MASON v. U.S, 414 U.S. 941 (1973)

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting.

Petitioner, while attempting to enter the United States at San Ysidro, California, was subjected to a vaginal search which yielded approximately one ounce of heroin and petitioner [414 U.S. 941 , 942]   was convicted of importing the substance. Conceding that the police were justified in causing her to submit to a body cavity search under the present 'clear indication' standard,1 petitioner urges the adoption of a rule that body cavity searches must be authorized by a warrant when time permits. It has long been held that the ordinary necessity for obtaining a warrant prior to a domestic search does not apply with full force to border searches. See Boyd v. United States, 116 U.S. 616, 623 ; Carroll v. United States, 267 U.S. 132, 154 . But the stark contrast between permitting a minor customs official to make a warrantless search of baggage and permitting that same official to determine the instances in which intrusive and degrading vaginal and rectal searches will be conducted demonstrates the necessity for a delineation by this Court of the exact parameters of the border search exception. 2 The record in Thompson v. United States, 9 Cir., 411 F. 2d 946, 948, indicated that 80% to 85% of all those subjected to body cavity searches at the border are innocent of the suspected wrongdoing. This statistic shows the desirability of positing ultimate decision-making responsibility for this type of highly intrusive search with a 'neutral and detached magistrate' rather than a zealous officer 'engaging in the often competitive enterprise of ferreting out crime.'3

Footnotes

[ Footnote 1 ] Rivas v. United States, 9 Cir., 368 F.2d 703, 710.

[ Footnote 2 ] Judges Ely and King indicated acceptance of petitioner's proposition but felt constrained by the existing law in the Ninth Circuit. A number of commentators have also argued for a warrant requirement. Note, Search and Seizure at the Border-The Border Search, 21 Rutgers L.Rev. 513 ( 1967). Comment, Intrusive Boarder Searches-Is Judicial Control Desirable?, 115 U.Pa.L.Rev. 276 (1966).

[ Footnote 3 ] Johnson v. United States, 333 U.S. 10, 14 .