U.S. land border search authority.

The need to safeguard U.S. borders has drawn more attention recently than ever before. The law traditionally has recognized that significant public safety interests are at stake when it comes to safeguarding America's borders. This has translated into a unique body of law that permits the government to exercise broad search authority at the border to safeguard the public. This article discusses the contours of land border search law, including a discussion of the role the actual site of the search plays, whether the site is at the actual border, at the functional equivalent of the border, at the extended border, or during the course of roving border patrols.

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ACTUAL BORDER

The state of the law with respect to suspicionless searches conducted at actual, or "true," U.S. borders is the most straightforward and most easily understood. Such searches have been described as either exceptions to the Fourth Amendment's warrant and probable cause requirements (leaving them subject only to the amendment's reasonableness standard) or as a species of search wholly outside the Fourth Amendment. (1)

A true border search can be made without probable cause, without a warrant, and, indeed, without any articulable suspicion at all. (2) The only limitation on such a search is the Fourth Amendment stricture that it be conducted reasonably. Note that the reasonableness calculus is different at the border (i.e., looser) than it is inland. (3) Of course, the experience and training of law enforcement personnel must be the lens through which all of the facts giving rise to concern on the part of the officer or agent at the border are viewed. (4) The law has developed a sliding scale with regard to border searches--as the degree of intrusiveness increases, so does the requirement for indicia of suspicion.

Routine Border

When crossing the border into the United States, a traveler's luggage, conveyance, outer clothing, purse, wallet, and pockets are subject to suspicionless (i.e., routine) inspection. (5) When inspecting luggage, it is permissible as part of a routine search to scratch the exterior to determine if the luggage shell vibrates (lack of vibration would be abnormal), to flex the luggage exterior (lack of flex would be abnormal), and to heft the luggage to see whether it is equally weighted (unexplained weight might suggest a hidden compartment containing contraband). (6)

Pat Downs and Exposures

Pat downs and requests, for example, to raise a skirt to reveal an undergarment may be considered to fall--depending upon the circuit--somewhere between the suspicionless border search (7) and such nonroutine border examinations as strip and body cavity searches. (8) Therefore, these may require some level of suspicion, albeit minimal.

Nonroutine Border

Drilling/Destructive/Disruptive

Invasive measures designed to reveal the nature of the contents of a container, such as a suitcase or steel drum used for shipping materials, require some level of justification to comply with the Fourth Amendment. For example, drilling into the bottom of a traveler's bag because it had an unusual bottom is not a routine search and, therefore, requires reasonable suspicion. (9) Similarly, once reasonable suspicion arose, drilling into a vessel to reveal cocaine hidden in a secret compartment was a proper reasonable means of effectuating a border search. (10) Drilling into a metal cylinder arriving at an international airport in the United States, not a routine search, must be based upon reasonable suspicion. (11) Inserting a long, thin metal probe in the drain valve of an electrical transformer awaiting customs clearance has been held proper because the search was based upon reasonable suspicion. (12) In summary, at the border, reasonable suspicion justifies a full-scale search that employs reasonable means. (13)

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However, a nondestructive search taking only 1 to 2 hours at the border that involves only dismantling and reassembly, such as the removal, inspection, and reattachment of a vehicle gas tank (a reversible procedure that does not threaten vehicle safety or operation), requires no suspicion. In United States v. Flores-Montano, (14) an inspector tapped a station wagon gas tank, "noted that the tank sounded solid," and had a mechanic on contract with the U.S. Customs Service remove the tank. Conducting a search involving neither serious damage or destruction, the inspector then "hammered off bondo (a puttylike hardening substance used to seal openings) from the top of the gas tank[,] ... opened an access plate underneath the bondo and found 37 kilograms of marijuana bricks." (15) The Supreme Court ruled that under these circumstances, no level of suspicion is needed to justify the search inasmuch as it and others similarly conducted at the border are inherently "reasonable simply by virtue of the fact that they occur at the border." (16) Unfortunately, the Flores-Montano decision deliberately left unaddressed whether more invasive or lengthier searches, such as potentially destructive drilling, also can be conducted without any suspicion whatsoever. (17)

Similar to drilling for purposes of detecting the contents of a container, the relatively low reasonable suspicion standard is the level of proof required for involuntary x-rays, (18) except, perhaps, in the Ninth Circuit. (19) Indeed, it even can be argued that x-rays, particularly at airports, are routine. (20)

Strip

When a search more invasive than a routine inspection is conducted at the border, additional requirements are imposed. The degree of invasiveness visited upon the detainee must be weighed. (21) A strip search, for example, requires '"reasonable' or 'real' suspicion, directed specifically to [the] person[.]" (22) Note, however, that the continuing viability of the real (as opposed to reasonable) suspicion and other tests (discussed below) (23) developed by the Ninth Circuit are in serious doubt given the 1985 Supreme Court decision in United States v. Montoya de Hernandez, (24) which "rejected the Ninth Circuit's view that there exists a 'clear indication' standard, intermediate between 'reasonable suspicion' and 'probable cause,' applicable when a seizure of a traveler persists beyond a routine border search." (25)

Body cavity searches are the most intrusive and personal types of searches. Accordingly, a higher standard sometimes is imposed on the government to conduct such searches, whether they are conducted visually or by way of a physical examination. A visual examination of body cavities generally needs no more than reasonable suspicion, (26) although more is required in the Ninth Circuit--a clear indication or plain suggestion. (27) A physical body cavity inspection at the border also must be based upon reasonable suspicion (28) or, within the Ninth and Fifth Circuits, upon a clear indication that contraband is being hidden in a body cavity. (29)

Detention at the Border

Detaining someone at the border for a period longer than that necessary for a routine inspection is justified if based on reasonable suspicion that the would-be entrant, for example, is "smuggling contraband in her alimentary canal." (30) Once the decision is made to detain someone, the next issue becomes the length of time the person may be detained. There is no "bright-line" solution as each case is judged by its unique set of facts, and a determination whether continued detention is reasonable is reached in light of all of those facts. (31) Courts recognize that the time for which a suspect is held often is lengthened by the suspect's own behavior, which, in balloon-swallowing cases, can involve refusal to eat, drink, excrete, submit to x-rays, or take laxatives. (32) Many cases begin with detentions that ripen into arrests. When the entire restraint period is considered (periods of detention plus arrest), care must be taken to present the facts to a magistrate judge in a timely fashion. Failing to do so may result in motions for sanctions against the government. In one reported decision, a balloon-swallowing defendant argued that his detention actually had ripened into an arrest, that consequently he had not been provided "with the procedural protections required for warrantless arrests," and, therefore, his incriminating statements made after the "arrest" should be suppressed. (33) Although the appellate panel had no trouble dismissing the defendant's argument, (34) it established a rule applicable in the Fifth Circuit that when balloon swallowers are detained, the government "must seek a judicial determination, within a reasonable period, that reasonable suspicion exists to support the detention." This can be done, the court added, by making an ex parte presentation to a magistrate judge. If this is not done within 48 hours, the judges warned that the "burden" shifts "to the government to demonstrate a bona fide emergency or extraordinary circumstance justifying the lengthier delay." (35)

Mail

All mail arriving from overseas certainly may be opened without a warrant at the postal facility in the United States where it first arrives if there is reasonable cause to suspect its contents are being unlawfully introduced into the country. (36) Indeed, the Fourth Amendment permits the inspection of items crossing the border without any suspicion. (37) The area of the law with regard to mail crossing the border has been overlaid, however, with statutory and regulatory provisions, which seemingly provide additional protection to sealed letter class mail. In such cases, "reasonable cause to suspect the presence of ... contraband" (38) must be established. This standard is not difficult to meet. For example, little more than the recognition that the letter class mail originated from a drug source country establishes reasonable cause. (39) Some courts have bypassed the reasonable cause requirement by using a separate statutory provision that has no threshold proof requirement. (40) As the law in this area is confused, it is best to seek guidance from someone knowledgeable in the applicable circuit case law: "[T]he constitutional necessity of the statutory requirement of reasonable suspicion for a search of international mail is unsettled; many lower courts, however, have upheld spot-checks of international mail conducted without particularized suspicion." (41) Note that both the functional equivalent and extended search doctrines may apply to both incoming and outgoing mail or its substitute (e.g., commercial express mail). (42)

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FUNCTIONAL EQUIVALENT

"Under the 'functional equivalent' doctrine, routine border searches are constitutionally permissible at places other than actual borders where travelers frequently enter or exit the country." (43) Examples of functional equivalent borders include airports within the United States where international flights depart or first land (44) and at an "established station near the border, at a point marking the confluence of two or more roads that extend from the border." (45) Of course, this means that those traveling by vehicle "may be stopped at fixed checkpoints near the border without individualized suspicion even if the stop is based largely on ethnicity." (46) Additionally, "boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever." (47) The first point inside the United States where a ship arriving from outside the country docks is another example of a border functional equivalent. (48) The key feature of a border functional equivalent, then, is that it is "the first point at which an entrant may practically be detained." (49)

EXTENDED BORDER

"The extended border doctrine provides that non-routine border searches that occur near the border are deemed constitutionally permissible if reasonable under the Fourth Amendment," something which is determined by a three-part test, "whether 1) there is a reasonable certainty [or a high degree of probability] that a border crossing has occurred; 2) there is a reasonable certainty that no change in the condition of the luggage [i.e., the item or person to be examined] has occurred since the border crossing; and 3) there is a reasonable suspicion that criminal activity has occurred." (50) This three-part test becomes necessary in an extended border search context because it "entails greater intrusion on an entrant's legitimate expectation of privacy than does a search conducted at the border or its functional equivalent[.]" (51) What, however, is reasonable certainty? This is a proof threshold that lies between probable cause and beyond a reasonable doubt. (52) Regarding the second prong of the test, key to concluding whether or not there has been any change in the luggage, conveyance, or any other item, because it crossed the border are factors including "the time and distance from the original entry and the manner and extent of surveillance." (53) The signal characteristic that differentiates the extended border search from one conducted at the border's functional equivalent is that the first "takes place after the first point in time when the entity might have been stopped within the country." (54) Significantly, a proper extended border like a functional equivalent search may take place without either a warrant or probable cause.

ROVING PATROLS

By statute, the Immigration and Naturalization Service (INS) (55) has the power to search any vehicle located "within a reasonable distance from any external boundary of the United States" without a warrant. A reasonable distance is defined as "within 100 air miles from any external boundary of the United States." However, such a yardstick is not necessarily determinative. "It is clear, of course, that no Act of Congress can authorize a violation of the Constitution." (56) Despite the statute and regulation, the Supreme Court refused to condone a suspicionless Border Patrol vehicle search 25 air miles north of the border with Mexico that resulted from a roving patrol. Note that a roving patrol does not keep the suspect or suspect conveyance under nearly continuous surveillance from the point where the actual border was crossed. "In the absence of probable cause or consent, the search violated the ... Fourth Amendment right to be free of 'unreasonable searches and seizures.'" (57) The Court continued, quoting from one of its earlier opinions, that "those lawfully within the country, entitled to use the public highways, 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." (58)

Not only may searches away from the border or its functional/extended equivalent not be conducted absent probable cause or consent, neither may brief stops (59) be effected absent reasonable suspicion. In 1973, the Border Patrol stopped a car below San Clemente, California, and away from the U.S.-Mexican border solely because all three of its occupants "appeared" to be of "Mexican descent." (60) The government relied on the INS statutory and regulatory to support its position that it had the authority to stop vehicles in the border area solely for the purpose of determining whether the occupants were legally in the United States. As before, the Border Patrol was disappointed before the Supreme Court. Al-though recognizing the serious illegal immigrant problem along the southwest border, the Court nevertheless concluded that "[t]he Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." (61) The Court went on to expand its remarks, noting

    [e]xcept at the border and its functional equivalents, officers on
    roving patrol may stop vehicles only if they are aware of specific
    articulable facts, together with rational inferences from those
    facts, that reasonably warrant suspicion that the vehicles contain
    aliens who may be illegally in the country. (62)

In sum, away from the actual, functional equivalent, or extended border, traditional Fourth Amendment concepts apply to both searches and seizures. Put differently, so-called roving patrols enjoy no special Fourth Amendment treatment, nor do they fall under any special exception to the reasonableness requirement.

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BORDER SEARCH AUTHORITY

As a general rule, only those federal officers with customs or immigration enforcement authority, (63) or those acting under their supervision, may conduct border searches. Drug evidence uncovered by an FBI agent who was searching vehicles entering the United States from Mexico to determine if they were stolen was suppressed because he was not cloaked with statutory border search authority. Indeed, the government could not even make a

   claim that the FBI agent is a person 'authorized to board or search
   vessels' within Section 482 (64) or that customs authority has been
   delegated to him. The FBI agent surpassed his authority.... He acted
   for general law enforcement purposes, not for enforcement of customs
   laws[.] ... Congress and the courts have specifically narrowed the
   border searches to searches conducted by customs officials in
   enforcement of customs laws. (65)

Additionally, the FBI agent had not been acting in concert with customs officials (66) nor had the agent been cloaked with customs authority as, for example, by a cross-designation of customs powers. The Ninth Circuit has said statutes, such as the one granting customs officials their powers, "represent special designations of authority to them to conduct border searches. That authority also has been extended to immigration authorities and Coast Guard officials" (67) and, conspicuously by omission, to no other federal law enforcement personnel. The court added that

   Congress has given the authority to conduct border searches only
   to this limited group of officials and has charged them with the
   exclusive responsibility for inspecting goods and persons crossing
   the borders and for interdicting illegal entries. Searches conducted
   by other law enforcement agents are not considered border searches
   and must therefore meet the traditional demands of the Fourth
   Amendment. (68) If there is to be a delegation or cross-designation
   of, for example, customs authority, it will not be valid unless
   clearly made, such as by written agreement (69) or, if in the heat of
   an enforcement operation, verbally. (70) Delegations of federal
   customs authority may be made by designation to other than federal
   personnel, such as to state or local law enforcement personnel. (71)
   Personnel assisting and under the supervision of customs officials at
   the border, such as National Guard soldiers (72) or even
   nongovernment individuals, (73) may conduct border searches.

CONCLUSION

Border search authority is an important weapon in the law enforcement arsenal. However, to lawfully exercise such powers, a law enforcement officer must be acting under a clear delegation of authority or acting under the direction and supervision of federal agents who have such authority. Of course, benefits from this authority also may arise through close coordination of investigations and the sharing of information.

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Endnotes

(1) William E. Ringel, Searches & Seizures, Arrests and Confessions [section] 15.1 (Justin D. Franklin & Steven C. Bell 2d ed. Supp. 2003).

(2) United States v. Cardona, 769 F. 2d 625, 628 (9th Cir. 1985); United States v. Turner, 639 F. Supp. 982, 986 (E.D.N.Y. 1986).

(3) United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)("[T]he Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior" and "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." Id. at 539-40 (citations omitted)).

(4) United States v. Vega-Barvo, 729 F. 2d 1341, 1350 (11th Cir.), cert. denied, 469 U.S. 1088 (1984) ("Many of the factors supporting reasonable suspicion will seem innocent enough if evaluated independently and without the expertise of an experienced customs inspector.") But, what is reasonable suspicion? "A reasonable suspicion consists of a 'particularized and objective basis for suspecting the particular person' of smuggling." United States v. Oyekan, 786 F.2d 832, 836 (8th Cir. 1986)(citations omitted).

(5) United States v. Braks, 842 F.2d 509, 514 (1st Cir. 1988); United States v. Asbury, 586 F.2d 973, 975 (2d Cir. 1978); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment [section] 10.5(a) (3d ed. & Supp. 2004). Note that there are cases that suggest that some level of suspicion, albeit less than probable cause, is required for a routine border search, see, e.g., United States v. Bilir, 592 F.2d 735, 739 (4th Cir. 1979) (reasonable cause); United States v. Rodriguez-Gonzalez, 378 F.2d 256, 258 (9th Cir. 1967) (unsupported or mere suspicion). This view is, of course, incorrect and flies in the face of the primary reason why routine border searches are permitted, indeed, necessary: "the 'primordial' national interest in protecting the borders against violation by illegal importations." Bilir, 592 F.2d at 739 (citation omitted). Note, too, that border searches can be conducted with respect to persons and items (including mail) leaving the United States. United States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986) (citations omitted); Turner, 639 F. Supp. at 986.

(6) United States v. Johnson, 991 F.2d 1287, 1292-93 (7th Cir. 1993).

(7) "[E]xamination of a person by ordinary pat down or frisk, the requirement that outer garments, such as coat or jacket, hat or shoes be removed, that pockets, wallet or purse be emptied are part of the routine examination of a person's effects, which require no justification other than the person's decision to cross our national boundary." United States v. Ramos, 645 F.2d 318, 322 (5th Cir. 1981); Oyekan, 796 F.2d at 835 (pat down is "within the scope of routine customs practice unrestricted by the Fourth Amendment)(citations omitted); United States v. Aguebor, No. 98-4258, 1999 WL 5110, at *3 (4th Cir. Jan. 4, 1999)(unpublished); United States v. Carreon, 872 F.2d 1436, 1442 (10th Cir. 1989); United States v. Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir.), cert. denied, 469 U.S. 1088 (1984). But see United States v. Brown, No. 00 CR 407, 2000WL 33155619, at *4 (N.D. III, Dec. 8, 2000)(minimal level of suspicion present to conduct pat down "assuming that some heightened level of suspicion was required"); United States v. Vance, 62 F.3d 1152, 1156 (9th Cir. 1995)(pat down at border requires minimal suspicion)(citations omitted); United States v. Dorsey, 641 F.2d 1213 (7th Cir. 1981)(pat down is more than a routine search so some unspecified level of suspicion, depending on the facts of each case, is required).

(8) Pat downs and requests to reveal underclothing are routine border searches; body cavity and strip searches are not and, therefore, require reasonable suspicion before they may be conducted, Braks, 842 F.2d at 512-13.

(9) United States v. Aragon, 155 F.3d 561, 1998 WL 454085, at *2 (4th Cir. Jul. 28, 1998)(unpublished).

(10) United States v. Puig, 810 F.2d 1085, 1087 (11th Cir. 1987)(because reasonable suspicion existed, the Supreme Court elected not to pursue whether a lower suspicion standard would have sufficed to justify drilling); see also United States v. Moreno, 778 F.2d 719, 721 (11th Cir. 1985)(inserting probes into holes drilled by customs officials into vessel fuel tanks followed by use of electric saw to uncover hidden compartments proper given the existence of ample reason).

(11) United States v. Robles, 45 F.3d 1, 5 (1st Cir.), cert. denied, 514 U.S. 1043 (1995).

(12) United States v. Villabona-Garnica, 63 F.3d 1051, 1057 (11th Cir. 1995), cert, denied, 517 U.S. 1114 and 1126 (1996).

(13) United States v. Sarda-Villa, 760 F.2d 1232, 1237-38 (11th Cir. 1985)(use of ax and crowbar to pry up boat deck to reveal hidden compartment containing contraband was reasonable means and thus permissible procedure given presence of reasonable suspicion); Carreon, 872 F.2d at 1440-41 (use of drill on camper shell affixed to pickup truck was based on reasonable suspicion; evidence uncovered from hidden compartment held admissible).

(14) No. 02-1794, 2004 WL 609791 (U.S. Mar. 30, 2004).

(15) Id. at *2. Arguably, the tapping of the tank by the inspector provided him with reasonable suspicion.

(16) Id. at *3 (citation omitted).

(17) Id. at *4 n.2.

(18) Oyekan, 786 F.2d at 837; United States v. Mejia, 720 F.2d 1378, 1381-82 (5th Cir. 1983).

(19) United States v. Shreve, 697 F.2d 873, 874 (9th Cir. 1983); United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982)(as with body cavity search, clear indication or plain suggestion required); United States v. Quintero-Castro, 705 F.2d at 1100.

(20) Johnson, 991 F.2d at 1293 (contention that x-ray of suitcase at airport was nonroutine is "a proposition that we believe lacks merit").

(21) Vega-Barvo, 729 F.2d at 1346 ("[I]ndignity analysis pervades the border search cases throughout the other circuits.... We hold ... that personal indignity suffered by the individual searched controls the level of suspicion required to make the search reasonable. [W]e have isolated three factors which contribute to the personal indignity endured by the person searched: 1) physical contact between the searcher and the person searched; 2) exposure of intimate body parts; and 3) use of force.") After examining decisions by the Supreme Court, as well as by sister appellate courts, the First Circuit identified seven factors for determining the degree of search invasiveness in and around the border: "(i) whether the search results in the exposure of intimate body parts or requires the suspect to disrobe; (ii) whether physical contact between ... officials and the suspect occurs during the search; (iii) whether force is used to effect the search; (iv) whether the type of search exposes the suspect to pain or danger; (v) the overall manner in which the search is conducted: and (vi) whether the suspect's reasonable expectations of privacy, if any, are abrogated by the search." Braks, 842 F.2d at 512 (citations omitted).

(22) United States v. Aguebor, No. 98-4258, 1999 WL 5110, at *3 n.2 (4th Cir. Jan. 4, 1999) (unpublished)(Noting that the Supreme Court "flatly rejected" the clear indication test); United States v. Smith, 557 F.2d 1206, 1208 (5th Cir. 1977)(9th Cir. real suspicion test "expressly rejected" in favor of reasonable suspicion test); see also United States v. Adekunle, 980 F.2d 985, 987-88 (5th Cir. 1992), cert. denied. 508 U.S. 924 & 955(1993); Oyekan, 786 F.2d at 837 (reasonable suspicion required for strip search). For a discussion of the real versus reasonable suspicion standards used, respectively, by the Ninth and other circuits (including the Fifth) to justify a strip search, see Asbury, 586 F.2d at 976-77. Circumstances that factor into this real/reasonable suspicion analysis, according to the Asbury panel, include a) excessive nervousness; b) unusual conduct; c) informant's tip; d) computerized information showing "pertinent criminal propensities"; e) loose-fitting or bulky clothing; f) "an itinerary suggestive of wrongdoing"; g) whether incriminating evidence is discovered during the routine aspect of the search; h) no employment or a claim of self-employment; i) indications of drug use, such as needle marks; j) information obtained as a result of search/conduct of traveling companion; k) inadequate luggage; and l) evasive or contradictory responses. Asbury 586 F.2d at 976-77. Vance, 62 F.3d at 1156 (real suspicion required for strip search); Quintero-Castro, 705 F.2d 1099, 1100 (9th Cir. 1983)(same).

(23) The Ninth Circuit's clear indication or plain suggestion test, discussed infra with regard to body cavity searches, is similarly called into question.

(24) 437 U.S. 531 (U.S. 1985). See also the Ninth Circuit's own post-Montoya de Hernandez opinion, United States v. Gonzalez-Rincon, 36 F.3d 859, 864 (9th Cir. 1994)("Strip searches and body cavity searches ... must be supported by reasonable suspicion.").

(25) Oyekan, 786 F.2d at 836 (citation omitted).

(26) United States v. Himmelwright, 551 F.2d 991, 995 (5th Cir.), cert, denied. 434 U.S. 902 (1977).

(27) Henderson, 390 F.2d at 808. See also LaFave, supra note 5 at [section] 10.5(b). Reasonable suspicion sufficient to justify visual inspection of body cavity (vagina), Himmelwright, 551 F.2d at 995.

(28) United States v. Ogberaha, 771 F.2d 655, 658 (2d Cir, 1985), cert denied, 474 U.S. 1103 (1986)(reasonable suspicion contraband being concealed internally; invitation to adopt Ninth Circuit's clear indication standard, lying somewhere between reasonable suspicion and probable cause, rejected); United States v. Handy, 788 F.2d 1419, 1420-21 (9th Cir. 1986); Gonzalez-Rincon, 36 F.3d at 864.

(29) United States v. Mastberg, 503 F.2d 465, 471 (9th Cir. 1974); Quintero-Castro, 705 F.2d at 1100. See also United States v. Himmelwright, 406 F. Supp. 889, 892 (S.D. Fla. 1975), aff'd, 551 F.2d 991 (5th Cir.), cert, denied, 434 U.S. 902 (1977).

(30) Montoya de Hernandez, 473 U.S. at 541. The alimentary canal is the "mucous membrane-lined tube of the digestive system, extending from the mouth to the anus and including the pharynx, esophagus, stomach, and intestines." Webster's II New Riverside University Dictionary 92 (1988). The defendant in Montoya de Hernandez had swallowed 88 cocaine-filled balloons, which, after refusing to be x-rayed, she passed while detained by U.S. Customs for 16 hours prior to her arrest, a period that the Supreme Court said was reasonable under the circumstances. For other cases involving upheld detention periods of balloon-swallowing defendants, all post-Montoya de Hernandez, see United States v. Onumonu, 967 F.2d 782 (2d Cir. 1992)(83 condoms, x-ray refused, 4-day detention prior to arrest); United States v. Yakubu, 936 F.2d 936 (7th Cir. 1991)(82 balloons, x-ray refused, 20-hour detention period prior to arrest); United States v. Odofin, 929 F.2d 56 (2d Cir.), cert. denied, 502 U.S. 850 (1991)(at least four balloons, x-ray and effective laxatives refused, last 19 of 24-day detention under judicial supervision, first 5 were not); United States v. Esieke, 940 F.2d 29 (2d. Cir.), cert. denied, 502 U.S. 992 (1991)(63 balloons, x-ray refused, 3-day detention); United States v. Adekunle, 980 F.2d at 987-88 (defendants detained 2 days until first balloons excreted, then arrested; detention permitted until bowel movements); Oyekan, 786 F.2d at 836 (reasonable suspicion required to detain after initial, routine examination). Given their proximity to Mexico, the Fifth and Ninth Circuits receive a large number of balloon-swallower cases.

None too helpfully, the Supreme Court said in an aside that "[i]t is important to note what we do not hold. [W]e suggest no view on what level of suspicion, if any, is required for nonroutine border searches, such as strip, body cavity, or involuntary x-ray searches." Montoya de Hernandez, 473 U.S. at 541 n.l. As noted above, lower courts have filled in the gaps with regard to strip and body cavity searches.

(31) "We have said that border stops and searches must be reasonable and that what is reasonable will depend on all the facts of a particular case." Asbury, 586 F.2d at 976 (citation omitted).

(32) "Our prior cases have refused to charge police with delays in investigatory detention attributable to the suspect's evasive actions.... 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." Montoya de Hernandez, 473 U.S. at 543-44 (citations omitted). "We further note our deference to the expertise and 'common sense' of trained customs inspectors." Ogberaha, 771 F.2d at 658.

(33) United States v. Adekunle, 2 F.3d 559, 561 (5th Cir. 1993), revising previous opinion at 980 F.2d 985 (1992), cert. denied, 508 U.S. 924 & 955 (1993).

(34) "A defendant has no constitutional right to be arrested at the point when either he or the court deems that there is sufficient probable cause for his arrest. Law enforcement officials are 'not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect.' Such a requirement would punish the cautious officer who errs on the side of protecting a defendant's rights by requiring a stronger showing of probable cause that the court might deem necessary." Adekunle, 2 F.3d at 561 (citations omitted).

(35) Adekunle, 2 F.3d at 562 (citations omitted).

(36) United States v. Ramsey, 431 U.S. at 606, 611-12; 19 U.S.C. [section] 482(a); 19 C.F.R. [section] 145.3(a).

(37) Ramsey, 431 U.S. at 616-21.

(38) 19 C.F.R. [section] 145.3(a) (emphasis added). More fully, 19 C.F.R. [section] 145.3(a) provides that "Customs officers and employees may open and examine sealed letter class mail ... which appear to contain matter in addition to, or other than, correspondence, provided they have reasonable cause to suspect the presence of merchandise or contraband," (emphasis added).

(39) In United States v. Taghizadeh, 87 F.3d 287 (9th Cir. 1996), the fact that a package sent letter class from Turkey, a source country, coupled with the fact that it was addressed to a post office box satisfied this requirement. "[O]nce suspicion is triggered by source country origin, not much else is required to justify a search." Id. at 290. Sealed letter class mail is "letter class mail sealed against postal inspection by the sender." 19 C.F.R. [section] 145.1(c). And, what is letter class mail? It consists of "any mail article, including packages, post cards, and aerogrammes, mailed at the letter rate or equivalent class or category of postage." 19 C.F.R. [section] 145.1(b). For a list of factors contributing to or even establishing the presence of reasonable cause, see 43 Fed. Reg. 14,455-56 (1978).

(40) 19 U.S.C. [section] 1582 "The secretary of the treasury may prescribe regulations for the search of persons and baggage ...; and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the government under such regulations" (emphases added). See, e.g., United States v. Pringle, 576 F.2d 1114, 1116 (5th Cir. 1978)("We need not decide whether such [19 U.S.C. [section] 482] 'reasonable cause to suspect' existed in the present case, for we find this search justified by another section of the customs laws, 19 U.S.C.A. [section] 1582, and the regulations thereunder.... The courts have long held warrantless border scarches, including mail searches, reasonable, without 'probable cause' or any ground for 'suspicion.'"). But see DeVries v. Acree, 565 F.2d 577, 579 (9th Cir. 1977), overruled by United States v. Taghizadeh (Taghizadeh II), 41 F.3d 1263 (1994)("Nothing in either the language or the legislative history [of 19 U.S.C. [section] 1582] suggests that this statute was related to searches of international mail."). Taghizadeh II concerned the search of an incoming package containing opium from Turkey; the Ninth Circuit, in an en banc decision, determined that [section] 482 was inapplicable concluding that [section] 1582 applied and that it authorized suspicionless "customs searches of packages arriving at the border from a foreign country." Taghizadeh II, at 1265. However, in United States v. Taghizadeh (Taghizadeh III), 87 F.3d 287 (1996), the Ninth Circuit reached the tortured conclusion that the reasonable cause requirement of 19 C.F.R. [section] 145.3(a) was one of the regulatory provisions implementing 19 U.S.C. [section] 1582 and that reasonable cause applied in this case but that the facts established were sufficient to satisfy that standard.

(41) Ringel, supra note 1 at [section] 15.2(d) (citations omitted).

(42) Cardona, 769 F.2d at 629.

(43) United States v. Yang, 286 F.3d 940, 944 (7th Cir. 2002)(emphasis added, citation omitted)(nonstop flight from Laos and Tokyo, Japan, landed in the United States at Chicago's O'Hare Airport).

(44) Id.; see also United States v. Duncan, 693 F.2d 971, 976-77 (9th Cir. 1982), cert, denied, 461 U.S. 961 (1983)(defendant properly stopped by U.S. Customs after he left airline waiting area and was "proceeding up the ramp to board a plane bound for Bogota, Colombia.... It is enough that the passenger manifest a definite commitment to leave the United States and that the search occur in reasonable temporal and spatial proximity to the departure. [B]y checking his luggage, passing through the airline checkpoint, obtaining a boarding pass, and proceeding up the ramp [defendant] had manifested a definite commitment to leave the country" Id. at 977); Ramos, 645 F.2d at 320 (airport suspect had left customs area servicing deplaning international passengers and was not accosted until 30 minutes later in airport lobby after having checked in at airport hotel; held: functional equivalent of the border, a determination reached upon considering two factors: 1) degree to which traveler "has been assimilated into the mainstream of domestic activity" and 2) whether the weight of the evidence indicates that the seized contraband crossed the border) Id.; United States v. Palmer, 575 F.2d 721, 723 (9th Cir.), cert. denied, 439 U.S. 875 (1978)(suspect departed airport customs area and stopped at baggage claim, a location still considered to be at the border); Johnson, 991 F.2d at 1290; United States v. Ivey, 546 F.2d 139, 144 (5th Cir. 1977)(local Florida airport where private plane landed after flight from the Caribbean is border functional equivalent).

(45) United States v. Almeida-Sanchez, 413 U.S. 266, 272-73 (1973).

(46) Montoya de Hernandez, 473 U.S. at 538 (emphasis added; citation omitted).

(47) Id. (citation omitted); see 19 U.S.C. [section] 1467, which provides that "[w]henever a vessel from a foreign port or place ... arrives at a port or place in the United States ..., the appropriate customs officer for such port or place may ... for the purpose of assuring compliance with any law, regulation, or instruction ..., cause inspection, examination, and search to be made of the persons, baggage, and merchandise discharged or unladen from such vessel...."; see also 19 U.S.C. [section] 1581. Note further that 19 C.F.R. [section] 162.6 specifies in pertinent part that "[a]ll persons, baggage, and merchandise arriving in the customs territory of the United States from places outside thereof are liable to inspection and search by a customs officer." See also 19 C.F.R. [section] 162.3. Marine "border searches" are generally outside the scope of this article.

(48) United States v. Thomas, 257 F. Supp.2d 494, 497 (D. P.R. 2003)(search conducted in vicinity of the pier area of an arriving ship is a border functional equivalent); United States v. Victoria-Peguero, 920 F.2d 77, 80 (1st Cir. 1990), cert. denied, 500 U.S. 932 (1991)("courts have consistently recognized the constitutionality of warrantless searches at the functional equivalent of the sea border")(citations omitted); United States v. Gavira, 805 F.2d 1108 (2d Cir. 1986), cert. denied, 481 U.S. 1031 (1987)(site of extensive final customs inspection held to be border functional equivalent even though preliminary customs inspection had been conducted at initial point of entry; final destination 3-part test established to determine if search of bonded shipment constitutes border functional equivalent; 1) the search location "is the intended final destination of the goods; 2) the goods, upon arrival, remain under a customs bond until a final search is undertaken by [U.S.] Customs; and 3) there is no evidence that anyone has tampered with the goods while in transit," Id. at 1114; United States v. Moreno, 778 F.2d 719, 721 (11th Cir. 1985). A shipment under a customs bond/seal until the point of actual customs inspection is another example of a functional equivalent search, United States v. Sheikh, 654 F.2d 1057, 1069-70 (5th Cir. 1981), cert. denied, 455 U.S. 991 (1982); cf. United States v. Gallagher, 557 F.2d 1041 (4th Cir.), cert. denied, 434 U.S. 879 (1977).

(49) United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 511 U.S. 1134 (1994)(emphasis added).

(50) Yang, 286 F.3d at 945 (emphases added; citations omitted). Of course, one can substitute whatever "container" is at issue for the term luggage. See also United States v. Espinoza-Seanez, 862 F.2d 526, 531 (5th Cir. 1988). The third prong of the extended border test, reasonable suspicion of criminal activity, can arise from a number of factors, to include: "1) characteristics of the area in which the vehicle is encountered; 2) proximity to the border; 3) usual patterns of traffic on the road; 4) previous experience with alien traffic; 5) information about recent illegal crossings in the area; 6) behavior of the driver; 7) appearance of the vehicle; and 8) number, appearance, or behavior of passengers." Espinoza-Seanez, supra at 531; see also Cardenas, 9 F.3d at 1148; ef. Cardona, 769 F.2d at 629 (totality of circumstances test adopted for extended border searches)(citations omitted).

(51) Yang, 286 F.3d at 946 (defendant accosted after he had cleared international arrival terminal, his luggage having been x-rayed with negative results, and had traveled to a separate terminal via airport tram; second look, deemed proper as extended border search, uncovered opium-soaked clothing).

(52) Id. at 947 (citations omitted).

(53) Id. at 948 (citations omitted); see also United States v. Fogelman, 586 F.2d 337 (5th Cir. 1978)(extended border search permitted 254 miles and 20 hours from observed border crossing); United States v. Martinez, 481 F.2d 214 (5th Cir. 1973)(extended border search allowed 150 miles and 142 hours after border was crossed). "[C]ontinuous surveillance is not a requirement of an extended border search[.]" Cardenas, 9 F.3d at 1150, and thus a break in that surveillance is not fatal to the conduct of an extended border search. "The government is not required to negate every hypothetical possibility as to how the contraband may have been obtained subsequent to the border crossing. [T]he mere assertion by the defendant that there was the opportunity to obtain contraband after the border crossing is insufficient to controvert the facts established by the government." Id. at 1152, quoting from Ramos, 645 F.2d at 321 (30-minute break in surveillance does not defeat application of extended border search doctrine). Note that some courts may be confusing functional equivalent and extended border searches. "The 'functional equivalent' subcategory includes searches made at points inland of national borders under circumstances other than continuous surveillance that guarantee preservation of border-crossing conditions at the point of search. The underlying principle that permits them to be treated as border searches is thus the same as that for extended border searches. Courts may in fact be using the terms interchangeably." Bilir, 592 F.2d at 742 n.11.

(54) Cardenas, 9 F.3d at 1148 (original emphasis). There is one characteristic that routine border, border functional equivalent, and extended border searches all have in common: the person, conveyance, or item to be searched "brings the border with it to the point of the search." Id. at 1149 (internal quotation marks and citations omitted).

(55) INS enforcement functions have since been transferred to the U.S. Department of Homeland Security (DHS), and the statute has not yet been updated to reflect this change, 8 U.S.C. [section] 1357(a)(3). The Border Patrol now falls under the Bureau of Customs and Border Protection (CBP) at DHS.

(56) Almeida-Sanchez. 413 U.S. at 272 (1973); see also United States v. Brignoni-Ponce, 422 U.S. 873, 877-78 (1975), which quotes this provision from Almeida-Sanchez with approval.

(57) Id. at 273.

(58) Id. at 274-75, quoting from Carroll v. United States, 267 U.S. 132, 153-54 (1925).

(59) Terry v. Ohio, 392 U.S. 1 (1968).

(60) Brignoni-Ponce, 422 U.S. at 875.

(61) Brignoni-Ponce, supra note 56 at 878.

(62) Id. at 884. Helpfully, the Court provided a nonexclusive list of factors that could give rise to reasonable suspicion in the mind of an experienced immigration officer: 1) characteristics of the area in which they encounter a vehicle; 2) the vehicle's proximity to the border; 3) the usual patterns of traffic on the particular road; 4) previous experience with alien traffic; 5) recent illegal border crossings in the area; 6) the vehicle operator's driving behavior (evasive or erratic?); 7) size and configuration of the vehicle (can it easily smuggle aliens?); 8) whether the conveyance appears to be heavily loaded; 9) whether the conveyance is carrying a large number of passengers; 10) whether passengers make attempts to hide; and 11) the mode of dress and haircut typical of in-dividuals from foreign countries. Id. at 884-85.

(63) Historically, the Border Patrol could search only for illegal aliens at the border (and not for contraband) and U.S. Customs could search only for items entering the United States in violation of the customs laws. Now that both functions have merged into the CBP at DHS, this enforcement dichotomy is coming to an end as border protection officials are being cross-trained.

(64) 19 U.S.C. [section] 482. Besides being permitted to "board or search vessels," [section] 482 also allows authorized "officers or persons" to "stop, search, and examine ... any vehicle, beast, or person[.]"

(65) United States v. Soto-Soto, 598 F.2d 545, 549 (9th Cir. 1979)(marijuana found under the hood of a pickup that crossed border into the United States was suppressed; at time of discovery, FBI agent working at the border had been searching for vehicle identification number stamped on truck frame); Whiting, supra note 5 (evidence found in mail leaving the United States was suppressed because an Office of Export Enforcement agent of the U.S. Department of Commerce was not cloaked with customs border search authority).

(66) Id. at 550.

(67) Id. at 1136.

(68) Id. (original emphasis).

(69) "In order for a border search to be valid, it must be executed either by a person statutorily authorized to conduct border searches or by an individual who by delegation of authority is so empowered. Furthermore, the delegation of authority must be clear." United States v. Brown, 858 F. Supp. 297, 300 (D.P.R. 1994)(citations omitted).

(70) Victoria-Peguero, supra note 48.

(71) Id. (officers from both the Commonwealth of Puerto Rico Police Narcotics and Marine Divisions given radioed approval from U.S. Customs Service to make customs search at sea); see also 19 U.S.C. [section] 1401(i), which allows the designation of "any agent or other person" to "perform any duties of an officer of the [U.S.] Customs Service."

(72) People v. Villacrusis, 992 F.2d 886, 887 (9th Cir. 1993).

(73) United States v. Noriega, No. 98-50022, 1998 WL 515111, at *1 (9th Cir. Aug. 14, 1998) (unpublished)(gas station attendant removed tires containing contraband from vehicle at direction of customs inspector). Note that when body cavity searches are conducted, see supra notes 28 and 29 and accompanying text, customs officials regularly rely on physicians to assist them.

By M. Wesley Clark, J.D., LL.M.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.