I DO?NOT?HAVE the clairvoyance of some of the journalists or commentators who can write or speak with conviction on the veracity or falsity of the accusations made by Shanique Myrie at Barbados “Immigration officers” with respect to a body cavity search.
What I can say for sure is that our laws permit custom officers to search persons at the border. They also permit Immigration officers to search persons.
Because a claim of a body cavity search performed in the manner alleged is so unusual, I thought it useful for my own enlightenment to examine what happens in other jurisdictions and how the courts have responded.
As usual, I have been fascinated by the resourcefulness of the American people in developing their own peculiar rules. Today I will focus on some aspects of their legal regime and discuss one case decided by their courts.
In the United States, search and seizure of items carried by a person at the border engages the Fourth Amendment which provides that the “right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable course”.
One dimension of the Fourth Amendment is the exclusionary rule which provides that as a matter of due process, no evidence secured in violation of the Fourth Amendment may be admitted as evidence in a court of law.
Of course this rule acts as a deterrent to illegal searches and seizures and can have the effect of permitting “guilty” individuals to be freed.
One of the many American cases dealing with searches at the border is the case of USA v Ogberaha and Ayinde (1985 United States Court of Appeals, Second Circuit) in which the sole issue raised was whether body cavity searches of the defendants conducted at the border by US customs officials violated the Fourth Amendment.
The facts were that the two defendants (who were two female Nigerian nationals travelling separately on the same flight) arrived in New York at JFK airport from Lagos, Nigeria.
After routine interrogation and inspection of their travel documents, each was separately subjected to a body cavity search that revealed a heroin-filled condom concealed in her vagina.
Each was charged with certain offences in connection with the smuggling of the drug. They challenged the legality of the searches and sought to have the evidence thrown out on a motion to suppress.
The district court concluded that since the border officials possessed the requisite “reasonable suspicion” of criminal activity within the meaning of Asbury (discussed below) to justify the intrusive searches, the defendants’ Fourth Amendment rights were not violated. The appeal court agreed with the decision of the district court.
In arriving at its decision, the court followed a case called US v Asbury (1978) where there was an outline of circumstances that could give rise to reasonable suspicion. In that case the court mentioned the following as indicative of giving rise to reasonable suspicion:
(1) Excessive nervousness.
(2) Unusual conduct.
(3) An informant’s tip.
(4) Computerized information showing pertinent criminal propensities.
(5) Loose-fitting or bulky clothing.
(6) An itinerary suggestive of wrongdoing.
(7) Discovery of incriminating matter during routine searches.
(8) Lack of employment or a claim of self-employment.
(9) Needle marks or other indications of drug addiction.
(10) Information derived from the search or conduct of a travelling companion.
(11) Inadequate luggage.
(12) Evasive or contradictory answers.
In the Asbury case there were four of the above factors.
In each case the search was carried out by Maria Sullivan, a female customs inspector. The court commented that it found no evidence that the government agents engaged in any discriminatory or arbitrary behaviour such as subjecting all Nigerian women to greater scrutiny simply because they were Nigerian citizens.
The searches were performed as discreetly as possible by a female inspector in a private examination room.
• Cecil McCarthy is a queen’s counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com
