Bradley v. U.S.

• Decision Date: 25 July 2002
• Docket Number: No. 01-4103.,01-4103.
• Citation: 299 F.3d 197
• Parties: Yvette BRADLEY, Appellant v. The UNITED STATES of America; United States Customs Service; Raymond W. Kelly, Commissioner of the United States Customs Service, in his official capacity; Samuel H. Banks, Deputy Commissioner of the United States Customs Service, in his official capacity; Robert J. McNamara, Acting Assistant Commissioner for the Office of Field Operations, United States Customs Service, in his official capacity; Charles Winwood, former Assistant Commissioner for the Office of Field Operations, United States Customs Service, in his office capacity; Ricardo Bowen, Passenger Service Representative of the United States Customs Service at Newark Airport, in his official capacity; Kathleen Haage, Port Director of the United States Customs Service in the New York/Newark Area, in her official capacity; United States Customs Supervisory Inspector Luciana, in his official capacity; United States Customs Inspectors, Holding Badge Numbers 40211, 15538 and 37018, In Their Official and individual capacities; and an Unknown Number of Unnamed and Unknown Inspectors and Supervisors of the United States Customs Service, in their official and individual capacities; Michelle Mazzarulli, United States Customs Inspector in her official and individual capacities; Jackie Castleberry, Customs Inspector, in her official and individual capacities; Anthony Scaringella, Inspector, in his official and individual capacities
• Court: U.S. Court of Appeals — Third Circuit

299 F.3d 197

Yvette BRADLEY, Appellant v. The UNITED STATES of America; United States Customs Service; Raymond W. Kelly, Commissioner of the United States Customs Service, in his official capacity; Samuel H. Banks,

Deputy Commissioner of the United States Customs Service, in his official capacity; Robert J. McNamara, Acting Assistant Commissioner for the Office of Field Operations, United States Customs Service, in his official capacity; Charles Winwood, former Assistant Commissioner for the Office of Field Operations, United States Customs Service, in his office capacity; Ricardo Bowen, Passenger Service Representative of the United States Customs Service at Newark Airport, in his official capacity; Kathleen Haage, Port Director of the United States Customs Service in the New York/Newark Area, in her official capacity; United States Customs Supervisory Inspector Luciana, in his official capacity; United States Customs Inspectors, Holding Badge Numbers 40211, 15538 and 37018, In Their Official and individual capacities; and an Unknown Number of Unnamed and Unknown Inspectors and Supervisors of the United States Customs Service, in their official and individual capacities; Michelle Mazzarulli, United States Customs Inspector in her official and individual capacities; Jackie Castleberry, Customs Inspector, in her official and individual capacities;

Anthony Scaringella, Inspector, in his official and individual capacities

No. 01-4103.

United States Court of Appeals, Third Circuit.

Argued June 4, 2002.

Filed July 25, 2002.

COPYRIGHT MATERIAL OMITTED

Alix R. Rubin (Argued), Lowenstein Sandler, Roseland, NJ, Edward Barocas, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, for Appellant.

Susan C. Cassell (Argued), Assistant U.S. Attorney, Office of United States Attorney, Newark, NJ, for Appellees.

Before: SCIRICA, BARRY, and WEIS, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

Much has been written about "border searches" and we will not break much new ground here. We believe it appropriate, however, particularly in light of the tragedy of September 11th and the anti-terrorism efforts being made in its aftermath, to reprise what has been written in the course of concluding that the border search at issue here was well within the bounds of law. The order of the District Court will, therefore, be affirmed.

I. Introduction

Yvette Bradley, an African-American woman, brought this Bivens action¹ against the United States, the United States Customs Service, and a number of customs inspectors, supervisors, and officials. She alleged that her constitutional rights were violated when, on April 5, 1999, customs inspectors subjected her to a search of her suitcase, purse and backpack, as well as a patdown, when she arrived at Newark International Airport on a nonstop international flight from the island of Jamaica. Bradley argued that she was selected because of her race and gender, in violation of her equal protection rights under the Fifth and Fourteenth Amendments, and that the patdown was an illegal search under the Fourth Amendment.² The District Court granted defendants' motion for summary judgment, and Bradley now appeals. The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court's grant of summary judgment de novo. Chisolm v. McManimon, 275 F.3d 315, 321 (3d Cir.2001).

II. The Patdown — and the Fourth Amendment

While Bradley refers in passing to the search of her luggage, her challenge is directed almost exclusively to the patdown, albeit what she describes as the "intrusive patdown," to which she was subjected at an immigration checkpoint at the Newark International Airport. She argues that in granting summary judgment, the District Court failed to construe the facts in the light most favorable to her as, of course, it was required to do given that she was the non-moving party. The facts as relevant to her Fourth Amendment claim are, however, largely undisputed. Those facts, viewed against well-settled law, defeat that claim.

It is not disputed, for example, that Jamaica is considered by Customs to be a source country for narcotics and that Jamaica Airlines Flight 19, on which Bradley arrived, is considered by Customs to be a high risk flight for narcotics, although Bradley herself does not believe either to be so. It is also not disputed that Bradley was subjected to a patdown, and not a strip search, a body cavity search, or any other type of highly intrusive search. It is not disputed that the patdown was done over Bradley's dress by a female inspector in the presence of a second female inspector and that Bradley's skin was not directly touched in any intimate area. It is not disputed that when the patdown reached what Bradley calls her "groin area," her internal genitalia were not penetrated through the dress. Crediting her version of the facts, the touching that occurred involved the inspector "us[ing] her fingers to inappropriately push on [Bradley's] breasts and into the inner and outer labia," Bradley aff. P 28, the latter concededly part of the external genitalia of a woman.³ Bradley, we note, was not wearing underwear and does not dispute that had she been doing so, the additional layer of cloth would have reduced any intrusion that took place. And, of course, Bradley does not dispute that no drugs or other contraband were found.

Neither does Bradley take issue with the law, nor could she, for courts, including our Court, have long held that routine searches at our nation's borders are presumed to be reasonable under the Fourth Amendment. See, e.g., United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); United States v. Hyde, 37 F.3d 116, 118-20 (3d Cir.1994); United States v. Ezeiruaku, 936 F.2d 136, 140 (3d Cir.1991). Immigration checkpoints at international airports are the functional equivalent of national borders. Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). As a sovereign state, the United States has the right to "protect itself by stopping and examining persons and property crossing into this country." Ramsey, 431 U.S. at 616.⁴ "Since the founding of our Republic, Congress has granted the Executive plenary power 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." United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). For example, Congress has empowered border officials to detain and search "all persons coming into the United States from foreign countries." 19 U.S.C. § 1582; see also 19 U.S.C. § 1496 (authorizing customs officials to search the baggage of persons entering the country); 19 C.F.R. § 162.6 (authorizing customs officials to inspect and search all persons, baggage, and merchandise arriving from foreign countries).

It has, of course, also long been true that our nation's historic concern for the integrity of its borders has been "heightened by the veritable national crisis in law enforcement caused by [the] smuggling of illicit narcotics." Montoya de Hernandez, 473 U.S. at 538 (citing United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)) (Powell, J., concurring). And it is beyond peradventure, as the Seventh Circuit has noted, that "the events of September 11, 2001, only emphasize the heightened need to conduct searches" at our borders. United States v. Yang, 286 F.3d 940, 944 n. 1 (7th Cir.2002).

In Montoya de Hernandez, the Supreme Court's most recent case on border searches, the Court reiterated that, because the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior, "routine searches" of persons and their effects at the border "are not subject to any requirement of reasonable suspicion, probable cause, or warrant." 473 U.S. at 538 (citing Ramsey, 431 U.S. at 616-19; Almeida-Sanchez, 413 U.S. at 272-73; and Carroll, 267 U.S. at 154). The Court had not previously determined what level of suspicion would justify the detention of an incoming traveler in a nonroutine border search and inspection. In Montoya de Hernandez, however, the Court concluded that an alimentary canal search was not "routine" and is justified only if customs agents reasonably suspect that the traveler is smuggling contraband in his or her alimentary canal. "Reasonable suspicion" was defined as "`a particularized and objective basis for suspecting the particular person'" of smuggling contraband. Id. at 541 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The Court explicitly declined, however, to determine, "what level of suspicion, if any, is required for[other] nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches." Id. at 541 n. 4 (emphasis added).

In the course of concluding that an alimentary canal search must be supported by reasonable suspicion, and that reasonable suspicion supported the search of the balloon swallower before it, the Court bemoaned the "subtle verbal gradations" being developed by courts of appeals to enunciate the Fourth Amendment standard of reasonableness which "may obscure rather than elucidate the meaning of the provision in question." 473 U.S. at 541.⁵ The Second Circuit viewed this statement as "warning" against the development of multiple gradations of suspicion to be applied to different types of border searches. United States v. Charleus, 871 F.2d 265, 268 n. 2 (2d Cir.1989).

While we have not had the occasion to address the question left open in Montoya de Hernandez — the level of suspicion, "if any," necessary to conduct at least certain types of nonroutine searches — those court of appeals that have done so agree...