No, this was legal and did not break the rules. The court said that the border is a special place where the government has more power to search people to protect the country. The agents only needed a 'reasonable suspicion' (a good reason to be suspicious), not solid proof. The main reason she was held for so long was her own fault, because she was actively trying not to go to the bathroom.

Yes, this was totally illegal. Holding someone in a locked room for a whole day without letting them call a lawyer or family is what happens in a dictatorship, not in America. For such a serious action, the agents should have needed much more than a suspicion; they should have needed a judge's permission (a warrant) and probable cause (stronger evidence of a crime).

No, it was legal, but for a different reason. The judge agreed with the outcome but said the long detention was fair only because she refused to get an x-ray. An x-ray would have been a quick and simple way to check. Since she said no to that easy option, it was okay for the agents to hold her the harder, longer way.

Yes, border agents can hold someone if they have a reasonable suspicion the person is hiding drugs inside their body, considering all the circumstances. The rules about searches are different at the border than inside the country. Routine searches at the border don't require any particular suspicion. The government has a very strong interest in stopping drug smuggling at the border. The facts here clearly supported a reasonable suspicion that De Hernandez was smuggling drugs inside her body. The detention was long, uncomfortable, and embarrassing, but that was because of the way she chose to try to smuggle the drugs. The agents didn't have to just let her into the country if they reasonably suspected she had drugs.

The Court's decision allows a scary gray area at the border. A suspicious-looking traveler can't enter the country, but also can't leave. They're trapped at the border, subject to the criminal laws but without all the normal protections of the Bill of Rights. Holding people for a long time against their will, without letting them communicate with others, for an investigation is a mark of a police state, not a free society. This should only be allowed with the approval of a judge based on probable cause. Evidence suggests many innocent travelers are subjected to these degrading and intrusive searches. The Fourth Amendment requires a judge to be involved to minimize the risk of harassing so many innocent people. The Court's use of other cases to allow these detentions threatens to undermine basic protections against searches and seizures.

Holding De Hernandez for so long was justified because she chose to refuse an x-ray that would have easily shown whether the suspicion that she was hiding drugs was correct. Border agents can require a non-pregnant person they reasonably suspect of hiding drugs inside their body to get an x-ray as part of a border search.

"Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant...."

What is reasonable "depends upon all of the circumstances surrounding the search and seizure and the nature of the search and seizure itself."

In Montoya de Hernandez, the Supreme Court held that "the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal."

Congress, since the beginning of our Government, "has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country."

—"the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior [,]"

But to date the Supreme Court has offered "no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body cavity, or involuntary x-ray searches

These cases reflect longstanding concern for the protection of the integrity of the border. This concern is, if anything, heightened by the veritable national crisis in law enforcement caused by smuggling... illegal narcotics

Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant.

"Thus, the permissibility of a particular practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

A reasonable suspicion standard justifies a brief investigative stop or frisk by police officers, an administrative investigation by a government employer into an employee and a non-routine search or seizure at the border.

No, the detention did not violate the Fourth Amendment. The detention of a traveler at the border, beyond a routine customs search, is justified if customs agents have a reasonable suspicion that the traveler is smuggling contraband in her alimentary canal. The Fourth Amendment's balance of reasonableness is qualitatively different at the international border, where the government's interest in protecting national sovereignty is at its peak. The court rejected the Ninth Circuit's requirement of a "clear indication," holding that "reasonable suspicion" is the appropriate standard for such non-routine detentions. The 16-hour duration of the detention was not unreasonable because alimentary canal smuggling is difficult to detect quickly, and the length and discomfort of the seizure resulted primarily from Montoya de Hernandez's own evasive actions in refusing to have a bowel movement.

Yes, the detention violated the Fourth Amendment. Indefinite, involuntary, and incommunicado detentions for investigation are hallmarks of a police state, not a free society. Such a highly intrusive and lengthy seizure, which surpassed the conditions of a full custodial arrest, requires the constitutional safeguards of a warrant and probable cause, not merely the reasonable suspicion of low-ranking officers. The majority's reliance on the principles of brief Terry stops is inappropriate for a 27-hour ordeal. The government's interest in border security could have been served by giving Montoya de Hernandez the option to leave the country, rather than trapping her in an "authoritarian twilight zone" where constitutional protections are diminished.

No, the detention was justified. The prolonged detention was permissible not because of the smuggling method itself, but because of the choice Montoya de Hernandez made. She withdrew her consent to an x-ray examination, which would have quickly and easily confirmed or dispelled the agents' reasonable suspicion. Customs agents may require a nonpregnant person reasonably suspected of this type of smuggling to submit to an x-ray as an incident to a border search, and her refusal to take this less intrusive path justified the subsequent, longer detention.

Yes. The detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal. The Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of persons and effects are not subject to any requirement of reasonable suspicion, probable cause, or warrant. The Government's interest in preventing smuggling at the border is at its zenith, and the reasonable suspicion standard fits well into the border context. The facts known to the customs inspectors clearly supported a reasonable suspicion that De Hernandez was smuggling narcotics in her alimentary canal. The detention was long, uncomfortable, and humiliating, but both the length and discomfort resulted solely from the method by which she chose to smuggle drugs. The inspectors were not required to simply let her pass into the interior carrying the reasonably suspected contraband.

The Court's decision sanctions an authoritarian twilight zone on the border. The suspicious-looking traveler may not enter the country, nor may she leave. Instead, she is trapped on the border, fully subject to the criminal enforcement powers of the Federal Government, but not fully protected by the guarantees of the Bill of Rights. Indefinite involuntary incommunicado detentions for investigation are the hallmark of a police state, not a free society. Such detentions can be reasonable under the Fourth Amendment only with the approval of a magistrate on a showing of probable cause. The available evidence suggests that the number of innocent travelers subjected to such demeaning and intrusive border searches is very high. The Fourth Amendment requires the intervention of a judicial officer precisely to minimize the risk of harassing so many innocent people. The Court's reliance on the Terry line of cases to permit such detentions threatens to swallow the basic probable cause and warrant safeguards.

The prolonged detention of De Hernandez was justified by the choice she made to withdraw her consent to an x-ray examination that would have easily determined whether the reasonable suspicion that she was concealing contraband was justified. Customs agents may require that a nonpregnant person reasonably suspected of alimentary canal smuggling submit to an x-ray examination as an incident to a border search.

United States v. Montoya-Hernandez

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