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EVERYDAY LAW: Issue of border searches

Cecil McCarthy

EVERYDAY LAW: Issue of border searches

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The issue of searches at the border involves the balancing of the individual’s right to privacy and the state’s interest in controlling who and what crosses the border.
Specifically, the state is concerned to prohibit the entry of illegal drugs and contraband generally as well as people who have no legal right to enter.
In relation to body cavity searches, Brennan J. in the United States Supreme Court case of US vs Montaya De Hernandes(1985), in a very strong dissenting opinion had this to say: “. . . . the available evidence suggests that the number of highly intrusive border searches of suspicious-looking but ultimately innocent travellers may be very high.
“One physician who at the request of customs officials conducted many ‘internal searches’ rectal and vaginal examinations and stomach pumping – estimated that he had found contraband in only 15 to 20 per cent of the persons he had examined.
“It has similarly been estimated that only 16 per cent of women subjected to body cavity searches at the border were in fact found to be carrying contraband. It is precisely to minimize the risk of harassing so many innocent people that the Fourth Amendment requires the intervention of a judicial officer.”
Montaya De Hernandes concerned a female traveller who was suspected on arrival at Los Angeles International Airport of being a “balloon swallower” that is, a person who attempts to smuggle narcotics hidden in her alimentary canal.
She was detained for 16 hours before officials sought a court order authorizing a pregnancy test (she had claimed to be pregnant), an x-ray and a rectal examination. The pregnancy test proved negative but the rectal exam resulted in the discovery of 88 cocaine-filled balloons.
On appeal from a decision of the Court of Appeals 9th Circuit which had held that the detention violated the Fourth Amendment because the customs officials did not have a “clear indication” of alimentary canal smuggling at the time that the respondent was detained, the Supreme Court held that the detention of a traveller at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents reasonably suspect that the traveller was smuggling contraband.
The Supreme Court held that the Fourth Amendment emphasis on reasonableness was not consistent with the creation of a “clear indication” standard to cover a case such as this as an intermediate category between “reasonable suspicion” and “probable cause”.
The “reasonable suspicion” standard effected a balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause.
It thus fitted well into situations involving alimentary canal smuggling at the border: this type of smuggling gave no external signs, and inspectors will rarely possess probable cause to arrest or search, yet governmental interests in stopping smuggling at the border  were high.
In the Canadian Supreme Court case R. v Simmons (1988), it was contended that a strip search of the accused violated section 8 of the Canadian Charter of Rights which states that: “Everyone has the right to be secure against unreasonable search and seizure.”
In that case, the search was carried out on the customs officer’s suspicion that the traveller was carrying contraband.
The then Chief Justice of Canada set out the general position with respect to border searches which echoes that of the US Supreme Court.
He said: “I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny.
“It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries.  For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function.
“Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process.
This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country.
“Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.”
“In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges permitted by the framers of ss. 43 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8.
“Under the Customs Act searches of the person are not routine but are performed only after Customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body.
“The decision to search is subject to review at the request of the person to be searched. Though in some senses personal searches may be embarrassing, they are conducted in private search rooms by officers of the same sex.
“In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual’s bodily integrity to be considered unreasonable under s. 8 of the Charter.”
It is submitted that the Shanique Myrie allegation puts her case in a category more serious than the Simmons case which was concerned with a strip search.
Next week, I look at the specific provisions of our laws.
• Cecil McCarthy is a Queens Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]