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2.13: Chapter 14 - The Warrant Requirement- Exceptions (Part 6)

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    THE FOURTH AMENDMENT

    Chapter 14

    The Warrant Requirement: Exceptions (Part 6)

    Warrant Exception: Ports of Entry

    When persons and items enter the United States from abroad, agents of the executive enjoy expansive authority to conduct searches and seizures without a warrant. The Court has repeatedly chosen to provide relatively little judicial oversight of the executive’s use of that authority, especially when compared to oversight of common domestic policing.

    We begin with the Court’s approval of routine searches at the California-Mexico border. No quantum of evidence (or suspicion) is needed.

    Supreme Court of the United States

    United States v. Manuel Flores-Montano

    Decided March 30, 2004 – 541 U.S. 149

    Chief Justice REHNQUIST delivered the opinion of the [unanimous] Court.

    Customs officials seized 37 kilograms—a little more than 81 pounds—of marijuana from respondent Manuel Flores-Montano’s gas tank at the international border. The Court of Appeals for the Ninth Circuit, relying on an earlier decision by a divided panel of that court, held that the Fourth Amendment forbade the fuel tank search absent reasonable suspicion. We hold that the search in question did not require reasonable suspicion.

    Respondent, driving a 1987 Ford Taurus station wagon, attempted to enter the United States at the Otay Mesa Port of Entry in southern California. A customs inspector conducted an inspection of the station wagon, and requested respondent to leave the vehicle. The vehicle was then taken to a secondary inspection station.

    At the secondary station, a second customs inspector inspected the gas tank by tapping it, and noted that the tank sounded solid. Subsequently, the inspector requested a mechanic under contract with Customs to come to the border station to remove the tank. Within 20 to 30 minutes, the mechanic arrived. He raised the car on a hydraulic lift, loosened the straps and unscrewed the bolts holding the gas tank to the undercarriage of the vehicle, and then disconnected some hoses and electrical connections. After the gas tank was removed, the inspector hammered off bondo (a putty-like hardening substance that is used to seal openings) from the top of the gas tank. The inspector opened an access plate underneath the bondo and found 37 kilograms of marijuana bricks. The process took 15 to 25 minutes.

    A grand jury indicted respondent on one count of unlawfully importing marijuana and one count of possession of marijuana with intent to distribute. Relying on [Ninth Circuit precedent], the Court of Appeals held, inter alia, that removal of a gas tank requires reasonable suspicion in order to be consistent with the Fourth Amendment.

    We granted certiorari and now reverse.

    In [United States v.] Molina-Tarazon, [279 F.3d 709] the Court of Appeals decided a case presenting similar facts to the one at bar. It asked “whether [the removal and dismantling of the defendant’s fuel tank] is a ‘routine’ border search for which no suspicion whatsoever is required.” The Court of Appeals stated that “[i]n order to conduct a search that goes beyond the routine, an inspector must have reasonable suspicion,” and the “critical factor” in determining whether a search is “routine” is the “degree of intrusiveness.”

    The Court of Appeals seized on language from our opinion in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), in which we used the word “routine” as a descriptive term in discussing border searches. The Court of Appeals took the term “routine,” fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person—dignity and privacy interests of the person being searched—simply do not carry over to vehicles. Complex balancing tests to determine what is a “routine” search of a vehicle, as opposed to a more “intrusive” search of a person, have no place in border searches of vehicles.

    The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” Congress, since the beginning of our Government, “has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.” It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.

    That interest in protecting the borders is illustrated in this case by the evidence that smugglers frequently attempt to penetrate our borders with contraband secreted in their automobiles’ fuel tank. Over the past 5 ½ fiscal years, there have been 18,788 vehicle drug seizures at the southern California ports of entry. Of those 18,788, gas tank drug seizures have accounted for 4,619 of the vehicle drug seizures, or approximately 25%. In addition, instances of persons smuggled in and around gas tank compartments are discovered at the ports of entry of San Ysidro and Otay Mesa at a rate averaging 1 approximately every 10 days.

    Respondent asserts two main arguments with respect to his Fourth Amendment interests. First, he urges that he has a privacy interest in his fuel tank, and that the suspicionless disassembly of his tank is an invasion of his privacy. But on many occasions, we have noted that the expectation of privacy is less at the border than it is in the interior. We have long recognized that automobiles seeking entry into this country may be searched. It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile’s passenger compartment.

    Second, respondent argues that the Fourth Amendment “protects property as well as privacy” and that the disassembly and reassembly of his gas tank is a significant deprivation of his property interest because it may damage the vehicle. He does not, and on the record cannot, truly contend that the procedure of removal, disassembly, and reassembly of the fuel tank in this case or any other has resulted in serious damage to, or destruction of, the property. According to the Government, for example, in fiscal year 2003, 348 gas tank searches conducted along the southern border were negative (i.e., no contraband was found), the gas tanks were reassembled, and the vehicles continued their entry into the United States without incident.

    Respondent cites not a single accident involving the vehicle or motorist in the many thousands of gas tank disassemblies that have occurred at the border. A gas tank search involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle. If damage to a vehicle were to occur, the motorist might be entitled to recovery. While the interference with a motorist’s possessory interest is not insignificant when the Government removes, disassembles, and reassembles his gas tank, it nevertheless is justified by the Government’s paramount interest in protecting the border.

    For the reasons stated, we conclude that the Government’s authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank. While it may be true that some searches of property are so destructive as to require a different result, this was not one of them. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

    Justice BREYER, concurring.

    I join the Court’s opinion in full. I also note that Customs keeps track of the border searches its agents conduct, including the reasons for the searches. This administrative process should help minimize concerns that gas tank searches might be undertaken in an abusive manner.

    * * *

    In addition to permitting extensive suspicionless searches and seizures at international borders, the Court has permitted similar searches and seizures at checkpoints some distance from the border. The fixed checkpoint at issue in the next case was 66 miles north of the United States-Mexico border.

    Supreme Court of the United States

    United States v. Amado Martinez-Fuerte

    Decided July 6, 1976 – 428 U.S. 543

    Mr. Justice POWELL delivered the opinion of the Court.

    Th[is] case[] involve[s] criminal prosecutions for offenses relating to the transportation of illegal Mexican aliens. [D]efendant was arrested at a permanent checkpoint operated by the Border Patrol away from the international border with Mexico, and [] sought the exclusion of certain evidence on the ground that the operation of the checkpoint was incompatible with the Fourth Amendment. [W]hether the Fourth Amendment was violated turns primarily on whether a vehicle may be stopped at a fixed checkpoint for brief questioning of its occupants even though there is no reason to believe the particular vehicle contains illegal aliens. We hold today that such stops are consistent with the Fourth Amendment. We also hold that the operation of a fixed checkpoint need not be authorized in advance by a judicial warrant.

    I
    A

    The respondents are defendants in three separate prosecutions resulting from arrests made on three different occasions at the permanent immigration checkpoint on Interstate 5 near San Clemente, Cal. Interstate 5 is the principal highway between San Diego and Los Angeles, and the San Clemente checkpoint is 66 road miles north of the Mexican border.

    The “point” agent visually screens all northbound vehicles, which the checkpoint brings to a virtual, if not a complete, halt. Most motorists are allowed to resume their progress without any oral inquiry or close visual examination. In a relatively small number of cases the “point” agent will conclude that further inquiry is in order. He directs these cars to a secondary inspection area, where their occupants are asked about their citizenship and immigration status. The Government informs us that at San Clemente the average length of an investigation in the secondary inspection area is three to five minutes. A direction to stop in the secondary inspection area could be based on something suspicious about a particular car passing through the checkpoint, but the Government concedes that none of the three stops at issue was based on any articulable suspicion. During the period when these stops were made, the checkpoint was operating under a magistrate’s “warrant of inspection,” which authorized the Border Patrol to conduct a routine-stop operation at the San Clemente location.

    We turn now to the particulars of the stops and the procedural history of the case. Respondent Amado Martinez-Fuerte approached the checkpoint driving a vehicle containing two female passengers. The women were illegal Mexican aliens who had entered the United States at the San Ysidro port of entry by using false papers and rendezvoused with Martinez-Fuerte in San Diego to be transported northward. At the checkpoint their car was directed to the secondary inspection area. Martinez-Fuerte produced documents showing him to be a lawful resident alien, but his passengers admitted being present in the country unlawfully. He was charged, inter alia, with two counts of illegally transporting aliens. He moved before trial to suppress all evidence stemming from the stop on the ground that the operation of the checkpoint was in violation of the Fourth Amendment. The motion to suppress was denied, and he was convicted on both counts after a jury trial.

    Martinez-Fuerte appealed his conviction. The Court of Appeals held, with one judge dissenting, that the[] stop[] violated the Fourth Amendment, concluding that a stop for inquiry is constitutional only if the Border Patrol reasonably suspects the presence of illegal aliens on the basis of articulable facts. It reversed Martinez-Fuerte’s conviction. We reverse and remand.

    II

    Before turning to the constitutional question, we examine the context in which it arises.

    It has been national policy for many years to limit immigration into the United States. Interdicting the flow of illegal entrants from Mexico poses formidable law enforcement problems. The principal problem arises from surreptitious entries. The United States shares a border with Mexico that is almost 2,000 miles long, and much of the border area is uninhabited desert or thinly populated arid land. Although the Border Patrol maintains personnel, electronic equipment, and fences along portions of the border, it remains relatively easy for individuals to enter the United States without detection. It also is possible for an alien to enter unlawfully at a port of entry by the use of falsified papers or to enter lawfully but violate restrictions of entry in an effort to remain in the country unlawfully. Once within the country, the aliens seek to travel inland to areas where employment is believed to be available, frequently meeting by prearrangement with friends or professional smugglers who transport them in private vehicles.

    The Border Patrol conducts three kinds of inland traffic-checking operations in an effort to minimize illegal immigration. Permanent checkpoints are maintained at or near intersections of important roads leading away from the border. They operate on a coordinated basis designed to avoid circumvention by smugglers and others who transport the illegal aliens. Temporary checkpoints, which operate like permanent ones, occasionally are established in other strategic locations. Finally, roving patrols are maintained to supplement the checkpoint system.

    We are concerned here with permanent checkpoints, the locations of which are chosen on the basis of a number of factors. The Border Patrol believes that to assure effectiveness, a checkpoint must be (i) distant enough from the border to avoid interference with traffic in populated areas near the border, (ii) close to the confluence of two or more significant roads leading away from the border, (iii) situated in terrain that restricts vehicle passage around the checkpoint, (iv) on a stretch of highway compatible with safe operation, and (v) beyond the 25-mile zone in which “border passes” are valid.1

    III

    The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual, a process evident in our previous cases dealing with Border Patrol traffic-checking operations.

    In Almeida-Sanchez v. United States, [413 U.S. 266 (1973)], the question was whether a roving-patrol unit constitutionally could search a vehicle for illegal aliens simply because it was in the general vicinity of the border. We recognized that important law enforcement interests were at stake but held that searches by roving patrols impinged so significantly on Fourth Amendment privacy interests that a search could be conducted without consent only if there was probable cause to believe that a car contained illegal aliens, at least in the absence of a judicial warrant authorizing random searches by roving patrols in a given area. We held in United States v. Ortiz, [422 U.S. 891 (1975)], that the same limitations applied to vehicle searches conducted at a permanent checkpoint.

    In United States v. Brignoni-Ponce, [422 U.S. 873 (1975)], however, we recognized that other traffic-checking practices involve a different balance of public and private interests and appropriately are subject to less stringent constitutional safeguards. The question was under what circumstances a roving patrol could stop motorists in the general area of the border for brief inquiry into their residence status. We found that the interference with Fourth Amendment interests involved in such a stop was “modest,” while the inquiry served significant law enforcement needs. We therefore held that a roving-patrol stop need not be justified by probable cause and may be undertaken if the stopping officer is “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that a vehicle contains illegal aliens.

    IV

    It is agreed that checkpoint stops are “seizures” within the meaning of the Fourth Amendment. The defendants contend primarily that the routine stopping of vehicles at a checkpoint is invalid because Brignoni-Ponce must be read as proscribing any stops in the absence of reasonable suspicion. [W]e turn first to whether reasonable suspicion is a prerequisite to a valid stop, a question to be resolved by balancing the interests at stake.

    A

    Our previous cases have recognized that maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border. We note here only the substantiality of the public interest in the practice of routine stops for inquiry at permanent checkpoints, a practice which the Government identifies as the most important of the traffic-checking operations. These checkpoints are located on important highways; in their absence such highways would offer illegal aliens a quick and safe route into the interior. Routine checkpoint inquiries apprehend many smugglers and illegal aliens who succumb to the lure of such highways. And the prospect of such inquiries forces others onto less efficient roads that are less heavily traveled, slowing their movement and making them more vulnerable to detection by roving patrols.

    A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.

    B

    While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists’ right to “free passage without interruption,” and arguably on their right to personal security. But it involves only a brief detention of travelers during which “‘[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.’”

    Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search. This objective intrusion the stop itself, the questioning, and the visual inspection also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion—the generating of concern or even fright on the part of lawful travelers—is appreciably less in the case of a checkpoint stop. In Ortiz, we noted:

    “[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.”

    In Brignoni-Ponce, we recognized that Fourth Amendment analysis in this context also must take into account the overall degree of interference with legitimate traffic. We concluded there that random roving-patrol stops could not be tolerated because they “would subject the residents of … [border] areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. … [They] could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road ….” There also was a grave danger that such unreviewable discretion would be abused by some officers in the field.

    Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review.

    The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby “stigmatizing” those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals rather than questioning the occupants of every car tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public.

    C

    The defendants note correctly that to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.

    [Here,] we deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection. As we have noted earlier, one’s expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one’s residence. And the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the interests of motorists minimal. On the other hand, the purpose of the stops is legitimate and in the public interest, and the need for this enforcement technique is demonstrated by the records in the cases before us. Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints.

    We further believe that it is constitutional to refer motorists selectively to the secondary inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a roving-patrol stop. Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation. As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.2

    VI

    In summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant. The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop. We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search. And our holding today is limited to the type of stops described in this opinion. “[A]ny further detention … must be based on consent or probable cause.” None of the defendants in these cases argues that the stopping officers exceeded these limitations. We reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case with directions to affirm the conviction of Martinez-Fuerte.

    Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.

    Today’s decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures. Consistent with this purpose to debilitate Fourth Amendment protections, the Court’s decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standardless seizures of persons do not violate the Amendment. I dissent.

    We are told today [] that motorists without number may be individually stopped, questioned, visually inspected, and then further detained without even a showing of articulable suspicion, let alone the heretofore constitutional minimum of reasonable suspicion, a result that permits search and seizure to rest upon “nothing more substantial than inarticulate hunches.” This defacement of Fourth Amendment protections is arrived at by a balancing process that overwhelms the individual’s protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure. But that method is only a convenient cover for condoning arbitrary official conduct.

    [T]he Court, without explanation, also ignores one major source of vexation. In abandoning any requirement of a minimum of reasonable suspicion, or even articulable suspicion, the Court in every practical sense renders meaningless, as applied to checkpoint stops, the Brignoni-Ponce holding that “standing alone [Mexican appearance] does not justify stopping all Mexican-Americans to ask if they are aliens.” Since the objective is almost entirely the Mexican illegally in the country, checkpoint officials, uninhibited by any objective standards and therefore free to stop any or all motorists without explanation or excuse, wholly on whim, will perforce target motorists of Mexican appearance. The process will then inescapably discriminate against citizens of Mexican ancestry and Mexican aliens lawfully in this country for no other reason than that they unavoidably possess the same “suspicious” physical and grooming characteristics of illegal Mexican aliens.

    Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today’s decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists. To be singled out for referral and to be detained and interrogated must be upsetting to any motorist. One wonders what actual experience supports my Brethren’s conclusion that referrals “should not be frightening or offensive because of their public and relatively routine nature.” In point of fact, referrals viewed in context, are not relatively routine; thousands are otherwise permitted to pass. But for the arbitrarily selected motorists who must suffer the delay and humiliation of detention and interrogation, the experience can obviously be upsetting. And that experience is particularly vexing for the motorist of Mexican ancestry who is selectively referred, knowing that the officers’ target is the Mexican alien. That deep resentment will be stirred by a sense of unfair discrimination is not difficult to foresee.3

    In short, if a balancing process is required, the balance should be struck to require that Border Patrol officers act upon at least reasonable suspicion in making checkpoint stops. In any event, even if a different balance were struck, the Court cannot, without ignoring the Fourth Amendment requirement of reasonableness, justify wholly unguided seizures by officials manning the checkpoints.

    The cornerstone of this society, indeed of any free society, is orderly procedure. The Constitution, as originally adopted, was therefore, in great measure, a procedural document. For the same reasons the drafters of the Bill of Rights largely placed their faith in procedural limitations on government action. The Fourth Amendment’s requirement that searches and seizures be reasonable enforces this fundamental understanding in erecting its buffer against the arbitrary treatment of citizens by government. But to permit, as the Court does today, police discretion to supplant the objectivity of reason and, thereby, expediency to reign in the place of order, is to undermine Fourth Amendment safeguards and threaten erosion of the cornerstone of our system of a government, for, as Mr. Justice Frankfurter reminded us, “[t]he history of American freedom is, in no small measure, the history of procedure.”

    Notes, Comments, and Questions

    A police officer is 66 miles from the Canadian border. There is no checkpoint. The officer spots a car and is suspicious that it contains Canadians who are not legally in the United States. How much evidence must the officer have to stop the car to conduct a brief investigation of its occupants?

    What is your authority for your answer to the previous question? If you do not have authority to which you can refer, review the Court’s opinion in Martinez-Fuerte. In that opinion, which mostly concerned fixed checkpoints, the Court referred to prior law concerning roving patrols.

    Opening another person’s mail without permission is normally a serious invasion of privacy, and police normally must obtain a search warrant before opening a suspect’s mail. A great deal of mail, however, is sent to the United States from abroad and accordingly crosses an international border. Here the Court considers whether agents may open such mail at will.

    Supreme Court of the United States

    United States v. Charles W. Ramsey

    Decided June 6, 1977 – 431 U.S. 606

    Mr. Justice REHNQUIST delivered the opinion of the Court.

    Customs officials, acting with “reasonable cause to suspect” a violation of customs laws, opened for inspection incoming international letter-class mail without first obtaining a search warrant. A divided Court of Appeals for the District of Columbia Circuit held contrary to every other Court of Appeals which has considered the matter, that the Fourth Amendment forbade the opening of such mail without probable cause and a search warrant. We granted the Government’s petition for certiorari to resolve this Circuit conflict. We now reverse.

    I

    Charles W. Ramsey and James W. Kelly jointly commenced a heroin-by-mail enterprise in the Washington, D.C., area. The process involved their procuring of heroin, which was mailed in letters from Bangkok, Thailand, and sent to various locations in the District of Columbia area for collection. Two of their suppliers, Sylvia Bailey and William Ward, who were located in West Germany, were engaged in international narcotics trafficking during the latter part of 1973 and the early part of 1974. West German agents, pursuant to court-authorized electronic surveillance, intercepted several trans-Atlantic conversations between Bailey and Ramsey during which their narcotics operation was discussed. By late January 1974, Bailey and Ward had gone to Thailand. Thai officials, alerted to their presence by West German authorities, placed them under surveillance. Ward was observed mailing letter-sized envelopes in six different mail boxes; five of these envelopes were recovered; and one of the addresses in Washington, D.C., was later linked to respondents. Bailey and Ward were arrested by Thai officials on February 2, 1974; among the items seized were eleven heroin-filed envelopes addressed to the Washington, D.C., area, and later connected with respondents.

    Two days after this arrest of Bailey and Ward, Inspector George Kallnischkies, a United States customs officer in New York City, without any knowledge of the foregoing events, inspecting a sack of incoming international mail from Thailand, spotted eight envelopes that were bulky and which he believed might contain merchandise. The envelopes, all of which appeared to him to have been typed on the same typewriter, were addressed to four different locations in the Washington, D.C., area. Inspector Kallnischkies, based on the fact that the letters were from Thailand, a known source of narcotics, and were “rather bulky,” suspected that the envelopes might contain merchandise or contraband rather than correspondence. He took the letters to an examining area in the post office, and felt one of the letters: It “felt like there was something in there, in the envelope. It was not just plain paper that the envelope is supposed to contain.” He weighed one of the envelopes, and found it weighed 42 grams, some three to six times the normal weight of an airmail letter. Inspector Kallnischkies then opened that envelope:

    “In there I saw some cardboard and between the cardboard, if I recall, there was a plastic bag containing a white powdered substance, which, based on experience, I knew from Thailand would be heroin. I went ahead and removed a sample. Gave it a field test, a Marquis Reagent field test, and I had a positive reaction for heroin.” He proceeded to open the other seven envelopes which “in a lot of ways were identical”; examination revealed that at least the contents were in fact identical: each contained heroin.

    Ramsey and Kelly were indicted, along with Bailey and Ward, in a 17-count indictment. Respondents moved to suppress the heroin. The District Court denied the motions, and after a bench trial on the stipulated record, respondents were found guilty and sentenced to imprisonment for what is in effect a term of 10 to 30 years. The Court of Appeals for the District of Columbia Circuit, one judge dissenting, reversed the convictions, holding that the “border search exception to the warrant requirement” applicable to persons, baggage, and mailed packages did not apply to the routine opening of international letter mail, and held that the Constitution requires that “before international letter mail is opened, a showing of probable cause be made to and a warrant secured from a neutral magistrate.”

    II

    Congress and the applicable postal regulations authorized the actions undertaken in this case. [Title 19 U.S.C. § 482] authorizes customs officials to inspect, under the circumstances therein stated, incoming international mail. The “reasonable cause to suspect” test adopted by the statute is, we think, a practical test which imposes a less stringent requirement than that of “probable cause” imposed by the Fourth Amendment as a requirement for the issuance of warrants. Inspector Kallnischkies, at the time he opened the letters, knew that they were from Thailand, were bulky, were many times the weight of a normal airmail letter, and “felt like there was something in there.” Under these circumstances, we have no doubt that he had reasonable “cause to suspect” that there was merchandise or contraband in the envelopes. The search, therefore, was plainly authorized by the statute.

    Since the search in this case was authorized by statute, we are left simply with the question of whether the search, nevertheless violated the Constitution. Specifically, we need not decide whether Congress conceived the statute as a necessary precondition to the validity of the search or whether it was viewed, instead, as a limitation on otherwise existing authority of the Executive. Having acted pursuant to, and within the scope of, a congressional Act, Inspector Kallnischkies’ searches were permissible unless they violated the Constitution.

    III
    A

    That searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. This interpretation, that border searches were not subject to the warrant provisions of the Fourth Amendment and were “reasonable” within the meaning of that Amendment, has been faithfully adhered to by this Court. [We have] recognized the distinction between searches within this country, requiring probable cause, and border searches:

    “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country … have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.” (Emphasis supplied.)

    Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless “reasonable” has a history as old as the Fourth Amendment itself. We reaffirm it now.

    B

    The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country. It is clear that there is nothing in the rationale behind the border-search exception which suggests that the mode of entry will be critical. It was conceded at oral argument that customs officials could search, without probable cause and without a warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. Surely no different constitutional standard should apply simply because the envelopes were mailed not carried. The critical fact is that the envelopes cross the border and enter this country, not that that are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search “reasonable.”

    We therefore conclude that the Fourth Amendment does not interdict the actions taken by Inspector Kallnischkies in opening and searching the eight envelopes. The judgment of the Court of Appeals is, therefore,

    Reversed.

    Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

    The decisive question in this case is whether Congress has granted customs officials the authority to open and inspect personal letters entering the United States from abroad without the knowledge or consent of the sender or the addressee, and without probable cause to believe the mail contains contraband or dutiable merchandise.

    If the Government is allowed to exercise the power it claims, the door will be open to the wholesale, secret examination of all incoming international letter mail. No notice would be necessary either before or after the search. Until Congress has made an unambiguous policy decision that such an unprecedented intrusion upon a vital method of personal communication is in the Nation’s interest, this Court should not address the serious constitutional question it decides today. For it is settled that “when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not ‘the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.’”

    Accordingly, I would affirm the judgment of the Court of Appeals.

    * * *

    In the next case, the Court considers the treatment of a woman who flew to the United States from abroad and was suspected of smuggling drugs. Her unpleasant ordeal further illustrates the broad authority and discretion given to agents at the border.

    Supreme Court of the United States

    United States v. Rosa Elvira Montoya de Hernandez

    Decided July 1, 1985 – 473 U.S. 531

    Justice REHNQUIST delivered the opinion of the Court.

    Respondent Rosa Elvira Montoya de Hernandez was detained by customs officials upon her arrival at the Los Angeles Airport on a flight from Bogota, Colombia. She was found to be smuggling 88 cocaine-filled balloons in her alimentary canal, and was convicted after a bench trial of various federal narcotics offenses. A divided panel of the United States Court of Appeals for the Ninth Circuit reversed her convictions, holding that her detention violated the Fourth Amendment to the United States Constitution because the customs inspectors did not have a “clear indication” of alimentary canal smuggling at the time she was detained. Because of a conflict in the decisions of the Courts of Appeals on this question and the importance of its resolution to the enforcement of customs laws, we granted certiorari. We now reverse.

    Respondent arrived at Los Angeles International Airport shortly after midnight, March 5, 1983, on Avianca Flight 080, a direct 10-hour flight from Bogota, Colombia. Her visa was in order so she was passed through Immigration and proceeded to the customs desk. At the customs desk she encountered Customs Inspector Talamantes, who reviewed her documents and noticed from her passport that she had made at least eight recent trips to either Miami or Los Angeles. Talamantes referred respondent to a secondary customs desk for further questioning. At this desk Talamantes and another inspector asked respondent general questions concerning herself and the purpose of her trip. Respondent revealed that she spoke no English and had no family or friends in the United States. She explained in Spanish that she had come to the United States to purchase goods for her husband’s store in Bogota. The customs inspectors recognized Bogota as a “source city” for narcotics. Respondent possessed $5,000 in cash, mostly $50 bills, but had no billfold. She indicated to the inspectors that she had no appointments with merchandise vendors, but planned to ride around Los Angeles in taxicabs visiting retail stores such as J.C. Penney and K-Mart in order to buy goods for her husband’s store with the $5,000.

    Respondent admitted that she had no hotel reservations, but stated that she planned to stay at a Holiday Inn. Respondent could not recall how her airline ticket was purchased. When the inspectors opened respondent’s one small valise they found about four changes of “cold weather” clothing. Respondent had no shoes other than the high-heeled pair she was wearing. Although respondent possessed no checks, waybills, credit cards, or letters of credit, she did produce a Colombian business card and a number of old receipts, waybills, and fabric swatches displayed in a photo album.

    At this point Talamantes and the other inspector suspected that respondent was a “balloon swallower,” one who attempts to smuggle narcotics into this country hidden in her alimentary canal. Over the years Inspector Talamantes had apprehended dozens of alimentary canal smugglers arriving on Avianca Flight 080.

    The inspectors requested a female customs inspector to take respondent to a private area and conduct a patdown and strip search. During the search the female inspector felt respondent’s abdomen area and noticed a firm fullness, as if respondent were wearing a girdle. The search revealed no contraband, but the inspector noticed that respondent was wearing two pairs of elastic underpants with a paper towel lining the crotch area.

    When respondent returned to the customs area and the female inspector reported her discoveries, the inspector in charge told respondent that he suspected she was smuggling drugs in her alimentary canal. Respondent agreed to the inspector’s request that she be x-rayed at a hospital but in answer to the inspector’s query stated that she was pregnant. She agreed to a pregnancy test before the x ray. Respondent withdrew the consent for an x ray when she learned that she would have to be handcuffed en route to the hospital. The inspector then gave respondent the option of returning to Colombia on the next available flight, agreeing to an x ray, or remaining in detention until she produced a monitored bowel movement that would confirm or rebut the inspectors’ suspicions. Respondent chose the first option and was placed in a customs office under observation. She was told that if she went to the toilet she would have to use a wastebasket in the women’s restroom, in order that female customs inspectors could inspect her stool for balloons or capsules carrying narcotics. The inspectors refused respondent’s request to place a telephone call.

    Respondent sat in the customs office, under observation, for the remainder of the night. During the night customs officials attempted to place respondent on a Mexican airline that was flying to Bogota via Mexico City in the morning. The airline refused to transport respondent because she lacked a Mexican visa necessary to land in Mexico City. Respondent was not permitted to leave, and was informed that she would be detained until she agreed to an x ray or her bowels moved. She remained detained in the customs office under observation, for most of the time curled up in a chair leaning to one side. She refused all offers of food and drink, and refused to use the toilet facilities. The Court of Appeals noted that she exhibited symptoms of discomfort consistent with “heroic efforts to resist the usual calls of nature.”

    At the shift change at 4 o’clock the next afternoon, almost 16 hours after her flight had landed, respondent still had not defecated or urinated or partaken of food or drink. At that time customs officials sought a court order authorizing a pregnancy test, an x ray, and a rectal examination. The Federal Magistrate issued an order just before midnight that evening, which authorized a rectal examination and involuntary x ray, provided that the physician in charge considered respondent’s claim of pregnancy. Respondent was taken to a hospital and given a pregnancy test, which later turned out to be negative. Before the results of the pregnancy test were known, a physician conducted a rectal examination and removed from respondent’s rectum a balloon containing a foreign substance. Respondent was then placed formally under arrest. By 4:10 a.m. respondent had passed 6 similar balloons; over the next four days she passed 88 balloons containing a total of 528 grams of 80% pure cocaine hydrochloride.

    After a suppression hearing the District Court admitted the cocaine in evidence against respondent. She was convicted of possession of cocaine with intent to distribute and unlawful importation of cocaine.

    A divided panel of the United States Court of Appeals for the Ninth Circuit reversed respondent’s convictions. The court noted that customs inspectors had a “justifiably high level of official skepticism” about respondent’s good motives, but the inspectors decided to let nature take its course rather than seek an immediate magistrate’s warrant for an x ray. Such a magistrate’s warrant required a “clear indication” or “plain suggestion” that the traveler was an alimentary canal smuggler under previous decisions of the Court of Appeals. The court applied this required level of suspicion to respondent’s case. The court questioned the “humanity” of the inspectors’ decision to hold respondent until her bowels moved, knowing that she would suffer “many hours of humiliating discomfort” if she chose not to submit to the x-ray examination. The court concluded that under a “clear indication” standard “the evidence available to the customs officers when they decided to hold [respondent] for continued observation was insufficient to support the 16-hour detention.”

    The Government contends that the customs inspectors reasonably suspected that respondent was an alimentary canal smuggler, and this suspicion was sufficient to justify the detention. In support of the judgment below respondent argues, inter alia, that reasonable suspicion would not support respondent’s detention, and in any event the inspectors did not reasonably suspect that respondent was carrying narcotics internally.

    The Fourth Amendment commands that searches and seizures be reasonable. What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. The permissibility of a particular law enforcement practice is judged by “balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”

    Here the seizure of respondent took place at the international border. Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.

    Consistently, therefore, with Congress’ power to protect the Nation by stopping and examining persons entering this country, the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause. Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion even if the stop is based largely on ethnicity, and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever.

    [There is] longstanding concern for the protection of the integrity of the border. This concern is, if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics, and in particular by the increasing utilization of alimentary canal smuggling. This desperate practice appears to be a relatively recent addition to the smugglers’ repertoire of deceptive practices, and it also appears to be exceedingly difficult to detect. Congress had recognized these difficulties. Customs agents may “stop, search, and examine” any “vehicle, beast or person” upon which an officer suspects there is contraband or “merchandise which is subject to duty.”

    Balanced against the sovereign’s interests at the border are the Fourth Amendment rights of respondent. Having presented herself at the border for admission, and having subjected herself to the criminal enforcement powers of the Federal Government, respondent was entitled to be free from unreasonable search and seizure. But not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border.

    We have not previously decided what level of suspicion would justify a seizure of an incoming traveler for purposes other than a routine border search. We hold that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.

    The “reasonable suspicion” standard has been applied in a number of contexts and effects a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause. It thus fits well into the situations involving alimentary canal smuggling at the border: this type of smuggling gives no external signs and inspectors will rarely possess probable cause to arrest or search, yet governmental interests in stopping smuggling at the border are high indeed. Under this standard officials at the border must have a “particularized and objective basis for suspecting the particular person” of alimentary canal smuggling.

    The facts, and their rational inferences, known to customs inspectors in this case clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler. We need not belabor the facts, including respondent’s implausible story, that supported this suspicion. The trained customs inspectors had encountered many alimentary canal smugglers and certainly had more than an “inchoate and unparticularized suspicion or ‘hunch,’” that respondent was smuggling narcotics in her alimentary canal. The inspectors’ suspicion was a “‘common-sense conclusio[n] about human behavior’ upon which ‘practical people,’—including government officials, are entitled to rely.”

    The final issue in this case is whether the detention of respondent was reasonably related in scope to the circumstances which justified it initially. In this regard we have cautioned that courts should not indulge in “unrealistic second-guessing,” and we have noted that “creative judge[s], engaged in post hoc evaluations of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.” But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, in itself, render the search unreasonable.” Authorities must be allowed “to graduate their response to the demands of any particular situation.” Here, respondent was detained incommunicado for almost 16 hours before inspectors sought a warrant; the warrant then took a number of hours to procure, through no apparent fault of the inspectors. This length of time undoubtedly exceeds any other detention we have approved under reasonable suspicion. But we have also consistently rejected hard-and-fast time limits. Instead, “common sense and ordinary human experience must govern over rigid criteria.”

    The rudimentary knowledge of the human body which judges possess in common with the rest of humankind tells us that alimentary canal smuggling cannot be detected in the amount of time in which other illegal activity may be investigated through brief Terry-type stops. It presents few, if any external signs; a quick frisk will not do, nor will even a strip search. In the case of respondent the inspectors had available, as an alternative to simply awaiting her bowel movement, an x ray. They offered her the alternative of submitting herself to that procedure. But when she refused that alternative, the customs inspectors were left with only two practical alternatives: detain her for such time as necessary to confirm their suspicions, a detention which would last much longer than the typical Terry stop, or turn her loose into the interior carrying the reasonably suspected contraband drugs.

    The inspectors in this case followed this former procedure. They no doubt expected that respondent, having recently disembarked from a 10-hour direct flight with a full and stiff abdomen, would produce a bowel movement without extended delay. But her visible efforts to resist the call of nature, which the court below labeled “heroic,” disappointed this expectation and in turn caused her humiliation and discomfort. Our prior cases have refused to charge police with delays in investigatory detention attributable to the suspect’s evasive actions, and that principle applies here as well. Respondent alone was responsible for much of the duration and discomfort of the seizure.

    Under these circumstances, we conclude that the detention in this case was not unreasonably long. It occurred at the international border, where the Fourth Amendment balance of interests leans heavily to the Government. At the border, customs officials have more than merely an investigative law enforcement role. They are also charged, along with immigration officials, with protecting this Nation from entrants who may bring anything harmful into this country, whether that be communicable diseases, narcotics, or explosives. In this regard the detention of a suspected alimentary canal smuggler at the border is analogous to the detention of a suspected tuberculosis carrier at the border: both are detained until their bodily processes dispel the suspicion that they will introduce a harmful agent into this country.

    Respondent’s detention was long, uncomfortable, indeed, humiliating; but both its length and its discomfort resulted solely from the method by which she chose to smuggle illicit drugs into this country. “[T]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Here, by analogy, in the presence of articulable suspicion of smuggling in her alimentary canal, the customs officers were not required by the Fourth Amendment to pass respondent and her 88 cocaine-filled balloons into the interior. Her detention for the period of time necessary to either verify or dispel the suspicion was not unreasonable. The judgment of the Court of Appeals is therefore

    Reversed.

    Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

    We confront a “disgusting and saddening episode” at our Nation’s border. Shortly after midnight on March 5, 1983, the respondent Rosa Elvira Montoya De Hernandez was detained by customs officers because she fit the profile of an “alimentary canal smuggler.” This profile did not of course give the officers probable cause to believe that De Hernandez was smuggling drugs into the country, but at most a “reasonable suspicion” that she might be engaged in such an attempt. After a thorough strip search failed to uncover any contraband, De Hernandez agreed to go to a local hospital for an abdominal x ray to resolve the matter. When the officers approached with handcuffs at the ready to lead her away, however, “she crossed her arms by her chest and began stepping backwards shaking her head negatively,” protesting: “You are not going to put those on me. That is an insult to my character.”

    Stymied in their efforts, the officers decided on an alternative course: they would simply lock De Hernandez away in an adjacent manifest room “until her peristaltic functions produced a monitored bowel movement.” The officers explained to De Hernandez that she could not leave until she had excreted by squatting over a wastebasket pursuant to the watchful eyes of two attending matrons. De Hernandez responded: “I will not submit to your degradation and I’d rather die.” She was locked away with the matrons.

    De Hernandez remained locked up in the room for almost 24 hours. Three shifts of matrons came and went during this time. The room had no bed or couch on which she could lie, but only hard chairs and a table. The matrons told her that if she wished to sleep she could lie down on the hard, uncarpeted floor. De Hernandez instead “sat in her chair clutching her purse,” “occasionally putting her head down on the table to nap.” Most of the time she simply wept and pleaded “to go home.” She repeatedly begged for permission “to call my husband and tell him what you are doing to me.” Permission was denied. Sobbing, she insisted that she had to “make a phone call home so that she could talk to her children and to let them know that everything was all right.” Permission again was denied. In fact, the matrons considered it highly “unusual” that “each time someone entered the search room, she would take out two small pictures of her children and show them to the person.” De Hernandez also demanded that her attorney be contacted. Once again, permission was denied. As far as the outside world knew, Rosa de Hernandez had simply vanished. And although she already had been stripped and searched and probed, the customs officers decided about halfway through her ordeal to repeat that process—“to ensure the safety of the surveilling officers. The result was again negative.”

    After almost 24 hours had passed, someone finally had the presence of mind to consult a Magistrate and to obtain a court order for an x ray and a body-cavity search. De Hernandez, “very agitated,” was handcuffed and led away to the hospital. A rectal examination disclosed the presence of a cocaine-filled balloon. At approximately 3:15 on the morning of March 6, almost 27 hours after her initial detention, De Hernandez was formally placed under arrest and advised of her Miranda rights. Over the course of the next four days she excreted a total of 88 balloons.

    The issue [] is simply this: Does the Fourth Amendment permit an international traveler, citizen or alien, to be subjected to the sort of treatment that occurred in this case without the sanction of a judicial officer and based on nothing more than the “reasonable suspicion” of low-ranking investigative officers that something might be amiss? The Court today concludes that the Fourth Amendment grants such sweeping and unmonitored authority to customs officials. It reasons that “[t]he permissibility of a particular law enforcement practice is judged by ‘balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” The Court goes on to assert that the “balance of reasonableness is qualitatively different at the international border,” and that searches and seizures in these circumstances may therefore be conducted without probable cause or a warrant. Thus a traveler at the Nation’s border may be detained for criminal investigation merely if the authorities “reasonably suspect that the traveler is smuggling contraband.” There are no “hard-and-fast time limits” for such investigative detentions, because “‘common sense and ordinary human experience must govern over rigid criteria.’” Applying this “reasonableness” test to the instant case, the Court concludes that the “[r]espondent alone was responsible for much of the duration and discomfort of the seizure.”

    I dissent. Indefinite involuntary incommunicado detentions “for investigation” are the hallmark of a police state, not a free society. In my opinion, Government officials may no more confine a person at the border under such circumstances for purposes of criminal investigation than they may within the interior of the country. The nature and duration of the detention here may well have been tolerable for spoiled meat or diseased animals, but not for human beings held on simple suspicion of criminal activity. I believe such indefinite detentions can be “reasonable” under the Fourth Amendment only with the approval of a magistrate. I also believe that such approval can be given only upon a showing of probable cause.

    At some point [] further investigation involves such severe intrusions on the values the Fourth Amendment protects that more stringent safeguards are required. For example, the length and nature of a detention may, at least when conducted for criminal-investigative purposes, ripen into something approximating a full-scale custodial arrest—indeed, the arrestee, unlike the detainee in cases such as this, is at least given such basic rights as a telephone call, warnings, a bed, a prompt hearing before the nearest federal magistrate, an appointed attorney, and consideration of bail. In addition, border detentions may involve the use of such highly intrusive investigative techniques as body-cavity searches, x-ray searches, and stomach-pumping.

    I believe that detentions and searches falling into these more intrusive categories are presumptively “reasonable” within the meaning of the Fourth Amendment only if authorized by a judicial officer. We have, to be sure, held that executive officials need not obtain prior judicial authorization where exigent circumstances would make such authorization impractical and counterproductive. In so holding, however, we have reaffirmed the general rule that “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” And even where a person has permissibly been taken into custody without a warrant, we have held that a prompt probable-cause determination by a detached magistrate is a constitutional “prerequisite to extended restraint of liberty following arrest.”

    There is no persuasive reason not to apply these principles to lengthy and intrusive criminal-investigative detentions occurring at the Nation’s border. To be sure, the Court today invokes precedent stating that neither probable cause nor a warrant ever have been required for border searches. If this is the law as a general matter, I believe it is time that we reexamine its foundations.

    Something has gone fundamentally awry in our constitutional jurisprudence when a neutral and detached magistrate’s authorization is required before the authorities may inspect “the plumbing, heating, ventilation, gas, and electrical systems” in a person’s home, investigate the back rooms of his workplace, or poke through the charred remains of his gutted garage, but not before they may hold him in indefinite involuntary isolation at the Nation’s border to investigate whether he might be engaged in criminal wrongdoing. No less than those who conduct administrative searches, those charged with investigative duties at the border “should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks,” because “unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy.” And unlike administrative searches, which typically involve “relatively limited invasion[s]” of individual privacy interests, many border searches carry grave potential for “arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” The conditions of De Hernandez’ detention in this case—indefinite confinement in a squalid back room cut off from the outside world, the absence of basic amenities that would have been provided to even the vilest of hardened criminals, repeated strip searches—in many ways surpassed the conditions of a full custodial arrest. Although the Court previously has declined to require a warrant for border searches involving “minor interference with privacy resulting from the mere stop for questioning,” surely there is no parallel between such “minor” intrusions and the extreme invasion of personal privacy and dignity that occurs in detentions and searches such as that before us today.

    The Court argues [] that the length and “discomfort” of De Hernandez’ detention “resulted solely from the method by which she chose to smuggle illicit drugs into this country,” and it speculates that only her “‘heroic’” efforts prevented the detention from being brief and to the point. Although we now know that De Hernandez was indeed guilty of smuggling drugs internally, such post hoc rationalizations have no place in our Fourth Amendment jurisprudence, which demands that we “prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure.” At the time the authorities simply had, at most, a reasonable suspicion that De Hernandez might be engaged in such smuggling. Neither the law of the land nor the law of nature supports the notion that petty government officials can require people to excrete on command; indeed, the Court relies elsewhere on “[t]he rudimentary knowledge of the human body” in sanctioning the “much longer than … typical” duration of detentions such as this. And, with all respect to the Court, it is not “‘unrealistic second-guessing,’” to predict that an innocent traveler, locked away in incommunicado detention in unfamiliar surroundings in a foreign land, might well be so frightened and exhausted as to be unable so to “cooperate” with the authorities.

    The Court further appears to believe that such investigative practices are “reasonable,” however, on the premise that a traveler’s “expectation of privacy [is] less at the border than in the interior.” This may well be so with respect to routine border inspections, but I do not imagine that decent and law-abiding international travelers have yet reached the point where they “expect” to be thrown into locked rooms and ordered to excrete into wastebaskets, held incommunicado until they cooperate, or led away in handcuffs to the nearest hospital for exposure to various medical procedures—all on nothing more than the “reasonable” suspicions of low-ranking enforcement agents. In fact, many people from around the world travel to our borders precisely to escape such unchecked executive investigatory discretion. What a curious first lesson in American liberty awaits them on their arrival.

    In my opinion, allowing the Government to hold someone in indefinite, involuntary, incommunicado isolation without probable cause and a judicial warrant violates our constitutional charter whether the purpose is to extract ransom or to investigate suspected criminal activity. Nothing in the Fourth Amendment permits an exception for such actions at the Nation’s border. It is tempting, of course, to look the other way in a case that so graphically illustrates the “veritable national crisis” caused by narcotics trafficking. But if there is one enduring lesson in the long struggle to balance individual rights against society’s need to defend itself against lawlessness, it is that “[i]t is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.”

    I dissent.

    Notes, Comments, and Questions

    Students should be aware of three ongoing controversies related to border enforcement: (1) the existence and significance of an “extended border” and areas known as the “functional equivalent” of the border, (2) the treatment of electronic devices crossing the border, and (3) the treatment of persons crossing the border seeking asylum or otherwise fleeing persecution and poverty.

    The Functional Border and Extended Border

    International airports and the land immediately surrounding those airports are treated as the “functional equivalent” of the border. Accordingly, a traveler flying from England to St. Louis could be subjected to the same searches permissible at the border itself.

    More controversially, federal officials have argued that they possess search and seizure authority within 100 miles of international borders in an area known as the “extended border.” See, e.g., 8 C.F.R. § 287.1. If all authority granted to law enforcement at the physical border exists throughout the extended border, then people in New York City, Los Angeles, Houston, New Orleans, Seattle, Washington, D.C., and all of Florida could be subjected to suspicionless searches of their persons and effects at will. Civil libertarian organizations have accordingly decried the concept of the extended border, calling it an unlawful “Constitution-Free Zone.”

    The map below illustrates the ACLU’s take on the extended border:

    Image No. 6

    It is not clear precisely what authority federal officials claim to possess in the extended border—official guidance documents differ, and actual practice can diverge from such documents—nor is there robust judicial guidance. In an era of increasingly-vigorous immigration enforcement, this issue is attracting more attention.

    Electronic Devices at or Near the Border

    Referring to Supreme Court cases granting border officials wide discretion to search persons and effects entering and leaving the United States, federal officials have claimed to have authority to inspect electronic devices at the border. Privacy advocates have argued that searches conducted under this purported authority violate the Fourth Amendment.

    Although some caselaw exists on this question, see, e.g., United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc) (holding that reasonable suspicion is necessary to search electronic devices at border in certain cases); Alasaad v. McAleenan, 1:17-cv-11730-DJC (D. Mass. Nov. 12, 2019) (applying rule to larger class of searches); United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (allowing suspicionless searches), the law is not clear. Further litigation is ongoing.

    In response to the risk of searches (which could expose lawful information such as trade secrets, personal correspondence, and embarrassing literature to inspection), some international travelers have begun wiping data from their computers and other devices before entering the United States; they can then download data from the cloud after clearing immigration and customs.

    Treatment of Refugees, Asylum Seekers, and Other Migrants

    The treatment of border crossers has received significant news coverage recently. In particular, the question of how the United States may treat migrants who claim to be fleeing persecution—especially migrants entering the United States with children—has inspired intense debate. For example, U.S. Senator Kamala Harris visited the Otay Mesa Detention Facility4 near San Diego in June 2018 and called the treatment of detainees “a crime against humanity that is being committed by the United States government.” As one might expect, Immigration and Customs Enforcement and Department of Homeland Security officials have disagreed with such assessments and have defended current practices as lawful exercises of the executive’s authority to enforce laws at the border. Immigration law and refugee policy are beyond the scope of this course. Students might nonetheless consider whether the Court’s decisions on how the Fourth Amendment restricts (or does not restrict) executive discretion with respect to searches and seizures at the border shed light on what other border enforcement tactics are and are not (and should be or should not be) lawful.