UNITED STATES OF AMERICA, PETITIONER V. ROSA ELVIRA MONTOYA DE HERNANDEZ No. 34-755 4 In the Supreme Court of the United States OCTOBER TERM, 1984 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS QUESTION PRESENTED Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-12a) is reported at 731 F.2d 1369. The district court's oral ruling denying respondent's suppression motion (App., infra, 13a-14a) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 24, 1984. A petition for rehearing was denied on August 10, 1984 (App., infra, 15a). Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including November 8, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). 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 bowel movements. STATEMENT Following a bench trial on stipulated facts in the United States District Court for the Central District of California, petitioner was convicted of possession of cocaine with intent to distribute it, 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 (App., infra, 1a-12a). 1. The evidence, which is summarized in the opinion of the court of appeals (App., infra, 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. There, Customs Inspector Jose Serrato reviewed respondent's passport, inspected her luggage, and questioned her about her trip to the United States. Based on the information gleaned from this examination, Serrato suspected that respondent was carrying drugs internally because she exhibited characteristics common to persons who smuggle drugs concealed in their alimentary canals. App., infra, 2a and n.2. Serrato's suspicion rested on the following facts: respondent came from a source country for narcotics, had previously made numerous trips of short duration to the United States, had paid cash for her ticket, carried little extra clothing or toiletries, had no confirmed hotel reservations, had no family or friends in the United States, and spoke no English. In addition, although respondent claimed that she had come to the United States to purchase clothing and other merchandise for her husband's business in Colombia, she acknowledged that she had made no appointments to visit potential sellers but intended to take a taxi to various retail stores and to buy the merchandise on the spot (E.R. 93-94, 123-124). /1/ Inspector Serrato arranged for a female Customs officer to conduct a patdown search of respondent. The search failed to produce any evidence of contraband. The Customs officers then asked respondent whether she would consent to an X-ray of her abdominal cavity. Although she initially stated that she would consent, she withdrew her consent when informed that she would be handcuffed while en route to the hospital for the X-ray. App., infra. 3a. The officers on duty at the airport then requested Customs Special Agent Kyle E. Windes to seek a court order for a body cavity X-ray. Windes declined to do so at that time 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. App., infra, 3a; E.R. 77, 86 124; Tr. 29-30. Given these choices, respondent agreed to return to Colombia. The officers advised her, however, that she would be kept under observation until her departure and that, if she excreted any narcotics during that period, she would be arrested (E.R. 86, 125). While respondent waited to be placed on a return flight to Colombia, she was detained in a room at the airport. /2/ Customs officers instructed respondent that if she had to eliminate body wastes, she would be escorted to a nearby restroom, where she would have to use an empty wastebasket; the reason for this procedure was to prevent respondent from flushing contraband down the toilet. Under the continuous observation of Customs officers, respondent remained in the room throughout the night and most 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 or another. App., infra, 3a-4a; E.R. 89, 93, 100, 125; Tr. 24, 26, 36. At approximately 3:00 p.m. on March 5, female officers subjected respondent to a second strip search, which again failed to reveal evidence of contraband (App., infra, 3a; E.R. 95). An 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 an X-ray and an internal body cavity search. Agent Windes's affidavit in support of the court order summarized the Customs officers' observations with respect to respondent, including her refusal of food, drink, or use of toilet facilities over a 16-hour period. /3/ At about midnight, a federal magistrate issued the requested order. App., infra, 3a-4a; E.R. 78-79, 80-83. /4/ At 12:30 a.m. on March 6, 1983, respondent was taken to the University of Southern California Medical Center, where a rectal examination revealed a balloon containing cocaine. /5/ 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 528.4 grams of cocaine. App., infra, 4a; E.R. 126. 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 (App., infra, 13a-14a). The court noted 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. In this regard, the court pointed out that, after they initially questioned respondent, the Customs officers had "a very substantial suspicion" that she was smuggling narcotics concealed inside her body (id. at 14a). On this basis, the court concluded that the officers 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 (ibid.). 3. A divided panel of the court of appeals reversed (App., infra, 1a-12a). The court did not question the sufficiency of the information supporting the court order authorizing a body cavity search of respondent. It held, however, that the information underlying the court order, which included observation 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" (id. at 6a). In concluding that the officers' choice of the latter option was unreasaonble, the majority noted that, under its recent decision in United States v. Quintero-Castro, 705 F.2d 1099 (1983), at the time the officers decided to detain respondent they lacked the necessary level of suspicion -- a "clear indication" that she was engaged in alimentary canal smuggling -- to obtain a court order for an X-ray search (App., infra, 6a). In these circumstances, the majority reasoned that the facts known to the officers likewise did not justify the lengthy period of detention, which the officers knew would result in "many hours of humiliating discomfort," for the purpose of examining respondent's bowel movements (ibid.). Judge Jameson dissented (App., infra, 8a-12a). He noted at the outset that respondent did not, in fact, move her bowels under the observation of Customs officers, and 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). In addition, 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 real suspicion sufficient to justify a strip search" (id. at 11a). /6/ He reasoned that performance of peristaltic functions under observation of a Customs official is not significantly more intrusive than a strip search, as it involves merely passive visual inspection of bodily waste products, and that it is less intrusive than either a body cavity or an X-ray search, as to which the court 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" (id. at 10a-11a; emphasis in original; footnote omitted). /7/ Finally, he noted 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 border" (id. at 12a). REASONS FOR GRANTING THE PETITION Cases involving searches or seizures of persons stopped at the border who are suspected by Customs officers of attempting to smuggle narcotics ingested into their bodies /8/ raise a number of important and recurring questions of Fourth Amendment law. One of these questions -- presented here -- concerns the permissibility of detaining a suspect who refuses to submit to an X-ray search for the period of time necessary to examine his bowel movements for evidence of contraband. The decision of the court of appeals in this case, holding that such detentions at the border are unlawful unless supported by a "clear indication" that the suspect is carrying drugs internally, is in direct conflict with the decision of the Eleventh Circuit in United States v. Mosquera-Ramirez, 729 F.2d 1352 (1984). We believe that review by this Court is warranted to resolve this conflict and provide a single, nationwide standard for determining the reasonableness of detentions at the border of persons suspected of attempting to smuggle narcotics concealed inside their bodies. 1. In United States v. Quintero-Castro, 705 F.2d 1099 (9th Cir. 1983), the court of appeals held that an X-ray search at the border for the purpose of detecting body cavity smuggling is comparable in intrusiveness to a body cavity search, and that a "clear indication or plain suggestion" /9/ that the suspect is carrying contraband in his body cavity is necessary in order to justify such procedures under the Fourth Amendment. See also United States v. Couch, 688 F.2d 597, 604-605 (9th Cir. 1982); United States v. Elk, 676 F.2d 379, 382 (9th Cir. 1982); United States v. Aman, 624 F.2d 911, 912-913 (9th Cir. 1980). In the instant case, the court of appeals held (App., infra, 6a) that if the information known to the Customs officers is insufficient to justify an X-ray search of a suspected smuggler under the "clear indication" standard adopted in Quintero-Castro, it likewise is insufficient to justify the suspect's detention for the period of time necessary to examine his bowel movements for evidence of contraband. On the other hand, the Fifth and Eleventh Circuits have both held that an X-ray search at the border of a suspect's abdominal cavity is permissible if supported by a reasonable suspicion that the suspect is engaged in smuggling activity. United States v. Mejia, 720 F.2d 1378, 1382 (5th Cir. 1983); United States v. Vega-Barvo, 729 F.2d 1341 (11th Cir. 1984), petition for cert. pending, No. 84-5553. /10/ The court in Vega-Barvo (729 F.2d at 1350) expressly acknowledged that its holding was directly contrary to that of the Ninth Circuit in Quintero-Castro, but, in view of the fact that body cavity X-rays performed by hospital personnel do not involve physical contact, exposure of intimate body parts, or use of force, and in the absence of a generalized showing that routine abdominal X-rays pose a significant health risk, the court concluded that "it would be inappropriate to impose stringent Fourth Amendment constraints on their use in border searches" (729 F.2d at 1348). Furthermore, in United States v. Mosquera-Ramirez, 729 F.2d at 1357, the Eleventh Circuit held that "(t)he detention of persons at the border long enough to reveal by natural processes that which wuold 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." Accord, United States v. De Montoya, 729 F.2d 1369, 1371 (11th Cir. 1984). In Mosquera-Ramirez, the defendant, suspected by Customs officers of carrying drugs internally, refused their request that he submit to an X-ray examination. The officers then took him to a hospital for the purpose of detaining him until he discharged the contents of his stomach. There, following a detention of approximately 12 hours, he excreted 95 condoms filled with cocaine. 729 F.2d at 1354-1355. In rejecting the defendant's argument that his detention was unreasonable under the Fourth Amendment, the court concluded (id. at 1356); The customs inspectors seized and detained (the defendant) on the basis of enough suspicion to justify a search of the contents of his stomach and intestinal tract. (The defendant) was then given the option of submitting to an x-ray, a relatively expeditious search method. He refused. The only way to restrict detention time at that point would have been to physically force an x-ray. The alternative, which the customs agents chose, was to hold the defendant until nature revealed what an x-ray would have shown. The defendant's refusal to agree to submit to an x-ray, which the agents could constitutionally perform, cannot convert the reasonable alternative search method of detention into a Fourth Amendment violation. The decision of the Eleventh Circuit in Mosquera-Ramirez is thus squarely in conflict with the decision of the Ninth Circuit in this case. /11/ 2. Moreover, the decision below is contrary to settled principles of Fourth Amendment law governing Customs searches and seizures at the border. As this Court explained in United States v. Ramsey, 431 U.S. 606, 619 (1977), "(b)order 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 upon probably cause." Congress has given Customs officers broad authority to search and detain persons entering the United States from a foreign country. 19 U.S.C. 1582. /12/ Although this authority is limited by the reasonableness requirement of the Fourth Amendment (see United States v. Villamonte-Marquez, No. 81-1350 (June 17, 1983), slip op. 6), this Court has never addressed the question of how the reasonableness standard should be applied to searches and seizures of persons at the border. /13/ This case involves the detention of a suspected smuggler at the border for what concededly was a lengthy period of time. The reasonableness of that detention, however, is not subject to the same standards as the detention of a suspect in the non-border setting. The Eleventh Circuit in Mosquera-Ramirez, 729 F.2d at 1356 (citations omitted), focused on the differences between detentions at the border and those away from the border: Border searches exist in an entirely different context than Terry-type stops. Of primary significance is that at the border, searches are not subject to the probable cause and warrant requirement of the Fourth Amendment. The governmental interest and the individual's expectation of privacy are also different than those involved in the normal domestic Terry-type stop. As this Court has stated: "(t)he national interests in self-protection and protection of tariff revenue authorize a requirement that persons crossing the border identify themselves and their belongings as entitled to enter and be subject to search." These different circumstances have produced a different result in the Fourth Amendment balancing process. At the border, a person may be detained long enough for the officials to determine they are entitled to enter the United States * * *. If the officials must determine that persons entitled to entry are not carrying contrabrand, they must be given time to make that determination using reasonable search methods. Furthermore, as the court observed in Mosquera-Ramirez, 729 F.2d at 1356, "(c)onsideration of the reasonableness of the length of detention must focus on the purpose of detention in the first place. It would not seem unreasonable for government officials to detain a person for the period of time necessary to conduct a valid search." Cf. United States v. Place, No. 81-1617 (June 20, 1983), slip op. 10. Accordingly, we turn to examine the permissibility of the purpose for which respondent was detained -- viz., to examine her bowel movements for evidence of contraband. This Court has held that "'the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" United States v. Villamonte-Marquez, slip op. 9 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). See, e.g., United States v. Place, slip op. 6-7; United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). The courts of appeals have applied such a general reasonableness analysis to border searches when the intrusiveness of the search procedure has extended beyond a routine inspection of the person and his effects. As the court explained in Vega-Barvo, 729 F.2d at 1344, in the context of border searches the reasonableness analysis consists of "a flexible test which adjusts the strength of suspicion required for a particular search to the intrusiveness of that search. As intrusiveness increases, the amount of suspicion necessary to justify the search correspondingly increases. This approach attempts to balance the privacy interests of the international traveler and the Government's interest in controlling the flow of contraband." See, e.g., United States v. Grotke, 702 F.2d 49, 51 (2d Cir. 1983); United States v. Ek, 676 F.2d at 382; United States v. Sandler, 644 F.2d 1163, 1167-1169 (5th Cir. 1981) (en banc); United States v. Dorsey, 641 F.2d 1213, 1216-1217 (7th Cir. 1981); United States v. Asbury, 586 F.2d 973, 975-976 (2d Cir. 1978); United States v. Wardlaw, 576 F.2d 932, 934-935 (1st Cir. 1978). Because "(t)he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the state" (Schmerber v. California, 384 U.S. 757, 767 (1966)), on focal point of this analysis is upon the extent of the indignity suffered by the individual searched. More specifically, this aspect may properly be said to involve an assessment of three factors "which contribute to the personal indignity endured by the persons searched: (1) physical contact between the searcher and the person searched; (2) exposure of intimate body parts; and (3) use of force." Vega-Barvo, 729 F.2d at 1345-1346. In applying these factors in a border search setting, the courts have concluded that, although a patdown search or an inspection requiring removal of an outer garment is permitted on the basis of nothing more than a Customs officer's subjective belief that such measures are necessary (see, e.g., United States v. Sandler, 644 F.2d at 1169), a strip search may not be undertaken without a "reasonable" or "real" suspicion that the individual is carrying contraband. See, e.g., United States v. Elk, 676 F.2d at 382; United States v. Sandler, 644 F.2d at 1169; United States v. Dorsey, 641 F.2d at 1217; United States v. Asbury, 586 F.2d at 975-976. And the Ninth Circuit has held that, in order to justify a search of body cavities, the Customs officers must have information supplying a "clear indication or plain suggestion" that the suspect is carrying contraband within his body. See United States v. Elk, 676 F.2d at 382; United States v. Aman, 624 F.2d at 912-913. The court of appeals erred in holding that the "clear indication" standard applicable to body cavity searches (which we do not here contest) had to be met in order to justify respondent's detention for the purpose of permitting Customs officers to inspect her bowel movement. /14/ As Judge Jameson explained in his dissent below (App., infra, 9a; footnote omitted), although performing a bowel movement while under the observation of a Customs official "imposes upon an individual's dignity, * * * such an imposition does not differ significantly from a strip search. In both cases, the 'search' consists of passive visual inspection of the body's surface and, in this case, of its waste products." See, e.g., United States v. Himmelwright, 551 F.2d 991, 995-996 (5th Cir.), cert. denied, 434 U.S. 902 (1977); United States v. Holtz, 479 F.2d 89, 93 (9th Cir. 1973). /15/ Moreover, such searches involve a substantially lesser degree of humiliation than a body cavity search, such as a digital probe of the anus or vagina. Unlike those instrusive procedures, the "search" technique at issue here involves no physical contact with the suspect, no involuntary invasions beyond the body's surface into "the most intimate portions of the (suspect's) anatomy" (United States v. Cameron, 538 F.2d 254, 258 (9th Cir. 1976)), and none of the physical discomfort that may result from the exploration of body cavities. In view of these significant distinctions, it was entirely inappropriate for the court of appeals to require, as a predicate for the observation of respondent's bowel movements, the same quantum of suspicion that the court requires for a body cavity search. /16/ Turning to the detention in this case, we submit that, in view of the government's vital interests in interdicting drug trafficking, it was perfectly reasonable for the Customs officers to detain respondent for the period of time necessary either to confirm or dispel the reasonable suspicion that she was carrying drugs internally. Because respondent was given the option of submitting to an X-ray or moving her bowels under observation, the duration of her detention rested largely within her control. As Judge Jameson observed in his dissent below (App., infra, 9a), although respondent "may have suffered 'many hours of humiliating discomfort' she was herself solely responsible for a considerable part of it." On the other hand, the government has a compelling interest in being able to detain a person such as respondent, who is reasonable suspected of alimentary canal smuggling and who refuses to submit to an X-ray search, for the period of time necessary to confirm or dispel that suspicion. As noted in the dissent (id. at 10a), because such smuggling techniques do not commonly leave the telltale external signs that identify other types of body cavity smuggling (see note 16, supra), the least intrusive method for confirming or dispelling suspicions of alimentary canal smuggling -- a method substantially less intrusive than subjecting the suspect to an internal examination -- is to place the suspect under observation for an extended period of time. /17/ Given the inherent difficulties of detecting alimentary canal smuggling without extended detention, and the absence of feasible alternatives, it is reasonable to detain at the border persons reasonably suspected of carrying narcotics internally for the period of time necessary to examine their bowel movements. /18/ 3. Resolution of the conflict between the decision below and that of the Eleventh Circuit in Mosquera-Ramirez is necessary both to clarify an important question of Fourth Amendment law governing border searches and to afford guidance to federal law enforcement authorities responsible for interdicting drugs at the national borders or their functional equivalents. As these cases illustrate, narcotics smugglers have become increasingly adept at concealing contraband destined for distribution within the United States. In particular, alimentary canal smuggling has become a problem of substantial dimensions both because of its increasing frequency /19/ and the difficulty inherent in its detection (see note 16, supra). The decision below, severely restricting the use of a foolproof and relatively unintrusive investigative measure, has resulted in the application of different rules governing Customs procedures in the Eleventh and Ninth Circuits. Thus, the decision virtually invites alimentary canal smugglers to shift their operations to ports of entry within the Ninth Circuit, where, due to the prevailing rule limiting the permissible actions of Customs officers, their smuggling activities are more likely to pass undetected. It therefore is important that this Court resolve the conflict among the circuits to apprise Customs officials throughout the country of the proper standards governing detentions at the border of suspected alimentary canal smugglers. As Judge Jameson observed in dissent (App., infra, 12a), "(t)o deny the validity of (such 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." CONCLUSION The petition for a writ of certiorari should be granted. Repsectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General ELLIOTT SCHULDER Assistant to the Solicitor General JOHN F. DE PUE Attorney NOVEMBER 1984 /1/ "E.R." refers to the excerpt of record in the court of appeals. /2/ As it happened, the next direct flight to Colombia was many hours away (E.R. 86; Tr. 24-25). During the court of respondent's subsequent detention, however, Customs officers attempted to arrange for her departure for 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. E.R. 95-96, 99. /3/ 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" (E.R. 81). /4/ Because respondent claimed that she was pregnant, the court order provided that "(t)he X-ray and body cavity search is to be conducted only after a medical doctor has approved the use of the X-ray and body cavity search as appropriate for the (respondent) and only after the doctor has considered the (respondent's) claim that she is pregnant" (E.R. 83). /5/ A previously administered test disclosed that respondent was not pregnant (E.R. 90, 126). /6/ In United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970), the court of appeals defined "real suspicion" sufficient to justify a strip search at the border 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." /7/ Judge Jameson noted that, "(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 'real suspicion'" (App., infra, 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.). /8/ As explained in United States v. Couch, 688 F.2d 599, 605 (9th Cir. 1982), alimentary canal smuggling involves the taking of a laxative to clean out the smuggler's digestive system, swallowing narcotics placed inside capsules or balloons, and finally taking drugs to inhibit digestion during the trip. Once the smuggler reaches his destination, he takes another laxative to retrieve the contraband. /9/ The Ninth Circuit first articulated the "clear indication or plain suggestion" standard in upholding a body cavity search at the border in Rivas v. United States, 368 F.2d 703, 710 (1966), cert. denied, 386 U.S. 945 (1967). The court subsequently has explained that a "'(c)lear indication' means more than real suspicion but less than probably cause." United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (9th Cir. 1983). But see 3 W. LaFave, Search and Seizure Section 10.5, at 286-287 (1978). The "clear indication" standard has its origins in Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, where the defendant had been lawfully arrested for driving while intoxicated, the Court rejected the notion that extraction of a blood sample from the defendant's body could be upheld as a search incident to arrest, without any further justification. The Court explained (384 U.S. at 769-770): The interests in human dignity and privacy which the Fourth Amendment protects forbid any * * * 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. Because the facts establishing probable cause to arrest also suggested the relevance and likely success of a test of the defendant's blood for alcohol, the Court held that the "clear indication" test had been met. Id. at 770. We think it may fairly be assumed that Schmerber employed the "clear indication" standard as a synonym for probable cause. Of course, we do not dispute that, outside of the border context, a detention of the sort involved in this case would likewise require probable cause. /10/ Accord, 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). /11/ The government apprised the court of appeals of the conflict in its petition for rehearing en banc (at 9-10). The court nonetheless denied the petition (App., infra, 15a-16a). /12/ 19 U.S.C. 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. See 19 C.F.R. 162.6. Customs officers stationed at ports of entry throughout the United States operate under mandatory guidelines issued by the Commissioner of Customs. /13/ See United States v. Ramsey, 431 U.S. at 618 n.13, where the Court left open the question "whether, and under what circumstances, a border search might be deemed 'unreasonable' because of the particularly offensive manner in which it is carried out." /14/ We address the quantum of suspicion necessary to permit detention for the purpose of conducting an X-ray search of a suspect's body cavity in our response to the petition for certiorari in Vega-Barvo v. United States, No. 84-5553, a copy of which will be furnished to counsel for respondent. /15/ As Judge Jameson pointed out (App., infra, 9a n.2), "a valid strip search may involve a visual inspection of the anal region." See, e.g., United States v. Holtz, 479 F.2d at 93 (collecting cases); United States v. Sosa, 469 F.2d 271, 273 (9th Cir. 1972), cert. denied, 410 U.S. 945 (1973). /16/ The "clear indication" threshold imposed by the court of appeals for detaining suspected alimentary canal smugglers for the purpose of inspecting their bowel movements is not only disproportionate in relation to the nature and scope of the intrusion involved, it is impractical. As Judge Jameson noted (App., infra, 10a), this standard may be met with relative ease in cases involving smuggling by insertion of drugs into body openings, due to the appearance of telltale indicia, such as lubricant stains on undergarmets, a suspect's unnaturally stiff and erect gait, restricted body movements, and possession of condoms and lubricants. In contrast, alimentary canal smuggling does not ordinarily leave such readily observable external signs. See United States v. Mendez-Jimenez, 709 F.2d at 1303. Consequently, imposition of the higher "clear indication" standard would, as in this case, almost invariably require the release into this country of persons believed to be engaged in alimentary canal smuggling notwithstanding the presence of a reasonable suspicion on the part of experienced Customs officials that the persons are carrying contraband inside their bodies. /17/ Because the purpose of Customs inspections is to prevent contraband from being smuggled across our borders, it makes little sense to suggest, as did the majority below (App., infra, 6a), that the Customs officers could have "let (respondent) into the country and (tried) to follow her." Although the officers did offer respondent the option of taking the first available return flight to her country of origin, that alternative is also unsatisfactory because it would afford a suspected smuggler like respondent the opportunity to escape apprehension and repeat her smuggling activities another day, and would generally encourage this smuggling technique by materially reducing the risk of apprehension and prosecution. /18/ Even if some more rigorous standard than reasonable suspicion is applicable to extended detentions of suspected smugglers, we submit that any such standard was met here, where the officers had "a very substantial suspicion" that respondent -- an alien with no right to enter the United States -- was smuggling narcotics concealed inside her body (App., infra, 14a), and where the "detention" consisted merely of waiting with respondent in a room until arrangements could be made for her departure. /19/ To illustrate the magnitude of the problem, we note that in United States v. Mendez-Jimenez, 709 F.2d at 1301, the court observed that a Customs officer apprehended 25 body cavity smugglers on a single flight. Moreover, the increasing number of reported appellate decisions involving alimentary canal smugglers is also indicative of the dimensions of the threat posed by this smuggling method. APPENDIX