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UNITED STATES v. MONTOYA DE HERNANDEZ

decided: July 1, 1985.

UNITED STATES
v.
MONTOYA DE HERNANDEZ



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and O'connor, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 545. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 545.

Author: Rehnquist

[ 473 U.S. Page 532]

 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

[ 473 U.S. Page 533]

     canal, and was convicted after a bench trial of various federal narcotics offenses. A divided panel of the United States Court of Appeals for the Ninth Circuit reversed her convictions, holding that her detention violated the Fourth Amendment to the United States Constitution because the customs inspectors did not have a "clear indication" of alimentary canal smuggling at the time she was detained. 731 F.2d 1369 (1984). Because of a conflict in the decisions of the Courts of Appeals on this question and the importance of its resolution to the enforcement of customs laws, we granted certiorari. 469 U.S. 1188. We now reverse.

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

Respondent admitted that she had no hotel reservations, but stated that she planned to stay at a Holiday Inn. Respondent could not recall how her airline ticket was purchased.

[ 473 U.S. Page 534]

     When the inspectors opened respondent's one small valise they found about four changes of "cold weather" clothing. Respondent had no shoes other than the high-heeled pair she was wearing. Although respondent possessed no checks, waybills, credit cards, or letters of credit, she did produce a Colombian business card and a number of old receipts, waybills, and fabric swatches displayed in a photo album.

At this point Talamantes and the other inspector suspected that respondent was a "balloon swallower," one who attempts to smuggle narcotics into this country hidden in her alimentary canal. Over the years Inspector Talamantes had apprehended dozens of alimentary canal smugglers arriving on Avianca Flight 080. See App. 42; United States v. Mendez-Jimenez, 709 F.2d 1300, 1301 (CA9 1983).

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

When respondent returned to the customs area and the female inspector reported her discoveries, the inspector in charge told respondent that he suspected she was smuggling drugs in her alimentary canal. Respondent agreed to the inspector's request that she be x-rayed at a hospital but in answer to the inspector's query stated that she was pregnant. She agreed to a pregnancy test before the x ray. Respondent withdrew the consent for an x ray when she learned that she would have to be handcuffed en route to the hospital. The inspector then gave respondent the option of returning to Colombia on the next available flight, agreeing to an x ray, or remaining in detention until she produced a monitored bowel movement that would confirm or rebut the inspectors'

[ 473 U.S. Page 535]

     suspicions. Respondent chose the first option and was placed in a customs office under observation. She was told that if she went to the toilet she would have to use a wastebasket in the women's restroom, in order that female customs inspectors could inspect her stool for balloons or capsules carrying narcotics. The inspectors refused respondent's request to place a telephone call.

Respondent sat in the customs office, under observation, for the remainder of the night. During the night customs officials attempted to place respondent on a Mexican airline that was flying to Bogota via Mexico City in the morning. The airline refused to transport respondent because she lacked a Mexican visa necessary to land in Mexico City. Respondent was not permitted to leave, and was informed that she would be detained until she agreed to an x ray or her bowels moved. She remained detained in the customs office under observation, for most of the time curled up in a chair leaning to one side. She refused all offers of food and drink, and refused to use the toilet facilities. The Court of Appeals noted that she exhibited symptoms of discomfort consistent with "heroic efforts to resist the usual calls of nature." 731 F.2d, at 1371.

At the shift change at 4:00 o'clock the next afternoon, almost 16 hours after her flight had landed, respondent still had not defecated or urinated or partaken of food or drink. At that time customs officials sought a court order authorizing a pregnancy test, an x ray, and a rectal examination. The Federal Magistrate issued an order just before midnight that evening, which authorized a rectal examination and involuntary x ray, provided that the physician in charge considered respondent's claim of pregnancy. Respondent was taken to a hospital and given a pregnancy test, which later turned out to be negative. Before the results of the pregnancy test were known, a physician conducted a rectal examination and removed from respondent's rectum a balloon containing a foreign substance. Respondent was then placed

[ 473 U.S. Page 536]

     formally under arrest. By 4:10 a. m. respondent had passed 6 similar balloons; over the next four days she passed 88 balloons containing a total of 528 grams of 80% pure cocaine hydrochloride.

After a suppression hearing the District Court admitted the cocaine in evidence against respondent. She was convicted of possession of cocaine with intent to distribute, 21 U. S. C. § 841(a)(1), and unlawful importation of cocaine, 21 U. S. C. §§ 952(a), 960(a).

A divided panel of the United States Court of Appeals for the Ninth Circuit reversed respondent's convictions. The court noted that customs inspectors had a "justifiably high level of official skepticism" about respondent's good motives, but the inspectors decided to let nature take its course rather than seek an immediate magistrate's warrant for an x ray. 731 F.2d, at 1372. Such a magistrate's warrant required a "clear indication" or "plain suggestion" that the traveler was an alimentary canal smuggler under previous decisions of the Court of Appeals. See United States v. Quintero-Castro, 705 F.2d 1099 (CA9 1983); United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (CA9 1983); but cf. South Dakota v. Opperman, 428 U.S. 364, 370, n. 5 (1976). The court applied this required level of suspicion to respondent's case. The court questioned the "humanity" of the inspectors' decision to hold respondent until her bowels moved, knowing that she would suffer "many hours of humiliating discomfort" if she chose not to submit to the x-ray examination. The court concluded that under a "clear indication" standard "the evidence available to the customs officers when they decided to hold [respondent] for continued observation was insufficient to support the 16-hour detention." 731 F.2d, at 1373.

The Government contends that the customs inspectors reasonably suspected that respondent was an alimentary canal smuggler, and this suspicion was sufficient to justify the detention. In support of the judgment below respondent

[ 473 U.S. Page 537]

     argues, inter alia, that reasonable suspicion would not support respondent's detention, and in any event the inspectors did not reasonably suspect that respondent was carrying narcotics internally.

The Fourth Amendment commands that searches and seizures be reasonable. What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. New Jersey v. T.L.O., 469 U.S. 325, 337-342 (1985). The permissibility of a particular law enforcement practice is judged by "balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983); Delaware v. Prouse, 440 U.S. 648, 654 (1979); Camara v. Municipal Court, 387 U.S. 523 (1967).

Here the seizure of respondent took place at the international border. Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country. See United States v. Ramsey, 431 U.S. 606, 616-617 (1977), citing Act of July 31, 1789, ch. 5, 1 Stat. 29. This Court has long recognized Congress' power to police entrants at the border. See Boyd v. United States, 116 U.S. 616, 623 (1886). As we stated recently:

"'Import restrictions and searches of persons or packages at the national border rest on different considerations and different rules of constitutional law from domestic regulations. The Constitution gives Congress broad comprehensive powers "[to] regulate Commerce with foreign Nations," Art. I, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from

[ 473 U.S. Page 538]

     entry.'" Ramsey, supra, at 618-619, quoting United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 125 (1973).

Consistently, therefore, with Congress' power to protect the Nation by stopping and examining persons entering this country, the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant,*fn1 and first-class mail may be opened without a warrant on less than probable cause, Ramsey, supra. Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion even if the stop is based largely on ethnicity, United States v. Martinez-Fuerte, 428 U.S. 543, 562-563 (1976), and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever. United States v. Villamonte-Marquez, supra.

These cases reflect longstanding concern for the protection of the integrity of the border. This concern is, if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics, see United States v. Mendenhall, 446 U.S. 544, 561 (1980) (POWELL, J., concurring), and in particular by the increasing utilization of alimentary canal smuggling. This desperate practice appears to be a relatively recent addition to the smugglers' repertoire of deceptive practices, and it also appears to be exceedingly difficult

[ 473 U.S. Page 539]

     to detect.*fn2 Congress had recognized these difficulties. Title 19 U. S. C. § 1582 provides that "all persons coming into the United States from foreign countries shall be liable to detention and search authorized . . . [by customs regulations]." Customs agents may "stop, search, and examine" any "vehicle, beast or person" upon which an officer suspects there is contraband or "merchandise which is subject to duty." § 482; see also §§ 1467, 1481; 19 CFR §§ 162.6, 162.7 (1984).

Balanced against the sovereign's interests at the border are the Fourth Amendment rights of respondent. Having presented herself at the border for admission, and having subjected herself to the criminal enforcement powers of the Federal Government, 19 U. S. C. § 482, respondent was entitled to be free from unreasonable search and seizure. But not only is the expectation of privacy less at the border than in the interior, see, e. g., Carroll v. United States, 267 U.S. 132, 154

[ 473 U.S. Page 540]

     (1925); cf. Florida v. Royer, 460 U.S. 491, 515 (1983) (BLACKMUN, J., dissenting), the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border. Supra, at 538.

We have not previously decided what level of suspicion would justify a seizure of an incoming traveler for purposes other than a routine border search. Cf. Ramsey, 431 U.S., at 618, n. 13. The Court of Appeals held that the initial detention of respondent was permissible only if the inspectors possessed a "clear indication" of alimentary canal smuggling. 731 F.2d, at 1372, citing United States v. Quintero-Castro, 705 F.2d 1099 (CA9 1983); cf. United States v. Mendez-Jimenez, 709 F.2d 1300 (CA9 1983). This "clear indication" language comes from our opinion in Schmerber v. California, 384 U.S. 757 (1966), but we think that the Court of Appeals misapprehended the significance of that phrase in the context in which it was used in Schmerber.*fn3 The Court of Appeals viewed "clear indication" as an intermediate standard between "reasonable suspicion" and "probable cause." See Mendez-Jimenez, supra, at 1302. But we think that the words in Schmerber were used to indicate the necessity for particularized suspicion that the evidence sought might be found within the body of the individual, rather than as enunciating still a third Fourth Amendment threshold between "reasonable suspicion" and "probable cause."

No other court, including this one, has ever adopted Schmerber 's "clear indication" language as a Fourth Amendment standard. See, e. g., Winston ...


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