June 28, 2000
The Honorable Richard J. Durbin
United States Senate
Washington,
D.C. 20515
Dear Senator Durbin:
On behalf of the American Civil Liberties Union we commend you for introducing S. 2393, the "Reasonable Search Standards Act." We fully support this legislation and its House counterpart, H.R. 4001.
The current situation at the borders is intolerable. The Customs Service is conducting searches of mostly innocent travelers who are people of color, even though it has no probable cause of crime. The searches it conducts are among the most intrusive, humiliating, and degrading search procedures available to law enforcement. Your bill will help to protect the Constitutional rights of all travelers to equal protection and personal privacy as they enter the United States.
A study by the General Accounting Office in March of 2000 of Customs’ personal search practices revealed that over 50,000 people each year in fiscal years 1997 and 1998 were forced to submit to patdown searches, strip searches, x-rays, body cavity searches, the administration of laxatives, monitored bowel movements, and other search procedures. A disproportionate number of the people searched were people of color—approximately 67% of the total number of individuals who were searched.1 Despite the widespread intrusions into individuals’ personal privacy, the GAO study found that an astounding 97% of patdown searches, 77% of strip-searches, 69% of x-ray searches, and 44% of body cavity searches turned up no contraband.
Customs Commissioner Raymond Kelly testified before the House Oversight Subcommittee on May 20, 1999 that the Customs Service seized only 1,000 pounds of drugs in 1998 through personal searches at airports—less than one-tenth of one percent of all drugs that Customs seized that year. In other words, even if the Customs Service strip-searched every traveler entering the United States, over 99.9% of the drugs coming over the border would continue to arrive. In such circumstances, discriminatory invasions into the personal integrity and liberty of individuals are even more outrageous and unjustifiable. At its core, the Fourth Amendment prohibits the government from invading the personal privacy and integrity of an individual without strong evidence of crime.
Race bears no causal relationship to crime. Race is never a legitimate indicator that should raise the suspicion of Customs officials, and should never be used as part of a “drug courier profile.” Yet the GAO study presented disturbing evidence that racial bias has tainted Customs enforcement. Black and Hispanic individuals were approximately four to nine times more likely than White individuals to be x-rayed after being frisked or patted down. Black women have the highest likelihood of being strip-searched of all U.S. citizens. GAO reported that in some cases, people of color who were more likely to be invasively searched by Customs officials were significantly less likely to be found carrying illegal substances. Though the Customs Service reported on April 10, 1999 that it was searching fewer passengers, we are aware of no evidence these racial disparities have been addressed.
If enacted, the Reasonable Search Standards Act would in essence codify the Customs Service's stated policy of not using race, color, religion, gender or ethnic background in a profile to determine who would be detained or searched. It would also prohibit profiling based on sexual orientation. The bill would also help quantify the problem, by requiring the Customs Service to collect data about the race, citizenship and gender of individuals searched, and report those findings annually to Congress. The Customs Service is already required to collect race, ethnicity and gender data by a June 1999 presidential directive. In addition, the bill would help to prevent abuses on the ground by mandating periodic training of Customs inspectors on detention and search procedures, with a particular emphasis on prohibiting racial profiling.
Finally, the bill would help ensure that Customs Service follows reasonable search standards, by requiring Customs agents to document their reasons for believing that a traveler is carrying contraband before searching the person. This could be important in ferreting out discriminatory searches.
S. 2393 would be a significant step toward eradicating racial profiling at our nation's borders, and toward protecting the privacy rights of all travelers. The bill would also help ensure that better targeting of searches by the Customs Service becomes more likely, and non-discriminatory.
Even with the strides that this bill would take to ensure that equal protection principles are upheld in the war on drugs, still more should be done to protect the civil rights of international travelers. According to the Customs Service’s November 1999 Personal Search Handbook, “patdown” searches, in which a Customs official may touch every area of an individual’s body, are allowed based on “mere suspicion,” that is, if the individual triggers one factor in a nebulous drug courier profile. Invasive and humiliating strip searches, x-rays, or body cavity searches are permitted if there is “reasonable suspicion.”2 Seemingly contradictory characteristics have been cited as triggering suspicion: acting too nervous or too calm; wearing expensive clothing or casual clothing; traveling alone or traveling with a companion; deplaning first, deplaning last, or deplaning in the middle; carrying no luggage or several suitcases; walking quickly through airport or walking slowly through airport.3 When officials have broad discretion based on vague or contradictory factors in a profile, racial bias can more easily creep into the search decisions that are made. Moreover, the privacy rights of all travelers may be needlessly invaded.
These problems should be addressed by raising the standard for personal searches at the border to "reasonable suspicion." Law enforcement officials everywhere in the U.S., other than at the borders, are generally required to have "reasonable suspicion" of crime before they can even stop a person and demand ID. See Terry v. Ohio, 392 U.S. 1 (1968). The Terry case permits an officer to conduct a very limited frisk to search for weapons, but only to promote officer safety. The standard for Customs officials who would perform a full patdown search for drugs should be no less. A reasonable suspicion standard is particularly important in light of the Customs Service's plans to use new "body scans" to perform electronic strip-searches instead of patdowns. For strip searches, body cavity searches, and x-rays, "probable cause" is an appropriate standard, and we believe that the new electronic strip searches fall into this category as well. We urge you to strengthen the Civil Rights for International Travelers Act by requiring Customs officials to have reasonable suspicion for pat down searches and probable cause for more intrusive searches.
Furthermore, the Customs Service is authorized to intrusively search travelers and subject them to prolonged detention without the approval of a neutral judge or magistrate. While the Second and Fifth Circuits require that the Customs Service provide notice or seek judicial approval of prolonged detentions, and the Ninth Circuit requires judicial approval of intrusive searches, the other circuits have not imposed such requirements.4 Before the House Oversight Subcommittee on May 20, 1999, Customs Commissioner Raymond Kelly testified that Congressional guidance on a uniform standard in this area would be helpful. Moreover, the Customs Service announced on August 11, 1999 that it would require Customs officials to notify or obtain approval from a federal magistrate for detention in excess of four hours.5 Despite Customs' stated support for this measure, it was never implemented. We urge you to strengthen the Civil Rights for International Travelers Act by amending it to require that the Customs Service seek approval from a neutral magistrate before subjecting travelers to lengthy detentions or intrusive searches. The ACLU believes that these suggestions will advance the goals of your important legislation.
The Reasonable Search Standards Act, S. 2393, will help ensure that Americans' civil rights are not trampled upon when they return home from traveling abroad. We appreciate your efforts to end racial bias and to protect privacy at America's borders. We look forward to working with you on this matter to make this legislation a reality.
Sincerely,
Laura W. Murphy
Director
Gregory T. Nojeim
Legislative Counsel
cc: Senator Russell D. Feingold
Senator Barbara A. Mikulski
ENDNOTES
1 According to the GAO report, data is missing on the race of 23,755 people, or about 23% of the total number of people searched. The above statistic is based on the assumption that the racial make-up of the searched people with respect to whom data is missing is equivalent to the racial make-up of the people for whom data is available.
2 The Customs Service advises its agents that "reasonable suspicion" means that specific, articulable facts, when taken together with reasonable inferences from those facts, would lead a reasonable officer to suspect that a person might have merchandise contrary to law.
3 See attached excerpt from DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM, 48-49 (1999).
4 United States v. Onumon, 967 F2d 782, 790 (2d Cir. 1992); United States v. Esieke, 940 F.2d 29, 36 (2d Cir. 1991), cert. denied 502 U.S. 992 (1991); United States v. Adekunle, 980 F.2d 985, 990, on reh'g, 2 F.3d 559, 560 (5th Cir. 1992), cert. denied 508 U.S. 924 (1993); United States v. Mendez-Jimenez, 709 F.2d 1300 (9th Cir. 1983).
5 An August 11, 1999 Customs Fact Sheet "Actions by Customs to Improve Passenger processing" indicates that Customs would institute a 'new policy requiring Customs officers to notify a federal magistrate in cases where passengers are held for more than four hours." The Customs press release "Customs Commissioner Announces new personal Search Measures" issued the same day indicates that "approval" of a federal magistrate would be required for detention for more than four hours. The November 1999 Customs Personal Search Handbook, however, includes no provision for magistrate approval.
