater the intrusion, the greater must be the reason

for conducting a search that results in such invasion.’ . . .

Thus, what constitutes ‘reasonable suspicion’ to justify a

particular search may not suifice to justify a more in-

trusive or demeaning search.

United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir. 1978)

(citations omitted), quoted with approval in Sandler, 644 F.2d

at 1166.

Although the Ninth, Fifth and Eleventh Circuits are not

using the same labels, they are speaking the same language,

they are operating under the same assumptions, they are

applying the same principles and they are achieving the same

results.”

Petitioner states:

the ‘clear indication’ threshold imposed by [the Ninth Cir-

cuit] for detaining suspected alimentary canal smugglers

5 Sandler, 644 F.2d at 1166; Vega-Barvo, 729 F.2d at 1344.

* Jd. at 1351 (dissenting opinion, characterizing majority opinion).

2 In Briones, 423 F 2d 742, the most recent Fifth Circuit case involving an

body search at the border, for example, a stomach pumping by

administration of an emetic was sustained where a confidential informer who

had proved reliable in the past informed customs that Briones would attempt

to smuggle heroin into the United States. The customs agent had personal

knowledge that Briones was a heroin addict. Briones and a companion

attempted to enter the United States when and where the informer pre-

- dicted. In upholding the administration of the emetic, the court, noting that

the Ninth Circuit required a “clear indication,” explicitly declined to specify

what standard was applicable, merely noting that “the search ... was

reasonable under either standard.” /d. at 744;

See also Vega-Barvo, 729 F.2d at 1345 (approving the result reached in

Briones based upon “the greater quantum of suspicion provided by the

informant’s tip.”)

... iS impractical. . . . [A]limen canal

does not ordinari her 7 TY

- See U States v. Mendez-Jimenez, 709 F.2d at

, imposition of the higher ‘clear indica-

Pet. 16 n.16; Br. for Pet. 31-34.

This statement is not supported by the facts. First of all, not

even the reasonable suspicion si.ndard would have prevented

Rosa Elvira Montoya de Hernandez from being “released into

this country. As respondent points out, (pages 39-43, infra.),

the objective, articulable and particularized facts known to the

customs officers would not have supported her continued

Gstention under the standard currently employed in any cir

Secondly, Mendez-Jimenez,* the case petitioner relies on in

support of his statement, strongly supports the opposite con-

clusion. In Mendez-Jimenez, objective and articulable facts

showed a “clear indication” of alimentary canal smuggling. An

affidavit containing those facts was presented to a magistrate.

The magistrate issued a court order authorizing an x-ray ex-

amination of the suspect. The x-rays revealed foreign objects.

The suspect was detained until he passed balloons containing

cocaine. The conviction was sustained on appeal by the Ninth

Circuit. The language from Mendez-Jimenez referred to by

petitioner, viz., “... it should be noted that smuggling by

ingestion into the alimentary canal does not leave the externa!

signs that bedy cavity (e.g., rectum or vagina) smuggling

does,” Id. at 1303, Br. for Pet. 32, was used by the Ninth

Cireuit only in the context of pointing out that in evaluating

whether the facts establish a “clear indication,” the court

should take into account what factors experienced customs

officers have considered to be indicative of such smuggling. /d.

* Mendez-Jimenez, 709 F.2d 1300.

at 1302-03.” Mendez-Jimenez is not atypical of Ninth Circuit

jurisprudence in this area.”

Il. THE DETENTION OF MS. de HERNANDEZ WAS UN-

REASONABLE

A restine bender search will of nocugslty invelve © Sek

temporary detention incident thereto. “reasonableness

of a more prolonged detention will require a balancing of the

interests of the government against the rights of the individ-

ual. As the intrusiveness of the particular police procedure

under review increases, the amount of suspicion necessary to

balances the privacy interests of the international traveler

against the government's interest in preventing the introduc-

tion of contraband at the border.*

Petitioner contends that in doing this balancing, the Court

chould apply 2 “relaxed standard” of reasenaiigness = sesess

ing government action in the border context.“ Application

such a standard in cases involving more intrusive border

® In so doing, the Ninth Circuit is following this Court's example in United

States v. Cortez, 449 U.S. 411, 418 (1981).

” The number of body cavity searches of suspected drug smugylers that

have been upheid by the Ninth Circuit. using the “clear indication a

is enlightening. See, ¢e.g.. United States v. Shreve, 697 F.2d 873 (9th ir.

1983), United States v. Couch. 688 F.2d 580 (Sth Cir. 1982); United States ¥-

Ek. 676 F.2d 379 (9th Cir. 1982); United States v. Put GS eons

Cir. 1980); Aman, 624 F.2d 911; United States v. Erwin, 625 F 2d 538 '

Cir. 1980), United States v. Mastberg, 503 F.2d 465 (9th Cir. 1974). But ef.

Quintero-Castro, 705 F.2d 1099 (the facts of Quintero-C astro, however,

would not have supported an x-ray search even under the “flexible a

; able suspicion standard employed by the Fifth and Eleventh Circuits.

Mendez-Jimenez, 709 F .2d at 1304.

" United States v. Espericueta-Reyes, 631 F.2d 616, 621-22 (9th Cir.

1980).

® See Camara v. Municipal Court, 387 U.S. 523, 536-537 (198% ;.

* Br. for Pet. 10, 14, 20.

searches and seizures, such as the one now before the Court, is

unprecedented, even in the Fifth and Eleventh Circuits,

where a “flexible standard” of reasonable suspicion is

employed.”

The “relaxed standard” of reasonableness petitioner

poses is already reflected in the “border search exception,”

which itself excuses law enforcement officers from the normal

warrant and probable cause requirements of the Fourth

Amendment, and subjects travelers crossing the border to

routine searches and seizures. More intrusive searches and

seizures, as previously noted, implicate important and fun-

damental human values, and therefore the reasonabieness

standard® developed by this Court in non-border cases involv-

applies.”

A. The Detention Of Ms. de Hernandez Was More In-

trusive Than A Full Custodial Arrest.

Sixteen hours of incommunicado involuntary confinement

is not a minimal invasion of one’s dignity and privacy.” Al-

though petitioner contends that the detention in this case was

™ See pages 13-14, supra.

Fourth Amendment is always that searches and seizures be reasonable.

New Jersey v. T.L.0., —. U.S. —__. (1985), 36 Crim. L. Rep. (BNA) 3091,

3094.

* See, e.g., Terry v. Ohio, 392 U.S. 1 (1968); Brignoni-Ponce, 422 U.S. 873

(1975); Martinez-F werte, 428 U.S. 543; United States v. Mendenhall, 446

U.S. 544 (1980); Reid v. Georgia, 448 U.S. 438 (1980); Florida v. Royer. 460

U.S. 491 (1983); United States v. Place, _. U.S. ___ (1983), 33 Crim.

L. Rep. (BNA) 3186; T.L.O., _. U.S. ___ (1985), 36 Crim. L. Rep. (BNA)

3091; Hayes v. Florida, No. 83-6766 (Mar. 20, 1985): United States vy.

Sharpe, No. 83-529 (Mar. 20, 1985); Winston v. Lee, No. 83-1334 (Mar. 20,

1985).

“ This Court has recognized the fundamental nature of “every man’s

constitutional right to liberty,” O'Connor v. Donaldson, 422 U.S. 563. 573

(1975), and has been particularly sensitive to incommunicado involuntary

police detentions. Escobedo v. Illinois, 378 U.S. 478 (1964).

no more intrusive than a strip search,” respondent submits

that, under the facts of this case, the intrusiveness of this

detention exceeded the intrusiveness of a full-scale custodial

arrest.

Had Ms. de Hernandez been arrested, she would at least

have been allowed the solace of a telephone call to a family

member, a friend, a loved one, or a lawyer. Had she been

arrested, after routine processing at the police station, she

would have been assigned to a cell where she would have been

able to lie down on a bed with a mattress. She would not have

been required to sit upright in an office chair under constant

observation by strangers.” Had she been arrested, she would

have been entitled to be taken without unnecessary delay

* Pet. 14-16, Br. for Pet. 11, 19, 24-25, 26, 31, 34 (“relatively minor

intrusion”). This is petitioner's most fundamental contention. Petitioner

agrees that the question presented for this Court is the lawfulness of the

detention (Br. for Pet. I). Petitioner argues that it was reasonable to detain

Ms. de Hernandez for the period of time she was detained. The lower court

should be reversed, petitioner argues, because that court required a higher

level of suspicion for the detention than was necessary under the circum-

stances. A lower standard of suspicion is warranted, petitioner contends.

because “such an imposition does not differ significantly from a strip search.”

(Pet. 16, Br. for Pet. 11).

Petitioner avoids squarely addressing the reasonableness of the detention

in this case by focusing attention on the search of Ms. de Hernandez’ bodily

waste (“. . . the inspection of a suspect's body wastes does not involve an

ion... and does not threaten harm or pain . . .”) Br. for Pet. 25.

submits that this case is not about the inspection of excrement.

The Court has recognized the enormous toll that psychological as well! as

physical stress takes on the human spirit in connection with involuntary

police detentions. Leyra v. Denno, 347 U.S. 556 (1954).

_ And it is our humanity, as well as the contents of our pockets, that the

Fourth Amendment protects:

The function of the Fourth Amendment is to protect person-

= pevere ity against unwarranted intrusion by the State.

v. California, 384 U.S. 757, 767 (1966).

It is not the breaking of his doors, and the rummaging of his drawers.

constitutes the essence of the offence; but it is the invasion of his

indefeasible right of personal security, personal liberty and private

before the nearest federal magistrate,” where she would have

been advised by a neutral and independent judicial officer of

the charges against her, where an attorney would have been

appointed for her if she could not afford to retain one, and

where the question of bail would have been addressed.

Extended involuntary incommunicado detentions “for in-

vestigation” are the hallmark of a police state, not a free

society. Such detentions have been condemned by this Court.

Davis v. Mississippi, 394 U.S. 721, 726-27 (1969)." Although

this Court did permit the detention of a person for the length of

time necessary to complete a search in Michigan v. Summers,

452 U.S. 692 (1981), a critical fact distinguishes the two cases.

In Davis, during the detention, incriminating evidence was

obtained from the suspect himself, whereas, in Summers,

although evidence was obtained during the period of the deten-

tion, the evidence obtained was not a product of the detention.

In Summers, this Court was careful to point out that “. . . the

type of detention imposed here is not likely to be exploited by

the officer or unduly prolonged in order to gain more informa-

tions). Boyd v. United States, 116 U.S. 616, 630 (1886).

“ Rule 5, Federal Rules of Criminal Procedure; see 18 U.S.C. § 3501(c):

McNabb v. United States, 318 U.S. 382, 342 (1942); Mallory v. ane

States, 354 U.S. 449, 451-52 (957); United States v. Jernigan, 582 F 2d 1211

1213 (9th Cir. 1978); United States v. Soto)-Lopez, 603 F 2d 789, 790-91 (9th

Cir. 1979) (government claim that an alien arrested and detained pending a

determination of deportability has no Rule 5 rights. Conviction reversed).

“' Davis involved the seizure, transportation and involuntary detention of

a4 suspect for the purpose of obtaining his fingerprints. This Court reversed

the resulting conviction, holding that the detention violated the suspect's

Se aE Sivaain eigen S Pe No. 83-6766, (Mar.

@ Summers involved a “routine detention of residents of a house while i

' it

a searched for contraband pursuant to a valid warrant.” 452 U.S. at

tion, because the information the officers seek normally will be

obtained through the search and not through the detention.”

Id. at 701. The Court also noted that “... special circum-

stances, or possibly a prolonged detention, might lead to a

different conclusion in an unusual case, . . .” /d. at 705 n.21.

B. The Purpose Of The Detention Was To Gather In-

criminating Evidence

Although Ms. de Hernandez was actually detained for more

than 27 hours before she was formally arrested,“ the opinion of

the Ninth Circuit Court of Appeals in this case focused on the

first 16 hours of that period.“ In scrutinizing the length of the

detention, the Ninth Circuit excluded as presumptively

“reasonable” the period of time between the point at which the

customs officers first began good faith efforts to obtain a court

order, and the time the procedure ordered was accomplished.“

This was consistent with the Ninth Circuit's judicially de-

veloped rule preferring court orders for the most intrusive

searches at the border.

The Ninth Circuit has permitted lengthy and intrusive

detentions in border search cases involving suspected drug

* Respondent maintains that Ms. de Hernandez’ detention matured into a

de facto full custodial arrest during the 16 hour detention after the first stmp

search showed no evidence of contraband.

“ Agent Windes testified that he took no positive steps to obtain a court

order until 4:00 p.m. on March 5. J.A. 23.

“ This was a period of approximately eleven hours. J.A. 40, 51.

. ® Although no authority may be derived for such orders from a reading of

the Fourth Amendment, United States District Courts have broad powers

under the All Writs Act, 28 U.S.C. § 1651, to issue such o~ders. See, ¢.¢.,

United States v. New York Telephone Company, 434 U.S. 159, 168-174

(1977).

Respondent submits that a court order should be a mandatory prerequisite

for x-ray searches for the reasons set forth in n. 0, imfra.

—

smugglers,“ but only when the detention has been incidental to

a legitimate police purpose consistent with the Fourth Amend-

ment's protection of the individual, and was not for the purpose

of eliciting further incriminating information from the person

What made the police tactics so egregious in Dunaway v

New York, 442 U.S. 200 (1979), was not the seizure or the

asportation or the length of the detention, but the fact that the

police seized an individual they had no cause to arrest for

purposes of further investigation. It is this element

er police motive that is also present in the case swb judice. As

the court below correctly noted, the agents, not having a

Couch, 688 F.2d at 604 (seven and one-half hours); Ek, 676 F 2d at 381 (ten to

twelve hours); E sperncueta-Reyes, 631 F 2d at 621-22 (fifty minute detention

approved in extended border search where period of time was deemed

incidental to returning suspects to the border for further inquiry. id. at 619,

622); Erwin, 625 F.2d at 841 (seven hours).

pect. Police officers in that case picked up a suspect they did not have

probable cause to arrest. drove him to police headquarters, and questioned

him about his involvement in a crime. The suspect eventually mace state-

ments incriminating himself in the crme. This Court reversed resulting

conviction. /d. at 219. =

* The Ninth Circuit rule. which holds that a warrant is merely one

to be considered in determining the reasonableness of the search. 1s sound

" Violence is not unknown to the history of customs officers attempts to

nai travelers at the border. See. ¢.g.. Blackford, 247 F 2d 745, Riwas, 368

ireul Camer-

The Ninth Circuit's preference for court orders may be traced to '

om. 538 F.2d 254. The facts in Cameron demonstrate the potential for

violence in this area of the law. See 538 F 2d at 255-57.

The Cameron court noted that a court order has the following benefits: a

neutral and independent judicial officer can review the facts allegedly

The initial 16 hours of Ms. de Hernandez’ detention, by

contrast, had no other purpose than to produce incriminating

evidence lacking at the outset. The circumstances of the

detention” negate any argument that the customs agents were

merely holding her pending the next available flight back to

Colombia. A detention, like a search, may not be justified by

what it turns up.*

The rule of reason established by the Ninth Circuit for the

prolonged detention of suspected body cavity smugglers

strikes an appropriate balance between the rights of the indi-

vidual and the interests of the state. Respondent urges thi

Court to adopt the Ninth Circuit’s rule and apply it to the facts

of the case at bar.

Petitioner disagrees, and proposes a different rule:

cate prapeaty of the detention should turn on the

lawfulness of the search that necessitates the detention.

Br. for Pet. 11.

Petitioner puts the matter exactly backwards. In fact, the

lawfulness of the search often turns on the propriety of the

manner in which it is carried out.”

Petitioner contends that a person suspected of internal body

smuggling at the border may be detained for whatever period

of time is necessary to complete the search.* While admirable

*! Constant visual surveillance, and the imposed requirement, should Ms.

de Hernandez desire to move her bowels, that she excrete while under

observation into a wastebasket instead of privately into a toilet. See page 6,

supra. See also page 21 and n.49, supra.

® See United States v. Di Re, 332 U.S. 581, 595 (1948).

As we observed in Terry, (392 U.S. 1] ‘{t |he manner in which the seizure

] conducted i

... [was is, of course, as vital a part of the inquiry as

whether [it was | warranted at all.’

Place, ___ U.S. —— (1983), 33 Crim. L. Rep. (BNA) at 3189; Kremen v.

United States, 353 U.S. 346 (1957).

* Petitioner's brief continually returns to the same theme. See Br. for

Pet., 20-21, 24 n.20, 26-27 (“{I}t is ordinarily permissible to detain a person

for the length of time reasonably necessary to perform a lawful search... .”)

in its simplicity, this argument totally fails to consider that this

Court has repeatedly held that a seizure reasonable at its

inception may become unreasonable because of the length of

the subsequent detention.” Furthermore, the adoption by the

Court of the rule suggested by petitioner would leave the

severity of the intrusion in border searches totally within the

unfettered discretion of the law enforcement officer.”

C. Ms. de Hernandez Did Not Consent To Be Detained

Petitioner argues that this was not an unreasonably in-

trusive or prolonged detention subject to the unconstrained

% See, e.g., Florida v. Royer, 460 U.S. 491 (1983), where a suspect who fit

the “drug courier profile” was detained at airport for 15 minutes on agents’

suspicion he was carrying narcotics. After brief initial questioning showed

suspect to be traveling under an assumed name, the agents, still in posses-

sion of suspect’s tickets and driver's license, asked suspect to accompany

them to a small room for further investigation. Agents retrieved suspect's

baggage, which was found to contain marijuana.

This Court, affirming reversal of the resulting conviction, and agreeing

that a reasonable suspicion justified a seizure and temporary detention of the

person, held that “(what had begun as a consensual inquiry in a public place

had escalated into an investigatory procedure in a police interrogation room,

where the police, unsatisfied with previous explanations, sought to confirm

their suspicions.” /d. at 503.

* +. «

“. . . [The police [may not] seek to verify their suspicions by means that

approach the conditions of arrest.” /d. at 499.

In so holding, the Court emphasized that:

“It is the State's burden to demonstrate that the seizure it seeks to justify

on the basis of a reasonable suspicion was sufficiently limited in scope and

duration to satisfy the conditions of an investigative seizure.” /d. at 500.

’ (Emphasis added). See also Place, _. U.S. —— (1983), 38 Crim. L. Rep.

(BNA) at 3189. (90 minute airport detention on reasonable suspicion that

luggage contained narcotics, held unreasonable. “The length of the detention

.. . alone precludes the conclusion that the seizure was reasonable in the

absence of probable cause.” /d.).

* See, e.g., Delaware v. Prowse, 440 U.S. 648 (1979) (police officers mak-

ing random stops of automobiles on the highway for license and registration

discretion of the customs officers because Ms. de Hernandez,

not the government, controlled the length of her detention.”

Petitioner further contends that:

. . . @Suspect cannot complain of the intrusiveness of the

detention if he selected detention over the alternative of

an X-ray search.

Br. for Pet. 28. These arguments fail to withstand closer exam-

Petitioner’s statements contain a dual implication: first, that

by choosing between two alternatives, Ms. de Hernandez

somehow “consented” to what happened to her, and second,

that she had the key to her release in her own pocket. By failing

to use it, petitioner argues, she cannot later “complain.”

Ms. de Hernandez was offered two alternatives: 1) an x-ray

examination, or 2) involuntary confinement for an indefinite

period until she excreted bodily waste. For a woman who

checks; conviction reversed. “This kind of standardless and unconstrained

discretion is the evil the Court has discerned when in previous cases it has

insisted that the discretion of the [law enforcement] official in the field be

circumscribed, at least to some extent.”) /d. at 661; Brown v. Texas, 443

U.S. 47 (1979).

Because the “border search exception” relieves law enforcement officers

of the need to have either a warrant or probable cause, it is particularly

important that courts establish concrete, identifiable standards which re-

strain law enforcement officers from invading the most sacrosanct areas of a

traveler's privacy at whim. Although we can assume that most law enforce-

ment officers are decent and honorable persons, they are all nevertheless

“engaged in the often competitive enterprise of ferreting out crime,” Joh»-

son v. United States, 333 U.S. 10, 14 (1948), and in their zealous pursuit of

this objective can be expected to strain against the harness imposed by the

Fourth Amendment.

* Br. for Pet. 11, 27, 28-30.

stated she was four weeks pregnant,™ the “choice” could well

be described as: sixteen hours of torture or a dose of poison.”

% We now know that Ms. de Hernandez was not only lying, she was

attempting to smuggle narcotics. It is tempting, in retrospect, to view the

choices confronting Ms. de Hernandez, and to do the requisite balancing of

interests in determining the reasonableness of the police conduct, with an

eye toward preventing the release of a clearly guilty felon, and making

certain that a single criminal gets her just deserts.

The problem with adopting this point of view is that Fourth Amendment

cases simply do not reach this Court with innocent defendants in tow. Since

the Fourth Amendment standards established here will be applied to the

innocent and guilty alike, it would seem to serve no useful purpose to

examine Ms. de Hernandez’ “choices” or establish Fourth Amendment

standards of “reasonableness” on the basis of her subsequently discovered

guilt.

If all suspects were guilty, there would be no need for the Bill of Rights at

all. The facts, regrettably, show that this is not true. (See page 38 and n.&8,

infra. ).

Respondent reads with pain petitioner's statement that “(w]e have little

doubt that most innocent travelers . . . would elect a prompt x-ray as the

means of dispelling suspicion and gaining entry into the country.” Br. for

Pet. 28. The clear implication of petitioner's statement is that only a guilty

person would refuse to consent to an x-ray. Although petitioner stops short

of saying Ms. de Hernandez’ refusal to consent created additional suspicion

thus justifying further detention, it is nevertheless a sad day when the

Solicitor General takes the position before this Court that only the guilty

would object to intrusions on their privacy and dignity.

One need not be guilty to claim the protections of the Bill of Rights. And

claiming those protections is no evidence of a guilty mind. See Doyle v. Ohio,

426 U.S. 610, 617 (1916) (exercise of Fifth Amendment privilege to remain

silent is “insolubly ambiguous” and cannot be commented on by the prosecu-

tor as being evidence of guilt.)

- This is neither exaggerated nor melodramatic. The following passage is

taken verbatim from Vega-Barvo, 729 F.2d at 1348, a case decided recently

in the circuit petitioner considers to be the repository of enlightened juris-

prudence in the area of border searches:

Several weeks after she was x-rayed, Vega-Barvo discovered she was

. Not knowing this fact at the time of the x-ray, she had

answered no to the doctor’s inquiry on this matter. Since the question

was asked, it must be assumed the x-ray would not have been conducted

This, as the court below accurately characterized it, was noth-

ing more than a Hobson’s choice.”

When a traveler crossing the border is offered two intrusive

and offensive choices, both of which are substantial invasions

of her personal pr'vacy and dignity, nothing in logic or common

sense decrees that when she “selects” the less objectionable,

by doing so, she is later disqualified from complaining that the

one she opted for violated her rights. If petitioner’s claims

were in fact true, the police could effectively close the court-

house door to complaints of Fourth Amendment violations

simply by offering every suspect two choices, one of which

would be so painful or outrageously intrusive that the other

would pale by comparison. “Choice” of the lesser of the two

evils would thereafter preclude a complaint about either.

Fourth Amendment violations could be preserved only by

those who acted against their enlightened self-interest by sub-

mitting to unbearable tortures. Therefore, petitioner’s argu-

ments on this point make no logical or legal sense."

There is a way in which a traveler’s choice of one intrusive

option instead of another could have a bearing on the

reasonableness of the search or seizure.

donape ef tar enditien, Gan ented daden ieee

may have been damaged by the x-rays. She followed the doctor's

! conclusion

wa Se = Fey search is more intrusive than a strip-csarch. (Emphasis

™ Pet. App. 5a; Thomas Hobson, circa, 1631; English liveryman who

required every customer to ‘ake the horse nearest the door: an apparently

free choice when there is no real alternative. Webster's Ninth New Collegiate

— 1984; See Simmons v. United States, 390 U.S. 377, 391-94

" The dissenting judge in the court below may have been the inspiration

for petitioner’s contentions, when he stated: “. . . though de Hernandez may

have suffered ‘many hours of humiliating discomfort,’ she was herself soiely

responsible for a considerable part of it.” Pet. App. 9a.

Consider the following problem:

Suppose X crosses the border. A customs agent develops a

level of suspicion concerning X that will justify a strip search,

but will not justify a body cavity search. The customs agent

offers X the option of submitting to either one. If X chooses the

lesser of the intrusive options, and later complains that his

Fourth Amendment rights were violated, the reasonableness

of the search will, of course, be judged by whether the officer

had a level of suspicion sufficient to justify that option. If X

ness of the search will still be judged by whether the /esser of

the intrusive options was justified. The fact that X chose the

more intrusive option cannot deprive the government of the

fruits of the search to which it was legally entitled.

The hypothetical situation may or may not have significance

for the case at bar. If, and only if, an x-ray search would have

been less intrusive than the sixteen hour involuntary confine-

ment that Ms. de Hernandez suffered,” then the fact that she

refused the x-ray and opted for the detention becomes impor-

tant, because the Court can weigh the level of suspicion pos-

sessed by the customs inspectors against the less intrusive

option she refused in deciding whether the conduct of the

customs agents was reasonable under the circumstances.”

The intrusiveness of x-ray examinations has been addressed

by the circuit courts of appeal. There is a split in the circuits on

Ms. de Hernandez endured in this case, an x-ray search, and a strip search

are all equally intrusive. (“an x-ray search involves an invasion of privacy no

greater than that attendant to a strip search: . . .” Br. for Pet. 28;“. . . the

. quantum of suspicion required to conduct a strip search is all that is required

to permit a detention of the type at issue in this case.” /d. at 31, 11, 24-25, 26,

28, 34; “a reasonable suspicion of alimentary canal smuggling is sufficient to

justify an x-ray search as well as detention.” /d. at 28.

* Assuming, arguendo, that an x-ray search is less intrusive than pro-

longed involuntary confinement of the type suffered by Ms. de Hernandez,

there is much to be said for this reasoning. The Eleventh Circuit, having

the issue. The Ninth Circuit has determined that x-ray search-

es are as intrusive as body cavity searches and require a

comparable level of suspicion to justify their initiation.* The

Eleventh Circuit has determined that x-ray searches are no

more intrusive than strip searches and require a comparable

level of suspicion to justify their initiation. Both circuits

agree, however, that the intrusiveness of an x-ray examination

is directly related to the medical dangers incident thereto.”

_This Court is not in a position to make an authoritative

disposition of that particular issue, however, because there is

decided in Vega-Barvo, 729 F.2d 1341, that x-ray searches are no more

intrusive than strip searches, addressed this very issue in United States v.

Mosquera-Ramirez, 729 F.2d 1352 (11th Cir. 1984).

Petitioner cites Mosquera-Ramirez for the proposition that the type of

detention procedure employed here is no more intrusive than an x-ray

search. Br. for Pet. 19. The facts of that case reveal that Mosquera-Ramirez’

articulably suspicious behavior (see page 40, infra) caused customs agents to

reasonably suspect him of smuggling narcotics internally as he crossed the

border. He refused to consent to an x-ray. No court order was sought (nor is

one recognized in the Eleventh Circuit). Mosquera-Ramirez was detained at

a local hospital for twelve hours until he began excreting cocaine-filled

condoms, at which point he was arrested.

Contrary to petitioner's contention, the Eleventh Circuit in Mosquera-

dured in a twelve hour involuntary detention was more intrusive than an

X-ray, but also realistically acknowledged that forcing an x-ray examination

on an unconsenting or resisting suspect is not feasible. /d. at 1356.

™“ Ek, 676 F.2d at 382.

™ Vega-Barvo, 729 F.2d at 1348-49.

““Vega-Barvo argues . . . that despite the x-ray’s inoffensive nature. its

medical dangers control the intrusiveness issue. It must be conceded without

need for analysis that as medical danger increases because of a search

procedure, so must the reasons for conducting the procedure.” /d. at 1348.

“We hold that the stricter standard required for a body cavity search also

applies to an x-ray search. An x-ray search, although perhaps not so

humiliating as a strip search, nevertheless is more intrusive since the search

is potentially harmful to the health of the ” Bk. ‘

: : suspect 676 F.2d at 382

— - tf cert sented U.S 36

certioran in V -Barvo, 729 F.2d 1341, as US aa

and (BNA) 4133 (Dee. 10, 1984). Br. for Pet. 19 n. 13, 260.21, 28, 31

n.27).

Me aoe not viewed as a health hazard by either the public or the medical

* See page 28 n. 62, supra.

Amendment Rights As A Returning Citizen”

ness of the search or seizure is less, which in turn lowers the

quantum of suspicion necessary to sustain the search or seizure

as “reasonable under the circumstances.” Therefore, petition-

This issue was not raised, onefed or addressed by either party or ei

court below. Both courts below appear to have assumed that Ms de Hernan-

dez had the same Fourth Amendment rights as a returning citizen. Never-

theless, respondent agrees with petitioner that it is an issue that is fairly

presented by the facts and record in (his case.

” Br. for Pet. 35.

" Br. for Pet. 12, 24, 34-27.

Whatever the merits of petitioner's argument may be in the

abstract, it has no applicability whatsoever to the facts of this

case. Ms. de Hernandez was undeniably and incontrovertibly

admitted to this country by immigration officers at the

immigration checkpoint.” As an admitted alien, whether she

was here on a temporary visa or a work permit,” she was

entitled to the same expectation of privacy and the same

Fourth Amendment rights as a citizen. While the fact of alien-

age may have relevance to an individual’s reasonable expecta-

tion of privacy during immigration procedures, it has no rele-

vance once those procedures are completed and the individual

is admitted. Customs inspections, on the other hand, have an

equal impact on the reasonable expectation of privacy of aliens

and citizens alike.”

2. Aliens And The Criminal Sanction

This Court has never decided whether aliens suspected of

criminal activity may be given different treatment than

citizens at the border. There is no question that a sovereign has

the inherent plenary power to exclude aliens completely, for

any reason or for no reason at all, and can prescribe the condi-

tions for their entry. Kleindienst v. Mandel, 408 U.S. 753, 762,

765-66 (1972).

Moreover, even aliens inside our borders are not entitled to

enjoy all the advantages of citizenship, and may be denied the

privileges, immunities and benefits to which citizens are enti-

tled. Matthews v. Diaz, 426 U.S. 67, 78 n.12, 79-80 (1976).

Although aliens have no constitutional right to enter the

country, once admitted, they enjoy the same fundamental

™ See page 1, supra.

™ Almeida-Sanchez, 413 U.S. at 267.

* See pages 33-36, infra. The only cases cited by petitioner in support of

his argument are Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206

(1958), and Landon v. Plasencia, 459 U.S. 21 (1982). Br. for Pet. 35 n.30.

Both cases involved immigration exclusion proceedings. and are therefore

totally apposite to the facts of this case.

In Plyler v. Doe, 457 U.S. 202 (1982), the Court held that

aliens residing in this country illegally, who are subject to

depriving

within its jurisdiction” of equal protection of the laws.

documented aliens were not “persons within the diction”

and therefore they had to

— ays no right to equal protection of the laws.

We reject this argument. Whatever his status under the

immigration laws, an alien is surel ‘person’

ordinary sense of that term. 7s aay

Id. at 210.

The language of the Fourth Amendment protects “people.”

When the Framers meant to say “citizens ", they did so.”

The Equal Protection Clause of the Fourteenth Amendment

provides that: “{nJo State shall deprive . . .” and does not, by

its terms, inhibit Congress from acting to deprive persons of

rights and procedural protections of a deportation hearing Plasencia

U.S. at 25-27; Mesei, 345 U.S. at 219. -

™ The Constitution protects the privileges and immunities only of citizens.

Fourteenth Amendment, § 1; See Art. [V § 2, el. 1.

equal protection of the laws. There is no language in the Fifth

Amendment guaranteeing persons equal protection of the

laws. Nevertheless, this Court has held that while Fourteenth

Amendment notions of equal protection are not entirely con-

gruent with Fifth Amendment concepts of due process, in-

vidious discrimination where fundamental rights” are involved

makes the Equal Protection Clause applicable to the federal

government through the Due Process Clause of the Fifth

Amendment. Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954).

This Court long ago recognized that the distinction between

immigration and criminal proceedings is a critical

one for the rights of the alien. In Wong Wing v. United States,

163 U.S. 228 (1896), the Court considered an Act of Congress

which, in an attempt to discourage the influx of illegal aliens,

provided that any alien found to be unlawfully in the country

“shall be imprisoned at hard labor for a period not exceeding

one year, and thereafter removed from the United States.”

The Court acknowledged that the right to exclude or expe!

aliens “is an inherent and inalienable right of every

sovereign”” and that such power “may be exercised entirely

through executive officers” in summary proceedings.“

Where the alien is to be subjected to punishment and to the

stigma of the criminal sanction, however, Wong Wing held that

the alien is entitled to those fundamental procedural due proc-

" In Mapp v. Ohio, 367 U.S. 643 (1961), this Court held that the Fourth

Amendment's protection against unreasonable searches and seizures is so

fundamental to a system of ordered liberty as to be enforceable against (he

States through the Due Process Clause of the Fourteenth Amendment.

* 163 U.S. at 233-4.

"Jd. at Bi.

* Jd. at 231, 235-36 (deportation is not punishment for a crime. and deten-

tion pending deportation is not imprisonment in the legal sense) See Bel!»

Wolfish, 441 U.S. 520, 535-40 (1979) (pre-trial detention is not pamishment)

ess mghts guaranteed by the Fifth and Sixth Amendments to

the Constitution. /d. at 238.

consistently followed™ by the Court, and was implicitly reaf-

firmed by this Court's recent decision in JNS v. Lopez-

Mendoza, —__ U.S. —___ (1984), 35 Crim. L. Rep. (BNA) 3310.

Lopez-Mendoza involved two Mexican nationals who were

by immigration authorities and held for deportation.

;

[

sed. This Court reversed the Ninth Circuit's ruling suppress-

ing the evidence and held that the exclusionary rule of the

en ES See Ot ap Co Senipeen greed

“ See United States v. Villamonte-Marquez, — U.S. —. (19D,

Crim. L. Rep. (BNA) 3173, 3175-76.

“Cf. Cartson v. Landon, 342 U.S. 524, S87 544-45 (1952) (the Eighth

Amendment's guarantee of reasonable bail in crminal proceedings is inappi-

cable in the context of deporta, n hearings. which are civil in nature )

In Plasencia, 459 US. 21, although Plasencia had allegedly committed a

erime in the process of attempting to enter the United States. she was

In so ruling, the Court again assumed without deciding that

the Mexican aliens involved had the same Fourth Amendment

eon on ola

. reason to believe that Fourth Amendment violations

INS officers were widespread.“

id. at 3316.

Therefore, petitioner's contention to ta contrary notwith-

standing, under the facts of this case, aliens must be given

equal Fourth Amendment protection.“

~ Determining the scope of Ms. de Hernandez Fourth Amendment mghts

would be complicated considerably in the present case if evidence of drug

smuggling activity had heen discovered by unmigratvion officers dumng the

course of her examination and inspection pursuant to routine immigration

procedures. If that had been the case. this Court would be faced with the

prospect of attempting to unravel the difficult question of whether the

—ummugravion officers had been acting prmaniy for ummigraben purposes or

pursuant te a criminal investigation. (/. (noted States v. Gewwere, —_ US.

__.. (1984), 35 Crim. L. Rep. (BNA) 3081; Michigan v. Clifford, — US.

__... (1984), 34 Crim. L. Rep. (BNA) 3007. Fortunately, that issue ic not

before the Court im this case.

“A decision by this Court that aliens are entitied to fewer mghts than

citizens in criminal proceedings would be met with considerable interest in

E. If Approved, The Police Procedure Employed Here

Would Have A Disproportionate Impact Upon In-

nocent Travelers

Because aliens and citizens must be given equal Fourth

Amendment protection under the facts of this case, this

Court’s imprimatur on the kind of procedures employed in the

case at bar would have serious consequences for all interna-

tional travelers—not just alien drug smugglers. It is important

to note that the law enforcement agency involved here is the

United States Customs Service; not the Immigration and

Naturalization Service. Ms. de Hernandez had successfully

passed through the immigration checkpoint at the time she

first encountered the customs inspector. At the immigration

checkpoint, her visa and travel documents were found to be in

order and her passport was stamped “admitted.”” She then

proceeded to a customs inspection area where she stood in line,

presumably with American citizens also awaiting customs in-

spection and clearance. The rule the Court fashions today as

“reasonable” will apply

. . . not only to poor and illiterate forei , butalso.. .

to everyone crossing the border, i ing United States

citizens returning to this country.”

Vega-Barvo, 729 F.2d at 1351 (dissenting opinion).

the foreign capitals of the world as well as within our own Department of

State. Americans are aliens when they travel abroad, and it is not in-

conceivable that those countries whose citizens receive harsh treatment at

the hands of our criminal justice system would reciprocate.

® See page 1, supra.

* Petitioner may respond that since the airport drug courier profile speci-

fies that the characteristics of a drug smuggler include having no friends or

family in the United States and speaking no English, the chances of Amer-

ican citizens becoming enmeshed in the procedures employed here are re-

mote. There are two answers to such a response: ’

First, if criminals are as clever and cunning as petitioner gives them credit

for being, they will quickly realize that aliens are prime suspects for body

cavity or x-ray searches under the airport drug courier profiles currently in

use. It will not be long before the kingpins of the international drug trade

The impact of the proposed police procedure upon innocent

persons should be weighed in the balance of “reasonableness. "

This Court’s decision will affect the thousands of people who

cross our borders every day.” Moreover, the available statis-

tics indicate that law enforcement officers at the border sweep

the innocent in with the guilty for highly intrusive strip and

body cavity searches with considerable regularity.”

begin recruiting unfortunate Americans who are desperate fur mony to

serve as their mules. See, e.g., Blackford, 247 F.2d 745. The airport drug

courier profiles would then presumably be altered to reflect this “new

trend.”

Second, petitioner's response fails .o consider the many innocent aliens

who may be subject to the same treatment Ms. de Hernandez received.

Although these persons are not citizens, the vast majority of them do not

carry drugs, and they come to our shores believing that this country has a

judicial system second to none in its concern for common decency and in its

respect for the rights of the individual. Moreover, once they are here, aliens

have the same fundamental Fourth Amendment rights as United States

citizens. (See pages 31-36, supra.).

“Along (the Mexican-American border alone| there were 152 million

legal entries at authorized ports of entry during fiscal 1972, of which 91

million were made by aliens.” United States v. Ortiz, 422 U.S. 891, 905 (1975)

(App., concurring opinion, Burger, C.J.).

“We can. . . take judicial notice that many thousands of women crossed

the border during the same period, and that the vast majority were not

carrying narcotics in their body cavities or elsewhere.” Henderson v. United

States, 390 F.2d 805, 808 (9th Cir. 1967).

“« between February and September, 1968, customs officials at Cale-

xico conducted 331 strip searches of which only 96 [29% | led to the recovery of

contraband.” Guadalupe-Garza, 421 F.2d at 879 n.2.

“In Henderson (390 F.2d 805] we said: ‘On the other hand the record does

not show how many women who crossed the border during the same time

’ were subjected to similar searches as a result of which noching was found.’ In

this case we do have such information. Dr. Salerno testified that he had

examined the body cavities of some 300 persons during the year before the

trial, and had found narcotics in 15 to 20 percent of them. As we said in

Henderson, the other 80 to 85 percent ‘are certainly entitled to their dignity

and privacy; their interests, too, are to be weighed.” Morales v. United

States, 406 F.2d 1298, 1300 n.2 (9th Cir. 1969).

The frequency with which the particular law enforcement

procedure at issue is likely to invade the dignity and privacy of

innocent persons is highly relevant to its reasonableness.

Brignoni-Ponce, 422 U.S. at 883-84.”

F. The Level Of Articulable Suspicion Possessed By The

Customs Officers In This Case Would Not Have Justi-

fied A Lengthy Detention Under The Standard Em-

ployed By Any Circuit Court Of Appeals”

. In assessing the reasonableness of the detention in this case,

it is instructive to compare the level of suspicion possessed by

the customs officers with the articulable suspicion present in

comparable Fifth and Eleventh Circuit cases which have up-

held x-ray searches or lengthy detentions based upon the

Fae onl reasonable suspicion standard employed in those

circuits:

4 Vega-Barvo, 729 F.2d at 1343, 1350 (11th Cir.) (manifest

inconsistencies in explanation of purpose of trip, no business

Da pg a a yr

warrants were of “utility” as “a means of detecting offenders by discoveri

evidence,” stated: ' ana

.. our law has no warrants

Bd ay oy {general ] to help forward the

proceedeth from the gentleness of the

towards criminals ov bem a conphienation thas Cech o prues would le

more pernicious to the innocent than useful to the public, I will not say.”

Boyd v. United States, 116 U.S. at 629 (1886). (Bradley J., quoting

Camden). _— -

” Petitioner states:

“In neither court below did respondent dispute that the facts known to the

aD On for Pet. 38

Petitioner is in error. The reporter's transcript of the suppression heari

in the district court reflects the following: ”

“MS. LEVINE: ‘Your Honor, it’s my position that there was no clear

indication or probable cause or any grounds to hold Ms. de Hernandez when

the strip search was negative. / am not conceding there was cause for a strip

—_ but, since nothing was found, it’s not at issue.” J.A. 34 (Emphasis

cards, extreme nervousness, pulsating carotid artery, suitcase

contained “rags”).

2. Mosquera-Ramirez, 729 F.2d at 1354-55 (11th Cir.) (lied

about his occupation, could not answer some questions, gave

inconclusive answers to other questions, had no credit cards,

checks or letters of credit, and insufficient cash to accomplish

the alleged purpose of his trip, was unable to explain the

inconsistencies, could not give a definite itinerary for his stay,

and when confronted with fact that passport showed he had

traveled to Miami just two months before, “became very eva-

sive and very nervous”).

3. Pino, 729 F.2d at 1358 (11th Cir.) (claimed to be on

business trip to buy television repair parts, yet was unable to

name a single part to be purchased, “no business cards, manu-

als, forms or other business related accouterments,” evasive,

“did not know” answers to some questions, unusually nervous

and disoriented throughout the inspection).

4. United States v. Castaneda-Castaneda, 729 F .2d 1360,

1362, 1363-64 (11th Cir. 1984) (extreme passivity, claimed to be

a businessman but “ridiculous” answers to questions about

occupation, travel documents incorrectly completed, nervous-

ness, pulsating carotid artery, rough, red hands indicating

manual labor in the face of claim of middle or upper-middle

class life, airline ticket for New York in the face of claim of

intention to vacation at Disneyworld).

5. United States v. Henao-Castano, 729 F.2d 1364, 1365-

66 (11th Cir. 1984) (claimed that airplane ticket was purchased

on May 10 for cash, when face of ticket revealed it was pur-

chased May 25 on credit, claimed to own electronic parts store

_and to sell televisions, but had no business card, knew names of

no stores he planned to visit, and could not answer, or

answered incorrectly, even superficial questions about televi-

sions).

6. United States v. Padilla, 729 F.2d 1367, 1368 (11th Cir.

1984) (claimed to be a businessman but no business cards or

other identification, “incongruous,” “wildly implausible” story

concerning purpose of visit: a plan to purchase three or four

Xerox color photocopying machines with $971.00 cash, main-

tained that $971.00 enough to cover purchase, and related that

machines would be transported back with him in a single piece

of luggage, had no idea where such machines could be pur-

chased, claimed to have hotel reservations at a particular

hotel, which claim was shown to be false).

7. United States v. De Montoya, 729 F.2d 1369, 1370-71

(11th Cir. 1984) (lied about her conduct during the flight,

claimed to have husband and children, but had no pictures of

her family, claimed that husband an engineer but unable to say

what kind of engineer, claimed that her suit was new, but

pe Yat a bulging stomach, discrepancy between

status clai and her and i

. : appearance poor quality

8. Mejia, 720 F .2d at 1380 (5th Cir.) (airplane tickets con-

tradicted declared itinerary, claimed to be a businessman on a

buying trip, but not dressed as a businessman, no business

suits in luggage, no business cards, hands calloused consistent

with manual labor).

In the case at ba~, none of the articulably suspicious behavior

* which supported an x-ray search or a lengthy detention in

other reported cases was present. There was no evidence here

of an inherently incredible story, no evidence of failure to

answer questions, no evidence of evasive or nervous behavior,

no evidence of lack of a definite itinerary, no admission to

giving inaccurate information, or any of the other objective

indicia of drug smuggling. There was no evidence of passport

or visa tampering, no evidence of possession of anti-diarrhea

medication or laxatives,’ no evidence that Ms. de Hernandez’

body movements were restricted or stiff," no evidence of dis-

orientation,” no evidence of recent drug use such as glazed or

" Compare Mendez-Jimenez, 709 F 2d at 1302.

* Compare United States v. Shreve, 697 F 2d 873, 874 (9th Cir. 1988).

“ Compare Pino, 729 F.2d at 1358.

dilated eyes, needle marks on the arms, or slurred speech,” no

Hernandez presented evidence of being employed, and the

cash that she possessed was directly related to the stated

of her trip. As the Eleventh Circuit stated in Vega-

Barvo, 729 F.2d at 1350:

cstome age ain wil bot foes on ball

dress, . . . but on the traveler’s inability to explain his or

her trip.

Accord, Mosquera-Ramirez, 729 F.2d at 1354.

Unlike the aforementioned cases, there was nothing unusual

in Ms. de Hernandez’ papers, responses, conduct, demeanor,

appearance or personal possessions which warranted even a

reasonable suspicion. Not even the Fifth and Eleventh Cir-

cuits permit an x-ray'search or a lengthy detention based upon

an inarticulate hunch. In the instant case, there were simply no

i facts which amounted to a reasonable suspicion

that Ms. de Hernandez was internally smuggling narcotics.

Furthermore, Inspector Serrato’s statement that he and

another inspector felt that Ms. de Hernandez “fit the profile” of

a narcotics smuggler does not turn an inchoate hunch into

reasonable suspicion.

_. . what is significant for the reasonable suspicion stand-

ard is not the (ee SS ee

™ Compare Cameron, 538 F.2d at 255.

% Compare Couch, 688 F.2d at 600.

* Compare Aman, 624 F.2d at 912.

* Castaneda-Castaneda, 729 F.2d at 1363; accord, Meja, 720 F.2d at

1382: Reid, 448 U.S. at 440-4) see Mendenhall, 446 U.S. at 565 n.6 (concurr-

ing opinion of Powell, J.)

As the Ninth Circuit stated in its opinion below, “. . . thou-

sands of unusual looking persons cross international borders

daily on all sorts of errands, many of which are wholly in-

nocent.” Pet. App. 5a.

CONCLUSION

Vindicating the rights of a guilty criminal defendant is a

troublesome proposition for any court at any time, the more so

when the winds of opinion and Congressional will blow

so strongly in direction.*

Thirty-eight ago, in a far-sighted and prescient™ dis-

sent in L’nited v. Harris, 331 U.S. 145, 156, 173 (1947),

Mr. Justice

expressed these thoughts:

If only the of the [defendants] were involved. one

indifferent to the ways by which they

But it is precisely because the appeal to

Amendment is so often made by dubious char-

its infringements call for alert and

j * See, e.g., the Comprehensive Crime Control Act of 1984, Pub. L.No.

j 98-473, 98 Stat. 1837, HJ. Res. 648 (Oct. 12, 1984).

® Harris was overruled by this Court in Chime/ v. California, 395 U.S

TS2, 768 (1968). nee .

repression for society as a whole. The dangers are not

fanciful. We too readily forget them.

For the reasons heretofore stated, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

PETER M. HoRSTMAN

Federal Public Defender

Central District of California

United States Courthouse, Suite 1503

312 North Spring Street

Los Angeles, California 90012-4758

(213) 688-6044

FTS 798-6044

*Counsel for Respondent

(Appointed by this Court)

Of Counsel:

JANET I. LEVINE

1900 Avenue of the Stars, Suite 2512

Los Angeles, California 90067

APPENDIX

Constitutional Provisions

United States Constitution

Amendment IV

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and sei-

zures, 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 per-

sons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of law;

nor shall private property, without due process of law; nor

shall private property be taken for public use, without just

compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining Witnesses in his favor, and to

have the Assistance of Counsel for his defence.

Amendment VIII

Excessive bail shall not be required, nor excessive fines

imposed nor cruel and unusual punishments inflicted.

Amendment XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; or

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Statutory Provisions

19 U.S.C. § 482 authorizes customs officials to “stop, search,

and examine .. . any vehicle, beast, or person, on which or

whom .. . they shall suspect there is merchandise which is

subject to duty, or shall have been introduced into the United

States in any manner contrary to law, v’hether by the person in

possession or charge, or by, in, or upon such vehicle or beast, or

otherwise. .. .”

19 U.S.C. § 1582 provides, in pertinent part, that “(t]he

Secretary of the Treasury may prescribe regulations for the

search of persons and baggage . . . ; and all persons coming

into the United States from foreign countries shall be liable to

detention and search by authorized officers or agents of the

Government under such regulations.”

Rules

Rule 5, Federal Rules of Criminal Procedure, provides in

pertinent part, that “(ajn officer making an arrest under a

warrant issued upon a complaint or any person making an

arrest without a warrant shall take the arrested person with-

out unnecessary delay before the nearest available federal

magistrate...”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.