The Fourth Amendment and the Use of X-Ray Scanners During Texas Border Stops

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.

The court held that her detention and the attempt to get her to consent to an x-ray did not violate the Fourth Amendment because customs agents had a reasonable suspicion of drug smuggling. Justice Brennan, joined by Justice Marshall, wrote a dissenting opinion that described “x-ray searches” as a “highly intrusive investigative technique,” along with “body-cavity searches” and “stomach pumping.” Id. at 551 (Brennan, J., dissenting). This case, it should be noted, did not involve the routine use of x-ray scanners, but instead a particular situation involving a particular suspicion.

Multiple reports have described the use of x-ray scanners at border checkpoints, primarily for the purpose of detecting illegal drugs. Some scanners are so large that buses and other large vehicles can drive through them with all of their passengers and cargo. Customs officials and others reportedly claim that the scanners are only used for secondary inspection based on a reasonable suspicion, but as a report by ProPublica notes, airport security officials said something similar about body scanners that are now used on nearly all travelers.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown is a board-certified criminal defense attorney who has practiced in West Texas since 1992, defending people against alleged state and federal charges. To schedule a confidential consultation with an experienced and skilled advocate for criminal justice, contact us today online or at (432) 687-5157.

More Blog Posts:

West Texas Drug Busts Show Extent of Law Enforcement’s Power to Search People at the Border, Texas Criminal Lawyer Blog, November 2, 2017

Federal Appellate Court Holds that Third-Party Doctrine Allows Warrantless Use of Cell-Site Location Information, Texas Criminal Lawyer Blog, May 25, 2017

How The Border Search Exception May Affect West Texas Residents, Texas Criminal Lawyer Blog, May 25, 2017