*1 de HERNANDEZ UNITED STATES MONTOYA Argued April July 1, 84-755. No. 1985 Decided *2 Rehnquist, J., opinion Court, Burger, delivered the of the in which J., White, Blackmun, Powell, O’Connor, and JJ., joined. C. J., Stevens, opinion concurring judgment, filed an in the post, p. 545. Brennan, J., dissenting opinion, Marshall, J., filed a joined, which post, p. 545.
Deputy Frey Solicitor General argued the cause for the on the briefs were Solicitor him States. With Attorney Lee, General Trott, Assistant John General F. De Pue.
Peter M. Horstman, Court, by appointment of the him on argued U. S. the cause for With respondent. the brief was Janet I. Levine. the Court. delivered the opinion Rehnquist
Justice was de- Hernandez Rosa Elvira de Respondent Montoya at the Los Ange- tained customs officials her arrival upon She was Colombia. Bogota, les on from Airport flight in her alimen- balloons found to be 88 cocaine-filled smuggling tary and was convicted after a bench trial canal, of various panel A federal narcotics offenses. divided of the United Appeals Court of for the Ninth Circuit reversed her States holding violated the convictions, that her detention Fourth Amendment to the United States Constitution because the inspectors customs did not have a “clear indication” of ali- mentary smuggling canal at the time she was detained. 731 a conflict the decisions of F. 2d Because of Appeals question importance the Courts of on this granted laws, its resolution to the enforcement of customs we 1188. reverse. certiorari. We now Respondent Angeles Airport arrived at Los International shortly midnight, Flight 5, 1983, after March on Avianca *3 flight Bogota, 080, a direct 10-hour from Colombia. Her passed through Immigration in visa was order so she was proceeded and to the customs desk. At the customs desk Inspector re- Talamantes, she encountered Customs who passport from her that viewed her documents and noticed trips eight at least recent to either Miami or she had made respondent Angeles. referred to a second- Los ary Talamantes questioning. this desk customs desk for further At general inspector respondent Talamantes and another asked trip. concerning purpose questions her and the herself English Respondent spoke had no that no revealed she explained family in in She or friends the United States. purchase Spanish to that she had come to the United States Bogota. in- goods The customs her husband’s store in for city” recognized Bogota spectors for narcotics. as a “source mostly possessed Respondent bills, but in $5,000 cash, $50 inspectors that she had indicated to the had no billfold. She planned appointments but vendors, to merchandise no with visiting Angeles retail stores in Los taxicabs ride around buy goods Penney in order to and K-Mart such as J. C. $5,000. the her husband’s store with no hotel Respondent had reservations, she admitted that stay Holiday a planned Inn. to Re- she but stated that pur- spondent her airline tickеt how was not recall could opened inspectors respondent’s chased. When one small they changes valise found about four of “cold weather” cloth- ing. Respondent high-heeled had no other shoes than the pair wearing. Although possessed respondent she was no waybills, checks, cards, credit or letters credit, she did produce a Colombian business card and a number of old receipts, waybills, displayed photo fabric swatches album. point inspector suspected
At this Talamantes and the other respondent attempts was a swallower,” “balloon one who smuggle country narcotics into this hidden her ali- mentary years Inspector Over canal. Talamantes had apprehended alimentary smugglers arriving dozens of canal Flight App. on Avianca 080. See 42; United States v. (CA9 1983). Mendez-Jimenez, F. 2d inspectors requested inspector a female customs respondent private patdown take to a area and conduct a strip During inspector search. the search the female felt respondent’s abdomen area and noticed a firm if fullness, as respondent wearing girdle. were The search revealed no inspector respondent contraband, but noticed that wearing pairs underpants paper two elastic awith towel lining the crotch area. respondent
When to the returned customs area and the inspector rеported inspector female her discoveries, *4 charge respondent suspected smuggling told that he she was drugs alimentary Respondent agreed in her canal. to the inspector’s request x-rayed hospital that she be at a but in inspector’s query preg- answer to the stated that she was agreed pregnancy ray. nant. to a x She test before the Re- spondent ray withdrew the for an x consent when she learned hospital. that she have would to be handcuffed en the route to inspector gave respondent option returning then the of flight, agreeing ray, to the Colombiaon next to x available an remaining produced in detention until she a monitored inspectors’ bowel movement that would confirm or rebut the suspicions. Respondent option chose the first and was placed in a customs officeunder observation. She was told that if she to went the toilet she would have use a to waste- basket in the in restroom, women’s order that female cus- inspectors inspect toms could her stool for balloons or capsules carrying inspectors narcotics. The refused re- request spondent’s place telephone to a call.
Respondent sat the office, customs under observation, night. During night for the remainder of the customs attempted place respondent officials to on a Mexican airline flying Bogota City morning. that was to via Mexico in the transport respondent The airline refused to because she (cid:127) necessary City. lacked a Mexican visa land Mexico Re- spondent permitted leave, was and was informed that agreed ray she would detained until she to an x or her bowels moved. She remained detained in the customs office up under observation, for most of time in a curled chair leaning side. to one She refused all offers of and drink, food Appeals and refused to use the toilet facilities. The of Court symptoms noted that exhibited of she discomfort consistent with “heroic efforts to resist usual calls of nature.” 731 F. at 1371. 2d, change
At the at 4:00 o’clockthe afternoon, shift next al- flight respondent most 16 hours after her had still landed, partaken had not defecated or urinated or or drink. food sought At that time customs officials ing a court authoriz- order ray, pregnancy test, an x and a rectal examination. Magistrate just midnight an The Federal issued order before evening, which a rectal in- authorized examination and ray, voluntary provided physician charge x that the con- pregnancy. respondent’s Respondent claim sidered was hospital given pregnancy taken to a which later test, negative. preg- turned out to be nancy Before the results physician known, a a rectal ex- test were conducted respondent’s amination and removed from a balloon rectum foreign Respondent placed containing a then substance. *5 formally By respondent passed a. under arrest. 4:10 m. had days passed 6 similar over the next four balloons; she containing grams pure balloons hydrochloride. a total of 528 of 80% cocaine suppression hearing a After the District Court admitted against respondent. the cocaine evidence She was con- possession victed of of cocaine with intent distribute, 841(a)(1), § importation U. S. C. and unlawful cocaine, 960(a). §§952(a), S.U. C. panel Appeals
A
of the
divided
United States Court of
respondent’s
the Ninth Circuit reversed
convictions. The
inspectors
“justifiably high
court noted that customs
had
skepticism”
respondent’s good
level of official
about
motives,
inspectors
but the
decided to let nature take its course rather
magistrate’s
ray.
than seek an immediate
warrant for an x
magistrate’s
required
2d,
731 F.
at 1372.
Such
warrant
“plain suggestion”
a “clear indication” or
that the traveler
alimentary
smuggler
previous
was an
canal
under
decisions
Appeals.
of the Court of
See United
Quintero-
States v.
(CA9 1983);
Castro,
The Government contends that the customs rea- sonably suspected respondent alimentary was an canal smuggler, suspicion justify and this was sufficient to support judgment respondent In detention. of the below
537 argues, suspicion inter that sup- alia, reasonable would not respondent’s port any inspectors and in detention, event the reasonably suspect respondent did not carrying internally. narcotics
The Fourth Amendment commands that searches and sei
depends upon
zures be reasonable. What is reasonable
all
surrounding
of the circumstances
the search or seizure and
Jersey
the nature of the search or seizure itself. New
v.
(1985).
permissi
O.,
T. L.
469
325,
U. S.
337-342
bility
particular
practice
judged by
aof
law enforcement
is
“balancing its intrusion on the individual’s Fourth Amend
against
promotion
legitimate govern
ment interests
its
Villamonte-Marquez,
mental interests.” United
v.
States
(1983);
Here the seizure of took at the interna- founding Republic, Congress tional border. Since the of our granted plenary authority has the Executive to conduct rou- tine searches and seizures at thе border, without regulate cause or a warrant, order to the collection of prevent duties to the introduction of contraband into country. Ramsey, this See United 606, States U. S. (1977), citing July 616-617 1789, Act of ch. 5, Stat. 29. long recognized Congress’ power police This Court has to Boyd entrants at the border. See United (1886). recently: U. S. As we stated “‘Import persons pack- restrictions and searches of ages at the national border rest on different consid- erations and different rules constitutional from law regulations. gives domestic The Constitution Con- gress comprehensive powers regulate “[t]o broad foreign I, Commerce with Nations,” §8, Art. cl. 3. His- torically powers necessary pre- such broad have been smuggling prohibited prevent vent and to articles from entry.’” Ramsey, supra, quoting at 618-619, Film, 12 200-Ft. Reels States v.
Consistently, Congress’ power protect therefore, with by stopping examining persons entering the Nation this country, the Fourth Amendment’s balance of reasonableness qualitatively different at the international border than persons the interior. Routine searches of the and effects of *7 subject any requirement entrants are not of reasonable suspicion, probable cause, warrant,1 or and first-class mail may opened be without a warrant on less than cause, Ramsey, supra. may stopped Automotive travelers be at checkpoints fixed near the border -withoutindividualized sus- picion stоp largely ethnicity, even if the is based on United (1976), v. 428 U. 562-563 Martinez-Fuerte, 543, States S. and ready may boats on inland waters with access to the sea be suspicion hailed and boarded with no whatever. United Villamonte-Marquez, supra. v. States longstanding protection These cases reflect concern the integrity anything, the if is, of the border. This concern heightened by the veritable national crisis in law enforcement by smuggling caused of illicit narcotics, see United States v. Mendenhall, 544, J., 446 U. S. concur- (Powell, ring), particular by increasing in the utilization of alimen- tary smuggling. desperate practice appears canal This to be relatively smugglers’ repertoire recent addition to the deceptive practices, appears exceedingly and it also to be dif- Ramsey,
1 See United States
Almeida-Sanchez
616-619;
v.
U.
States,
(1973); id.,
v. United
(White,
J.,
413 U. S.
272-273
at 288
dis
States,
Carroll United
senting).
As the
stated in
v.
Court
267 U. S.
(1925):
may
stopped
crossing
boundary
“Travellers
be so
an international
protection reasonably requiring
entering
of national self
because
one
the
identify
country to
himself as entitled
belongings
to come
and his
as
may
lawfully brought
be
effects which
in.”
Congress
recognized
had
these difficulties.
ficult to detect.2
coming
§
provides
persons
into
that “all
Title U. S. C.
foreign
shall
liable to
from
countries
the United States
[by
regula-
authorized . . .
customs
detention and search
may
agents
“stop,
tions].”
search, and examine”
Customs
person”
susрects
any
upon
an
“vehicle,
or
which
officer
beast
subject to
which is
there is contraband
“merchandise
§§
§§
duty.”
162.6,
19 CFR
162.7
1467, 1481;
see also
§482;
sovereign’s
against
interests at the border
Balanced
respondent. Having
rights of
the Fourth Amendment
are
having
presented
admission,
border for
herself
powers
subjected
of the
to the criminal enforcement
herself
§
respondent was enti
Government,
19 U. S. C.
Federal
But
to be
from unreasonable search
seizure.
tled
free
only
expectation
privacy
less at
than
the border
g.,
e.
see,
Carroll v. United
interior,
DeMontoya,
(CA11 1984) (re
See United States
F. 2d 1369
States
condoms);
surgery;
100 cocaine-filled
quired
swallowed
*8
Pino,
1984)
(CA11
pel
surgery; 120 cocaine-filled
(required
We have
incoming
justify
purposes
an
would
a seizure of
traveler for
Ramsey,
than a routine border search. Cf.
other
U.
Appeals
13. The
held that
n.
Court
the initial de
only
respondent
permissible
inspectors
if
tention of
possessed
alimentary
smuggling.
a “clear indication” of
canal
citing
2d,
731 F.
States v. Quintero-Castro,
(CA9 1983);
3In that ease we stated: Fourth Amendment dignity privacy “The interests in human which body’s surface] on the protects any [beyond *9 mere fоrbid such intrusion the In the absence of a clear might chance that desired evidence be obtained. found, these fundamental in will be indication that fact such evidence the risk that such evidence require human interests law officers to suffer search.” immediate U. may disappear is an at unless there 769-770. evidence). (1985)(surgical In bullet for
759-763 removal of Appeals, with almost iden deed, another faced facts Court adopted strict standard based case, tical to this has a less Mosquera- upon suspicion. States v. reasonable See United 1984). (CA11 We do not Ramirez, 729 F. 2d emphasis upon reason think that Fourth Amendment’s verbal is with the creation a third ableness consistent suspicion” “probable to “reasonable and standard addition dealing requirement of cause”; we are with a constitutional Bailey, mens see States v. reasonableness, rea, not (1980), gradations and subtle 403-406 verbal provi may meaning than elucidate the of the obscure rather question. sion border, hold detention of a traveler at the
We that the beyond scope inspection, search of a routine customs agents, considering justified inception if all is its customs reasonably surrounding trip, her the facts the traveler and suspect smuggling that in her the traveler contraband alimentary canal.4 suspicion” applied in a standard has been “reasonable pri-
number of contexts and effects a needed balance between public must when vate and interests law enforcement officials probable It thus intrusion on less than cause. make limited smug- involving alimentary into canal fits well the situations gives type smuggling gling external at the this no border: rarely signs inspectors possess cause will stopping governmental yet interests search, arrest or high smuggling this stand- Under border are indeed. “particularized have a officials at the border must ard objective person” particular suspecting of ali- basis for the issues hold. Because what important It is also to note we do suspicion, if what level of on presented today suggest we no view are not strip, body-cavity, as such required searches any, is for nonroutine border have us decide the would involuntary x-ray parties searches. Both rights Amendment at the Fourth possess lesser of whether aliens issue court below and we do not in either border; question raised was not today. it consider
542 mentary smuggling. canal Cortez, United States v. 449 (1981); citing Terry id., 411, 418, U. at v. Ohio, S. (1968). 1, 21, n. 18 The facts, inferences, and their rational known customs clearly inspectors supported suspi in this case a reasonable respondent alimentary smuggler. cion that was an canal We including respondent’s implausible the facts, need belabor story, supported suspicion, supra, this see at 533- inspectors many 536. The trained customs had encountered alimentary smugglers certainly canal more had than unparticularized suspicion an “inchoate and ‘hunch,’” Terry, supra, respondent smuggling at 27, that was narcotics alimentary inspectors’ suspicion in her canal. The was a conclusio[n] upon “‘common-sense about human behavior’ ‘practical people,’ including government which officials, are — rely.” citing entitled to T. L. O., 346, 469 U. at supra. Cortez, States
The final in this issue case whether the detention of reasonably respondent scope related to the circum- justified initially. regard it stances which In this we have indulge cautioned that courts should not second-guessing,” in “unrealistic Sharpe, United States v. 675, (1985), judge[s], and we have noted that “creative en- gaged post police hoc of evaluations can conduct almost always imagine objec- some alternative means which the police might accomplished.” tives Id., have been “[t]he protection public fact 686-687. But that the of the might, accomplishedby abstract, have been ‘less intru- not, sive’ means does in itself, render the search unreason- citing Cady Id., 687, Dombrowski, able.” S.U. (1973). graduate Authorities must be allowed “to response any particular their to the demands situation.” v. Place, United States S. n. 10 U. respondent Here, was detained incommunicado almost inspectors sought warrant; hours before the warrant then procure, through apparent took a number hours no fault inspectors. length undoubtedly of the This of time excеeds any approved other detention we have under reasonable sus- picion. consistently rejected But we have also hard-and- *11 Sharpe, supra; supra, fast time limits, Place, n. 10. ordinary experience Instead, “common sense and human govern rigid Sharpe, supra, must over criteria.” at 685. rudimentary knowledge body The of the human which judges possess in commonwith the rest of humankind tells us alimentary smuggling that canal cannot be in detected illegal activity may amount of time in which other be investi- gated through Terry-type stops. presents brief It if few, any signs; quick external frisk will not do, nor will even a strip respondent inspectors search. In the case of had simply awaiting available, as an alternative to her bowel ray. They an x movement, offered her the alternative of submitting procedure. to that herself But when she refused inspectors only that alternative, the customs were left with practical two alternatives: detain her for such time as neces- sary suspicions, to confirm their a detention which would last longer typical Terry stop, much than the or turn her loose carrying reasonably suspected into the interior contra- drugs. band inspectors procedure. in this case followed this former
They expected respondent, having recently no doubt that flight disembarked from a 10-hour direct with a full and produce abdomen, stiff would bowel movement without - delay. extended But her visible efforts to resist the call of disappointed nature, “heroic,” which the court below labeled expectation in this turn caused her humiliation and dis- prior charge police comfort. Our delays cases have refused to with investigatory suspect’s detention attributable to the Sharpe, id., actions, 687-688; evasive see U. at 697 concurring judgment), principle J., (Marshall, Respondent applies responsible here as well. alone was much of the duration and discomfort of the seizure. circumstances, these we conclude that the deten-
Under unreasonably long. case was not It occurred tion this where the Fourth border, at the international Amendment heavily to the Government. At balance of interests leans merely have more than an in- border, customs officials They charged, vestigative law enforcement role. are also protecting along immigration with this Nation officials, with may bring anything harmful into from entrants who this country, diseases, narcotics, that be communicable whether §§1182(a)(23), 1182(a)(6), explosives. See 8 U. S. C. §§162.4-162.7 See also 19 U. S. C. 1222; 19 CFR 1103(a). § regard In 8 U. C. this the detention of a §482; S. alimentary smuggler suspected canal at the border is analo- suspected gous of a tuberculosis carrier at to the detention bodily processes until their the border: both are detained dis- *12 they agent pel suspicion that will introduce a harmful the into § country. pt. (1984); this 8 U. S. C. CFR 1222; Cf. §§482, S. 1582. U. C. Respondent’s long, uncomfortable, detention was indeed, length humiliating; its and its but both discomfort resulted solely by smuggle from the method which she chose to illicit country. drugs In Adams Williams, into this (1972), Terry-stop “[t]he case, another we said that require policeman Fourth Amendment does not who lacks necessary precise of information the level cause simply shrug to arrest to his shoulders and allow a crime to escape.” by Id., or a criminal to Here, occur 145. anal- ogy, presence suspicion smuggling in the of articulable alimentary required canal, her the customs officers were not by pass respondent the Fourth Amendment to and her into the cocaine-filled balloons interior. Her detention for period necessary verify dispel of time to either suspicion judgment was not unreasonable. The of the Court Appeals is therefore
Reversed. Justice Stevens, concurring the judgment.
If a seizure and a search of the person the kind disclosed this by record may be made on the basis of reasonable suspi- cion, we must assume that a significant number of innocent persons will be required similar undergo procedures. The rule announced in this case cannot, therefore, be supported on ground respondent’s prolonged humiliating deten- tion “resulted solely from the method which she chose to smuggle illicit drugs into this country.” Ante, at 544. detention prolonged of respondent was, however, jus- tified aby different choice that respondent she with- made; drew her consent to an x-ray examination that would have easily determined whether the reasonable suspicion that she was contraband concealing I justified. believe that cus- toms agents may require that nonpregnant person reason- ably suspected of this kind of submit to smuggling an x-ray examination as an incident to a border I search. therefore concur in the judgment.
Justice Brennan, with whom Justice Marshall joins, dissenting.
We confront a “disgusting and saddening episode” at our Nation’s border.1 after Shortly on midnight March 5, 1983, the respondent Rosa Elvira Montoya de Hernandez was de- tained by customs officers because she fit the profile of an “alimentary canal smuggler.”2 This did profile not of course give officers probable cause to believe that De Hernandez *13 1 Holtz, United (CA9 States 1973) 89, 479 F. 2d 94 (Ely, J., dissenting) (re disrobing “the by search of a woman United police”). States border 2Specifically, De paid Hernandez “had ticket, cash for her came from a port source embarcation, $5,000 carried in U. currency, S. had made many trips of short duration into States, the United had family no friends in only piece had one small luggage, had no reservations, confirmed hotel speak did not English, and said plan she was ning go to shopping using transportation.” taxis for 1369, 731 F. 1371, 2d (CA9 1984). n. 3 546 country, drugs smuggling but at most “reason- into the attempt. might engaged suspicion” in such an that she
able any thorough strip contra- failed to uncover search After go hospital agreed for an to to a local De Hernandez band, ray officers x the matter. When the to resolve abdominal ready away, approached her handcuffs at the to lead with began step- her chest and “she crossed her arms however, ping shaking negatively,” protesting: her head backwards going put to those on me. That is an insult to “You are my character.”3
Stymied in efforts, their the officers decided on an alter- they simply away lock De Hernandez native course: would adjacent peristaltic an manifest room “until her functions produced a monitored bowel movement.”4 The officers ex- plained to De could not Hernandez that she leave until she by squatting pursuant had excreted over a wastebasket to eyes attending the watchful of two matrons. De Hernandez responded: your degradation “I will not to submit and I’d away rather die.”5 She was locked with the matrons. up in De Hernandez remained locked the room for almost during hours. Three shifts of matrons came and went 2U this time. The room had no bed or couch on which she could only he, but hard chairs and a table. The matrons told her sleep if she wished to she could lie down on the hard, uncarpeted floor. De Hernandez instead “sat in her chair clutching purse,” “occasionally putting her her head down on nap.”6 simply wept table Most of the time she go pleaded repeatedly begged permis- “to home.”7 She my you doing “to call him sion husband and tell what are (Mendoza ¶ Declaration of Teodora A. Declaration), Mendoza App. (Serrato 58; Angel ¶ Declaration of Declaration), Jose Serrato App. 47. 2d, 18-20, 25, 731 F. App. 28, at 1371. See also 58. ¶ Serrato App. Declaration 48. Id. ¶ App. 48; ¶ Declaration of Morgan Marilee S. 3 (Morgan Dec laration), App. 49. (Gonzales ¶ Declaration of Jerome Gonzales Declaration), App. 55. id. ¶ App. See also 54. *14 Sobbing, insisted that she Permission was denied. me.”8 phone could talk to so that she “make a call home she had to everything all that was and to let them know her children again right.”9 In the matrons fact, denied. Permission highly en- that “each time someone it “unusual” considered pictures two small she would take out room, tered the search person.”10 the De children and show them to of her attorney contacted.11 demanded that her Hernandez also again, permission far as the outside was denied. As Once simply Hernandez had vanished. And knew, Rosa de world stripped although already and searched and she had been halfway through probed, the customs officers decided about safety repeat process the ensure her ordeal —“to again negative.”12 surveilling officers. The result was finally passed, had almost hours had someone After Magistrate presence and to of mind to consult a obtain body-cavity rayx a search.13 De a court ordеr for an 12, 5,¶ App. Morgan ¶ 47. also Declaration Declaration See Serrato App. 49. ¶ App. 55. Declaration Gonzales ¶ ¶4, 10 Morgan App. Declaration 49. See also Gonzales Declaration App. 54. 14, App. ¶ Declaration 47. Serrato Thereon, App. 64. Stipulation Re Trial and Order court order for an inspector initially suggested had that a
13 Acustoms obtained, supervisor vetoed the idea on the x-ray examination be but his (1) judicial policy to seek authorization grounds that it was not Government id., circumstances, 22-23, “they not have did sufficient in such order,” 2d, 731 P. at 1373. The support the issuance of the facts suggestion; again inspector hours later and reiterated his it called several elapsed supervisor until 16 hours had did the was denied. Ibid. Not begin obtaining App. eight 23. Another hours to consider a court order. passed got contacting Magis supervisor before the around to Federal trate, putting supervisor listening who under oath and to the after promptly telephonic proceed available order to with evidence issued x-ray 11, App. ¶ 40. See Kyle examination. Declaration of E. Windes id., 44-45; also n. infra. Magistrate’s cus- largely order the observations was based on See during officials of De detention. toms Hernandez’ behavior her concluded, As the Ninth the unlawful detention App. 42. Circuit because *15 “very agitated,” away Hernandez, handcuffed and led to hospital.14 рresence the A rectal examination disclosed the approximately of a cocaine-filled At balloon. on 3:15 the morning 6, of March almost 27 hours her initial deten after formally placed tion, De Hernandez was under arrest and rights. advised of her Miranda Over the of course the next days four she excreted total of a 88 balloons.
“[T]hat [respondent] degraded the so herself as to offend any questioned.”15 the of sensibilities decent is not citizen summary “[i]t That is not the issue we face. For is a fair of history say safeguards liberty frequently to that the of have forged involving very people.” been in controversies nice (1950)(Frank v. Rabinowitz, States dissenting). govern furter, J., we standards fashion ferreting guilty apply equally the out of the to the detention “may by of the innocent, and the exercised most unfit and by responsible.” ruthless officers as well as the fit and Bri negar (Jackson, v. United States, 338U. S. J., dissenting).16 Nor is issue whether there is a “veritable produced the “additional order, evidence” that was used obtain the implementing contraband discovered in the order was tainted and there- improperly 2d, fore introduced at De Hernandez’ trial. 731 F. at 1372. 14Morgan 9,¶ App. Declaration 50. Holtz, 2d, (Ely, J., United States v. F. dissenting). at 94 16Justice Brinegar: Jackson also in noted “We must remember any privilege that the extent of and sei- of search zure without sustain, apply warrant which interpret we the officers push too, themselves and will remember, tо the limit. that free- We must dom from rights unreasonable differs of the search from some of the other way Constitution in that citizen can there is no in which the innocent protection. invoke example, advance interference with any For effective press, usually requires freedom of the or a course speech, religion, free or suppressions against go to the court of which citizen often does can and injunction. impartial jury rights, and obtain an that to an Other such as counsel, power the aid of are of the courts them- supervisory within the taking private right just prop- compensation selves. Such a as for money. erty may be vindicated in after the act terms incident, single perpe- illegal usually “But an search and seizure beyond the haste, kept purposely court’s surprise, trated conducted by smuggling of enforcement caused crisis law national “[s]tern en is, at 538. There Ante, illicit narcotics.” healthy is the hallmark of criminal law forcement of the society.” Davis v. United self-confident (1946) (Frankfurter, dissenting). “But in our J., presupposes democracy a moral atmo enforcement such whereby intelligence upon sphere the effective and a reliance regard justice achieved with due can be administration of which the criminal law the use of civilized standards those Rights.” Bill Ibid. in our formulated are *16 simply Amend- this: Does the Fourth instead, is issue, The permit to be alien, citizen or traveler, international ment an in this case subjected that occurred of treatment to the sort nothing judicial on officer and based of a the sanction without low-ranking suspicion” investi- the “reasonable more than something might gative amiss? The Court be that officers grants such today Amendment Fourth that the concludes authority It sweeping customs officials. to and unmonitored particular permissibility “[t]he law enforce- of a that reasons by ‘balancing judged indi- practice intrusion on the its ment is promotion against its Amendment interests Fourth vidual’s The legitimate governmental at 537. Ante, interests.’” is goes of reasonableness that the “balance to assert on Court qualitatively that border,” international at the different may therefore in these circumstances seizures searches Ante, or a warrant. cause without conducted be may detained border at the Nation’s Thus a traveler 538. merely “reason- investigation authorities if the for criminal smuggling contraband.” ably suspect the traveler limits” for time no “hard-and-fast There are at 541. Ante, of officers moderation only by judgment supervision and limited There is in the search. at stake are often and records interests whose own intervention. appeal to disinterested injunction or opportunity no to undertake or the officers whatever to quietly to submit citizen’s choice is (dissent- S., at 182 338 U. violence.” or immediate of arrest resist at risk ing opinion). investigative dеtentions,
such because “‘common sense and ordinary experience govern rigid human must over crite- Applying 543. Ante, ria.’” this “reasonableness” test to “Respondent case, the instant the Court concludes that the responsible alone was for much of the duration and discom- fort of the seizure.” Ibid. Ap- takes somewhat different tack.
Justice Stevens parently convinced that the health effects of on x-irradiation beings human stand established as so minimal as to little be. low-ranking concern, cause for he believes that offi- customs may require nonpregnant cials on their own initiative inter- rays nothing national travelers to submit warrantless x on suspicion more than if such travelers wish to avoid inde- terminate warrantless detentions. Because De Hernandez proceed withdrew her consent handcuffs to an such prolonged respondent “[t]he examination, detention of justified.” (concurring judgment). . . . Ante, at 545 involuntary I dissent. Indefinite incommunicado deten- investigation” police tions “for are the hallmark of a state, society. g., Dunaway See, a free e. York, New (1979); (1975); Illinois, Brown v. S.U. Davis v. Mississippi, my opinion, 394 U. In S. 721 Govern- *17 may person ment officials no more confine a at the border purposes investiga- under such for circumstances of criminal they may country. tion than within the interior of the may nature and duration of the detention here well have been spoiled tolerable for animals, meat disеased but beings suspicion simple activity. human held on of criminal I such believe indefinite be detentions can “reasonable” under only approval magis- the Fourth Amendment with the of a given approval only I also trate. believe that such be can upon showing Finally, a I cause. believe probable-cause safeguards equally govern the warrant and proffered exposure alternative of to Justice Stevens’ criminal-investigative purposes. x-irradiation for
I Travelers at the national are border routinely subjected to and questioning, patdowns, searches of their thorough These belongings. measures, which involve lim- relatively ited invasions of privacy which are typically conducted on travelers, all do not incoming violate the Fourth Amendment the interests of “national given self protection reasonably one requiring entering country himself identify as entitled to come in, and his as belongings effects which may Carroll v. in.” lawfully brought U. S. (1925).17 132, 154 Individual travelers also may be singled out on “reasonable suspicion” and held for briefly further Terry Ohio, (1968).18 Cf. investigation. At however, some further point, such investigation involves severe intrusions on the values the Fourth Amendment pro- tects that more stringent safeguards are required. For example, length nature of a detention may, least when conducted for criminal-investigative purposes, ripen into something a full-scale approximating custodial arrest— indeed, arrestee, unlike the detainee cases such as this, is at least such basic given rights as a telephone Miranda call, bed, warnings, before prompt hearing the nearest federal an magistrate, appointed attorney, consideration In addition, of bail. border detentions may involve the of such use intrusive highly investigative tech- as niques body-cavity searches, x-ray searches, and stomach pumping.19 generally LaFave, §10.5, pp. 17 See 3 W. Search and Seizure 276-281 (1978) (LaFave). generally id. 10.5, § See at 281-286. id. generally 10.5, 286-295; Note, § See Bags Body From Cavi Search, (1974);
ties: The Law of Border Comment, Colum. L. Rev. 53 Desirable?, Intrusive Border Searches —Is Judicial Control 115 U. Pa. L. (1966); Note, Amendment, Rev. 276 Border Searches and the Fourth *18 (1968). Yale L. J. 1007 552 falling
I believe- that detentions and searches into these categories presumptively more intrusive are “reasonable” meaning only within the of the Fourth Amendment if author- by judicial “Though ized a officer. the Fourth Amendment broadly speaks of ‘unreasonable searches seizures/ part, of definition turns, ‘reasonableness’ at least on the specific of more commands the warrant clause.” United United Court, States v. (1972). States District 297, 407 U. S. point Amendment, “The of the Fourth which often is not by grasped officers, zealous not that is it denies law support enforcement the of the usual inferences which protection reasonable men draw from evidence. Its requiring by consists that those inferences be drawn a magistrate judged being neutral and detached instead of engaged competitive the officer in the often enter- prise ferreting right pri- of out crime. . . . When the vacy reasonably yield right must is, to the of search as a by judicial by police- to be rule, officer, decided government agent.” man or enforcement Johnson v. States, 10, United 333 U. S. 13-14 Accordingly, repeatedly emphasized the Court has that the Fourth Amendment’s Warrant Clause not mere “dead language” or a bothersome “inconvenience to be somehow ‘weighed’ against police efficiency. the claims of is, It important working part machinery should an be, of our government, operating as a matter of course to check the mistakenly ‘well-intentioned but overzealous executive offi- any part system cers’ are a who of law enforcement.” supra, United v. Court, States United States District at 315; (1971).20 Coolidge Hampshire, Newv. 443, U. S. 473-484 States, See Katz United v. Berger v. New (1967); York, Ohio, Beck 41, 57, (1967); S. (1964); U. U. S. 96-97 Wong (1963); Agnello Sun v. 481-482 *19 have, sure,
We
to be
held that executive officials need
prior judicial
exigent
not obtain
authorization where
cir-
impractical
cumstances
make such authorization
would
holding,
counterproductive.
In so
we have
however,
reaf-
general
police
rule
“the
must,
firmed the
that
whenever
practicable,
judicial approval
obtain advance
of searches and
through
procedure.” Terry
sеizures
the warrant
v. Ohio,
person
supra,
permissibly
at 20. And even where a
has
custody
warrant,
taken
without a
we
been
into
have held that
prompt probable-cause
by
magis-
a
determination
a detached
“prerequisite
trate is a constitutional
to extended restraint of
liberty following
Pugh,
arrest.” Gerstein v.
420 U.
103,
S.
(1975).21 Mallory
States,
Cf.
The Government contends, however, that because investi- gative detentions of the sort that occurred in this case need supported by probable required, not be cause, no warrant is given phraseology of the Fourth Amendment’s Warrant meaningful protection from unfounded Ger liberty.” interference with Pugh, stein 420 U. at 114. g., See, e. agree. §10.5, 22 Others (Ramsey LaFave at 325 offered only flimsy “a particularly explanation” and not satisfying refusing to apply requirement); Note, the warrant supra Rev., 19, Colum. L. n. 82-86; Comment, Rev., supra 19, 115 U. Pa. L. at 277. See also United n. Holtz, States 2d, (Ely, J., 479 F. dissenting); v. Blefare (CA9 1966) J., 362 F. 2d (Ely, dissenting).
Clause. See Brief for United States
n. 26.23 Even
assuming that border detentions and searches that become
lengthy
highly
supported
proba-
intrusive need not be
reasoning
squarely
but see Part
cause,
II, infra,
ble
this
runs
contrary
Court’s administrative-warrant cases. We
repeatedly
purpose
have
held that the Fourth Amendment’s
safeguarding
privacy
security
“the
of individuals
against arbitrary
by government
invasions
officials”is so fun-
require, except
carefully
damental as to
in “certain
defined
magistrate’s рrior
classes of
cases,”
authorization even
“[p]robable
where
cause
the criminal law sense is not re-
quired.”
Municipal Court,
Camara v.
387 U.
S.
(1967);
Barlow’s,
Marshall v.
436 U.
Inc.,
307, 312,
S.
applied
requirement
We have
this
to fire, health,
housing-code inspections,
Municipal Court,
Camara v.
(1967),
supra;
occupational
Seattle,
See v.
Something gone fundamentally awry in has our constitu- jurisprudence magis- tional when a neutral and detached may required trate’s authorization is before the authorities inspect plumbing, heating, gas, ventilation, “the and electri- provides: right people The Fourth Amendment “The of the to be houses, effects, persons, papers, against in their and secure unreasonable seizures, violated, issue, searches and shall not be and no Warrants shall cause, affirmation, upon probable supported by particu but Oath or searched, persons larly describing place things to be and the or to be seized.” rooms back home,24investigate in a person’s
cal systems” remains of his the charred through workplace, poke of his not before they him in hold indefinite may but garage, gutted investigate the Nation’s border at involuntary isolation No wrongdoing. criminal engaged he might whether those searches, conduct administrative than those who less at the border “should not duties investigative with charged constitutionally to utilize sensitive of when judges be the sole “unreviewed execu- tasks,” their because means pursuing to obtain too readily pressures may yield tive discretion invasions of and overlook potential evidence incriminating Id., at 317. And searches, unlike administrative privacy.” of indi- invasion[s]” limited “relatively involve typically which supra, Municipal Court, interests, Camara v. privacy vidual for “arbi- carry grave potential border searches 537, many enforcement officials interference trary oppressive individuals,” security personal privacy with Martinez-Fuerte, United States (1976); v. Ortiz, United States (1975); see also supra, v. United Almeida-Sanchez at 273-275. in this case—indefinite of De Hernandez’ detention conditions the outside room cut off from back squalid confinement have been amenities that would the absence of basic world, criminals, repeated the vilest of hardened to even provided — the conditions ways surpassed in many searches strip has previously the Court Although a full custodial arrest. involving for border searches a warrant require declined to mere from resulting “minor interference with privacy Martinez-Fuerte, States stop questioning,” supra, such between there is no 565, surely parallel *22 pri- personal invasion “minor” intrusions and the extreme such and searches that in detentions occurs vacy dignity that today. as before us Amendment: The Fourth the 24 LaFave, Administrative Searches 1, 19. Cases, Rev. 1967 S. Ct.
Camara and See Moreover, the available evidence that suggests the num ber of highly intrusive border searches of suspicious-looking but ultimately innocent travelers be may very One high. who at the physician of customs request officials conducted many “internal searches” —rectal and vaginal examinations and stomach that he had found contra pumping —estimated band in 15 to 20 only percent the he had exami persons ned.25 It has similarly been estimated that only percent of women to subjected searches at the body-cavity border were in fact found to be contraband.26 It carrying is pre to cisely minimize the risk of so innocent harassing many peo ple Fourth Amendment requires intervention of a judicial officer. e. See, v. New g., Coolidge Hampshire, 403 U. 481. And if even the warrant were safeguard somehow a mere inconvenient nuisance to be “‘weighed’ against the claims of ibid., police efficiency,” the Government points no unusual efficiency concerns that this suggesting safeguard should be overridden in the run of such intrusive border-search eases. there Certainly were no cir “exigent cumstances” the indefinite supporting warrantless detention here, and the Government’s interest proceeding expe could ditiously have been achieved by obtaining telephonic States, (CA9 Thompson v. United 1969); 411 F. 2d see also (CA9 1969). Morales v. 1298, 1300, 406 F. 2d n. Holtz, United States 2d, (Ely, J., dissenting) (citing 479 F. at 94 testimony congressional argu from hearings). suggested It was at oral experience ment that “with all government had in the interven has ing years increasing drug might with “a little more skill in traffic” there however, today.” are, published detection Tr. no Arg. of Oral 38. There statistics more recent than in text. It is of the information discussed demonstrating course the Government’s the reason burden to muster facts g., Royer, e. Florida investigative practices. See, ableness of its (plurality opinion). The Government advised the argument evidence respecting Court that it has recent statistical more x-ray subjected searches, the number of innocent are travelers who but did not in the record not disclose that evidence because “it’s and it’s not public.” Arg. Tr. of 23. Oral
558 procedure “ideally peculiar
search warrant —a suited to the ultimately needs of the customs authorities” and one that day in used this case a full after De Hernandez was first detained.27 supports require-
The Court its evasion warrant by analogizing Terry ment, however, to the line of cases authorizing suspicion. brief detentions based on reasonable argues apply It that no “hаrd-and-fast time in limits” can this “alimentary smuggling context because canal cannot be illegal activity detected in the amount of time in which other may investigated through Terry-type stops.” brief Ante, previously my proper at 543. scope I have set forth views on the Terry stops,28 repeat duration and need not those today. enough present purposes in views detail It is for today’s opinion extraordinary example note that is the most employ Terry to date of the Court’s studied effort to deci- converting sion as a means of the Fourth Amendment into general balancing process process “reasonableness” —a judicial apparently planted firmly “in which the thumb will be on the law enforcement side of the scales.” United States (1985) Sharpe, 675, v. 470 U. S. J., dissent- (Brennan, ing). previously emphasized Terry We have that allows the briefly investigation authorities to detain an individual for questioning, “any but that detention or search further must be based on consent or cause.” United States (1975) Brignoni-Ponce, (emphasis v. 873, U. S. 27 Note, supra Rev., 19, 85; 13, supra. 74 Colum. L. n. n. see however, argues, requirement “[a] Government warrant would be es pecially inappropriate suspect in this context because the would have to be detained while the officer obtained the warrant. . . .” Brief for United 29-30, Coming n. 26. in States from the Government a case which it is to defend a 27-hour seeking detention, expression purported this con rights simply cern travelers’ incredible. (1985) (dis g., 28 See, Sharpe, e. United States v. 470 U. S. (1983) Place, United States v. senting); (concurring Lawson, Kolender result); (concurring); result). Royer, supra, Florida (concurring at 509 added). Allowing Terry such warrantless detentions under *24 suggests might person that the suspi- authorities hold a on long get cooperate, cion for “however it takes” to him to or to transport him “legitimate” to the station where the state fully pursued, simply interests more can be to lock him away deciding “legitimate” while what the State’s interests require. flatly prohibits But the Fourth Amendment such upon personal security” “wholesale intrusions of individ- any application Terry by analogy permit uals, even such indefinite detentions “would threaten to swallow” the probable-cause safeguards. basic Dunaway and warrant v. New Mississippi, York, U. at S., 213; see Davis v. simply staggering U. at sug- S., 726.29 It is that the Court gests Terry begin that would even to sanction a 27-hour criminal-investigative occurring detention, even one at the border. argues, length
The Court however, that the and “discom- solely fort” of De Hernandez’ detention “resulted from the smuggle drugs method which she chose to illicit into this country,” speculates only and it that her “‘heroic’” efforts prevented being point. detention from brief and to the added). (emphasis Although Ante, at 544 we now know guilty smuggling drugs that De Hernandez was indeed internally, post place such hoc rationalizations have no in jurisprudence, our Fourth Amendment which demands that “prevent hindsight coloring we from the evaluation of the reasonableness of a search or seizure.” United States v. Martinez-Fuerte, U. at 565. See also Beck v. Ohio, 379 U. simply 89, S. At the time the authorities suspicion had, most, at a reasonable that De Hernandez Royer, See also Florida supra, (plurality opinion); 505-506 Illinois, Brown (1975) (“The impropriety of the arrest arrest, was obvious .... design execution, both in was investi gatory. The upon expedition detectives embarked this for evidence in the hope something might up. that turn The manner in which Brown’s arrest gives appearance was effected having been calculated to cause sur confusion”). prise, fright, and smuggling. might engaged Neither the of the in such law be supports petty gov- nature the notion that the law of land nor people require command; to excrete on officialscan ernment rudimentary- “[t]he on relies elsewhere indeed, Court sanctioning body” knowledge the “much human of the typical” longer such as this. of detentions than . . . duration respect it Court, to the is not And, with all Ante, at 543. predict second-guessing,’” ante, “‘unrealistic away in deten- locked incommunicado traveler, an innocent surroundings foreign might well land, in a tion unfamiliar “cooper- frightened as to unable so to and exhausted be so authorities.30 ate” with the *25 investiga appears that such further to believe
The Court premise practices on the that “reasonable,” however, are tive [is] “expectation privаcy less at the border of a traveler’s may well be so Ante, at 539. This in the interior.” than imag inspections, respect but I do not border to routine with law-abiding travelers have international ine that decent and they “expect” yet point to be thrown into where reached the wastebaskets, held to excrete into rooms and ordered locked away they cooperate, in handcuffs or led until incommunicado exposure proce hospital medical to various to the nearest suspicions nothing more than the “reasonable” on dures—all many agents. people low-ranking In fact, enforcement of precisely our borders to the world travel to around from investigatory escape executive discretion. unchecked such liberty in awaits them lesson American a curious first What argument: if an innocent observed at “What Hernandez’ counsel As De flight to excrete and they long had a was unable just have traveler because well, you agent said we wish position where a border a found themselves you’re carrying will be sure that not so that we command [on] to excrete person might unable to do that on internally. An innocent anything certainly efforts in that case. . . . It’s command, be heroic and it wouldn’t they anyway afraid because are who is nervous or person a possible that time, lengthy period of but to excrete for a be unable being confinеd would Arg. necessarily guilt.” evidence of Tr. of Oral 28-29. mean that wouldn’t Olmstead v. United States, on Cf. their arrival. 438, 485 (Brandeis, J., dissenting).31 I Finally, with Justice that De disagree Her Stevens nandez’ alternative “choice” of to submitting abdominal x-irradiation at the discretion of customs officials made this “justified.” Ante, detention at 545 (concurring judgment). x Medical of rays are course a common diagnostic technique; that exactly why there is a such debate the sharp among medical community concerning cellular and chromosomal x effects routine rebanee on rays, both from the per (it of individual health spective having been estimated that a routine medical x takes six off ray about life days person’s from the expectancy32) and of successive perspective genera tions. The “additivity” factor —the cumulative effect of x on an rays biological individual’s and genetic well-being— has been the subject particularly disturbing debate.33 31As I have in the analogous written context of searches children con ducted school authorities: petitioner attending police
“We do
know what class
when the
in,
dogs
burst
the lesson
school
taught
day
but
authorities
her that
undoubtedly
greater
will
impression
make
than
one her
teacher had
hoped
convey.
grant
petitioner
I
would
certiorari
teach
another les
right
son:
protects
people
‘[t]he
Fourth Amendment
of the
to be
effects,
persons, houses,
papers,
against
secure
their
unreasonable
expect
searches
seizures’....
Schools cannot
their students to learn
*26
good citizenship
of
lessons
when the school authorities themselves dis
regard
principles
our
underpinning
fundamental
constitutional free
Renfrow,
doms.” Doe v.
451
(dissenting
1027-1028
certiorari).
O.,
T.
Jersey
New
v. L.
S.,
of
from denial
See
469 U.
also
at
(Brennan,
(Stevens, J.,
dissenting); id.,
J.,
dissenting).
373-374
at
(as
1423(2)
§
naturalization,
person
Cf. 8 U. S. C.
a condition of
must
understanding
knowledge
history,
have “a
and
of the fundamentals of the
States”).
principles
form government,
and of the
of
of the United
Humans,
Ionizing
Gregg, Effects of
Radiations on
in 2
of
Handbook
1982).
(R.
Physics
Waggener
Medical
ed.
id.,
Cember,
generally
375-411;
at
H.
33 See
Introduction to Health
(2d
Physics
1983);
Department of
177-199
ed.
U.
Health and Human
S.
Drug Administration,
Service,
Services, Food
Public Health
Possible
(1980).
Damage
Diagnostic X
Genetic
from
Irradiation: A Review
my
gravamen
dispute
dangers
not the
But these
are
has concluded that med-
the Court
with Justice
Stevens;
may
immediately
practices
than this
more
intrusive
ical
far
employed
carefully
as a tool of
limited circumstances
investigation.
II De Hernandez’ detention violated the Fourth I believe that supported by it an additional reason: was Amendment for probable context, In a detention of the the domestic cause. only permissible if here would be there sort that occurred g., Hayes e. See, at the outset. cause were (1985);Dunaway New York, Florida, 470 U. S. Illinois, Brown v. U. 207-208, 212-216; S., atS.,U. Mississippi, Davis v. 394U. at 726-727. This 602, 605; *27 elementary safeguard govern same should border searches purposes investigation. out when carried criminal for of commonly sure, To be it is asserted that as a result of the exception” require- Fourth Amendment’s “border there is no investigations.34 ment of cause for such But the justifications exception necessarily for border limit its exception unquestioned breadth. derives from the paramount protection reasonably interest “national self requiring entering country identify one himself as may belongings in, entitled to come and his as effects which lawfully brought be in.” Carroll v. States, United S.,U. at 154. See also Almeida-Sanchez v. (border exception
413 U. at 272 is a reasonable condition “seeking borders”); for those to cross our United States v. (border 12 200-Ft. Reels Film, U. S. of exception prevent prohibited ais reasonable condition “to entry”). only Subject applicable articles from to the other Rights, guarantees the Bill of in “national this interest self-protection” plenary. Thus, notes, as Court a sus- may pected carrier detained at the tuberculosis be border testing entry. Ante, medical and treatment as a condition of may entry, sub- at 544. As a condition of the traveler be jected processing examinations, to exhaustive and his belongings may exacting I be scrutinized care.35 have with entry, as condition travelers that, no doubt as well may required appropriate to excrete their circumstances scrutiny diagnostic bodily for further and to submit wastes rays. x reasoning,
Contrary however, to the Court’s Govern- immigration carrying out such and customs functions ment simply does not have the two stark alternatives either forc- 34See, g., Ramsey, e. 606, 616, (1977); United States 10.5, § 3 LaFave at 276-295. seq., et § seq.; 8 U. S. C. 1181 et generally § § See 19 U. S. C. 232 seq. et
ing procedures allowing him a traveler to submit to such or to “pass Ante, . . . into the interior.” at 544. There is a third alternative: to instruct the traveler who refuses to submit to entry but of burdensome reasonable conditions that he is free country. turn around and leave the In I fact, believe that any requirement the “reasonableness” of burdensome entry necessarily potential is on the entrant’s conditioned country objects require- freedom to leave the if he to that Surely pre- ment. the manifest interest in Government’s venting potentially’ carrying potential excludable individuals crossing fully contraband from our borders is if vindicated voluntarily those individuals decided not to cross borders. not, This does of mean course, that such individuals are not fully subject to the criminal laws while on American soil. If probable they there is they may cause to believe law, have violated the just any person
be arrested like other within our suspicion” if borders. And there is “reasonable to believe they may engaged they may briefly be such violations, pursuant Terry investigation, subject detained for further governing Terry stops to the same limitations and conditions anywhere country.36 Terry suspicion else But if such promptly ripen does not into cause, such travelers given meaningful agree must be choice:either to further de- entry, country. tention as a condition of eventual or leave the disagrees. The Gоvernment We were ar- advised at oral gument “definitely” policy that it is the of customs authorities people, they’re reasonably suspected “not to allow such if drug smuggling, suspicion to return can be before that alien, checked out” and whether that, citizen, resident simply “[w]e go Tr. of Oral alien, would not let them back.” Arg. twi- 5, 48. The result is to sanction an authoritarian light suspicious-looking zone on traveler the border. The may country. may Instead, he not enter the he leave. Nor g., Place, e. Florida 707-710; United States See, S., 462 U. York, Dunaway v. New Royer, (plurality opinion); 460 U. at 499-500 210-216 trapped American soil, he is on on the border. Because
is powers subject fully enforcement “to the criminal he is citing 19 U. S. C. Ante, the Federal Government.” § notwithstanding he is soil, he on American 482. But Rights guarantees fully protected Bill of the country. applicable everywhere sure, To be else technically requirement will watered-down “reasonableness” govern itself to it will accommodate detentions, such but *29 autonomy privacy personal that would not for on assaults anywhere pass in else muster one moment constitutional open- surely provide grounds country for an and that would rights damages if civil action for violations of basic and-shut anywhere on the border. conducted but excep underlying premises Nothing of the “border in the ring supports authoritarianism sur such a of unbridled tion” rounding If the traveler does not wish to freedom’s soil. prolonged examinations, or intrusive consent to detentions fully immigration interests are the Nation’s customs way by sending If elsewhere. the traveler on his served propose to detain the traveler for authorities nevertheless investigation pos purposes subjecting him to criminal may only pursuant they punishment, do so arrest and sible everyone safeguards applicable in else constitutional Wong Wing country. S., 163 U. States, v. United See States, 362 U. Abel v. United 236-238; (Brennan, safeguards among the re dissenting).37 is those Chief J., actions, Tr. of Oral see now disavows those Although the Government arrange to have sought to apparently 5, 48, authorities Arg. the customs Colombia, concluded but or back to flown either to Mexico De Hernandez days. two See least flight for at to secure a not be able that she would 48; Declaration 17, App. ¶ Gonzales 28, 32; 18,22, Serrato Declaration App. if the Govern 8-10, Even App. ¶¶ 58. 55; 20, App. ¶ Mendoza Declaration that, the District Court as efforts, it is clear repudiated these ment had not during this exacting surveillance subjected to found, De Hernandez Id., arrest. at 37. possible investigation and criminal purposes of time for (“I if also that while she her told App. ¶ also Declaration See Serrato internally, she will be illegally anything custody, discharges if she is our quirement except present that, limited circumstances not only probable custodial detentions occur here, probable-cause on cause. The practical, standard rests on “a nontechnical conception affording compromise the best that has been accommodating” opposing” found for the “often interests of liberty. Brinegar law enforcement and individual v. United (Jackson, dissenting). States, S.,U. at 176 J., See also Jersey New v. T. L. O., 469 U. S. 361-362 (Bren dissenting). obviously J., That standard met, nan, simply by profiles, and was not met here, courier “common report, suspicion, ‘strong rumor or or even reason to sus pect.’” Henry v. United
Because the contraband this case was the fruit of the authorities’ indefinite detention of Rosa de Hernandez with judgment out cause I warrant, would affirm the Appeals reversing of the Court of for the Ninth Circuit her conviction.
Ill my opinion, allowing In the Government to hold someone involuntary, in indefinite, incommunicado isolation without *30 placed transported under jail arrest and to a ward and be unable to leave States”). the United argues The Government giving that option traveler the leaving country rather being than undergo lengthy forced to custodial criminal investigations suspicion based on mere an unsatisfactory “is alternative because it suspect escape apprehension would allow the to and return to repeat smuggling his day. addition, efforts another In approach this would remove a smuggling activity by disincentive to materially reducing apprehension the risk of prosecution.” 17-18, Brief for United States exactly n. 9. argument This is the same made whenever courts enforce safeguards Amendment, the Fourth and we consistently have constitutionally stressed that if permissible investigative stops do not promptly uncover support arrest, sufficient evidence to an the detainee must necessary be released as a consequence of liberty. constitutional g., Place, e. See, supra, United States v. 709-710; Royer, Florida v. at supra, (“the (plurality opinion) at 499 police [may verify not] seek to their suspicions by approach means that Dunaway arrest”); the conditions of York, supra, New 211-216; Brignoni-Ponce, United States 873, 881-882 judicial cause and a warrant violates our constitu- purpose tional charter whether the is to extract ransom or investigate suspected activity. Nothing criminal in the permits exception Fourth Amendment an for such actions at tempting, the Nation’s border. It is of course, to look the way graphically other in a case that so illustrates the “veri- by trafficking. table national crisis” caused narcotics Ante, enduring long if strug- at 538. But there is one lesson in the gle rights against society’s to balance individual need to against “[i]t easy defend itself it lawlessness, is that light scrupulous regard make of insistence on for the safe- guards of civil liberties when invoked on behalf of the unwor- thy. easy. History testimony It is too bears such disregard rights liberty extinguished, heedlessly are the stealthily, brazenly first, then in the end.” Davis v. (Frankfurter, dissenting). 328U. S., at 597 J., I dissent.