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

   No. 84-755

   October Term, 1984

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

   Reply Briefs for the United States

   In our opening brief we set forth the reasons for holding that the
detention of respondent was lawful because the Customs officers had a
reasonable suspicion, based on objective facts, that respondent was
carrying narcotics within her digestive tract.  Nothing in
respondent's answering brief refutes our position.

   1. Our principal argument (Br. 13-34) is that as a result of the
government's compelling interest in protecting the integrity of the
nation's borders, a relaxed standard of reasonableness applies in
assessing border searches and detentions under the Fourth Amendment.
/1/ In order to determine the quantum of suspicion necessary to
justify a particular type of government action under this standard,
the purpose of the search or detention must be weighed against its
intrusion upon the suspect's legitimate expectations of privacy and
liberty.  Cf. United States v. Sharpe, No. 83-529 (Mar. 20, 1985),
slip op. 10 (in assessing the propriety of a Terry stop, it is
necessary "to consider the law enforcement purposes to be served by
the stop as well as the time reasonably needed to effectuate those
purposes" in addition to the duration of the stop).  Since the purpose
of the detention here was to intercept narcotics that otherwise would
have been brought into the country and the intrusiveness of the
detention was largely a function of respondent's own actions, a
reasonable suspicion standard properly accomodates the interests of
the government and respondent.

   a. Respondent endorses this analytic approach, adopting what she
characterizes a a Ninth Circuit rule that "evaluates the length of the
detention in light of the purposes to which the law enforcement
officers put the time during which the suspect is detained" (Br. 22).
Respondent acknowledges (Br. 20-21 & n.47,22,23) that lengthy border
detentions may be permissible under this test, but, citing this
Court's decision in Dunaway v. New York, 442 U.S. 200 (1979), she
asserts that the detention here was impermissible because its goal was
to "produce incriminating evidence" (Br. 21-23).  /2/

   The flaw in respondent's argument is her failure to recognize that
the purpose of the detention at issue in this case was not solely, or
even principally, to obtain evidence for a criminal prosecution.
Customs officers are authorized to search and detain persons at the
border in order to detect "merchandise * * * imported contrary to law"
(19 U.S.C. 482).  This Court's decisions concerning the status of
border searches under the Fourth Amendment have recognized that "broad
powers (to conduct border searches) have been necessary to prevent
smuggling and to prevent prohibited articles from entry." United
States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 125 (1973);  also
see United States v. Ramsey, 431 U.S. 606, 619 (1977).  Thus,
respondent was not detained solely for investigatory purposes as was
the suspect in Dunaway.  /3/ The Customs officers detained respondent
because they reasonably believed that the detention was necessary to
prevent the importation of drugs into this country.  Indeed, the
detention at issue in this case goes to the heart of the government's
interest in maintaining the integrity of the borders.  /4/

   Customs officers can use reasonable investigative techniques to
detect contraband carried in travelers' pockets and in their
suitcases.  The government is not required to admit alimentary canal
smugglers such as respondent into the country, as respondent suggests
(Br. 15), simply because they utilize a novel method to import their
cargo.  We submit that the government's interest in preventing the
importation of illegal drugs is sufficiently compelling to justify the
use of reasonable investigative techniques to detect these smugglers.
Therefore, the Customs officers acted lawfully by detaining a
reasonably suspected smuggler for the time required to examine her
bodily wastes in order to determine whether she was carrying
contraband.  /5/

   b. Respondent refers repeatedly (e.g. Br. 17, 19, 20, 23, 26) to
the length of her detention in arguing that the detention was
unlawful.  We do not deny that the detention was long, but respondent
completely ignores the unanimous conclusion of the court below that
respondent herself prolonged the detention by refusing food and drink
in an "heoric effort() to resist the usual calls of nature" (see Pet.
App. 4a, 9a;  see also U.S. Br. 27-28).  A suspect cannot prolong his
detention and then successfully challenge the detention because of its
duration.  In United States v. Sharpe, supra, this Court rejected the
defendants' claims that their detention exceeded the permissible
duration of a Terry stop, noting that "(t)he delay in this case was
attributable almost entirely to the evasive actions of (defendant)
Savage, who sought to elude the police * * *" (slip op. 12-13;  see
also id. at 9 (Marshall, J., concurring in the judgment) (a more
lengthy detention can qualify as a valid Terry stop upon a "showing
that (the) lengthier detention was not unduly intrusive for some
reason;  * * * for example, (if) the suspects, rather than the police,
* * * have prolonged the stop") (emphasis in original;  footnote
omitted).

   Sharpe makes clear that the intrusiveness of the detention in this
case cannot properly be assessed simply by examining its duration.  Of
course, it is not possible to identify the portion of the detention
that did not result from respondent's delaying tactics, and, in view
of respondent's behavior, this burden should not be placed upon the
government.  We submit that a cooperative suspect who does not refrain
from eating and drinking, and who ingests laxatives if needed to speed
his body processes, would not be detained for an extended period of
time.  In many cases, the detention might not exceed the period that
travelers are detained for routine Customs inspections at congested
airports.  This Court therefore should uphold the detention of a
suspected alimentary canal smuggler for the time required to examine
his bodily wastes.  Cf. United States v. Sharpe, slip op. 10 (in
assessing a Terry stop, it is necessary to consider "the time
reasonably needed to effectuate" the law enforcement purposes to be
served by the stop).  /6/

   We stated in our opening brief (at 28-29) that the detention in
this case was not improperly intrusive for the additional reason that
respondent rejected the alternative of a more expeditious X-ray
search.  Respondent concedes (Br. 28-29 n.63) that "there is much to
be said" for this reasoning if one assumes that an X-ray search is
less intrusive than the detention.  That precisely is our position:  a
suspect who refuses a less intrusive X-ray search cannot complain of
the special intrusiveness of a lengthy detention.  /7/

   The Court need not address this issue if it determines that the
detention was reasonable in view of its purpose and respondent's
responsibility for its duration.  However unlike respondent (Br.
29-31), we do not believe that this Court is barred from considering
this issue because of the absence of information in the record
concerning the health effects of X-rays.  None of the courts of
appeals that have addressed this issue has relied upon such evidence.
United States v. Vega-Barvo, 729 F.2d 1341, 1349-1350 (11th Cir.
1984), cert. denied, No. 84-5553 (Dec. 10, 1984);  United States v.
Mejia, 702 F.2d 1378, 1382 (5th Cir. 1983);  United States v. Ek. 676
F.2d 379, 382 (9th Cir. 1982).  Similarly, this Court did not cite any
medical evidence in upholding a routine blood test against a Fourth
Amendment challenge in Schmerber v. California, 384 U.S. 757 (1966).
Here, as in Schmerber, the "test are a commonplace in these days of
periodic physical examinations and experience with them teaches * * *
that for most people the procedure involves virtually no risk, trauma,
or pain" (384 U.S. at 771 (footnote omitted)).  Thus, the Court is
free to assess the X-ray issue and should conclude that respondent's
decision to forgo the X-ray search substantially ameliorates the
intrusiveness of the detention.  /8/

   2. In our opening brief (at 34-37), we explained that respondent,
as an alien seeking to enter the country, had a severely limited
expectation of privacy and liberty at the border and that it was
therefore lawful for the Customs officers to detain her on the basis
of their reasonable suspicion that she was engaged in smuggling even
if detention of a citizen on the same basis would have been
impermissible.  Respondent does not contest our showing that an alien
has substantially reduced expectations of liberty and privacy when
seeking to enter the United States.  She asserts only (Br. 32) that
this fact is not relevant in this case because an Immigration
inspector already had admitted her into the United States.

   Respondent is incorrect.  The stamping of her visa by an
Immigration officer did not effect her entry into this country within
the meaning of the immigration laws.  Entry into the United States
does not occur until the alien's physical presence is accompanied by
freedom from official restraint." United States v. Oscar, 496 F.2d
492, 493 (9th Cir. 1974).  In Oscar, the court held that two aliens
"had not 'entered' the United States because they were never free from
the official restraint of the customs officials at the San Ysidro Port
of Entry." Id. at 493;  see also In re Dubbiosi, 191 F. Supp. 65 (E.D.
Va. 1961) (alien who had received a permit making him eligible to go
ashore did not effect "entry" because he remained under official
restraint;  In re Pierre, 14 I. & N. Dec. 467, 468-469 (1973) ("(a)n
'entry' involves * * * freedom from restraint").  Since she had not
yet entered the country, respondent remained subject to detention and
examination under the immigration statutes and could not have had
expectations of liberty and privacy greater than those recognized
under the statutes.  /9/

   Moreover, whether or not respondent technically had been admitted
to the country is not the determinative point in assessing her
legitimate expectations of liberty and privacy while still at the
border.  The immigration statutes embody society's decision that
aliens at the border cannot legitimately expect the same privacy and
liberty as returning citizens.  This determination remains relevant
unitl the alien actually passes into the country free of government
control.

   Respondent also argues at length (Br. 32-36) concerning the equal
protection rights of aliens.  Although her point is not entirely
clear, she appears to assert that any distinction in the Fourth
Amendment rights of aliens and citizens at the border violates aliens'
right to equal protection.  Any such contention is frivolous.  We have
never disputed that respondent is entitled to the protection of the
Fourth Amendment.  However, the contours of that protection
necessarily vary from the protections accorded to citizens because
Congress has by statue differentiated between the privacy and liberty
interests accorded to aliens and citizens at the border.  That
Congress has provided more stringent criteria condtiioning aliens'
rights to enter the country, or has required them to submit to medical
examinations not required of citizens, or has directed the exclusion
of aliens on the basis of facts or suspicions that do not justify
exclusion of citizens is unquestionably a part of its legitimate
powers to legislate on the subject of immigration, which by definition
affects aliens but not citizens.  The equal protection principle does
not require differently situated people to be treaded the same.

   3. Finally, respondent argues (Br. 39-43) that even if the
reasonable suspicion standard governs the permissibility of border
detentions of suspected alimentary canal smugglers, the "articulably
suspicious behavior" found to support such detentions in other cases
was not present here.  As we explained in our opening brief (at
37-43), this contention simply misperceives the state of the evidence,
which, according to the court below, demonstrated that respondent
"possessed almost all the indicators" used to identify alimentary
canal smugglers (Pet. App. 3a n.3).  /10/

   Respondent's vague and implausible story, and the other indicia of
smuggling present in this case, closely parallel the facts that courts
of appeals have relied upon in concluding Customs officers had a
reasonable suspicion of alimentary canal smuggling (see U.S. Br.
39-42).  When these facts are combined with the unusual arrangement of
respondent's undergarments it is clear that the Custom officers had
abundant grounds to suspect respondent of alimentary canal smuggling.
/11/

   For the foregoing reasons and the reasons stated in our opening
brief, the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   APRIL 1985

   /1/ Respondent attacks (Br. 16-17) our reference to a "relaxed
reasonableness standard," but she appears to misunderstand our use of
that phrase.  We refer simply to the fact, not disputed by respondent
(see Br. 10-14, 16-17), that the Fourth Amendment standard applicable
to a search or seizure at the border is less stringent than the
standard that would apply to ascertain the reasonableness of the same
government activity occurring away from the border.

   /2/ At another point in her brief, respondent suggests (Br. 17-20)
that the detention in this case is unlawful because it does not
qualify as a permissible stop under Terry v. Ohio, 392 U.S. 1 (1968),
and its progeny.  We agree that if the detention in this case had
occurred within the United States it would not pass muster as a Terry
stop, but we reject respondent's unsupported assertion that Terry's
limits apply to detentions at the border. Respondent acknowledges (Br.
10-11) that a search of luggage and the other elements of a routine
border search are reasonable even if based upon a "subjective hunch.
"That is because the special considerations relating to searches at
the border mandate the relaxation of the probable cause standard that
otherwise would govern more intrusive searches and detentions (see
U.S. Br. 14-16, 22-24).  Moreover, respondent's reliance upon Terry is
contradicted by her approval (Br. 20-21 & n.47, 22-23) of border
detentions that clearly exceed the scope of a permissible non-border
Terry stop.

   /3/ Respondent's reliance on Dunaway is misplaced for the
additional reason that the Court in that case was concerned "with the
events occurring during the detention -- the transportation of the
defendant from a private dwelling to a police station and the
custodial interrogation resulting in a confession.  United States v.
Sharpe, slip op. 8 & n.4.  Respondent was not subjected to sustained
interrogation of this type.

   /4/ Of course, as this case demonstrates, smugglers frequently are
prosecuted if they are discovered.  However, this does not detract
from the fact that the principal purpose of Customs inspections is to
prevent the importation of contraband.

   In respondent's view, an extended border detention apparently is
justified only if the purpose of the detention is to obtain a court
authorizing a search (Br. 22-23).  This purpose cannot be more
important than the government's interests in preventing the
importation of contraband and detecting illegal activity, especially
in view of the fact that neither a warrant nor any other type of court
order is needed to effect a border search or detention (see U.S. Br.
15-16).

   /5/ Respondent nowhere sets forth the quantum of suspicion that she
believes necessary to justify the detention of an alimentary canal
smuggler, although her adoption of the Ninth Circuit's approach (Br.
23) indicates that she would apply the "clear indication" standard
applied by the court below.  However, this Court's decision in Winston
v. Lee, No. 83-1334 (Mar. 20, 1985), slip op. 7-9, makes clear that
the Ninth Circuit erred in concluding that "clear indication" refers
to an intermediate standard between probable cause and reasonable
suspicion.  See also U.S. Br. 23-24 n.18.

   Respondent intimates (Br. 14-16) that the test applied by the Ninth
Circuit will not preclude the government from detaining suspected
smugglers.  However, in the very case cited by respondent, United
States v. Mendez-Jimenz, 709 F.2d 1300 (9th Cir. 1983), the court
distinguished a prior decision invalidating an X-ray search by noting,
among other things, that the suspect in Mendez-Jimenez was found with
an anti-diarrhea pill and there was evidence of passport tampering
(id. at 1304).  This evidence, of course, is not present in most
alimentary canal smuggling cases (see U.S. Br. 39-41).

   /6/ Respondent challenges this result because the detention has no
finite duration (see Br. 24).  However, respondent would uphold a
detention for the time necessary to obtain a court order to search
warrant (see Br. 22-23), despite the fact that such detentions have no
inherent time limit and are not at all within the suspect's control.
Moreover, a court could, of course, find that a detention was overly
intrusive in an especially egregious case.

   Respondent also asserts that this standard would leave too much to
the discretion of Customs officers (Br. 24 & n.56).  First, Customs
officers' discretion is limited because the detention must be
supported by reasonable suspicion.  Moreover, as we discussed in our
opening brief (at 26-29), the suspect, much more than the Customs
officer, has control over the length of the detention because its
duration depends only on the time that it takes for the suspect to
move his bowels.  Finally, the Customs officer's diligence is relevent
in assessing the reasonableness of the detention.  Cf. United States
v. Sharpe, slip op. 11;  United States v. Place.  No. 81-1617 (June
20, 1983), slip op. 13.

   /7/ While we contend that either procedure is justified on the
basis of a reasonable suspicion of alimentary canal smuggling, we
believe that most persons would view the X-ray search as less
intrusive.  Respondent's analysis (Br. 28-29 n.63) of United States v.
Mosquera-Ramirez, 729 F. 2d 1352 (11th Cir. 1984), supports this view.

   Respondent melodramatically characterizes (Br. 26) the X-ray option
as "a dose of poison" because she claimed she was pregnant.  It is not
easy to take this assertion seriously in the circumstances of this
case.  X-rays are not utlized unless medical personnel determine that
they present no special danger to the individual;  in this case, the
medical personnel performed a pregnancy test and determined that
respondent's claim was false (U.S. Br. 7:  J.A. 64).

   /8/ This Court's decision in Winston v. Lee, supra, which
reaffirmed Schmerber, does not alter the analysis of this issue.
First, that case dealt with "surigical intrusions beneath the skin" to
be performed under a general anthesthetic (slip op. 7, 11).  It
therefore does not apply to the use of devices such as X-rays and
magnetometers, which do not involve such an intrusion.  Second,
Winston did not involve a border search and therefore does not take
account of the government's heightened interest in such procedures
when they are necessary to prevent the importations of contraband.

   /9/ We note as a point of information that the Attorney General is
authorized to confer upon "any employee of the United States" the
powers and duties of Immigration officers (8 U.S.C. 1103(a)).  This
authority frequently is utilized to empower Customs officers to
exercise the powers of Immigration officers as well.

   /10/ Quoting her trial attorney's statement that "there was no
clear indication or probable cause or any grounds to hold (respondent)
when the strip search was negative, "respondent maintains (Br. 39
n.90) that we err in asserting (Br. 38 n.31) that she had waived any
claim that the evidence available to the Customs officers at the time
of her detention failed to meet the reasonable suspicion standard.
The sentence upon which respondent relies however, was merely a
preface for her argument that "the facts in this case do not justify a
finding of probable cause for the detention, or even clear indication
for the X-ray search or the body cavity search that was ultimately
performed" (J.A. 34-35 (emphasis added)).  Respondent's attorney made
no claim that the facts also were insufficient to satisfy the
reasonable suspicion standard, as we believe she was required to do to
preserve the contention for further review.

   /11/ Respondent directs (Br. 1-2n.1) the Court's particular
attention" to Exhibit 102, the "book of invoices" carried by
respondent.  This "book" is a portfolio containing a hodgepodge of
cash register tapes and other receipt forms, some bearing no name,
some bearing respondent's name, and some bearing the name of a person
other than respondent.  This disorganized collection of receipts bears
no resemblance to records that actually are used for business purposes
and instead seems designed solely to create the appearance that their
possessor is a business traveler.  The invoices thus support rather
than undermine the Customs officers' determination.

   Respondent errs (Br. 4 & n.3) in asserting that the Customs
officers did not initially apply for a court order because they
believed the facts would not support such a request.  Agent Windes
testified (J.A. 22-23) that he erroneously believed that the policy of
the Customs Service was to apply for court orders authorizing X-ray
searches.