UNITED STATES v. MONTOYA DE HERNANDEZ

Transcript: 

ORAL ARGUMENT OF ANDREW LEWIS FREY, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments first this morning in United States against de Hernandez.

Mr. Frey, you may proceed whenever you're ready.

Mr. Frey: Thank you, Mr. Chief Justice, and may it please the Court:

The issue in this case is whether Customs inspectors who possess a reasonable suspicion that a traveler at the border is carrying contraband in her alimentary canal must nevertheless allow that person and whatever she may be carrying to enter the United States if she is unwilling to consent to be X-rayed and if the facts known to the officers do not provide what the Ninth Circuit calls a clear indication or plain suggestion; that is, more than reasonable suspicion of smuggling.

Now, when respondent presented herself to Customs as part of the process for entering the United States, examination of her documents and questioning revealed a number of facts that caused the officers to suspect her of alimentary canal smuggling.

These included the following.

Respondent was coming from Colombia, a notorious source country for illicit drugs.

She had recently made a number of short trips to Miami and Los Angeles.

She spoke no English, had no family or friends in the United States, had no hotel reservations.

Her ticket had been purchased with cash.

She should not recall the circumstances of its purchase.

She was carrying $5,000 in cash on her person and a relatively small amount of luggage.

Finally, when questioned about the purpose of her trip, she said she was coming to buy merchandise for her husband's store in Colombia, which she proposed to do simply by taking a taxicab around to such retail stores as K-Mark and J.C. Penney's and buying goods off the shelf as it were.

Now, understandably suspicious, the examining inspector arranged for a patdown and strip search of respondent which, while disclosing an unusual arrangement of undergarments, provided no direct evidence of alimentary canal smuggling.

Respondent was then asked if she would consent to an abdominal X-ray to verify or dispel the suspicions, and while she initially consented, she thereafter withdrew her consent.

At this point the inspectors requested Customs Agent Windes permission to seek a court order for the X-ray.

He declined to do so, and he instead instructed the inspectors to offer respondent the options of returning to Colombia on the next available flight, consenting to an X-ray, or being detained until her body wastes could be examined.

She opted to return to Colombia, but as the next flight was many hours away, she was detained in a room at the airport under constant observation of the Customs officers while awaiting her flight.

Unidentified Justice: Mr. Frey, your brief I think suggests that there may have been a flight to Mexico that was cancelled or something?

Mr. Frey: There was an effort made to put her on a LAXA flight which would have involved a connection in Mexico City, but because she didn't have a visa--

Unidentified Justice: That evening?

Mr. Frey: --Sometime during the period of detention.

I'm not... I don't know that the record indicates when it was.

I should make it clear that these instructions from the agent that she should be allowed to return were not consistent with Customs policy, and that it is the policy of Customs not to allow such people, if they're reasonably suspected of drug smuggling, to return before that suspicion can be checked out.

Unidentified Justice: By the time of these inquiries and discussions she was in the jurisdiction of the United States, was she not?

Mr. Frey: Well, she had not technically entered the United States.

She was at the border, during the entire time of this incident prior to the--

Unidentified Justice: On whose physical territory were her feet resting?

Mr. Frey: --It was part of the United States, but for Immigration or Customs purposes she had not, in our view, yet entered.

Unidentified Justice: Not completed an entry.

Mr. Frey: But she was in the United States.

She--

Unidentified Justice: She was within the borders of the United States.

Mr. Frey: --That's correct.

And if she had drugs in her person... on her, in her body, she was guilty of a criminal offense as well as a civil violation of the Customs laws.

In any event, over the next 15 hours or so respondent refused to eat or drink, would not go to the bathroom, and exhibited what the court of appeals majority subsequently described as, and I quote,

"symptoms of discomfort suspected to arise out of or at least consistent with heroic efforts to resist the usual calls of nature."

At this point, based on what was known before together with respondent's behavior during the period of detention, it was decided to seek a court order authorizing medical personnel to conduct an X-ray or body cavity examination to determine whether respondent was carrying drugs, and a court order was eventually issued.

And I'm going to call the Court's attention to a caveat that was contained in the order.

Respondent had asserted that she was pregnant.

The order said that the X-ray and body cavity search is to be conducted only after a medical doctor has approved the use of the X-ray and body cavity search as appropriate.

Unidentified Justice: What page is that?

Mr. Frey: This is page 45 of the Joint Appendix.

As appropriate for the defendant and only after a doctor has considered the defendant's claim that she was pregnant.

After the order issued, respondent was taken to a hospital and there a rectal examination disclosed a balloon containing cocaine.

She was then arrested, and over the next few days she excreted 88 balloons containing more than one-half a kilogram of cocaine.

Respondent moved in district court to suppress the cocaine on the ground that at the time the initial examination and strip search were completed, Customs did not possess a clear indication or plain suggestion of alimentary canal smuggling--

Unidentified Justice: Mr. Frey, is this clear indication or plain indication, is that somewhere between reasonable suspicion and probable cause?

Mr. Frey: --That is how the court of appeals has described it, as less than probable cause.

Unidentified Justice: So it's a third standard really.

Mr. Frey: It's an intermediate level of suspicion in between.

Although in reading the Ninth Circuit's cases they seem to suggest that certain kinds of evidence are necessary for a clear indication or plain suggestion; that is, not just a wildly implausible story and the various other what you might call profile indicia, but something such as an unusual gait or possession of lubricants or laxatives or other--

Unidentified Justice: The words came from Schmerber, didn't they?

Mr. Frey: --The words came from Schmerber, but as we explain, and as I think you made clear in your opinion for the Court in Winston against Lee, they were not referring there to some intermediate level of suspicion between reasonable suspicion and probable cause.

They were used in the context of rejecting the argument that the blood search in Schmerber could be incident to arrest, and indicating that there had to be a clear indication that the blood itself would produce--

Unidentified Justice: And the Ninth Circuit didn't have Winston and Lee when they decided this case.

Mr. Frey: --It did not, and--

Unidentified Justice: Mr. Frey, does any other court to your knowledge follow the clear indication standard?

Mr. Frey: --No other to my knowledge.

Indeed, the Fifth and Eleventh Circuits have both indicated that for X-ray searches, reasonable suspicion is the standard.

Unidentified Justice: Do you think the same standard should govern in the border detention issues for citizens as should govern the standard for aliens?

Mr. Frey: Well, we think that what was done here could permissibly be done either to a citizen or an alien, but we are quite clear that the Fourth Amendment vests no right in aliens to gain admission into the country if the statutes and regulations on that subject bar their admission under particular circumstances.

Unidentified Justice: But you're not arguing the case on the basis of the Haitian refugee type approach that would just let the Attorney General detain an alien under that kind of an argument.

You're asking us, I take it, to decide the case on the basis of a standard that would be equally applicable to citizens; is that right?

Mr. Frey: That is our initial submission.

However, if on the basis of that standard you're unable to agree with our submission, then we are asking you to hold... it's different from the Haitian case, because we're not talking here about indefinite detention.

We're talking here about a limited detention in connection with potential exclusion of the person as an excludable alien, and in this case they would be sent back if there were no evidence or if the matter were not expeditiously resolved.

This is not a matter of holding people for months or--

Unidentified Justice: Do you think that the government is required to offer the alternative of an X-ray to someone as a means of avoiding such lengthy detention in these cases?

Mr. Frey: --Well, if you were dealing with a citizen, you would have to look at the reasonableness of the way in which the government proceeded; and I think a court could conclude that the detention was not reasonable if the X-ray was not offered.

But it is our standard practice to offer an X-ray and to give the individual a choice.

In fact, I think there's some preference for an X-ray because it's more--

Unidentified Justice: Do you think that makes it more reasonable, that the choice is offered?

Mr. Frey: --I think it makes it... I think it would be reasonable anyway.

I think it makes it a lot more reasonable, yes.

Now, I was saying that in the district court respondent's argument was that reasonable suspicion is not enough.

You need this clear indication or plain suggestion.

And that since that developed only during the period of detention subsequent to the time of the strip search, that additional information could not be considered, and the ultimate search was a fruit of the illegal detention.

The district court denied the suppression motion, finding that the officers had what it called a very substantial suspicion that respondent was smuggling narcotics and that the detention was justified.

The court of appeals reversed.

Now, it acknowledged that the officers had a strong suspicion, and I'm quoting, of body smuggling.

They said that respondent

"possessed almost all of the indicators."

used to identify drug couriers.

But it held that nevertheless, she had to be allowed to enter the country in the absence of evidence satisfying the higher standard.

So as far as the court of appeals was concerned, they didn't have enough evidence, even though she was an alien, which was not an issue that the court of appeals addressed, they had to just let her into the country under the Fourth Amendment.

Now, let me begin the legal discussion by mentioning a couple of matters that are not in issue here.

First of all, I don't understand respondent to dispute that at the time the court order was obtained, a valid basis existed for an X-ray or body cavity search, nor do I understand her to dispute that reasonable suspicion would suffice to support an examination of her body wastes.

Her argument rather is solely that information crucial to support the ultimate search was a product of an illegal detention.

We, on the other hand, do not suggest that an X-ray or a detention of this duration would be permissible away from the border on less than probable cause.

This case involves the border.

It does not involve general principles that apply within the United States.

So the issue is whether it is reasonable for Customs to say to a reasonably suspected alimentary canal smuggler we will not let you into the country until our suspicion is confirmed or dispelled.

You have the choice of an X-ray or being detained until we are able to examine your body wastes.

According to respondent and the court of appeals, the Fourth Amendment prohibits such action even though reasonable suspicion exists.

Now, the limited application of the Fourth Amendment at the border is too well settled to require much elaboration.

The Court summed it up in the Ramsey case where it said that

"Searches made at the border pursuant to the longstanding right of a sovereign to protect itself by stopping and examining persons and property crossing into the country are reasonable simply by virtue of the fact that they occur at the border, should by now require no extended demonstration."

The Court had a footnote in Ramsey that suggested that maybe the manner of carrying out a particular search would have to be reasonable under the Fourth Amendment.

So it's clear at least that no warrant is required, no probable cause is required for searches at the border.

It's also clear that the statutory structure, going back to the earliest days of the Republic, authorizes detentions as well as seizures and searches at the border.

Now, the courts of appeals, however, in recent years have developed a doctrine in the particular area of searches of the body of a traveler arriving at the border.

They have held that certain types of searches are sufficiently intrusive into personal dignity or privacy that they should not be based solely on a random basis or purely subjective suspicion, because they require a reasonable suspicion of smuggling in order to be justified.

Now, we don't quarrel here with the general proposition that reasonable suspicion is required, because of course we contend and both courts below held that there clearly was reasonable suspicion in this case.

Our problem is with the Ninth Circuit's additional requirement in the case of X-ray searches, and as here a detention in lieu of an X-ray search, for something more than reasonable suspicion.

Now, it's important to understand the devastating effect of the Ninth Circuit's rule on the ability of the Customs Service to prevent alimentary canal smuggling.

This kind of smuggling gives no external signs, unlike what's called body cavity smuggling where there will often be an awkward gait or where a strip search will actually reveal some physical indication of smuggling in the body cavities.

An alimentary canal smuggler looks to all outward appearances perfectly normal.

So the basis on which Customs can develop a suspicion has to be the kind of thing that was present here, and the fact of the matter is that because alimentary canal smuggling is so... it's potentially fatal if these balloons rupture, it is a very dangerous undertaking, and ordinarily the people who are recruited to do it are poor farmers for whom the money is an irresistable appeal, and that does make it somewhat easier to detect them than if you had an American businessman, let's say, engaging in that kind of smuggling.

Now, because there are no external signs and because you only have the kind of suspicion that you can develop from questioning and looking at the circumstances of the travel, it is not clear whether we could ever satisfy the Ninth Circuit's requirement of clear indication or plain suggestion in the vast majority of alimentary canal smuggling cases.

So that when we have a suspicion based on factors like this, Customs has the choices of having an X-ray, which will ordinarily reveal the truth of the matter, or examining body wastes.

Now, normally people are not forced to have X-rays.

In the Ninth Circuit subsequent to the cases that required clear indication of X-rays and at this time it was the practice of Customs to apply for a court order before doing an X-ray, as the Ninth Circuit had encouraged, and only to do so where they had these additional factors.

So if you don't take an X-ray, your alternative is to hold the person, and you can't examine the body wastes until they're released; and that is largely in the control of the individual, and therefore, the detention can be, as it was in this case, fairly extended.

Now, you will doubtless hear from my friend about the long hours of humiliating discomfort that respondent suffered as a result of the detention in this case, and certainly it was regrettable that that happened.

But our point is that this was largely her doing and largely a matter within her control.

She could have agreed to an X-ray, or she could at least have refrained from her heroic efforts that the Ninth Circuit described.

In addition, generic in this detention situation is that the longer the detention goes on, the more the suspicion builds where the person refuses food and drink, refuses to go to the bathroom and so on.

So during this entire period, obviously the Customs agents were becoming increasingly suspicious of respondent and having an increasing basis for believing that she was an alimentary canal smuggler.

So given the limited liberty and privacy interests that a traveler at the border has, we submit that it's entirely reasonable under the Fourth Amendment to require a reasonably suspected alimentary canal smuggler to make the choice to which respondent was put.

What is entirely unreasonable, in our view, is the Ninth Circuit's holding that we had to release such a person into the country before we were able to determine whether we were also allowing illegal drugs into the country at the same time.

Now, if I can come back for just a minute to the point that Justice O'Connor asked me about earlier.

Whatever you may think about my argument so far in the context of a citizen or even a resident alien seeking to return to his home in the United States, the Ninth Circuit's restriction on the detention of a nonresident alien at the border is completely untenable, because such people have greatly reduced rights of both privacy and liberty at the border in terms of entry into the country.

Now, there are a number of statutes that you can look at in defining, because after all, what we are talking about here is balancing the governmental regulatory interest against the expectations of privacy and liberty that society accords people in the border context.

And in the border context, for aliens coming on a visitor's visa, the expectations are greatly reduced.

In fact, Section 1225(b) of Title 8 says that every alien who may not appear to the examining officer to be clearly and beyond a doubt entitled to enter shall be detained for further inquiry.

Moreover, such an alien must be excluded from the country if Immigration officials know or have reason to believe that the alien is an illicit trafficker of narcotics.

Finally, they pointed out that there are statutes providing for the medical examination of aliens at the border.

Now, I don't think that statute was enacted with this particular exclusion, the 823 exclusion for narcotics trafficking, in mind.

The point that we are making principally about this complex of statutes is that the Ninth Circuit can't be right in saying that the Fourth Amendment confers upon an alien at the border the right to be admitted into the United States.

Unidentified Justice: Mr. Frey, can I ask you one question?

To what extent is there an established procedure of which an incoming traveler might possibly have notice that there may be a request to submit to an X-ray examination in a case of this kind?

Has it been publicized sufficiently so that one could say that it's something that a traveler might--

Mr. Frey: Well, I don't... I doubt that we publicize it very much in Colombia.

I mean we--

Unidentified Justice: --Or even in the federal regulation.

How long has the procedure been followed?

Maybe I should ask it that way.

Mr. Frey: --Well, as far as I am aware, the instructions for dealing with the X-ray situation are contained in manuals that are not published, that are issued to Customs agents in the various regions.

And, in fact, these manuals vary in what they instruct the agents to do depending on the region and the law.

The manuals are different in the Ninth Circuit from what they are in the Eleventh Circuit.

Unidentified Justice: Has there ever been any objection to the intrusiveness of the X-ray procedure itself other than the possible risk to a pregnant person?

I mean is it just an external X-ray?

You don't have to put in an dye or anything of that kind to make it--

Mr. Frey: That is my belief, that it is just a normal abdominal X-ray of the kind that you would have.

I don't think that the record shows that kind of an X-ray it is.

Unidentified Justice: --Because there are X-rays and X-rays.

Mr. Frey: I understand, but I don't--

Unidentified Justice: As far as the record shows, it's just a matter of someone standing up against a camera and having a picture taken.

Mr. Frey: --As far as I know.

I think it is while I believe there is some theoretical or possible health hazard that is absent in the case of drawing blood; that is, over a large population, all of whom get X-rays, a very small proportion of that population may develop cancer at some point in their life as a result of the X-ray.

Still, I think some of the literature that we cited showed it's a very routine procedure, and one of the articles said that in 1970 129 million people in the United States had X-rays of one kind of another.

So it is our belief that this is the kind of thing that Schmerber described as a routine procedure which if done, as we always do it, by competent medical personnel in a hospital setting, not done by the Customs agents--

Unidentified Justice: But there's considerable opposition in the medical profession of taking too many X-rays.

Mr. Frey: --Well, there is some concern about--

Unidentified Justice: I mean I wouldn't stretch the point too far.

Mr. Frey: --Well, I don't know that I'm stretching the point too far.

I'm not suggesting that--

Unidentified Justice: Well, you say that it's a commonplace thing.

Mr. Frey: --It is.

Unidentified Justice: Well, I've read articles that say please don't make it a commonplace thing.

Mr. Frey: Well, I think there--

Unidentified Justice: How many X-rays would have been called for here?

Mr. Frey: --I don't know the answer to that.

She never was in fact X-rayed here.

Unidentified Justice: But one X-ray, it would disclose whatever it was there--

Mr. Frey: I can't vouch for that.

Unidentified Justice: --I would assume.

Mr. Frey: I just don't know.

Unidentified Justice: Well, Mr. Frey, you aren't asking us to decide the standard by which the government can force someone to have an X-ray, are you?

Aren't you asking us to decide the reasonableness of a detention?

Mr. Frey: Of a detention in lieu of an X-ray.

Unidentified Justice: In lieu of an X-ray?

Mr. Frey: That is what the issue is in this case.

But the way X-rays come into the case is that in order to consider... that is, we've made the argument that in determining the reasonableness of a detention of the kind that occurred here, you look at the alternatives that are made available.

And, of course, my brother here will suggest to you that an X-ray is a dose of poison and the fact that people can have X-rays can't help the government's case here.

And I suggest that the fact that X-rays are relatively routine and that I think we know from common experience that most people prefer them, or many people would prefer them does bear on the reasonableness of the detention.

Unidentified Justice: Mr. Frey--

--Here she didn't give any reason at all.

She said she didn't want to take it.

Mr. Frey: Well, the reason that she gave was that she didn't want to be handcuffed going to the hospital.

Unidentified Justice: Well, I mean that's--

Mr. Frey: And she also... she said she was pregnant, which was false, and of course, she would not have been X-rayed before a pregnancy test was done.

In this particular test they did the pregnancy test, but before the results came back they did the rectal examination and produced the first evidence.

Unidentified Justice: --Mr. Frey, is there anything in these articles that discloses the frequency rate of contraband when X-rays are taken?

Is it 1 out of 100?

Mr. Frey: Well, the articles that we referred to in our brief in opposition to Vega-Barvo are medical articles addressing the general subject of X-rays rather than to alimentary canal smuggling X-rays.

I'm aware of no published data with regard to the frequency with which people who are X-rayed turn out to have contraband.

We have gotten some information from Customs, but it's not in the record and it's not public.

I think rather than addressing respondent's argument that there was no reasonable suspicion here, which I hope I addressed in the course of the statement of facts, I will save the balance of my time for rebuttal.

Unidentified Justice: Mr. Frey, do you know where Ms. de Hernandez is presently?

Mr. Frey: I understand she's back in Colombia.

Unidentified Justice: Thank you.

Chief Justice Burger: Mr. Horstman.

ORAL ARGUMENT OF PETER MARVIN HORSTMAN, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Horstman: Mr. Chief Justice, and may it please the Court:

Petitioner states on page 18 of the petition that the decision below has resulted in application of different rules governing Customs procedures in the Eleventh and Ninth Circuits, and the decision of the Ninth Circuit virtually invites alimentary canal smugglers to shift their operations to the Ninth Circuit where... now I'm paraphrasing... the higher clear indication standard basically ties the hands of Customs officers and would invariably cause the release of alimentary canal smugglers into the country.

And by that language the implication would be that this Court needs to overrule that decision in order to quash basically a runaway circuit, which would be the Ninth Circuit in this case, in terms of the clear indication standard.

The language and the rhetoric used by petitioner is compelling and even alarming, but we submit that it is simply not true.

And if you carefully read the facts and the holdings of the reported cases in both the Ninth, the Fifth and the Eleventh Circuits, a careful and close reading of the facts and holdings of those cases show that the rules applied by the three circuits are exactly the same.

Only the labels differ.

In other words, in the Fifth and Eleventh Circuits those circuits recognize the hierarchy of intrusiveness in border searches, and a flexible, reasonable suspicion standard.

So that, for instance, a body cavity search would require a higher level of flexible, reasonable suspicion than would a frisk or a strip search, and--

Unidentified Justice: Then instead of it being an intermediate standard, in your view, Mr. Horstman, it's just really a multitude of standards.

Mr. Horstman: --That's correct.

If you're in the Ninth Circuit and if you look at, for instance, the facts of Mosquera-Ramirez, which petitioner cites as the case that shows why the Ninth Circuit needs to be reversed, if you look at the facts of Mosquera-Ramirez, there is in fact what would have been held to be clear indication in the Ninth Circuit.

If you look at the many Ninth Circuit cases which I cite in footnote 30 that have upheld lengthy detentions and X-rays based on clear indication evidence, you'll see the facts in those cases correspond very closely to the Fifth and Eleventh Circuit cases using the flexible, reasonable suspicion standard.

Unidentified Justice: But reasonable suspicion is at least something that our Terry cases have talked about fairly regularly.

If the Ninth Circuit really means reasonable suspicion, why does it use the term "clear indication"?

Mr. Horstman: I cannot answer that.

I do not know.

And... but respondent submits that this Court need not approve the Ninth Circuit standard or disapprove the Ninth Circuit standard.

All that you need to do in this case to affirm the Ninth Circuit opinion is to use your common sense based on human experience to know that the detention in this case was unreasonably intrusive given the totality of the circumstances.

Unidentified Justice: You mean the length of it, the duration?

Mr. Horstman: That's only one prong of the intrusiveness here.

The length alone, we submit, is unreasonably intrusive.

And keep in mind now we're not talking about 16 hours, if you accept the Solicitor General's theory of this case.

The Solicitor General's theory of this case is that the Ninth Circuit rule relying on a court order is frivolous at least.

Therefore, given the Solicitor General's theory of this case, we have a 27-hour detention before anything incriminating that would have supported an arrest is found.

Unidentified Justice: Could she not have terminated that any time she wanted to?

Mr. Horstman: That certainly is the Solicitor General's theory that--

Unidentified Justice: Well, I'm just asking you to respond to that question.

Mr. Horstman: --But--

Unidentified Justice: Could she not have terminated the detention at any time?

Mr. Horstman: --Well, she could have terminated it by confessing, or she could have terminated it by waiving her Fourth Amendment rights to avoid an X-ray search.

But the case is... this Court's cases all the way back to Simmons had said that the state cannot unfairly burden the exercise of a constitutional right.

Unidentified Justice: Well, how much of Simmons is left after Magatha?

Mr. Horstman: The basic import of Simmons is still valid, Your Honor, and to give you an example of how and why it is, if a policeman comes to Mr. Frey's door without a search warrant and asks Mr. Frey, may I come in and search, and Mr. Frey may freely say no, that police officer may not then use the fact that he declined the officer to come in and search his home as further suspicion allowing him to get a warrant, nor may he use that as exigent circumstances allowing him to knock down the door.

Unidentified Justice: You don't need Simmons... you don't need Simmons for that proposition.

Mr. Horstman: Possibly not.

But the point is here the government cannot argue that by not consenting to allow an invasion of her Fourth Amendment rights, she therefore consented to the even more intrusive procedure.

Unidentified Justice: Well, but there is a certain resemblance to civil contempt here where you have the feeling that the respondent carried the keys in her pocket, so to speak, if she had simply ceased her heroic efforts.

Mr. Horstman: Well, Your Honor, the evidence on that last point is extremely ambiguous, and let me give you an example of that.

There is language in the Ninth Circuit's opinion that says apparently heroic efforts, but just before that language it says their suspicions were that she was using heroic efforts.

What if an innocent traveler just because they have had a long flight was unable to excrete and found themselves in a position where a border agent said well, we wish you to excrete command so that we will be sure that you're not carrying anything internally.

An innocent person might be unable to do that on command, and it wouldn't be heroic efforts in that case.

Unidentified Justice: Well, perhaps it wouldn't be heroic efforts on command, but for 16 hours--

[Laughter]

Mr. Horstman: It's certainly possible that a person who is nervous or afraid anyway because they are being confined would be unable to excrete for a lengthy period of time, but that wouldn't necessarily mean evidence of guilt.

In any event, we think and we submit to you that the Solicitor General's statements about the Ninth Circuit's additional requirement, and to quote directly,

"the devastating effect that the Ninth Circuit clear indication standard is a red herring here."

there are many legitimate issues that the government is raising that are present in this case.

One of them is not the problem of the Ninth Circuit having erected an unreasonably high standard that is above the standards in the other circuits.

The facts and holdings of those cases are not... do not bear that out.

Mosquera-Ramirez would have been decided exactly the same way in the Ninth Circuit, along with Ek and Couch and Aman and Irwin and Shreve, and the other cases cited in our footnote number 30.

And I should also point out that in the Joint Appendix there is an indication that one of the Customs agents in this case... I believe at page 47... had 30, had seized 30 alimentary canal smugglers.

Certainly the law is in fact working in the Ninth Circuit.

Just because they use a form of words that's different or a different label is not the determinative difference in this case.

Mr. Chief Justice asked whether the length alone was the intrusiveness.

It wasn't just the length alone.

It was the length and the circumstances of the detention.

She was placed in a room with three law enforcement officers, which in Royer this Court held to be the essence of imprisonment.

The government's statement that she was simply being held until the next available flight is refuted by the facts of what the government did.

If they really had meant to deport her, which incidentally, Customs has no statutory or regulatory authority to do, they would have simply turned her back over to Immigration where she would have had the rights that Justice O'Connor enumerated recently in Placensia, and Immigration would have had to follow her procedural due process rights.

I submit to you, Justices, that the government knew she was not deportable, and therefore, this language about holding her for the next available flight is nothing more than a charade and a subterfuge.

How do I know that?

I know that because of what they did.

They didn't just put her in a room.

They observed her.

Their intention at that time was to obtain additional incriminating evidence that would support a court order... the very thing that this Court has held in Dunaway, Davis and Hayes is improper, because the essence of a police state is to arrest someone without probable cause, hold them in custody incommunicado, and attempt to elicit incriminating information.

And that is precisely what happened in this case.

Unidentified Justice: Mr. Horstman, do we know here whether Ms. de Hernandez had effected an entry into the United States?

Mr. Horstman: Yes, Your Honor, we do.

Unidentified Justice: And how do we know that?

Mr. Horstman: I'm glad you asked that question.

The government, if they have their way, the Solicitor General would love to blur the distinction between the functions of Customs agents and the function of Immigration agents.

They have a totally unsupported statement in their reply brief that the functions are interchangeable.

It is not true.

If it were true, there would be some support for that statement, you can bet on it, from the Solicitor General.

The point is that it's... we will concede that after her passport and visa were stamped, admitted, she may not have been admitted into this country for all purposes because she hadn't passed through Customs, but she had been admitted for Immigration purposes.

And if you search, as I'm sure the Solicitor General has, you may search those Customs laws and regulations, but you will not find a word or a phrase in there that allows Customs agents to treat aliens differently than citizens or provides for special treatment for aliens.

Unidentified Justice: Well, why does it allow in her mouth to challenge the distribution of functions between the Customs and the Immigration Service?

This is the government here.

Mr. Horstman: Right.

In other words, how would she know that her expectation of privacy increased after she'd got through with Immigration.

The answer to that is it is not totally a subjective expectation of privacy.

Therefore, what an illiterate alien knew is not the determinative thing.

It's a reasonable expectation of privacy, an expectation that society is preparing to recognize.

Unidentified Justice: Are you saying that if Immigration makes a mistake in permitting her to enter and some other branch of the government discovers the mistake, they can't rectify it?

Mr. Horstman: Well, I'm saying something much more limited than that.

I'm saying that in terms of the government's argument that because it's well known that Immigration regulations sometimes allow detentions and searches and seizures before a person is admitted, her reasonable expectation of privacy was lower.

Whatever the merits of that in another case, it has no applicability to the facts of this case, because the reasonable expectation of privacy of an alien and a citizen before Customs by virtue of statute and regulatory authority is equal.

As we admit in your brief, Your Honor, if evidence of drug activity had been discovered during routine immigration procedures and inspection, this would be a much more difficult case for us.

But that is not the facts of this case.

Unidentified Justice: I suppose you agree that alimentary canal smuggling is a major problem for the country now?

Mr. Horstman: Your Honor, we could not agree more, Justice Blackmun, with you and Justice Powell in the words that you wrote in Mendenhall, that drug smuggling is perhaps one of the foremost problems of this country, and that the detection of illegally concealed drugs, the problems in detecting those are perhaps unmatched in any other area of law enforcement.

We agree and concede that.

Our point is this--

Unidentified Justice: What do you suggest, then, that the government do to meet this rather offensive problem?

Mr. Horstman: --That's a very difficult question, Your Honor.

Unidentified Justice: I take it on your theory here all of these smugglers like your client would be permitted to come in and be released.

Mr. Horstman: We submit that if you look at the facts in the reported cases, that is not happening.

What happened in de Hernandez is not the cause of the drug problem in this country.

You can look at the many, many cases decided both in the Ninth and Eleventh Circuits where there is articulable suspicion.

Our point is there was no articulable suspicion in this case.

Our point--

Unidentified Justice: Well, it was certainly articulable.

What the court, the Ninth Circuit wanted was something more than that.

It wanted evidence that she was carrying a laxative or other things that are above and beyond an articulable, reasonable suspicion that would meet a Terry stop standard.

Mr. Horstman: --Well, Your Honor, the Solicitor General said, the Deputy Solicitor General, that they felt that it was uncontested a few minutes ago that there was in fact reasonable suspicion here.

It's important to point out that reasonable suspicion was never addressed below, and there was--

Unidentified Justice: Well, do you agree that there was?

Mr. Horstman: --We... our position is that there was no reasonable suspicion to conduct the strip search, the first strip search; that all that they had at that time were vague profile characteristics.

They were... they could conduct a routine Customs search and seizure, but once they began a more intrusive search... that is, that first strip search... they had to have something more than she did not speak English--

Unidentified Justice: More than the profile.

Mr. Horstman: --More than the profile.

Unidentified Justice: The knowledge of what she was carrying in her luggage and her statements.

Mr. Horstman: Yes.

As a matter of fact, Your Honor, if you look closely at the facts, Rosa Elvira Montoya de Hernandez--

Unidentified Justice: Do you think that our cases support your statement that there wasn't reasonable suspicion?

Mr. Horstman: --Yes, Your Honor.

We believe that this case is the different case.

In other words, this case is not the routine case.

If you look at the facts of this case, she had... perhaps she was very cunning and clever, but there just wasn't reasonable suspicion.

Everything she said rang true.

She said she was here to buy things for her husband's--

Unidentified Justice: Do you mean that it was true that she was going to J.C. Penney to spend $5,000 to buy stuff to take to her husband?

Mr. Horstman: --Well, Your Honor, in fact she was lying, and in fact she was guilty, and--

Unidentified Justice: Well, does lying, in your mind, get very close to suspicion?

Mr. Horstman: --Well, but the question is what did the Customs officers know at that time.

Unidentified Justice: That she's lying.

[Laughter]

Mr. Horstman: They may have had a suspicion that she was lying, but it was nothing more than--

Unidentified Justice: I thought you said they knew she was lying?

Mr. Horstman: --No, I don't believe I said that, Your Honor.

Unidentified Justice: Well, don't you know now say it?

Mr. Horstman: Well, we now know that she was in fact lying, but it seems to me that it's not productive to look at the decisions they made, and the choices she was given, and the reasonableness of their conduct in light of what we have subsequently discovered concerning her guilt.

Obviously, it would have been a travesty on justice to release her, but the Fourth Amendment can only protect all our rights.

If we look back at what they knew and the reasonable inferences they could make from what they knew then, and it just doesn't support the way in which they intruded upon her privacy.

Unidentified Justice: Are you aware of any statistics that demonstrate how often someone detained at the border for... on suspicion of alimentary canal smuggling is in fact found to have been smuggling?

Mr. Horstman: Yes, Your Honor.

If you have my brief, if you'd refer to footnote number 88 for a moment.

The statistics, I certainly would concede, have not been done with the conscientiousness that perhaps they could and should have, but if you look at footnote 88, the statistics available at least in the reported cases indicate that innocent persons are swept with alarming regularity into these very intrusive body cavity and strip searches at the border.

For instance, in the study that was done in Guadalupe Garzo, only 29 percent of the people at the border subjected to strip searches were found to contain narcotics.

Unidentified Justice: Well, that was back in 1968.

Mr. Horstman: Yes.

Unidentified Justice: That's pretty old, isn't it?

Mr. Horstman: It is.

Unidentified Justice: I wonder if with all the experience the government has had in the intervening years with increasing drug traffic if there isn't a little more skill in detection today.

Mr. Horstman: I don't know, Your Honor, and I don't know of any more recent statistics.

But we would submit that the burden is on the government to show statistics that show that innocent persons are not being brought in and subjected to these very intrusive searches.

As this Court held in Royer at page 500, the burden is on the government.

Unidentified Justice: Well, you say 29 percent recovery rate is unreasonable.

Now, surely you don't want a hundred percent recovery rate before you say it's permissible, do you?

Mr. Horstman: No.

But, Your Honor--

Unidentified Justice: What recovery rate would you settle for as being reasonable?

Mr. Horstman: --A question I cannot answer.

All I can say is that in the balance of reasonableness, the extent to which any government procedure impinges on the rights of innocent persons belongs in that balance, and--

Unidentified Justice: Well, but that really doesn't help decide the particular facts of this case, I don't think.

Mr. Horstman: --I don't think this Court has to set a bright line standard in terms of the percentage that the government has to come up to in order to conduct these searches, but certainly the other 70 percent of the innocent people who are perhaps in Ms. de Hernandez's position have their rights.

And keep in mind, if Ms. de Hernandez--

Unidentified Justice: Mr. Horstman--

Mr. Horstman: --I know, Justice Marshall, she was lying and she was guilty, but had she been innocent, this case never would have come before this Court.

She would have gone--

Unidentified Justice: --But, Mr. Horstman, may I interrupt with a question there?

Even if you had a probable cause standard... I don't know just what percentage of probability that means, but assume it's 50 percent... doesn't that by hypothesis assume that 50 percent of the people who are searched may well be innocent?

You'll always have a significant probability of innocent people being searched under whatever your standard is.

Mr. Horstman: --That's correct, Your Honor, but in terms of the facts of this case, to give the Court's imprimatur to what was done in this case based upon their level of suspicion in this case would simply allow basically government agents at the border to conduct these very intrusive searches based on no more than an inchoate hunch and probably--

Unidentified Justice: Well, this isn't an inchoate hunch here.

I--

Mr. Horstman: --I beg your pardon?

Unidentified Justice: --You're going to have trouble persuading me there wasn't a reasonable suspicion here.

Mr. Horstman: Well, Your Honor, I would like to address that.

There was nothing that you will find in the other reported cases here... for instance, there was no inconsistency in her passport or visa, no evidence of passport or visa tampering.

She told that... she had a perfectly logical and reasonable explanation for what she was doing.

She offered them a phone number to call where they could corroborate her study which they declined to do.

She had a book of receipts.

In Mosquera-Ramirez, for instance, his passport showed two prior trips to Miami, and when the agents confronted him with this, he became "very evasive and very nervous".

When they noticed that Ms. de Hernandez had previous short trips to the United States, she showed them Exhibit 102, which was a book of receipts showing that on prior occasions which matched the entries in her passports she had actual receipts from the kinds of places she told the government that she was going to visit.

She had corroborating circumstances for what she was doing.

She had money that was sufficient for her purposes.

For instance, in Mosquera-Ramirez, the Eleventh Circuit case, the man had $1,295 which the agents figured out on the spot was insufficient to make the purchases he said he wanted to make.

He had an inherently incredible story.

He worked in a pool hall, and yet he said he was here to buy stereo components.

Unidentified Justice: Well, suppose we limit it to the facts in this case.

That wouldn't be enough?

Whereas she couldn't speak English, she had no family or friends in the United States--

Mr. Horstman: Yes.

Unidentified Justice: --She was coming to buy merchandise and clothes from various stores.

Mr. Horstman: That would--

Unidentified Justice: She had no plans to stay.

She was just going to ride around in taxicabs.

She had one pair of shoes and no toilet articles of any kind, and she carried a billfold with over $5,000 in it.

She was going to ride a whole lot of taxis.

[Laughter]

Do purchasers from other countries coming here to buy merchandise to resell in their own countries ordinarily purchase it from retail stores, or do they go to wholesalers?

Mr. Horstman: --I don't know the answer to that, Your Honor, but--

Unidentified Justice: Well, logically as a matter of economics, what would be the answer to it?

Mr. Horstman: --Uh, logic--

Unidentified Justice: Would it not alert you if you were a Customs agent that there was something odd about someone, a buyer for a store in another country buying at retail in this country?

Mr. Horstman: --No, Your Honor.

As a matter of fact, Ms. de Hernandez was not here as a representative of a large concern.

She apparently... she and her husband had basically what we would call a mom and pop store, and perhaps she didn't have any--

Unidentified Justice: Well, it still must make a profit in order to justify itself.

Mr. Horstman: --Certainly, but--

Unidentified Justice: Mom and pop stores buy from wholesalers, not from retailers.

Mr. Horstman: --Maybe not.

Maybe she didn't have enough... maybe the wholesalers would not sell in a small enough quantity.

Maybe she didn't have a big enough capital to buy from a wholesaler.

Again--

Unidentified Justice: Five thousand is quite a piece of merchandise for a wholesaler.

Wouldn't that be enough, reasonably, to alert any intelligent person that there was something odd about this trip?

Mr. Horstman: --No, Your Honor, not in terms of the intrusive procedures that they intended to impose.

The fact that she arrived with cash to make purchases from J.C. Penney and K-Mart certainly isn't the kind of suspicious circumstances that would authorize the kinds of intrusive procedures employed here.

Again, it's a balancing.

The more intrusive procedure, the stronger level of suspicion that's needed.

And if you compare the facts of this case with Mosquera-Ramirez or any of the other Ninth, Eleventh or Fifth Circuit cases, the evidence just wasn't here.

The final point I would like to make in terms of the suspicion that they had, the government makes at this point before this Court a great... gives great significance to the fact that she wore two pairs of undergarments; but it's important to point out that that fact was not a fact that was deemed suspicious by the agents in the field who this Court has again and again said their trained eyes can often detect things and suspicious circumstances that wouldn't appear suspicious to the untrained person.

As a matter of fact, the Solicitor General even in their petition for cert had this to say about that first strip search:

"The search failed to produce any evidence of contraband."

It's only in the Solicitor General's brief on the merits that they begin to say that the fact that she wore two pairs of undergarments with a paper towel in the crotch was suspicious.

And I submit to you the reason they're doing that is because the Solicitor General is desperate in this case for reasonable suspicion.

It was given no significance by the Customs agents, no significance by the matron who searched her, who wrote it down as being consistent with her having some type of vaginal discharge.

Only before this Court does the Solicitor General now say that was extremely suspicious.

Unless the Court has further questions, I have nothing.

Unidentified Justice: What actually happened to Ms. de Hernandez in terms of any criminal prosecution, and where is she presently?

Mr. Horstman: Okay.

What happened was she was given a two-year sentence by Judge Gray.

She served out her sentence.

Shortly after the Ninth Circuit... at about the same time the Ninth Circuit reversed the conviction, she was released after doing approximately 17 months of the sentence.

She was then immediately deported and is apparently now back in Colombia, although we do not have an address or a telephone number for her.

We have not heard anything from her since she was deported.

And, in fact, as far as we know, she does not even know that this Court granted cert or that the case is here today.

Chief Justice Burger: Do you have anything further, Mr. Frey?

ORAL ARGUMENT OF ANDREW LEWIS FREY, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Frey: Just a couple of things.

First, I want to plead not guilty to desperation, and I hope the Court doesn't have even a reasonable suspicion otherwise.

I will agree with Mr. Horstman that the facts in the Eleventh Circuit cases which we've addressed in our cert oppositions to some of those cases where petitions were filed were stronger than this case.

Indeed, in our view in most of those cases they amounted to probable cause.

But I think as the questioning of the Court made clear, all Mr. Horstman has really been able to establish is that it's possible that his client was telling the truth and was not an alimentary canal smuggler but a legitimate business traveler.

Obviously, that possibility is not enough to defeat a reasonable suspicion.

And with regard to this Customs-Immigration question, there is a general practice of cross-designating Customs and Immigration agents.

There's no evidence in the record in this case as to whether or not they were cross-designated.

Where they are cross-designated, which is usually true at ports of entry... I'm talking about the inspectors within the secure area... they... Immigration inspectors can perform Customs functions and vice versa.

Now, even if the Customs officer were not cross-designated, however, it's perfectly clear that if he gained information that the person had a forged visa or was otherwise ineligible for entry under the immigration laws, you should have no doubt in your mind that he would take the person back to Immigration.

Now, in this case what happened and what often happens at the border... for instance, people swimming across the Rio Grande when they are caught, are normally if they are willing to just turn around and swim back to the other side or be driven back to the other side, there is just an informal allowance of them to leave.

Only if they say they want to say would they be subject to a formal exclusion proceeding.

Even if, as respondent contends, she had entered the country for immigration purposes after her passport was stamped, however, that would mean nothing more than that under these circumstances there would be a deportation proceeding rather than an exclusion proceeding, and of course, she would be detained for purposes of the deportation proceeding anyway.

So no matter how you slice it, she does not have a right to come in.

The Placensia case deals with resident aliens who live in the United States, and I don't have the case with me, but I think the language--

Unidentified Justice: Well, Mr. Frey, if it were a citizen coming back into this country or a permanent resident alien coming back into the country, do I understand you to say that the government policy would be to detain someone under the circumstances of this case and not allow them to leave and go back to wherever they were coming from; for example, if it were an entry at Juarez to go back into Mexico?

Mr. Frey: --That would be... definitely would be the policy, and that indeed would be the policy with respect to non-resident aliens, visitors.

We would not simply let them go back.

I mean obviously--

Unidentified Justice: But I'm asking for a citizen.

You wouldn't let the citizen leave and go back to Mexico.

Mr. Frey: --We would not, not as long as we had a reasonable suspicion.

We would hold them until we could... and if we had a citizen who we thought was... who Immigration thought might be wanted by foreign police who presented himself at the border, we might detain him equally for purposes of checking that out if it could be done within a reasonable period of time.

Unidentified Justice: Mr. Frey, can I ask you this one question?

I know that the people at the border decided not to seek a court approval of an X-ray.

In your view or in the government's view after having studied the case, do you think there was sufficient evidence so that an order compelling an X-ray could have been obtained properly?

Mr. Frey: Well, are you asking whether I think the clear indication standard was satisfied or whether--

Unidentified Justice: Whatever standard you think is the one we should apply.

Do you think... see, your case, as I understand it, rests in part on the notion that it was not unreasonable because you gave her the choice to consent to an X-ray.

And I'm wondering if you think you could have compelled her to submit to an X-ray based on the information--

Mr. Frey: --I don't want to suggest that we had to give her that choice, but we think that's a fact--

Unidentified Justice: --But you rely rather heavily on it, I think.

Mr. Frey: --We believe we could have compelled her in the sense of ordering her--

Unidentified Justice: Assuming no health hazard is demonstrated.

Mr. Frey: --And a question would arise only if we had to use physical force; that is, if there were physical resistance.

Unidentified Justice: Well, but you used physical force here.

I don't see why that's different.

Mr. Frey: No, we did not use... no, we did not use... I mean when we got the court order--

Unidentified Justice: Well, she wasn't free to go.

Mr. Frey: --Oh, no, but you have to distinguish, I think, between a voluntary consent in the sense of a free choice of the individual as to what to do and a nonforceable but not voluntary.

That is, we could say to somebody you're coming with us for an X-ray, take them to the hospital, give them to the doctor and say if it's okay, take an X-ray.

If they submit to that, that would not be a voluntary consent to the X-ray, but it would not be a physically forced X-ray in the sense that in Roshen against California he was... the emetics were forced down his throat.

Unidentified Justice: Are you... I just want to be sure I don't... I understand your position.

Mr. Frey: But--

Unidentified Justice: Are you saying that you could or could not, assuming you followed all the procedures that might be appropriate, would there have been a constitutional objection to your obtaining an X-ray against her will?

Mr. Frey: --No.

Our position is that we could do that on reasonable suspicion.

Unidentified Justice: Well, on the facts of this case, whatever--

Mr. Frey: Definitely.

That is definitely our position.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

We'll hear arguments next in Russell against the United States.