Law enforcement officials at Texas border checkpoints have some latitude to conduct warrantless searches because of the border search exception to the Fourth Amendment’s requirement of a warrant. Brief detentions of people at the border, at checkpoints near the border, and upon arrival at international airports have received judicial approval for many years. Air travelers have largely grown accustomed to submitting to electronic searches, including body scanners, but officials at border checkpoints have made increasing use of x-ray technology that can scan entire vehicles. This raises questions about Fourth Amendment rights, and also about the health effects of increasing exposure to x-ray radiation. The courts have not issued any definitive rulings on the issue in the Texas criminal context.
The border search exception derives from the sovereign right of a country to control who and what may enter its territory. It allows the brief examination travelers must undergo when arriving on an international flight or at a border crossing. In order to conduct further investigation, including actual searches, law enforcement must have a reasonable suspicion, a lesser requirement than probable cause. Under a similar exception to the Fourth Amendment’s warrant requirement, police can detain a person and conduct a search for “investigative” purposes. See Terry v. Ohio, 392 U.S. 1 (1968). The search or seizure must be based on a reasonable suspicion, and the state must “demonstrate that the seizure it seeks to justify…was sufficiently limited in scope and duration.” Florida v. Royer, 460 U.S., 491, 500 (1983).
The U.S. Supreme Court has addressed the use of x-rays in a few cases involving suspected drug smuggling. The court ruled that customs agents did not violate a woman’s Fourth Amendment rights when they detained her for 16 hours after her arrival at Los Angeles International Airport because they claimed she fit the profile of a “balloon swallower,” defined as “one who attempts to smuggle narcotics into this country hidden in her alimentary canal.” United States v. Montoya de Hernandez, 473 U.S. 531, 534 (1985). Officials informed her that “she would be detained until she agreed to an x ray or her bowels moved.” Id. at 535. They did not obtain a court order authorizing x-rays and a medical examination until the following day.