UNITED STATES OF AMERICA, PETITIONER V. ROSA ELVIRA MONTOYA DE
HERNANDEZ

   No. 84-755

   In the Supreme Court of the United States

   October Term, 1984

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Constitutional provision involved
   Statement
   Summary of argument
   Argument:
      The detention and search of respondent at the border

   did not violate the Fourth Amendment

      A. The government may detain at the border a
          person reasonably suspected of alimentary canal
          smuggling for the time necessary to verify or
          dispel that suspicion
      B. The detention of respondent was lawful because
          the Customs officers reasonably suspected that

. @@ she was engaged in alimentary canal smuggling

   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-12a) is reported
at 731 F.2d 1369.  The district court's oral ruling denying
respondent's suppression motion (Pet. App. 13a-14a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on Arpil 24, 1984.
 A petition for rehearing was denied on August 10, 1984 (Pet. App.
15a).  On October 3, 1984, Justice Rehnquist extended the time within
which to file a petition for a writ of certiorari to and including
November 8, 1984.  The petition was filed on that date and was granted
on January 21, 1985.  J.A. 66.  The jurisdiction of this Court rests
on 28 U.S.C. 1254(1).

                   CONSTITUTIONAL PROVISION INVOLVED

   The Fourth Amendment to the Constitution provides in pertinent
   part:

         The right of the people to be secure in their persons,
      houses, papers, and effects, against unreasonable searches and
      seizures, shall not be violated * * *.

                          QUESTION PRESENTED

   Whether respondent, who was reasonably suspected of attempting to
smuggle contraband drugs carried within her body and who refused to
submit to an X-ray, could lawfully be detained at the border by
Customs officers for the period of time necessary to examine her
bodily wastes.

                               STATEMENT

   Following a bench trial on stipulated facts in the United States
District Court for the Central District of California, respondent was
convicted of possession of cocaine with intent to distribute, in
violation of 21 U.S.C. 841(a)(1), and unlawful importation of cocaine,
in violation of 21 U.S.C. 952(a) and 960(a)(1).  She was sentenced to
concurrent terms of two years' imprisonment to be followed by a
three-year special parole term.  A divided panel of the court of
appeals reversed respondent's convictions (Pet. App. 1a-12a).

   1. This case involves an instance of alimentary canal smuggling, a
technique used with increasing frequency to smuggle narcotics into
this country.  A typical alimentary canal smuggler is a non-American
who is hired to carry narcotics into the United States in his or her
digestive tract.  While in the foreign country, the smuggler first
takes laxatives to empty her digestive system.  He then swallows
balloons or capsules containing cocaine or another illegal drug, and
takes a substance that inhibits the functioning of his digestive
system.  After the smuggler enters the United States, he ingests
laxatives and excretes the balloons containing the narcotics.  See
Pet. App. 10a (Jameson, J., dissenting);  United States v. Vega-barvo,
729 F.2d 1341, 1350 (11th Cir. 1984), petition for cert. pending, No.
84-5553;  United States v. Mejia, 720 F.2d 1378, 1380 n.1 (5th Cir.
1983);  United States v. Couch, 688 F.2d 599, 605 (9th Cir. 1982).

   2. The evidence, which is summarized in the opinion of the court of
appeals (Pet. App. 2a-4a), showed that shortly after midnight on March
5, 1983, respondent arrived at the Los Angeles airport on a flight
from Bogota, Colombia.  After passing through an immigration
checkpoint, she proceeded to a Customs inspection area where,
following a review of her travel documents, she was directed to a
secondary inspection area for a more thorough examination.  Id. at 2a;
 J.A. 62.

   Customs Inspector Jose Serrato reveiwed respondent's passport,
inspected her luggage, and questioned her about her trip to the United
States.  Examination of her travel documents revealed that respondent
was from Colombia, a source country for narcotics, was on a trip of
short duration, and carried approximately $5,000 in American currency.
 In addition, respondent previously had made many short trips to the
United States, sometimes to Miami and sometimes to Los Angeles.  Upon
questioning, respondent, who spoke no English, revealed that she had
no confirmed hotel reservations and no family or friends in the United
States.  She could not recall where she had purchased her airline
ticket.  Pet. App. 2a n.3;  J.A. 41-42, 46, 62;  E.R. 40.  /1/

   Respondent asserted that she had come to the United States to
purchase clothing and appliances for her husband's retail business in
Colombia and displayed business cards and a book of invoices to
substantiate this claim.  J.A. 14-15.  She explained that she planned
to take a taxi to various retail stores to purchase the merchandise on
the spot.  J.A. 62;  E.R. 40.  Serrato noticed that although
respondent had $5,000 in cash she carried no billfold.  Moreover, she
had no shoes except the spiked high heels that she was wearing, and
she carried little extra clothing.  /2/ After consulting with another
Customs officer, Serrato concluded that respondent probably was
carrying drugs internally because she exhibited characteristics that,
in the experience of Customs inspectors, are common to persons who
smuggle drugs in their alimentary canals.  Pet. App. 2a n.3;  J.A. 46,
62.

   Serrato then arranged for a female Customs officer to conduct a
patdown search of respondent.  After escorting respondent to a search
room, the female officer conducted the search and discovered a
firmness in respondent's pelvic area.  After directing respondent to
unzip her pants, she observed that respondent was wearing two pairs of
elastic underpants and had placed a paper towel in her crotch area.
No contraband was discovered during this procedure.  J.A. 57, 62-63.
The Customs officers then asked respondent whether she would consent
to an X-ray and, although she claimed she was pregnant, she initially
gave her consent.  Respondent withdrew her consent, however, when
informed that she would be handcuffed while being transported to the
hospital for the X-ray.  Pet. App. 3a;  J.A. 47, 63.

   The officers on duty at the airport then requested that Customs
Special Agent Kyle E. Windes seek a court order for an abdominal
X-ray.  Windes declined to do so and instead directed that respondent
be afforded the options of consenting to an X-ray, remaining in
custody until she had a bowel movement, or returning to Colombia on
the next available flight.  /3/ Pet. App. 3a;  J.A. 39, 48, 63.  Given
these choices, respondent opted to return to Colombia.  The officers
advised her that she would be kept under observation until her
departure and that she would be arrested if she excreted any narcotics
during that period.  J.A. 48, 63.

   Respondent was detained in a room at the airport while she waited
to be placed on a return flight to Colombia.  /4/ Under the continuous
observation of Customs officers, respondent remained in the room
throughout the night and most of the next day, refusing to eat, drink,
or empty her bowels.  For most of this period, respondent sat curled
up in a chair, leaning to one side.  Pet. App. 3a-4a;  J.A. 48, 49-50,
52-53, 58, 64.

   At approximately 3:00 p.m. on March 5, female officers subjected
respondent to a second search, which again failed to reveal evidence
of contraband (Pet. App. 3a;  J.A. 50, 64).  One hour later, Agent
Windes arrived at the airport and, after consulting with the Customs
officers on the scene and with an Assistant United States Attorney,
decided to seek a court order authorizing a pregnancy test, an X-ray,
and an internal body cavity search.  Agent Windes's affidavit in
support of the court order summarized the Customs officers'
observations of respondent, including her refusal of food and drink
and failure to use toilet facilities for a 16-hour period.  J.A.
40-43, 64.  /5/ At approximately midnight, a federal magistrate issued
an order authorizing an X-ray of respondent's abdominal area and a
body cavity search.  The order provided that the X-ray and body cavity
searches were to be conducted "only after the doctor has considered
(respondent's) claim that she is pregnant." Pet. App. 3a-4a;  J.A. 40,
44-45, 64.

   At 12:30 a.m. on March 6, 1983, respondent was taken to the
University of Southern California Medical Center, where a test showed
that she was not pregnant.  A rectal examination revealed a baloon
containing cocaine.  Respondent was then placed under arrest and taken
to a room in the prison ward of the hospital.  Over the next four
days, she excreted 88 balloons containing more than half a kilogram of
cocaine.  Pet. App. 4a;  J.A. 50-51, 64-65.

   2. Prior to trial, respondent moved to suppress the cocaine (E.R.
15-27).  She argued, inter alia, that the affidavit supporting the
court order for the body cavity search was tainted by information
obtained during an unlawful detention (E.R. 20-23).

   The district court denied the motion (Pet. App. 13a-14a).  The
court acknowledged that, because the court order was based on
information gleaned during the course of respondent's detention, the
validity of the court order turned on the validity of the detention
(id. at 14a).  The court pointed out that after the Customs officers
initially questioned respondent, they had "a very substantial
suspicion" that she was smuggling narcotics concealed inside her body
(ibid.; J.A. 10-11).  The court concluded that the officers therefore
were justified in seeking respondent's consent to an X-ray examination
and, upon her refusal to consent, in detaining her until she either
could be placed aboard a return flight to Colombia or had a bowel
movement that would confirm or negate the officers' suspicions (Pet.
App. 14a).

   3. A divided panel of the court of appeals reversed (Pet. App.
1a-12a).  The court did not question the sufficiency of the
information supporting the court order authorizing the search of
respondent's body cavity.  It held, however, that the information
underlying the court order, which included observations of
respondent's suspicious behavior while detained, was the fruit of an
unlawful detention of respondent, and that the cocaine therefore
should have been suppressed.

   The majority acknowledged that the Customs officers "had limited
options in the face of their strong belief that (respondent) was a
drug courier.  They could let her into the country and try to follow
her;  they could seek a court order for an X-ray without undue delay;
or they could detain her until nature took its course" (Pet. App. 6a).
 In concluding that the officers' choice of the latter option was
unreasonable, the majority found that at the time the officers decided
to detain respondent they lacked the level of suspicion necessary to
obtain a court order for an X-ray search under the Ninth Circuit's
recent decision in United States v. Quintero-Castro, 705 F.2d 1099
(1983) -- a "clear indication" that respondent was engaged in
alimentary canal smuggling (Pet. App. 6a).  In these circumstances,
the majority reasoned, the facts known to the officers likewise did
not justify the period of detention, which the court characterized as
involving "many hours of humiliating discomfort," for the purpose of
examining respondent's bowel movements (id. at 5a-6a).

   Judge Jameson dissented (Pet. App. 8a-12a).  He noted that even
though respondent "may have suffered 'many hours of humiliating
discomfort,' she was herself solely responsible for a considerable
part of it" (id. at 9a).  Judge Jameson concluded that he "would
permit reasonable detentions at the border for the purpose of
observing persons suspected of alimentary canal smuggling so long as
the detention is based on a real suspicion sufficient to justify a
strip search" (id. at 11a).

   In the view of the dissent, the detention here, although lengthy,
was less intrusive than either a body cavity or an X-ray search, as to
which the Ninth Circuit had imposed the more rigorous "clear
indication" standard.  Addressing the reasonableness of detaining
persons reasonably suspected of smuggling narcotics in their bodies,
Judge Jameson observed that "indications of alimentary canal smuggling
can only be observed over a period of time.  Allowing a reasonable
period of detention, based on a real suspicion, is the least intrusive
and most reliable means of identifying alimentary canal smugglers."
Pet. App. 10a-11a (emphasis in original;  footnote omitted).  /6/
Finally, he observed that "(t)o deny the validity of reasonable
detentions would reward the increasing ingenuity of narcotics
smugglers and seriously hamstring the good faith efforts of customs
officials to stem the flow of illegal narcotics across our borders"
(id. at 12a).

                          SUMMARY OF ARGUMENT

   This Court has consistently recognized that searches and seizures
conducted at the border have a special status under the Fourth
Amendment.  For example, a search of the luggage of a traveler seeking
to enter the United States is permissible on the basis of nothing more
than the Customs officer's subjective suspicion that something is
amiss.  After the traveler has entered the country, a search of that
type generally would be proper only if justified by probable cause.
The government's compelling interest in protecting the territorial
integrity of the nation against the unlawful entry of persons and
contraband, and the substantially limited privacy and liberty
interests of persons seeking admission into the country, especially
aliens such as respondent, mandate the application of a relaxed
standard of reasonableness in assessing government action in the
border context.

   This case presents the question of the application of this
reasonableness standard to the detention at the border of persons who
are reasonably suspected of attempting to enter the country with
illegal narcotics concealed in their stomachs.  Customs officers can
confirm or dispel a suspicion that someone is engaged in this type of
smuggling only by subjecting the suspect to an X-ray search or
detaining him until his natural processes reveal the contents of his
digestive tract.  It is our contention that a Customs officer may
detain a person for this purpose if the officer has formed a
reasonable suspicion, based upon objective, articulable facts, that
the suspect is carrying contraband.

   When a suspect is detained at the border to enable Customs officers
to conduct a search, the propriety of the detention should turn on the
lawfulness of the search that necessitates the detention.  The
detention of a suspected alimentary canal smuggler therefore is proper
if the Customs officers may lawfully search the suspect's bowel
movements.  The intrusion upon the suspect's privacy interests
resulting from a search of this type certainly is no greater than the
indignity accompanying a strip search.  The courts of appeals are in
general agreement that a strip search is proper if a Customs officer
has a reasonable suspicion that the suspect is carrying contraband,
and the same rule should apply in this context.  In order to search a
suspect's bowel movements, it is of course necessary to detain the
suspect until he moves his bowels.  This circumstance does not support
a requirement of a higher quantum of suspicion, however, because the
length of the detention is almost entirely within the suspect's
control.  And, of course, an individual who finds such a detention and
search particularly offensive always has the ability to avoid the
detention and search by consenting to an X-ray.

   The court below concluded that the detention of a suspected
alimentary canal smuggler is lawful only if the facts available to the
Customs officer satisfy a more stringent test -- if they provide a
"clear indication" that the suspect is an alimentary canal smuggler.
That rule is incompatible with the relaxed reasonableness standard
that applies in the border context.  Moreover, it would prevent
Customs officers from detaining persons about whom, in the court of
appeals' own words, there is a "justifiably high level of official
skepticism" (Pet. App. 5a).  The government should be free to utilize
reasonable investigative techniques, such as the detention in this
case, in order to apprehend persons attempting to smuggle illegal
drugs across our national borders.  This is especially so in the case
of aliens, such as respondent, who have substantially reduced
expectations of privacy and liberty when seeking admission into this
country.  Since a detention at the border of the type at issue here
does not infringe upon these limited expectations, it does not violate
the Fourth Amendment.

   The facts available to the Customs officers in the present case,
which are characteristic of alimentary canal smuggling efforts, were
more than ample to support a reasonable suspicion that respondent was
engaged in smuggling.  Respondent arrived from Colombia, a key source
country for narcotics, and previously had made many short trips to the
United States.  She had no friends or relatives in the United States,
no hotel reservations, and did not know where her ticket had been
obtained.  Respondent claimed that she was planning to purchase
supplies for a retail store but had no concrete plans other than her
intention to get to the stores by traveling around in a taxi.
Moreover, when subjected to a strip search, respondent was found to
have an unusual arrangement of undergarments suggestive of alimentary
canal smuggling.  The Customs officers properly recognized these facts
as substantial indicia of alimentary canal smuggling.  They therefore
were justified in detaining respondent in order to verify or dispel
the suspicion that she was engaged in such smuggling.

                               ARGUMENT

 THE DETENTION AND SEARCH OF RESPONDENT AT THE BORDER DID NOT VIOLATE
THE FOURTH AMENDMENT

   The issue in this case is whether a person who is reasonably
suspected of carrying illegal drugs in her alimentary canal, and who
refuses to consent to an X-ray, may be detained at the border for the
time necessary to verify or dispel that suspicion by examining her
body wastes.  A detention for this purpose falls within the broad
statutory authority of Customs officers to detain and search persons
seeking to enter the country in order to prevent the importation of
contraband.  See 19 U.S.C. 482, 1467, 1581, 1582;  19 C.F.R. 162.6,
162.7;  see also page 15 note 7, infra.  In our view, it is similarly
clear that such a detention is reasonable under the Fourth Amendment
standard governing searches and seizures at the border.

 A. The Government May Detain At The Border A Person Reasonably
Suspected Of Alimentary Canal Smuggling For The Time Necessary To
Verify Or Dispel That Suspicion

   1. The inquiry in assessing a search or seizure under the Fourth
Amendment focuses upon "the 'reasonableness' of the type of government
intrusion involved." United States v. Villamonte-Marquez, No. 81-1350
(June 17, 1983), slip op. 9;  see also New Jersey v. T.L.O., No.
83-712 (Jan. 15, 1985), slip op. 10;  United States v. Place, No.
81-1617 (June 20, 1983), slip op. 6-7;  Terry v. Ohio, 392 U.S. 1, 9
(1968).  Viewed from a different perspective, the inquiry considers
the extent to which society recognizes and affords the individual a
privacy or liberty interest in the particular circumstances in which
the government action occurs.  See Illinois v. Andreas, No. 81-1843
(July 5, 1983), slip op. 5;  Smith v. Maryland, 442 U.S. 735, 739-741
(1979);  United States v. Miller, 425 U.S. 435, 442 (1976);  Katz v.
United States, 389 U.S. 347 (1967).  As the Court explained in New
Jersey v. T.L.O., slip op. 10 (citation omitted):

         What is reasonable depends on the context within which a
      search takes place.  The determination of the standard of
      reasonableness governing any specific class of searches requires
      "balancing the need to search against hte invasion which the
      search entails."

   The reasonableness of many types of searches and seizures is
measured by the standard of probable cause, but the Court has found
that in some circumstances the balancing of relevant factors mandates
the use of a relaxed standard for determining reasonableness.  See,
e.g., New Jersey v. T.L.O., slip op. 14;  Michigan v. Long, 463 U.S.
1032 (1983);  Michigan v. Summers, 452 U.S. 692 (1981);  United States
v. Martinez-Fuerte, 428 U.S. 543 (1976);  Terry v. Ohio, supra.

   It is axiomatic that such a relaxed reasonableness standard applies
to searches and seizures at the border.  The government has a uniquely
important interest in stopping and searching persons at the border in
order to prevent the entry into this country of unauthorized persons
and goods.  This interest stems from the inherent authority of a
sovereign to protect its territorial integrity and is reflected in the
power granted Congress "(t)o regulate Commerce with foreign Nations *
* *" (Art. I, Section 8, Cl. 3).  Congress has sought to prevent the
importation of contraband by granting Customs officers broad authority
to stop and search persons attempting to enter the country.  /7/ See
Torres v. Puerto Rico, 442 U.S. 465, 472-473 (1979);  United States v.
Ramsey, 431 U.S. 606, 619 (1977);  United States v. 12 200-Ft. Reels
of Film, 413 U.S. 123, 125-126 (1973);  Carroll v. United States, 267
U.S. 132, 154 (1925).

   In United States v. Ramsey, the Court approved the opening of a
letter found to contain heroin that was mailed from a foreign country,
although the Customs inspector had not obtained a warrant and did not
have probable cause to believe that the letter contained contraband.
The Court held (431 U.S. at 619 (footnote omitted)):

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

   Ramsey's conclusion that the probable cause standard and the
requirement of a warrant do not govern the reasonableness of searches
at the border applies to searches and detentions of persons.  See 431
U.S. at 616.  As the Court observed in Carroll v. United States, 267
U.S. at 154, persons lawfully within the country "have a right to free
passage without interruption or search unless there is * * * probable
cause," but "(t)ravellers may be * * * stopped in crossing an
international boundary because of national self protection reasonably
requiring one entering the country to identify himself as entitled to
come in, and his belongings as effects which may be lawfully brought
in." See also Torres v. Puerto Rico, 442 U.S. at 472-473;  United
States v. Brignoni-Ponce, 422 U.S. 873, 887 (1975) (Rehnquist, J.,
concurring);  California Bankers Ass'n v. Shultz, 416 U.S. 21, 62-63
(1974);  Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973);
id. at 288 (White, J., dissenting);  cf. United States v.
Martinez-Fuerte, supra.

   In order to evaluate the propriety of searches and detentions of
persons at the border, it is necessary to balance "the individual's
legitimate expectations of privacy and personal security" against the
government's compelling interest in effectively policing our national
borders.  /8/ Cf. New Jersey v. T.L.O., slip op. 10;  see also United
States v. Hensley, No. 83-1330 (Jan. 8, 1985), slip op. 6;  United
States v. Place, slip op. 6-8;  United States v. Martinez-Fuerte, 428
U.S. at 555;  United States v. Brignoni-Ponce, 422 U.S. at 878;  Terry
v. Ohio, 392 U.S. at 22.

   2. This case concerns the application of this balancing test to
assess the reasonableness of the detention at the border of a
suspected alimentary canal smuggler.  A Customs officer can confirm or
dispel a suspicion that a person is concealing drugs in his alimentary
canal only by obtaining an X-ray of the suspect's abdomen or detaining
the suspect in order to examine his bowel movements.  /9/

   The courts of appeals have applied different rules in assessing the
reasonableness under the Fourth Amendment of the use of these
procedures.  The Ninth Circuit has concluded that X-ray searches are
the equivalent of searches of a suspect's body cavities and therefore
can be conducted only if there is a "clear indication" that the
suspect is an alimentary canal smuggler -- the test it had previously
established for border body cavity searches.  See United States v.
Quintero-Castro, 705 F.2d 1099 (9th Cir. 1983).  /10/ The practical
impact of that decision on law enforcement efforts to detect and
prevent the entry of contraband into the country was not great so long
as the alternative of detention remained available where, as here,
consent to an X-ray was not given.  In the present case, however, the
Ninth Circuit has held that the same standard governs the detention of
suspected alimentary canal smugglers in order to examine their bowel
movements.  Pet. App. 6a.

   The Fifth and Eleventh Circuits, by contrast, have held that an
X-ray search is permissible if the Customs officer has a "reasonable
suspicion" that the suspect is engaged in smuggling activity, a less
stringent test than the Ninth Circuit rule.  United States v.
Vega-Barvo, 729 F.2d 1341, 1346-1350 (11th Cir. 1984), petition for
cert. pending, No. 84-5553;  United States v. Mejia, 720 F.2d 1378,
1381-1382 (5th Cir. 1983).  /11/ The Eleventh Circuit has applied the
same standard to the detention of a suspect in order to examine his
bowel movements.  It held that when a Customs officer reasonably
suspects that a person is a drug smuggler, "(t)he detention of (the
suspect) at the border long enough to reveal by natural processes that
which would be disclosed by a more expeditious x-ray search cannot be
held to be an unreasonable seizure.  Nor can the search of the results
of that natural process be held to be an unreasonable search." United
States v. Mosquera-Ramirez, 729 F.2d 1352, 1357 (11th Cir. 1984).
/12/ In our view, the Eleventh Circuit rule properly accommodates the
interests of the government and the interests of travelers with
respect to both X-ray searches and detentions of the type at issue in
this case.  /13/

   a. As we have discussed (see pages 14-17, supra), the propriety
under the Fourth Amendment of the detention of a person at the border
is measured against a relaxed standard of reasonableness.  This is a
result not only of the government's compelling interest in regulating
the entry of people and goods into the country, but also of travelers'
reduced expectations of liberty in the border context.  Since almost
the beginning of the nation, statutes have authorized detentions at
the border for the purpose of determining whether a person seeking to
enter the country is carrying contraband.  See, e.g., Act of Mar. 9,
1815, ch. 94, Section 2, 3 Stat. 232;  see also page 15 note 7, supra.
 Persons seeking to enter the country are on notice that they may be
detained at the border until it is established that they are entitled
to enter.  United States v. Mosquera-Ramirez, 729 F.2d at 1356;  see
United States v. King, 517 F.2d 350, 353 (5th Cir. 1975), cert.
denied, 446 U.S. 966 (1980);  Barnett, A Report On Search And Seizure
At The Border, Am. Crim. L. Q., Aug. 1963, at 36, 39-41;  cf. United
States v. Martinez-Fuerte, 428 U.S. at 561.

   To determine the reasonableness of a detention under the Fourth
Amendment it is necessary to balance the justification for the
detention against the extent to which the detention infringes upon the
individual's expectation of liberty.  As the Eleventh Circuit has
observed in this context, "(c)onsideration of the reasonableness of
the length of detention must focus on the purpose of detention in the
first place." United States v. Mosquera-Ramirez, 729 F.2d at 1356;
cf. United States v. Place, slip op. 10;  Michigan v. Summers, 452
U.S. at 701-706;  Terry v. Ohio, 392 U.S. at 19-20;  3 W. LaFave,
Search and Seizure Section 9.2, at 39-40 (1978).

   Where the purpose of the detention is to conduct a border search
that is reasonable under the Fourth Amendment, it is reasonable for
the government to detain the suspect for the time needed to conduct
the search.  United States v. Mosquera-Ramirez, 729 F.2d at 1356;
United States v. Des Jardins, No. 82-1247 (9th Cir. Sept. 21, 1984),
slip op. 4150 n.9;  United States v. Espericueta-Reyes, 631 F.2d 616,
621-622 (9th Cir. 1980);  cf. United States v. Place, slip op. 10;
Michigan v. Summers, 452 U.S. at 701-706.  The determination that a
given quantum of suspicion permits the government to engage in a
search would be meaningless if it did not carry with it the authority
to detain the suspect in order to conduct the search.  /14/ This is
especially true in the border setting because the purpose of the
search is to prevent persons from entering the country with
contraband.  Moreover, in light of the reduced liberty expectations of
persons seeking to cross the border, such a detention is much less
intrusive than the detention of a person occurring inside the United
States.  The validity of the detention in this case therefore depends
upon the reasonableness of the search contemplated by the Customs
officers -- the examination of respondent's bodily wastes.

   b. The reasonableness of a search must be determined by balancing
the government's interest in preventing the importation of contraband
against the individual's expectations of "personal privacy and
dignity" protected by the Fourth Amendment.  Schmerber v. California,
384 U.S. 757, 767 (1966).  See pages 13-17, supra.  In assessing the
reasonableness of border searches, the courts of appeals have created
two general categories.  A "routine" search of a traveler's belongings
and outer garments has been held to be proper on the basis of nothing
more than a Customs officer's subjective view that such a search is
appropriate.  /15/ More intrusive searches, such as a strip search in
which the suspect is told to remove his clothes and is subjected to a
visual inspection, or a search by medical personnel of a suspect's
body cavities, have been upheld only when the officer's suspicion is
reasonably based upon objective facts.  Most of the courts of appeals
require that the officer possess a "reasonable suspicion" that
contraband will be discovered in order to conduct these more intrusive
searches.  /16/ The Ninth Circuit, however, has further divided these
more intrusive searches into two categories:  "real suspicion" is
needed to permit a strip search, /17/ and a "clear indication" or
"plain suggestion" that contraband is contained in the suspect's body
is the prerequisite for a body cavity search.  /18/

   We accept the appropriateness of applying the "reasonable
suspicion" standard in measuring the permissibility of more intrusive
border searches such as strip searches -- at least as to citizens /19/
-- just as it has been applied by this Court in a variety of other
contexts in which an objective showing short of probable cause is
required to demonstrate the reasonableness of government action.  New
Jersey v. T.L.O., slip op. 14-15;  Michigan v. Long, supra;  Michigan
v. Summers, supra;  United States v. Brignoni-Ponce, 422 U.S. at 881;
Terry v. Ohio, 392 U.S. at 20-27.  This standard presently is applied
by most of the courts of appeals and even the Ninth Circuit's "real
suspicion" rule actually is equivalent to a "reasonable suspicion"
test (see page 22 note 17, supra).

   The search of a suspect's bodily wastes for the presence of
balloons containing illegal narcotics involves an intrusion upon
privacy interests no greater than that accompanying a strip search and
therefore should be assessed under the reasonable suspicion standard.
Assuming arguendo that some more stringent standard might apply to
body cavity searches, /20/ we believe it is plain that the search of a
suspect's bowel movements has none of the characteristics of a more
intrusive body cavity search.  The Ninth Circuit has differentiated
between strip searches and body cavity searches by noting that body
cavity searches result in an intrusion by the searcher into "the most
intimate portions of (the suspect's) anatomy" and carry with them the
possibility that the suspect will suffer pain or physical harm.
United States v. Cameron 538 F.2d 254, 258 (9th Cir. 1976);  see also
United States v. Holtz, 479 F.2d 89, 92-94 (9th Cir. 1973);  Rivas v.
United States, 368 F.2d 703, 710 (9th Cir. 1966), cert. denied, 386
U.S. 945 (1967).  The inspection of a suspect's body wastes does not
involve an intrusion of this type, and does not threaten harm or pain
to the suspect.

   Although we strongly disagree with the Ninth Circuit's conclusion
that an X-ray search is as intrusive as a body cavity search, /21/
even the reasons advanced in support of that determination are
inapplicable here.  The court rested its decision on its view that an
X-ray search "goes beyond the passive inspection of body surfaces" and
"is potentially harmful to the health of the suspect." United States
v. Ek, 676 F.2d 379, 382 (9th Cir. 1982).  In a search of a suspect's
body wastes, there is no intrusion of any sort into the suspect's body
and no even arguable threat to the suspect's health.  Thus, the search
contemplated in the present case is no more intrusive than a strip
search and therefore should be upheld on the basis of "reasonable
suspicion." /22/

   c. Apart from the question of the validity of a search of bodily
wastes in itself, the decision to undertake this type of search often
involves a substantial period of detention, as it did here, because
the search cannot take place until after the suspect has eliminated
the wastes.  As previously noted (pages 20-21, supra), it is
ordinarily permissible to detain a person for the length of time
reasonably necessary to perform a lawful search, and, although the
detention in cases like this may be lengthier than would be proper in
most other contexts, that principle still applies here.  In general,
the intrusiveness of a border detention of this type is lessened by
the substantially reduced liberty expectations of travelers at the
border.  At the same time, the government's interest is especially
strong because of the purpose of the detention.  A rule requiring the
government to release into the United States persons who are
reasonably suspected of smuggling narcotics would directly undermine
the government's compelling interest in preventing the importation of
contraband.

   It is important in assessing the reasonableness of the detention to
recognize that this is not a situation in which the length of
detention is subject to the unconstrained discretion of the Customs
officers.  Cf. Delaware v. Prouse, 440 U.S. 648, 662-663 (1979).  The
suspect, not the government, controls the length of the detention.
Here, respondent apparently engaged in "heroic efforts to resist the
usual calls of nature" by refusing all food and water (Pet. App. 4a),
in order to thwart a search of her bowel movements.  The length of the
detention cannot be grounds for transforming a reasonable search into
an unreasonable search when the period of detention is extended as a
result of the suspect's own efforts.  /23/ In addition, as the facts
of this case demonstrate, a longer period of detention actually serves
to reinforce the Customs officers' suspicion that the suspect is an
alimentary canal smuggler.  A suspect's attempts to impede the very
function that, if he is not a smuggler, is the key to his release
supplies clear evidence that he has something to hide (see Pet. App.
10a).

   Finally, a suspect cannot complain of the intrusiveness of the
detention if he selected detention over the alternative of an X-ray
search.  A reasonable suspicion of alimentary canal smuggling is
sufficient to justify an X-ray search as well as detention.  An X-ray
search involves an invasion of privacy no greater than that attendant
to a strip search:  there is no physical contact between the searcher
and the suspect and no physical intrusion into the suspect's body.
X-ray examinations are now a common part of routine physical
examinations and, if conducted in accordance with sound medical
practice, are not viewed as a health hazard by either the public or
the medical profession.  See our brief in opposition in Vega-Barvo v.
United States, supra, at 7-11.

   Thus, when a Customs officer acquires a reasonable suspicion that a
traveler is engaged in alimentary canal smuggling, the suspect
generally will be faced with a choice between these two search
procedures.  /24/ We have little doubt that most innocent travelers
confronted with the choice would elect a prompt X-ray as the means of
dispelling suspicion and gaining entry into the country.  Be that as
it may, the suspect's decision to choose one method over another
indicates that, in his view, the method selected is the least
objectionable.  If the suspect chooses detention over a more
expeditious X-ray search, he should not later be heard to complain
about the length of the period of detention.  For all of these
reasons, the reasonable suspicion standard properly accommodates both
the liberty interests and the privacy interests implicated by the
detention of a suspected smuggler for the purpose of examining his
body wastes.

   d. The conclusion of the court below that the detention in this
case should be measured against the more stringent "clear indication"
standard governing body cavity searches did not rest upon an
assessment of the intrusiveness of the detention.  /25/ The court
apparently concluded that the Customs officers' decision to detain
respondent was an attempt to circumvent its rule regarding the
standard for X-ray searches.  It held that because the Customs
officers could not perform an X-ray search, they could not detain
respondent in order to examine her bowel movements.  Pet. App. 6a.
Thus, the decision rested upon the Ninth Circuit's rule regarding the
intrusiveness of an X-ray search.  /26/

   As we have just discussed, a suspect permitted to choose between
two investigative methods may not be heard to complain that the method
that he or she selected is more intrusive than the alternative.  The
Ninth Circuit's approach turns this principle on its head and enables
a suspect to complain on the ground that the investigative method that
was not selected -- here, the X-ray search -- would have been
impermissible under the circumstances.  Such a rule is plainly
incorrect because a suspect's expectations of privacy cannot be
infringed by a search that the government did not conduct;  these
expectations can be affected only by the search that actually is
performed by the government.

   This Court recently applied this principle in addressing the status
under the Fourth Amendment of a "canine sniff" of luggage.  See United
States v. Place, slip op. 10-11.  A sniff test reveals whether a piece
of luggage may contain narcotics -- information that also could be
obtained by an officer's search of the contents of the luggage -- but
the sniff test "is much less intrusive than a typical search" (id. at
10).  The Court held that a canine sniff therefore does not constitute
a "search" under the Fourth Amendment, despite the fact that the
opening of the luggage by an officer obviously would constitute a
search (ibid.).  Similarly, in the present case, the propriety of the
detention must be ascertained on the basis of the intrusiveness of
that action, not the intrusiveness of a hypothetical X-ray search.  As
we have shown, the quantum of suspicion required to conduct a strip
search is all that is required to permit a detention of the type at
issue in this case.  /27/

   3. The appropriateness of the "reasonable suspicion" standard in
this context also is supported by important practical considerations.
Illegal drugs increasingly are being imported into the United States
through the use of alimentary canal smugglers.  See e.g., United
States v. Mejia, 720 F.2d at 1382 (importing of cocaine in this manner
"is now common");  United States v. Mendez-Jimenez, 709 F.2d 1300,
1301 (9th Cir. 1983) (25 alimentary canal smugglers apprehended on a
single flight from Colombia).  /28/ Drug importers have turned to
alimentary smuggling because the technique is difficult to detect.
Body cavity smuggling, which also has been used to import illegal
narcotics into the United States, is characterized by certain external
signs, such as an unnaturally stiff gait, restricted body movements,
possession of lubricants, objects protruding from body cavities, and
the presence of lubricants on undergarments or body orifices.  See,
e.g., Pet. App. 10a.  Alimentary canal smuggling, however, "does not
leave the external signs that body cavity (e.g., rectum or vagina)
smuggling does." United States v. Mendez-Jimenez, 709 F.2d at 1303;
see also Pet. App. 10a.  Thus, it is especially true in this context
that "the obstacles to detection of illegal conduct may be unmatched
in any other area of law enforcement." United States v. Mendenhall,
446 U.S. at 562 (Powell, J., concurring).

   The standard adopted by the Ninth Circuit would significantly
curtail the ability of Customs officers to apprehend alimentary canal
smugglers because this type of smuggling generally is not accompanied
by the kind of evidence that court believes is needed to supply a
"clear indication" that the suspect is an alimentary canal smuggler.
Customs officers generally must rely on "the travelers' inability to
explain his or her trip" and other factors that might appear innocent
when viewed individually, but which, when viewed in their entirety,
reasonably would lead an experienced Customs inspector to suspect the
traveler of carrying contraband.  United States v. Vega-Barvo, 729
F.2d at 1351;  see also pages 39-41, infra.  This type of information
apparently is insufficient to justify detention under the Ninth
Circuit rule because it does not directly indicate the presence of
drugs within the suspect's body in the way that lubricants signal the
presence of body cavity smuggling.  See Pet. App. 6a-7a;  United
States v. Quintero-Castro, 705 F.2d at 1100-1101.  Thus, persons whom
Customs officers reasonably suspect of carrying drugs, such as
respondent, could not be subjected to further examination, and would
be permitted to enter the United States.

   The special problems of detecting this type of narcotics
trafficking require a more flexible approach.  See United States v.
Place, slip op. 8 & n.5;  Florida v. Royer, 460 U.S. 491, 519 (1983)
(Blackmun, J., dissenting).  In light of the absence of alternative
methods for detecting alimentary canal smugglers (see page 17 note 9,
supra), /29/ and the relatively minor intrusion associated with this
investigative technique, this Court should uphold detentions for this
purpose on the basis of reasonable suspicion.  As the dissenting judge
below warned, "(t)o deny the validity of reasonable detentions would
reward the increasing ingenuity of narcotics smugglers and seriously
hamstring the good faith efforts of customs officials to stem the flow
of illegal narcotics across our borders." Pet. App. 12a.

   4. Even if the Court does not agree with our contention that the
reasonable suspicion standard should govern border detentions of the
type at issue in this case, we submit that the government may detain
at the border aliens seeking to enter the United States -- as opposed
to returning citizens -- who are suspected of smuggling narcotics.

   A person seeking to invoke the protection of the Fourth Amendment
must show that "a 'justifiable,' a 'reasonable,' or a 'legitimate
expectation of privacy (or liberty)' * * * has been invaded by
government action." Smith v. Maryland, 442 U.S. at 740.  The inquiry
is whether the individual has a subjective expectation of privacy or
liberty "that society is prepared to recognize as 'reasonable.'" Katz
v. United States, 389 U.S. at 361 (Harlan, J., concurring);  see also
Hudson v. Palmer, No. 82-1630 (July 3, 1984), slip op. 7;  Smith v.
Maryland, 442 U.S. at 740-741.  The statutes governing the admission
of aliens into this country strictly limit aliens' expectations of
privacy and liberty prior to entry into the United States.  Since the
detention of an alien in order to dermine whether he or she is
carrying narcotics does not infringe upon the privacy or liberty that
the alien legitimately could expect under these statutes, such a
detention does not violate the Fourth Amendment.

   An alien can be excluded from admission into the United States on a
variety of grounds (see, e.g., 8 U.S.C. 1182), and Congress has
directed that "(e)very alien * * * who may not appear to the examining
immigration officer * * * to be clearly and beyond a doubt entitled to
(enter) shall be detained for further inquiry * * *" (8 U.S.C.
1225(b)).  /30/ In view of this broad detention requirement, and
travelers' general awareness that delays may accompany efforts to
enter a foreign country, an alien seeking admission into the United
States has a drastically limited expectation of liberty.  Moreover,
since an alien must be excluded from this country if immigration
officials "know or have reason to believe (that the alien) is * * * an
illicit trafficker in (narcotics)" (8 U.S.C. 1182(a) (23)), aliens
such as respondent are on notice that they will be refused entry
unless it appears clearly and beyond a doubt that they are not
carrying narcotics.

   In addition, 8 U.S.C. 1222 provides:

         For the purpose of determining whether aliens * * * arriving
      at ports of the United States belong to any of the classes
      excluded by this chapter, by reason of being afflicted with any
      of the diseases or mental or physical defects or disabilities
      set forth in section 1182(a) of this title * * * such aliens
      shall be detained * * * for a sufficient time to enable the
      immigration officers and medical officers to subject such aliens
      to observation and an examination sufficient to determine
      whether or not they belong to the excluded classes.

   While it is not clear whether this statute specifically
contemplates detention and a medical examination for the purpose of
determining whether the alien has ingested illicit drugs and is
therefore excludable under Section 1182(a)(23), it is quite plain that
being examined while undressed, being X-rayed, having urine or feces
inspected, and having body cavities examined are all routine medical
procedures to which aliens (but not citizens) may be subjected to
determine their medical fitness to enter the country.  See 8 C.F.R.
234.1;  42 C.F.R. 34.4.

   These statutes make plain that society is not willing to accord
aliens at the border the rights of privacy and liberty enjoyed by
persons inside the United States.  Aliens can reasonably have only a
drastically limited expectation that they will be free from detention
and from searches effected through medical procedures.  When the
government's compelling interest in preventing the importation of
contraband is weighed against these limited expectations of privacy
and liberty, it seems clear that even a quantum of suspicion less than
reasonable suspicion should suffice to justify the detention and
search of an alien at the border.

   This result is especially appropriate here.  Respondent could not
have had any reasonable expectation of liberty because she was subject
to detention under the immigration statutes.  She plainly was not
"clearly and beyond a doubt" entitled to enter the United States
because the Customs officers had a substantial suspicion that she was
carrying narcotics (see pages 41-42, infra), a circumstance that would
render her excludable under Section 1182(a)(23).  Since the detention
of respondent was authorized under Section 1225(b), she could not
reasonably expect that she would be free to enter the United States.
Her detention therefore did not violate the Fourth Amendment.

 b. The Detention Of Respondent Was Lawful Because The Customs
Officers Reasonably Suspected That She Was Engaged In Alimentary Canal
Smuggling

   The "reasonable suspicion" test is satisfied if Customs officers
"are aware of specific articulable facts (that), together with
rational inferences from those facts," reasonably warrant a suspicion
that a person seeking to enter the country is carrying contraband.
United States v. Brignoni-Ponce, 422 U.S. at 884;  see also United
States v. Cortez, 449 U.S. 411, 416 (1981).  The district court held
in the present case that the officers "were justified in having a very
substantial suspicion that (respondent) may very well (have been)
bringing in cocaine" (Pet. App. 14a).  The court of appeals similarly
concluded that "the officers had a strong suspicion that (respondent)
was carrying drugs in her body" (id. at 4a;  see also id. at 5a).  In
light of these concurrent findings of fact, this Court need not
address this factual issue.  See, e.g., United States v. Doe, No.
82-786 (Feb. 28, 1984), slip op. 8;  Rogers v. Lodge, 458 U.S. 613,
623 (1982) (collecting cases).  /31/ In any event, it is clear that
the facts known to the Customs officers in the present case were more
than sufficient to warrant the suspicion that respondent was
attempting to smuggle narcotics into the United States.

   The existence of reasonable suspicion must be determined on the
basis of "an assessment of the whole picture" as viewed by "those
versed in the field of law enforcement." United States v. Cortez, 449
U.S. at 418.  This Court has emphasized that "objective facts,
meaningless to the untrained, can be combined with permissible
deductions from such facts to form a legitimate basis for suspicion of
a particular person and for action on that suspicion." Id. at 419;
see also United States v. Brignoni-Ponce, 422 U.S. at 885.  It is
clear that "(a)mong the circumstances that can give rise to reasonable
suspicion are the agent's knowledge of the methods used in recent
criminal activity and the characteristics of persons engaged in such
illegal practices." United States v. Mendenhall, 446 U.S. at 563-564
(Powell, J., concurring);  see also Florida v. Royer, 460 U.S. at
524-526 nn. 5 & 6 (Rehnquist, J., dissenting).

   The Customs Service has learned through the experience of officers
in the field that several facts reliably indicate that a suspect may
be engaged in alimentary canal smuggling.  These smugglers tend to be
travelers from narcotics source countries who may previously have made
a number of short trips to the United States.  In addition, they
generally have no hotel reservations and know no one in the United
States.  They may carry large amounts of American currency but do not
have the amount of luggage and clothing that, in Customs officers'
experience, is characteristic of a typical legitimate traveler.
Finally, the suspects usually are not aware of the manner in which
their airline tickets were purchased.  See United States v.
Vega-Barvo, 729 F.2d at 1350 (noting that the defendant was a South
American traveling alone, had arrived from a drug source country, and
was carrying a single piece of luggage);  United States v. Pino, 729
F.2d 1357, 1358 (11th Cir. 1984) (the defendant, a Colombian, had only
enough luggage for a short stay, and explained that his ticket had
been purchased for him by another person);  United States v.
Henao-Castano, 729 F.2d 1364, 1365 (11th Cir. 1984), petition for
cert. pending, No. 84-5554 (the defendant was a Colombian, could not
explain the circumstances of the purchase of his ticket, planned to
stay in a hotel but had made no reservations, and carried only one
suitcase containing a small amount of clothing);  United States v.
Padilla, 729 F.2d 1367, 1368 (11th Cir. 1984) (the defendant was a
Colombian, carried little luggage or clothing, and could not say how
much his ticket cost);  United States v. Mejia, 720 F.2d at 1380
(defendant carried $2,000 in cash, had traveled to the United States
twice in the last 14 months, and had no hotel reservations).  /32/

   Another important factor indicating that smuggling is afoot is "the
traveler's inability to explain his or her trip" or the recital of an
implausible story concerning the purpose of the journey.  United
States v. Vega-Barvo, 729 F.2d at 1350 (defendant's story that she was
a travel agent not credible in light of indications that she lacked an
education and had made no concrete business arrangements).  See also
United States v. Mosquera-Ramirez, 729 F.2d at 1354-1255 (defendant's
claim that he had come to this country to purchase Betamax machines
substantially weakened by lack of an explanation of how he intended to
buy the merchandise with the funds at his disposal);  United States v.
Pino, 729 F.2d at 1359 (reasonable suspicion established by fact that,
although defendant claimed to be in the television repair business, he
knew nothing about television parts);  United States v.
Castaneda-Castaneda, 729 F.2d 1360, 1364 (11th Cir. 1984), petition
for cert. pending, No. 84-5556 (defendant's claim that he was in the
ceramics business impeached by the fact that he had only a superficial
knowledge of basic business matters);  United States v. Henao-Castano,
729 F.2d at 1365-1366 (defendant's statement that he was in the
country to purchase electronic devices for his store undercut by his
lack of a planned itinerary or knowledge concerning the business);
United States v. Padilla, 729 F.2d at 1368 (reasonable suspicion
established, inter alia, because defendant, who claimed to be visiting
country to purchase business machines, told an implausible story about
the items he hoped to purchase and lacked a realistic plan as to how
to transport these items);  United States v. Mejia, 720 F.2d at 1380
(defendant claimed to be on a buying trip but did not have appropriate
business dress).

   As the court of appeals acknowledged, respondent "possessed almost
all of the indicators" used to identify drug couriers (Pet. App. 3a
n.3).  She was traveling from Colombia, a source country for
narcotics, on a trip of short duration, and previously had made
numerous short trips to Miami and Los Angeles.  Respondent had no
family or friends in the United States and no confirmed hotel
reservation, carried $5,000 in cash, and could not recall where she
had purchased her airline ticket.  Pet. App. 2a n.3;  J.A. 41-42, 46,
62;  E.R. 40.

   Respondent explained that the purpose of her trip was to purchase
clothing and electrical appliances for her husband's retail business
in Colombia, and to support that claim she exhibited business cards
and a book of invoices (J.A. 14-15).  Although this story initially
may have had a patina of credibility, its plausibility was seriously
eroded upon further questioning by the Customs officers.  Thus,
although respondent supposedly had traveled several thousand miles at
substantial cost for this purpose, she admitted that she had no
concrete plan for purchasing these items other than visiting various
retail merchants by taxicab (J.A. 62;  E.R. 40).  Indeed, respondent's
statements closely paralleled the claims of other alimentary canal
smugglers who have posed as buyers for retail stores.  See pages
40-41, supra.

   The unusual arrangement of undergarments worn by respondent -- two
pairs of elastic underpants together with a paper towel in her crotch
(J.A. 57, 62-63) -- provided further support for the officers'
suspicion that respondent was engaged in smuggling.  This
multi-layered barrier is indicative of an effort to prevent discovery
of any premature release of the items concealed in respondent's
digestive tract.

   These facts far surpass the minimum showing required to establish a
reasonable suspicion that respondent was engaged in smuggling.  Even
if some intermediate level of suspicion greater than reasonable
suspicion were necessary to uphold the detention, the evidence of the
undergarments combined with the key characteristics of alimentary
canal smuggling exhibited by respondent in fact provided a "clear
indication" that contraband would be discovered in respondent's bowel
movements.  Indeed, we think these facts supply the showing of a
"probability or substantial chance of criminal activity" required to
meet the standard of probable cause.  Illinois v. Gates, 462 U.S. 213,
244 n.13 (1983);  see also id. at 235;  Grano, Probable Cause and
Common Sense:  A Reply to the Critics of Illinois v. Gates, 17 U.
Mich. J.L. Ref. 465, 476-478, 495-501 (1984).  The Customs officers
therefore were justified in detaining respondent in order to determine
whether she was engaged in smuggling.  /33/

663 F.2d 1, 3 (2d Cir. 1981);  United States v. Carter, 563 F.2d 1360,
1361 (9th Cir. 1977).  The Sanders court noted that although "the
exposure of the stump to which the prosthetic device is attached,
accompanied by a temporary lack of mobility, constitutes an
embarrassment," the search is "no more intrusive than (a) strip search
* * * and clearly less intrusive than a body-cavity search." 663 F.2d
at 3 (footnote omitted).

   /23/ A somewhat similar question is before the Court in United
States v. Sharpe, No. 83-529 (argued Nov. 27, 1984).

   /24/ In some, relatively rare, situations an X-ray examination
might not be appropriate for medical reasons, such as if the suspect
were pregnant.

   /25/ The court did characterize the detention as "long" (Pet. App.
6a) and noted that the detention "impacted both the comfort and the
dignity of a human being" (Pet. App. 4a), but it did not relate these
observations to its decision to apply the clear indication test in
this case.

   /26/ The court below also noted several times that the Customs
officers did not obtain a warrant authorizing either the detention or
an X-ray search (see Pet. App. 4a, 5a, 6a, 7a).  It stated that "'the
absence of a warrant is an important factor in assessing the
reasonableness with which the authorities acted.'" Pet. App. 2a n.2,
quoting United States v. Cameron, 538 F.2d 254, 259 (9th Cir. 1976).
However, as the court below itself acknowledged (Pet. App. 2a n.2),
warrants are not required for border searches.  United States v.
Ramsey, 431 U.S. at 619.  The Fourth Amendment states that "no
warrants shall issue, but upon probable cause * * *," and where, as
here, a lesser standard applies, a warrant cannot be required.  See
South

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   ANDREW J. PINCUS

      Assistant to the Solicitor General

   JOHN F. DE PUE

      Attorney

   MARCH 1985

   /1/ E.R. refers to the excerpt of record filed in the court of
appeals.

   A few of these facts are contained only in the statements of the
Customs officers that were attached to the application for a court
order authorizing an X-ray and body cavity search (see pages 6-7,
infra).  Those statements were included as attachments to respondent's
motion to suppress, and therefore were before the district court in
connection with its consideration of that motion.  Although respondent
lodged an objection on hearsay grounds to the district court's
consideration of some of these facts (J.A. 11), both the district
court and the court of appeals appear to have relied upon the
statements in assessing whether the officers were justified in
detaining respondent (see J.A. 10-11;  Pet. App. 2a n.3).  Of course,
the Federal Rules of Evidence, including the hearsay rule, do not
apply to suppression hearings.  Fed. R. Evid 1101(d) (1);  see, e.g.,
United States v. Matlock, 415 U.S. 164, 174 (1974);  United States v.
Merritt, 695 F.2d 1263, 1269-1270 (10th Cir. 1982), cert. denied, 461
U.S. 916 (1983).  The reliance upon this evidence by the courts below
therefore was perfectly proper.

   /2/ During the suppression hearing, the parties stipulated that
respondent's purse contained the following items:  a make-up bag
containing lipstick, mascara, rouge, mirror, eye liner, and eye
shadow;  perfume;  hand cream;  toothbrush;  toothpaste;  hairbrush;
handkerchief;  pictures of two children;  a pen;  and some U.S.
currency.  Her suitcase contained a nighgown, a 500-peso note, a pair
of jeans, three blouses, three pairs of slacks, one green two-piece
suit, assorted underwear and socks, two sweaters, and a brown skirt.
J.A.9.

   /3/ At this time the Ninth Circuit already had decided United
States v. Ek, 676 F.2d 379 (1982), in which it stated that more than
reasonable suspicion is required to justify a nonconsensual X-ray.

   /4/ As it happened, the next direct flight to Colombia was many
hours away (J.A. 19, 48).  During the course of respondent's
subsequent detention, however, Customs officers attempted to arrange
for her departure to Mexico City, where it was believed she could
catch a connecting flight to Colombia.  These arrangements were
thwarted by poor weather conditions and by the discovery that
respondent did not have a visa for Mexico and thus could not wait
there until the next connecting flight to Colombia.  J.A. 53-54,
55-56, 58, 63-64.

   /5/ The affidavit also noted that respondent's "relative lack of
toilet articles, her light luggage, and her money being in $50 bills
indicate a 'stripped down' or 'clean' approach typical of professional
couriers" (J.A. 42).

   /6/ Judge Jameson stated "(a)s a practical matter * * * a detention
would not be necessary if customs officials could seek a court order
for an X-ray on the basis of a 'real suspicion'" (Pet. App. 11a n.3).
He noted, however, that the court of appeals had "adopted the higher
'clear indication' standard for X-ray searches" and that, although
"the wisdom of this decision may be questioned, * * * it is the law of
the circuit" (ibid.).

   /7/ Several statutes authorize detentions and searches of persons
at the border.  See 19 U.S.C. 482, 1467, 1581, 1582.  For example,
Section 1582 provides:

         The Secretary of the Treasury may prescribe regulations for
      the search of persons and baggage and he is authorized to employ
      female inspectors for the examination and search of persons of
      their own sex;  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.

   Section 1582 has been implemented by regulations broadly
authorizing stops and searches of persons seeking to enter the United
States.  See 19 C.F.R. 162.6, 162.7.  The use of this authority by
Customs officers is governed by mandatory guidelines issued by the
Commissioner of Customs.

   /8/ This already substantial government interest is heightened in
the circumstances of this case because "'(t)he public has a compelling
interest in detecting those who would traffic in deadly drugs for
personal profit.'" United States v. Place, slip op. 7 (quoting United
States v. Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J.,
concurring)).

   /9/ The court below suggested that Customs officers could "let
(suspected smugglers) into the country and try to follow (them)" (Pet.
App. 6a).  That approach would amount to an abrogation of the very
purpose of Customs inspections -- to prevent contraband from entering
the United States.  Moreover, such a course of action would be
extremely impractical.  Once the suspected smuggler is allowed to
proceed on his or her own way, an investigation would ordinarily have
to comply with the stricter standards applicable away from the border,
thereby making detection more difficult (but cf. Illinois v. Andreas,
No. 81-1843 (July 5, 1983)).  In any event, an alimentary canal
smuggler is likely to excrete the drug-filled containers in a hotel
room or some other private place.  Since government agents almost
certainly would not be able to view this activity, they would not be
able to gain additional information casting suspicion upon the
smuggler.  Thus, the smuggler probably would be able successfully to
transfer the drugs (also out of public view) to his domestic
confederates.

   Permitting a suspected smuggler to return to his country of origin
also is an unsatisfactory alternative because it would allow the
suspect to escape apprehension and return to repeat his smuggling
efforts another day.  In addition, this approach would remove a
disincentive to smuggling activity by materially reducing the risk of
apprehension and prosecution.

   /10/ See also United States v. Castrillon, 716 F.2d 1279, 1282 (9th
Cir. 1983);  United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (9th
Cir. 1983);  United States v. Couch, 688 F.2d 599, 604-605 (9th Cir.
1982);  United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982);
United States v. Aman, 624 F.2d 911, 912-913 (9th Cir. 1980).  One
Ninth Circuit panel has questioned the wisdom of this decision (United
States v. Shreve, 697 F.2d 873 (1983)).

   /11/ See also United States v. Saldarriaga-Marin, 734 F.2d 1425
(11th Cir. 1984);  United States v. Castaneda-Castaneda, 729 F.2d
1360, 1363 (11th Cir. 1984), petition for cert. pending, No. 84-5556;
United States v. Padilla, 729 F.2d 1367, 1368 (11th Cir. 1984).

   /12/ Accord, United States v. De Montoya, 729 F.2d 1369, 1371 (11th
Cir. 1984);  United States v. Henao-Castano, 729 F.2d 1364, 1366 (11th
Cir. 1984), petition for cert. pending, No. 84-5554;  United States v.
Solimini, 560 F. Supp. 648, 653-654 (E.D.N.Y. 1983).

   /13/ We discuss the X-ray search issue in our brief in opposition
in Vega-Barvo v. United States, petition for cert. pending, No.
84-5553, a copy of which has been provided to counsel for respondent.

   /14/ The government's diligence in conducting the search may be a
factor in assessing the reasonableness of the search. Cf. United
States v. Place, slip op. 13.

   /15/ United States v. Vega-Barvo, 729 F.2d at 1345;  United States
v. Grotke, 702 F.2d 49, 51 (2d Cir. 1983);  United States v. Sandler,
644 F.2d 1163, 1167-1169 (5th Cir. 1981) (en banc);  United States v.
Asbury, 586 F.2d 973, 975 (2d Cir. 1978);  United States v. Palmer,
575 F.2d 721, 723 (9th Cir.), cert. denied, 439 U.S. 875 (1978);
United States v. Himmelwright, 551 F.2d 991, 993-994 (5th Cir.), cert.
denied, 434 U.S. 902 (1977).

   /16/ United States v. Vega-Barvo, 729 F.2d at 1345;  United States
v. Pino, 729 F.2d 1357, 1359-1360 (11th Cir. 1984);  United States v.
De Gutierrez, 667 F.2d 16, 19 (5th Cir. 1982);  United States v.
Asbury, 586 F.2d at 976;  United States v. Wardlaw, 576 F.2d 932, 934
(1st Cir. 1978).

   /17/ United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir.
1970).  The Ninth Circuit has defined "real suspicion" in this context
as "subjective suspicion supported by objective, articulable facts
that would reasonably lead an experienced, prudent customs official to
suspect that a particular person seeking to cross our border is
concealing something on his body for the purpose of transporting it
into the United States contrary to law" (ibid.).  This standard
essentially is the equivalent of the reasonable suspicion test adopted
by the other court of appeals.

   /18/ Rivas v. United States, 368 F.2d 703, 710-712 (9th Cir. 1966),
cert. denied, 386 U.S. 945 (1967).  The Ninth Circuit has explained
that "'(c)lear indication' means more than real suspicion but less
than probable cause." United States v. Mendez-Jimenez, 709 F.2d at
1302.

   This "clear indication" language was taken from this Court's
decision in Schmerber v. California, 384 U.S. 757 (1966).  In
Schmerber, the defendant was arrested for driving under the influence
of intoxicating liquor.  At the direction of a police officer, a
physician withdrew a blood sample from the defendant's body.  The
defendant asserted that the extraction of blood constituted an
unlawful search and seizure.  This Court held that while there
"plainly" was probable cause to arrest the defendant, the extraction
of blood could not be upheld as a search incident to arrest (384 U.S.
at 768-769).  It stated (id. at 769-770):

         The interests in human dignity and privacy which the Fourth
      Amendment protects forbid * * * (intrusions beyond the body's
      surface) on the mere chance that desired evidence might be
      obtained.  In the absence of a clear indication that in fact
      such evidence will be found, these fundamental human interests
      require law officers to suffer the risk that such evidence may
      disappear unless there is an immediate search.

   The Court nevertheless upheld the blood test because the facts
establishing probable cause to arrest "also suggested the required
relevance and likely success" of the blood test (id. at 770).

   Thus, Schmerber uses the "clear indication" standard to suggest
that the kind of search there had to be supported by particularized
probable cause, rather than to designate some intermediate level of
suspicion between reasonable suspicion and probable cause as a
standard for assessing certain searches.  Whether or not it might be
appropriate to adopt such an intermediate standard for some
situations, Schmerber therefore provides no support for the rule
adopted by the Ninth Circuit.  See 3 W. LaFave, Search and Seizure
Section 10.5, at 286-287 (1978).

   /19/ Our principal argument does not distinguish between the
detention at the border of returning citizens and aliens seeking to
enter the United States.  We argue below (see pages 34-37, infra) that
the detention of an alien such as respondnet is permissible even if
the detention of a returning citizen in similar circumstances might be
held to violate the Fourth Amendment.

   /20/ The reasonable suspicion standard, rather than the Ninth
Circuit's "clear indication" test, also should apply to body cavity
searches.  This Court has not previously recognized an intermediate
level of suspicion between reasonable suspicion and probable cause,
and the Ninth Circuit has been criticized for its approach.  See
United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir. 1978);
United States v. Himmelwright, 551 F.2d at 995.  An intermediate
standard is not needed in order to limit the use of body cavity
searches to appropriate situations because the scope of a search
necessarily is limited by the facts supporting the officer's
suspicion.  See, e.g., Terry v. Ohio, 392 U.S. at 16-20.  Thus, a
reasonable suspicion justifying a body cavity search must be supported
by facts "which would cause (the Customs) inspectors to reasonably
believe that contraband * * * would be revealed in a (body cavity)
search." United States v. Pino, 729 F.2d 1357, 1359 (11th Cir. 1984).
Since this requirement is embodied in the reasonable suspicion
standard, it results in a "flexible test which adjusts the strength of
suspicion required for a particular search to the intrusiveness of
that search." United States v. Vega-Barvo, 729 F.2d at 1344.

   /21/ See our brief in opposition in Vega-Barvo v. United States,
supra.

   /22/ The search of a suspect's bowel movements certainly could
result in no more indignity than a search involving the removal of an
artificial limb, which has been viewed by the courts as the equivalent
of a strip search because it lacks the intrusive characteristics of a
body cavity search.  United States v. Sanders,

Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976);  Fed. R. Crim. P.
41(c).  A warrant requirement would be especially inappropriate in
this context because the suspect would have to be detained while the
officer obtained the warrant -- in this case a process that, when it
eventually occurred, appears to have taken about nine hours (see J.A.
40).  The detention for this purpose could last as long as the
detention necessary to effect the search.  See, e.g., United States v.
Couch, 688 F.2d at 601-604;  United States v. Ek, 676 F.2d at 382.

   We note that the government can obtain a court order under the All
Writs Act, 28 U.S.C. 1651, authorizing medical procedures such as
X-ray and body cavity searches.  The Customs Service informs us that
the hospitals in which these procedures are performed sometimes
request that the Service obtain such orders if the suspect refuses to
sign a medical consent form.  If a court order has been obtained from
a neutral and detached magistrate, that fact may sustain the validity
of the search (see United States v. Ventresca, 380 U.S. 102, 106
(1965)) or bar suppression of the evidence (see United States v. Leon,
No. 82-1771 (July 5, 1984)).  The Ninth Circuit's approach, by
contrast, penalizes the government for failing to obtain a court
order, even though a court order is not a prerequisite to a lawful
search.

   /27/ The above discussion is premised on acceptance of the Ninth
Circuit's hypotheses that an X-ray search is properly equated with a
body cavity search and that both require more than reasonable
suspicion.  The burder of our argument is that those propositions,
even if correct, do not control the question of the reasonableness of
the detention here.  We note, however, our disagreement with each of
the hypotheses used by the Ninth Circuit to construct its logically
fallacious ratio decedendi.  For the reasons stated above (page 28,
supra) and in our brief in opposition in Vega-Barvo v. United States,
supra, an X-ray search conducted under proper medical supervision is
justified when a Customs officer has a reasonable suspicion that the
suspect is carrying contraband.

   /28/ The large number of reported appellate decisions relating to
this smuggling technique provides graphic evidence of its increasing
use.  See United States v. Saldarriaga-Marin, supra;  United States v.
Vega-Barvo, supra;  United States v. Mosquera-Ramirez, supra;  United
States v. Padilla, supra;  United States v. Pino, supra;  United
States v. Henao-Castano, supra;  United States v. Castaneda-Castaneda,
supra;  United States v. De Montoya, supra;  United States v.
Caicedo-Guarnizo, 723 F.2d 1420 (9th Cir. 1984);  United States v.
Mejia, supra;  United States v. Castrillon, supra;  United States v.
Gomez-Diaz, 712 F.2d 949 (5th Cir. 1983), cert. denied, No. 83-5763
(Jan. 9, 1984);  United States v. D'Allerman, 712 F.2d 100 (5th Cir.
1983), cert. denied, No. 83-5359 (Oct. 11, 1983);  United States v.
Mendez-Jimenez, supra;  United States v. Quintero-Castro, supra;
United States v. Couch, supra;  United States v. Ek, supra.

   /29/ This is especially true in the Ninth Circuit, where Customs
officers also cannot utilize X-ray searches in the absence of a "clear
indication" of alimentary canal smuggling.

   /30/ This Court's decisions make clear that the Legislative and
Executive Branches have plenary authority over immigration matters and
that the Constitution does not limit the authority to detain aliens at
the border pursuant to these statutes.  See, e.g., Landon v.
Plasencia, 459 U.S. 21, 32 (1982);  Shaughnessy v. United States ex
rel. Mezei, 345 U.S. 206 (1953).  We discuss this issue in our brief
in Jean v. Nelson, No. 84-5240, at 25-35.  A copy of that brief is
being furnished to counsel for respondent.

   /31/ In neither court below did respondent dispute that the facts
known to the Customs officers satisfied the reasonable suspicion
standard.  She maintained only that they did not meet the clear
indication standard necessary to permit an X-ray search and did not
constitute probable cause, which she contended was necessary to
authorize her detention.  See E.R. 20-24;  J.A. 11, 30-32;  C.A. Br.
15, 18, 20.  It was not until respondent filed her opposition to the
petition for a writ of certiorari that she asserted that the facts
known to the Customs officers at the inception of the detention failed
to satisfy the reasonable suspicion standard.  In our view, however,
the information should have been held to satisfy even the clear
indication standard, if not to amount to probable cause (see page 42,
infra).

   /32/ Special Agent Windes explained in his affidavit in support of
the application for the court order that a lack of luggage and other
personal belongings "indicat(es) a 'stripped down' or 'clean' approach
typical of professional couriers" (J.A. 42).

   /33/ The court of appeals did not question that respondent's
behavior while she was detained -- her failure to eat, drink, or use
the bathroom and symptoms of discomfort indicating "heroic efforts to
resist the usual calls of nature" (Pet. App. 4a) -- in combination
with the evidence discussed above, supplied the "clear indication" of
alimentary canal smuggling required for a body cavity search in the
Ninth Circuit.  Therefore, the rectal search that revealed the balloon
filled with cocaine was proper under the Fourth Amendment, and the
evidence is subject to suppression only if it can properly be held a
fruit of an illegal detention.