Warren E. Burger: Mr. Reese, I think we’ll just wait for a moment.
Pearce: Alright, surely.
Warren E. Burger: And, we’ll hear arguments next in number 577, United States against Johnson. Mr. Beckler.
Howard E. Beckler: Yes, Mr. Chief Justice.
Warren E. Burger: Mr. Reese, you may proceed whenever you’re ready now.
Pearce: Thank you very much. Mr. Chief Justice, Associate Justices, this case involves a custom search. The respondent Sandra Denise Johnson, whom I shall occasionally refer to as the defendant, was convicted by the United States District Court for the Southern District of California of illegally concealing and transporting narcotics into the United States. The United States Court of Appeals for the Ninth Circuit, with one judge dissenting, reversed the District Court. The case is here on certiorari. The question presented is whether the judgment of a customs inspector based on suspicion in the light of his experience without more, his sufficient basis to require an individual seeking to enter the United States to disrobe in private so that his or her clothing may be searched for contraband.
Speaker: What were the narcotics that were found?
Pearce: Heroine, Your Honor.
Speaker: How much?
Pearce: Two ounce-- five ounce-- two ounces, I believe. The principle constitutional and statutory provisions involve the Fourth Amendment and Sections 482 and 1582 of Title 19 of the United States Code. There are set forth in the government’s brief at pages 2 and 3. The facts upon which this appeal is based are these. On Sunday, August 18, 1968, Sandra Denise Johnson and a female traveling companion, one Jolene Harris, crossed the Mexican-American border on foot at San Ysidro, California. Inspector McCown, who at that time had 27 years experience as a customs inspector at that port of entry, San Ysidro, observed Ms. Johnson and her companion and questioned them. He thereupon became suspicious that they were carrying contraband, so he arranged for a personal search to be conducted by a female inspector so that their clothes could be thoroughly searched. This type of search is frequently referred to as a strip search. The search in this case was conducted by Mrs. Netta Lohman. She searched each of the women separately in a secondary search room which was a completely closed private room with no windows. Each of the women was asked to please remove all of her clothing and hand them to Mrs. Lohman. Mrs. Lohman’s search of the respondent’s clothing disclosed two bundles in the seat of her underpants. One bundle contained two ounces of heroine, the other Librium and unidentified capsules. No contraband was found in Ms. Harris’ clothes and the women’s bodies were neither searched nor touched. In the District Court, a motion to suppress the evidence was made on behalf of the defendant Johnson. Defense counsel agreed with the District Court that the defendant had the burden of proving the motion. The defendant did not produce any witnesses or other evidence in support of the motion. At the hearing, the government attorney called Inspectors McCown and Lohman as witnesses. Inspector McCown testified that after he saw and talked with the defendant and her traveling companion, he became suspicious and arranged for them to be personally searched. He was not asked and he did not state any other reasons as to why he became suspicious. Mrs. Lohman testified as to the method and conditions of the search and what it revealed. Defense counsel--
Potter Stewart: Was the entry over the border or is it at the port of entry?
Pearce: At the port of entry, yes, sir.
Potter Stewart: At the customs.
Pearce: At the customs. Defense counsel cross-examined Mrs. Lohman but did not cross-examine Inspector McCown, stating by way of explanation that the government had to prove something more than mere suspicion, and he said “he wasn’t about to put his foot into it.” Defense counsel, in essence, argued that a strip search was invalid under the Fourth Amendment in the absence of an affirmative showing of objective grounds for reason-- for real suspicion. The government attorney relied on the Ninth Circuit’s case of Witt v. United States where a strip search reveal narcotics concealed in the defendant’s brassier and was upheld on that basis, on a basis that mere suspicion was enough to justify such a search. The Trial Court denied the motion to suppress and rejected the defense claim that it was the government’ burden to establish, on a motion to suppress, reasons for Inspector McCown’s suspicion. The case was tried without a jury on a basis of the testimony of the two inspectors in certain stipulations. The Court found for the defendant-- found for the-- found the defendant guilty, and the Court of Appeals reversed, holding that the Trial Court’s ruling on a motion was erroneous in the light of that Court’s, that’s the Ninth Circuit’s court decision in United States v. Guadalupe-Garza. And, although the Guadalupe-Garza case involved a cavity as opposed to a strip search, the Ninth Circuit did define for the first time in that opinion the requirements “real suspicion. ”The Court said that a strip search cannot be conducted on mere suspicion that something more was necessary and there’s a merit to real suspicion. It defined the term “real suspicion” as follows. Real suspicion, justifying the initiation of a strip search, is subjective suspicion supported by objective articulable facts which reasonably lead an experienced prudent customs officer 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. The Court of Appeals held that the search in the instant case did not meet this standard since the government did not prove that there were objective articulable facts to support the inspector’s suspicion. The dissenting judge was of the view that Garza was distinguishable since it dealt with cavity-- with a cavity search which required a more stringent standard than a simple inspection of clothing. In his view, the case was on “all fours” with Witt v. United States which had approved a personal search. Parenthetically, the Garza case was decided on February 2, 1970 which was more than 9 months after the District Court had decided the instant case. We believe that the Court of Appeals should be reversed for at least three reasons. First, the statutory authority for a customs inspector to conduct a personal search on a basis of suspicion is clear and unequivocal. Second, the great public need to stop the huge inflow of contraband, particularly narcotics, into this country demands that the balancing of the governmental interest in inspection against the traveler’s interest in minimizing inconvenience 7and embarrassment be resolved in favor of the government. And, third, that the Ninth Circuit’s objective articulable facts test is an impractical and unworkable one. Now, the statute in question, 19 USC 482 clearly states that a customs officer may search any person on whom he shall suspect there is contraband. Congress used a simple word, “suspect.” They did not qualify it. They did not use real suspicion, actual suspicion. There is every reason to believe that Congress meant what it said. Simply, that a person-- that a personal search may be conducted solely on suspicion and if they want-- meant otherwise, we think they would’ve stated because, in this statute, this very statute, 482, they set up two different standards of suspicion, one, suspicion that we’ve been talking about with respect to the person, and then another standard that relates to trunks or envelops. In that statute, it says that a customs inspector may search any trunk or envelop wherever found in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law, which means that the Congress was well-aware of the words that it was using. Now, this statute is a very old one, over 150 years in age. It dates back to 1815 when it was first enacted and, at that time, they had the mere suspicion test in the statute. In fact, it was an extension of an even older statute going back to the first Congress of the United States.
Potter Stewart: Well, as to searching baggage, isn’t there an unrestricted absolute right in inspecting baggage?
Pearce: As it comes over the border, yes, sir, but you’ll notice that this part of the statute says “wherever found.”
Potter Stewart: Yes.
Pearce: Which means that it would go beyond the borders and they could trace the baggage into the interior and, therefore, I think they’re one of the higher standards, once this baggage got into the interior.
Byron R. White: It deals with border inspections?
Pearce: No. This is the--
Byron R. White: It deals with what?
Pearce: This is the only one. As a matter of fact, Judge, I think the Courts have said that not even suspicion is necessary because people come through a baggage line and just one after another is taken, and you search it, and-- but, there is act--
Byron R. White: There is no statute on it.
Pearce: There is no statute that says--
Byron R. White: Except this one.
Pearce: Except this one, yes, that’s it.
Byron R. White: It doesn’t require reasonable cause of suspect.
Pearce: That’s right. That’s what it says. Now, in the 18-- in 1815, when this statute was first enacted and it contained this provision, I believe that because of the kinds of contraband that existed at that time Congress must have thought that occasion could arise when a person would have to be stripped in order to search that clothing for contraband. But if there is any question about that, Congress laid it to rest in 1866 because Congress re-enacted this law in 1866 and added a provision, a provision which provided that the Secretary of the Treasury could employ female inspectors for the purpose of examining and searching person of their own sex, which means that they anticipated that there would be these kinds of personal searches. Now, at this point, I’d like to draw a distinction between the strict-- strip search that I’ve been talking about and the cavity search. We well realize that people may argue that this statute does not apply to a cavity search because the last time that the Congress enacted this law was in 1866 and, at that time, carrying contraband in the cavities of the body certainly would not invoke and, furthermore, medical science had not developed to the extent that somebody could take some contraband, put it in the stomach, later regurgitate it and still use it. So--
Potter Stewart: And there were no narcotic-- federal narcotics laws in 1866, were there?
Pearce: I don’t believe so.
Potter Stewart: I think there were not.
Pearce: I don’t believe so. So, we distinguished between the two, a strip search on the one hand, a cavity search on the other. We certainly believe that as far as the strip search is concerned, certainly, the law goes that far and does intend to include the strip search.
Warren E. Burger: You’re putting the strip search in the same category then as the search of baggage, I take it.
Pearce: I am putting it in the same category as being able-- as the statute says that a person is able to be searched upon suspicion. I’m just-- that’s what the law-- those were the literal words of the statute and I’m saying that the statue means exactly what it said.
William J. Brennan, Jr.: Well, the question between those is the constitutionality of those regardless to the authority-- the statutory authority to make the search.
Pearce: Well, some of the Courts seem to extend-- seem to think there is. They seem to point out that Congress doesn’t mean suspicion in the ordinary sense. They mean real suspicion, and then it goes on-- that’s the Ninth Circuit goes on to define what they think real suspicion is. I say that Congress, by its history of this-- by the history of this statute, means just exactly what it says. It’s a simple word, meaning that if an officer has a suspicion, he has the right to make a personal search and--
Thurgood Marshall: What’s your idea of suspicion, the word “suspicion”?
Pearce: Suspicion means, an uncertainty about something or I should say, exactly-- I could tell you exactly what it is because I happen to have written it down, but I don’t have it right handy but, to me, it means that a person believes that there is something wrong on the basis of little or no evidence.
Thurgood Marshall: Such as the person had shifty eyes?
Pearce: It could be any-- it could be one of many things, anything. Shifty eyes, it could be nervousness, it could be the way they sweat, it could be almost anything. It could be a-- suspicion, to me, is a-- simply that you do not have act-- you do not have proof that something is wrong, but you believe something is wrong.
William J. Brennan, Jr.: Will that be--
Thurgood Marshall: I thought you said you didn’t believe. You just wasn’t sure.
Pearce: Well, there is-- it’s-- that’s true. There is uncertainty in that because you are not sure. You believe that there is something wrong, but you’re not absolutely certain because you don’t have absolute proof. You have little or no proof. I believe that’s the way the dictionary defines it.
Speaker: I suppose you’d include mental telepathy?
Pearce: Well, I don’t know how far mental telepathy goes, Judge, but I would think that--
Speaker: If it weren’t far enough.
Pearce: The suspicion that we’re talking about with respect to these custom agents is the suspicions that they get through their experience, long experience, of having looked at thousands and thousands of people come through that line.
Warren E. Burger: How did the Appellate opinions defined it that way that, I recall some language to the effect, perhaps from this Court among others, that it is not as may be seen in the privacy of a library but as seen through the off-- eyes of the a trained officer on duty in which he brings his experience to bear. Is that not the standard that’s been adopted often?
Pearce: Well, that is the standard that has been used and is exactly what is meant when you apply the term “suspicion to a customs officer” as opposed to just the word “suspicion.”
Potter Stewart: It could be mere intuition based on experience?
Pearce: Yes.
Potter Stewart: Now, could it be this much? Somewhere, I think, in this record or maybe I read it elsewhere outside the record that this particular port of entry, San Ysidro, if that’s-- I’m pronouncing it correctly, is a port of entry where a-- apparently, a great deal of illegal narcotics are smuggled across the border. Maybe to the extent, let’s assume, to the extent that 1 out of every 15 people who comes across the border at that particular point is smuggling narcotics. Could the service just decide arbitrarily, at random, to have a personal search of every 15th person who comes across?
Pearce: I don’t believe this-- the service could or would do that.
Potter Stewart: Because there’s a chance of suspicion.
Pearce: But I do think that Congress--
Potter Stewart: If my hypothesized facts are correct, there’s 1 chance in 15 that every-- as to each person who comes across the border, that he’s smuggling narcotics and that’s enough for a suspicion, I suppose, isn’t it?
Pearce: Well, you could argue that, but I rather think that it would be better for the Congress to review the entire situation and then set some rules that 1 out of every 15 people can be searched.
Potter Stewart: If there’s 1 chance out of every 15, just statistically, then isn’t that a ground for suspicion with respect to each person who comes across the border?
Pearce: It would be a ground-- in fact, it’s the ground I imagine that is used with respect to baggage. That’s why they search every single person’s baggage. They don’t have any suspicion--
Potter Stewart: Or with respect to checking on income tax returns and so on. These are arbitrary random samples, as I so understand.
Pearce: But that’s so much suspicion as it is a random sample.
Potter Stewart: Well, if it’s known that 1 out of every 50 persons is likely to either cheat or make serious mistakes in his income tax returns, one way to get at it when you can’t look at all the returns is to randomly check 1 out of every 50 with the suspicion that you’ll perhaps find either fraud or gross error.
Pearce: But I think that the statute here, the statute here relates to a customs officer. He must have the suspicion. In fact, there had been cases where when a custom officer himself did not have a suspicion, the Court ruled that the search was not proper.
Potter Stewart: Well, I would think-- I just merely suggest that it could be argued that if the customs officer has knowledge, statistically, based on his experience that at that particular point of entry that 1 out of every 15 people is a smuggler, then isn’t the 1 chance out of 15 enough to suspect each person who comes in there?
Pearce: It could be argued.
Byron R. White: Do you think that Congress should have the constitutional power the defense and statute is saying that everybody who came back to this country from abroad should submit to a body search?
Pearce: I would think that if Congress looked into the matter, held hearings, and found out that the incidence of smuggling was so great that they could pass such a statute because they have the basic responsibility for controlling foreign commerce and what is imported into United States, I think if they could make a case for this, that that could be allowed if they wanted to pass such legislation.
William O. Douglas: In fact, you can have a congressional finding of probable cause rather than a judicial finding of probable cause?
Pearce: Well, I think--
William O. Douglas: In a whole group of case?
Pearce: Frankly, Mr. Justice, that the Congress would probably be in a better position by holding hearings and being able to get so much more information than a Court could get in a case by case basis, that it would be a better way of doing it. Yes, sir?
William O. Douglas: I’m not talking about whether it is better. I’m just thinking in the terms of the Fourth Amendment.
Pearce: Well, I would think the Fourth Amendment has grounded reasonableness and if it could be shown that we were in such a difficult position as-- it’s highly theoretical because I don’t think it would ever happen, but if it were-- if the Congress was able to show that we were-- that almost every person was smuggling into this country, then I think that they could go as far as passing a law to that effect.
Potter Stewart: Well, as far as examination of baggage is concerned, there aren’t any routine test and inspection, which all of us are going through, there’s not any statutory authorities, wouldn’t you say?
Pearce: That is true.
Potter Stewart: Has anybody ever challenged it?
Pearce: No.
Thurgood Marshall: Getting back to this particular case, if this officer had been a brand new officer of three days on duty, would your argument be the same?
Pearce: Would the argument be the same?
Thurgood Marshall: Because, as I read the s--
Pearce: No, sir.
Thurgood Marshall: I don’t see anything in the statute that says he has to have any experience.
Pearce: It doesn’t say he has to have any experience at all, but I would think that if it had happened with somebody with three days on duty, first of all, I don’t think it could possibly happen, Mr. Justice, because, you see, he would probably go to his superior who would then not allow him-- not allow it to be done. But, if he did do it--
Thurgood Marshall: The statute doesn’t require that.
Pearce: No, the statute doesn’t require that. No.
Thurgood Marshall: Is there any regulation of the Treasury or Immigration which define suspicion?
Pearce: No.
Thurgood Marshall: Well, how does the agent know what is suspicion?
Pearce: What--
Thurgood Marshall: What he thinks. Whatever he thinks suspicion--
Pearce: It’s what he-- yes, he’s told that-- he is given a manual.
Thurgood Marshall: And on the basis--
Pearce: We have a manual, sir.
Thurgood Marshall: Does it say what suspicion is then?
Pearce: It does not say precisely what suspicion is, no.
Thurgood Marshall: Does it say anything.
Pearce: It says-- Yes.
Thurgood Marshall: What does it say?
Pearce: It says that you-- that the agent has a very significant power and that’s the power to have some-- have personal searches made upon suspicion and that he should use that power very wisely, and they gave various illustrations that would show him how to use the power, but it’s not a-- completely comprehensive. It doesn’t cover every possible circumstance.
Thurgood Marshall: And it--
Pearce: And he also goes to school and he’s taught further there and he also has-- there is very close supervision in the custom service.
Thurgood Marshall: And he never is told what suspicion is.
Pearce: Well, he’s told in classes as to what the nature of suspicion is, yes.
Thurgood Marshall: By going on the basis of what he suddenly thinks in his mind, he has the right to stop made, hold made, under guard, and has somebody search him upon his suspicion.
Pearce: Yes, upon his suspicion.
Thurgood Marshall: And that applies to anybody, any American citizen that comes back.
Pearce: Any person from anywhere.
Thurgood Marshall: I’m only interested in American citizens right now.
Pearce: American citizens, yes, sir.
Warren E. Burger: Counsel, I wonder if there isn’t a question about a little bit more than just the Fourth Amendment here, a matter of the condition. For example, every person entering this building must open every piece of baggage he has or he doesn’t get in. Now, that’s a condition. It doesn’t require any suspicion. It doesn’t require any showing of reasonable ground or probable cause. Is there not possibly some parallel to that in terms of putting a condition on every person who wants to cross our borders?
Pearce: Well, of course--
Warren E. Burger: Because they meet the standards of the statute.
Pearce: Well, the Courts have said that for a long time, saying that the border search is other than other kinds of search because a country has the right to set the terms and conditions for people entering the country and so it’s not the same as a search in the interior.
William O. Douglas: Do you know any country in the world that does not exercise the right of searching the baggage of people who come into a different country?
Pearce: No, I do not know of any such--
William O. Douglas: I suppose you haven’t got a different constitution.
Harry A. Blackmun: Do they all have Fourth Amendments?[Attempt to Laughter]
William O. Douglas: Some of them may have Fourth Amendments that read like they were originally read.
Pearce: Yes, sir. Well to continue, sir, until recently, the Ninth Circuit-- until the recent Ninth Circuit cases, the Courts have generally agreed that a personal search could be made on mere suspicion at the border without violating the Fourth Amendment. In short, they followed the clear language of the statute, and this was true even in the Ninth Circuit, and I call the Court’s attention to the case, particularly, of Bible v. United States which is not in our brief but which I came across during the time I was preparing for argument, 314 Fed. 2nd 106 decided in 1963. There, a person appeared to be nervous has led to a strip search and the discovery of heroine and the Court held that mere suspicion was enough to justify such a search.
Byron R. White: That’s 314 Fed. 2nd?
Pearce: Yes, 106.
Potter Stewart: 106?
Pearce: Yes, sir, and certiorari was denied by this Court and, in that case, they cited the Witt versus United States case which had reached a similar conclusion.
Harry A. Blackmun: Do you go so far as to contend that the Fourth Amendment doesn’t apply to the Board of Searches?
Pearce: No, sir. The Fourth Amendment does apply to Board of Searches. It definitely does but Congress, as far back as 1979, made a distinction between this search and other kinds of search and they passed a law allowing vessels to be searched solely on the basis of suspicion and then this statute is really an extension of that statute.
Harry A. Blackmun: What would you say as to the-- what would you say as to the Court of Appeals test with respect to so-called cavity searches?
Pearce: The clear indication test of the Court of Appeals? I would say that there should be something more for a cavity search. I think that what you’re talking about is a balancing of things and the-- as a matter of degree, that there should be more for a cavity search. This kind of search just requires somebody to take off his clothes and hand the clothes to somebody so the clothes can be searched and then given back. A cavity search touches the body, intrudes upon the body and I think a higher degree of standard, a higher standard, is necessary. As I explained before, I don’t think the Congress considered this because the last time it enacted that statute was 1866.
Warren E. Burger: You’re into your rebuttal time now, Mr. Reese, in the time you have there.
Pearce: Okay.
Warren E. Burger: Mr. Beckler, you may proceed whenever you’re ready.
Howard E. Beckler: Mr. Chief Justice, if it may please the Court, I have had an extremely difficult last few moments in beginning my argument because I’ve heard some of the inquiries presented by this honorable Court to my opponent, the petitioner. And, rather than reply directly to any of the petitioner’s argument, I think I have elected and will do and proceed to what I believe to be the gravamen of this case, I believe to be the critical issue here, it’s been raised by Your Honorable Court already this morning, and go on to some concluding remarks. First and foremost, when Congress enacted the laws, border search law on vessels and travelers, it cannot be imagined they had in those days even a remote thought that a party coming into this country might be made naked at a port of entry so their body could even be looked at. When the government here in frames the issue that the reason a person is told to get nude is to look at their clothing, that’s true. That is incidental to their remaining naked in a room, as appears in the government’s brief, perhaps 15 minutes while the custom inspector looks over these clothes. In this day and age, when every travel agency, when every port, when every hotel suggest that our country travel, when travel is permitted to even the poor and the modest people for a day in Canada or a trip shopping in Nogales, Arizona or, as is correct, San Ysidro, California, it cannot be in the reasonable expectation of the public. It cannot be understandable to the public in terms that they can know that, by crossing this border, upon returning to this country or as an associate in the offices coming home, they’ll be told on the mere suspicion of an officer “all be it 27 years or 1 year to go into a private room and remove your clothing--
Warren E. Burger: Well, not about the requirement before you leave this country, before you can get a passport, you get to submit to having a small pox inoculation, among others.
Howard E. Beckler: Yes.
Warren E. Burger: And depending on where you’re going, a great many other things, now these are frequently, to some people, less agreeable, more painful, more an invasion of privacy than somebody disrobing, as a great many people do on the beach and doctor’s offices and many other places. Now, do you say that you’re challenging, too, the right to check for health, communicable disease, matters of either outgoing or incoming?
Howard E. Beckler: No, I do not. I think the--
Warren E. Burger: What’s the difference on the constitutional basis?
Howard E. Beckler: I think the difference is two-fold. One, in balancing the interest, as Your Honor, Mr. Chief Justice, mentioned this morning, the search of the briefcase. In this day and age, when there are things to be concerned with, it’s a minor intrusion that I open my attaché case this morning. It’s a minor intrusion. In the Courts of Los Angeles, it’s the same intrusion and, to enjoy the practice of my profession, I will submit to that. But, to balance coming back into the country after a day to be told to get naked, I don’t think is a fair analogy. The privacy that Your Honor refers to in a doctor’s office cannot be equated, and I might add there are many people in this day and age that may not be considered puritanical that do object to removing all of their clothing in a doctor’s office. Teenagers, for example, even old women who had their first illness don’t like to get naked at a doctor’s office, but is that anticipated upon coming back to the country that one stranger, a customs officer, all be it experience, has that power on an encode, hunch, or a guess, as Mr. Justice Marshall mentioned this morning, what is it? Can it be telepathy? Can it be skittish behavior? And select that person and say “you, go in and remove your clothing for a search.”
Potter Stewart: In what way do you give to what is almost a matter of judicial notice? At least we see it coming across our desks in these records all the time. What are the ways in which substantial amounts of narcotics are brought to this country are by a young woman or women taking it with them concealed as a-- at least in a narcotic word?
Howard E. Beckler: I have two answers. I think both of them cogent. One, appears in the government’s brief that they concede that only a small amount of narcotics comes into the country through the body cavity or carried on the person. Second of all--
Potter Stewart: Are you talking about body cavity search?
Howard E. Beckler: No, I’m talking, Your Honor, in underwear. There’s an article that appears in March 29, 1971, the News Week issue and, in this article, they talk about the government’s fight against the white death, referring of course to heroine. In the article, they refer to a Port off of Marsay where 750 pounds of morphine base, the ultimate substance that is used to make heroine, was found by a fisherman accidentally. They waited for someone to pick up this contraband and, low and behold, they captured a man named Tuddy Yan, a notorious narcotic smuggler. Further in the article in News Week, they reflect that from the capital of Laos in Vien Tien, through the United States mail to Saigon, 20 pounds of pure heroin were received by a suspect there. The point is this. That we will not stop the major amount of smuggling in the country if we were to search arbitrarily 15 out of 15 and if a few ounces, and I agree it’s insipid, it’s a hideous ailment, I am a criminal practitioner at 13 years I’ve dealt with it, we still will find two ounces, we will find three ounces of the major amount of contraband in the country.
Warren E. Burger: What if we found 50 here in a mine built around the torso of the-- on apparently overweight man?
Howard E. Beckler: I would s--
Warren E. Burger: What’s the difference whether it’s 2, 20, or 200?
Howard E. Beckler: I would say we have to balance the interest here.
Warren E. Burger: As between 2, 20, and 200?
Howard E. Beckler: No, between the initiation of the search and not the result. I think that if, by fortuitous, a customs agent got lucky and found 50 ounces, I would not change my argument to say that he’s search, if it was based on mere suspicion as this one was, was any better at the outset. I would feel shegreen that 50 ounces of heroin came into the country.
Warren E. Burger: Well, I have seen records of cases, counsel, where there was expert testimony, undisputed, that a single person could carry $50,000 worth of raw heroin on purse without having it noticeable to any but the most alert and astute trained observer and not even always then.
Howard E. Beckler: If that right to search that person is given, it should be based on an articulable objective statement that the officer can explain to the trier of the fact that why he wanted that person stopped. Now, the customs agents, themselves, it was asked this morning of counsel for the government, what rules do customs have to go by? And, in the brief of the government, on page 35, there begins numerous of the customs rules they have propagated themselves.
Potter Stewart: That’s a sound desk, you know?
Howard E. Beckler: Yes, that’s a lucky meek sheet, Mr. Justice, where they have had a history of experience with that person before. It is referred to as one of the circumstances objectively to stop a person whether or not they appear on the sound desk. That’s an easy reference spindle where they find a person has been there once before.
Potter Stewart: Who has had--
Howard E. Beckler: Who has had contraband or been arrested as a suspect. Some of the other things indicated in the customs manual which was not followed in the case at Bar are hypodermic outfits found in the baggage which I concede should be search carte blanche, eyes glassy or under the influence, numerous things like that that indicate an objective standard rather than the uncanny feeling that a customs officer had and they have about a person. In my brief I raise that a person can manifest numerous reasons for even being nervous: a late babysitter, a tragic accident they may have seen in Mexico, personal problems of their own. Yet, nervousness can’t be articulated by the government official.
Potter Stewart: Mr. Beckler, what if instead of 1 in 15, what if the hard statistical facts were, over the basis of a long period of experience, that 1 out of every 2 travelers who crossed the border at this particular point was a smuggler?
Howard E. Beckler: I would probably not be here arguing and I would concede to Your Honor that that would be fair enough. That’s why--
Potter Stewart: And everybody could be given a personal search?
Howard E. Beckler: Yes, the batting average there is 500. The batting average in this case, as appears by the government’s own brief on page 25, 4,811 people were searched in 1969, of that, 3,500 were proved negative. 3,500 citizens of this country came into the port of entry at San Ysidro, were told to get naked, absolutely naked, in a room alone with a stranger, the clothing was searched--
Potter Stewart: And then one out of every four, they found contraband.
Howard E. Beckler: That is correct and, in my opinion, that is not good enough.
Warren E. Burger: Now, where do you find in the constitution that one out of four is not constitutional, but one out of two is constitutional?
Howard E. Beckler: I don’t find that. I would then relate to the balancing the interest. I think if such an incidence of 50% of the people coming into the country, San Ysidro, were carriers of contraband, then I would have to yield and say there is an exception engraphed on the Fourth Amendment as to border searches in this day and age when such a thing wasn’t possible 100 years ago, and I would concede that this is an evil that must be stopped, Fourth Amendment notwithstanding. But, now, I urge the reasonableness of the amendment. I can’t help but to think of the Terry Court when we talked about something of a hip slap as referred to where a gun was obtained and it was approved but, there, Officer McCown, in working the streets of Cleveland, Ohio, articulated 12 trips to a men’s store window a suspicious conduct of some several hours, whereas, in Zebron, plain talking to a bunch of narcotic addicts did not meet the standard. Again, arguing a case by case method, a case by case basis for argument, I can remember trying this case in the District Court. I can remember trying the genesis of USA versus Henderson where Judge Clinsol in the District Court, now deceased, made a footnote. He said, in his many years at San Ysidro, he’s come to believe that there must be something that the officer can tell why he wants that woman searched. It should be noted in this case that the co-companion, Jolene Harris, was without contraband and I note four or five times in this case, it’s been suggested that counsel didn’t cross-examine the officer. I can answer that with the footnote that appears in Zebron that the moment counsel there began talking about the weapon he swiftly retreated from that kind of cross-examination and I did state I wouldn’t put my foot into it at that time, and I believe it was the government’s burden, as I do now. There’s no argument--
Warren E. Burger: Let’s go back 180 years ago. Could any vessel enter any port in the United States of the 13 colonies then without being searched from stem to stern?
Howard E. Beckler: I doubt it very much and I don’t think it should be that way today. A vessel that is a carrier of notoriously large objects, major narcotics is brought in, in vessels and ships like this. I think that the law as to vessels and things, rather than a person, must be-- receive a different treatment. Here, the government conceived we’re talking about the second of a tri-part search as annunciated by the Ninth Circuit, the baggage search, one, the cavity search, three, and the skin search, two. And, this is really the issue and only the issue as to what, if anything, is needed to compel a woman or a man, as the case may be, to remove their clothing and get naked.
Warren E. Burger: Do you think it could-- the constitutional problem would be cured if a physician or a registered nurse made the examination?
Howard E. Beckler: No, I don’t. Not if the inception of it was based on nothing more than we have in Sandra Denise Johnson’s case, I do not. Which, leads me to an argument that I wish to raise quickly and agent McCown has 27 years experience in that border and I recall, in Justice Jackson’s dissent in Briniger, how then Justice Jackson referred to the record of an officer that all he wants is to protect that. He is in the business, the competitive business, of ferreting out crime and he indicates in all of these that he has no prejudices that he has no cause for alarm about race or age or anything. I only wish to suggest, and I note that my opponent today has the title of Judge, and I presume that that’s because Mr. Pearce is probably retired but as a-- from the bench, as a criminal lawyer in 13 years and asking maybe 50 or 60 even higher men a question that I used to ask representing Mexican-Americans and Blacks, I ask 600 or more, “do you have a prejudice against the defendant because of his raise or origin?” And I never once got an affirmative answer, and I quit asking that question because it was inconceivable to me that 700 or 800 even higher men wouldn’t hold a prejudice. So, when the customs agent indicates, as he is supposed to in cross-examination, he has no such feelings, may I suggest that all of us carry something with us as a police officer. I rent space to an ex-police officer and I’ve had the occasion to eavesdrop on his conversations with fellow policemen, and they’re appalling. They’re startling, and I could imagine some of the conversations that may take place here and, though they would never appear on record and perhaps I’m arguing dehorns the record, but these are considerations on what goes into an encode hunch when a customs officer compels a lady on nothing he can tell us, his answer in the companion case here in br-- in Coercy Civil was “I had an uncanny feeling. That’s all I can tell you.” The Ninth Circuit--
Byron R. White: What you call again that, conceivably, could be based on experience quite apart from many and of any personal prejudices. If, for example, there were statistical empirical objective evidence that among young men whose hair was down to their shoulders 1 out of every 2 was a smuggler, and among those whose hair who had crew cuts only 1 out of every 100 was a smuggler, wouldn’t a customs officer, doing his duty, be a little more careful than he went through the-- when he searched the person whose hair was down to his shoulders?
Howard E. Beckler: Yes.
Byron R. White: Then it would-- might not represent any personal prejudice on his part whatsoever?
Howard E. Beckler: I concur totally. That’s empirical objective based facts, but the government concedes here that they do not know what other symptoms, if any, what-- whether it was more than a mere suspicion that caused 4,811 citizens in 1969 to be made naked. And, until we know that balance sheet, until we can see their batting average, I think my point is well taken but--
Warren E. Burger: How many of those did they find something on?
Howard E. Beckler: 1,311.
Warren E. Burger: 1,311 had some narcotics or some other contraband?
Howard E. Beckler: Something, yes.
Warren E. Burger: And that figure doesn’t suggest anything to you?
Howard E. Beckler: It suggests that we have a problem in the country. It suggests an insipid amount of smuggling of heroin. It does not, however, permit me to allow myself the im-- premature of the Fourth Amendment to condone this kind of conduct.
Harry A. Blackmun: Mr. Beckler, going back over some ground that you’ve already covered, I did understand correctly, did I not, that you have no concern about indiscriminant search of luggage?
Howard E. Beckler: I do not, Your Honor. I do not.
Harry A. Blackmun: And you drew all the distinction then on a-- by a balancing of interest even though the Fourth Amendment reads as to effects as well as to one’s purse.
Howard E. Beckler: Yes, I do, Your Honor. I feel that, as Mr. Chief Justice suggested, that when one brings in objects, he should well anticipate if he wants to enjoy the freedom of our soil, that that should be looked at.
Harry A. Blackmun: Well, sometimes people don’t bring in objects. Underclothing can be in luggage as well as on the person.
Howard E. Beckler: It can be, yes. I appreciate that. I appreciate that’s a problem, but I think, in the effects of the person, the effects as indicated in the Fourth Amendment, that does have a different status rather than the person. I think that, at no time in our history of our country, was it imagined or expected when the Fourth Amendment was enacted or through all this Court’s great history that it was thought that people would ever have to be made naked and now we find that such a right can exist and should exist with the advent of personal carrying of narcotics, but the Fourth Amendment is the overseer of that right and it should be as the Ninth Circuit said in suppressing the evidence of the District Court on an objective articulable basis, a real suspicion directed at this person, something that has scope to the search. And, my final argument is simply that there was a piece of literature by Maxwell Anderson not too many years ago where there was a character in there called Judge Gantu, ran around after making a very bad ruling testing his own ruling. I’ve played devil’s advocated in this case and I have tested the proposition on district attorneys and US attorneys and ladies and men and fellow citizens alike. And, the overwhelming reaction that I have received is before a citizen should be made naked, it should be on an objective basis. I ask the Court of Appeals decision to be affirmed in suppressing the evidence. Thank you very much.
Warren E. Burger: Thank you. The case is submitted. We’ll not call the next case until after the noon recess.