Backscatter X-Ray Devices

With the advent of the new generation of “backscatter x-ray” devices that enable law enforcement to obtain “X-rated” images of passengers or “see through” a foot of metal, the use of this powerful new x-ray technology will require reference to the cases that discuss limitations on the use of the older generation x-ray devices.  The older x-ray case precedents will play a role in shaping the restrictions to be imposed on the use of the more powerful new backscatter x-ray technology by law enforcement agents.

In United States v. Montoya de Hernandez, 473 U.S. 531 (1985), addressing more invasive searches, the Supreme Court held that “the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary tract.”  473 U.S. at 541.   However, the Supreme Court did not directly circumscribe “what level of suspicion, if any, is required for non-routine border searches such as strip, body cavity, or involuntary x-ray searches.”   Id. at 541, n.4.  The Eleventh Circuit has limited that level of suspicion at “reasonable suspicion.”

Even at international ports of entry or borders, where there exists a curtailed expectation of privacy, passengers do not entirely waive their rights to privacy.  Reasonable suspicion is required for highly intrusive searches of a person’s body such as a strip search or an x-ray examination. See, e.g., Brent v. Ashley, 247 F.3d 1294, 1302 (11th Cir.2001) (concluding that strip search of airline passenger arriving at Miami International Airport from Nigeria without reasonable suspicion that the passenger was smuggling drugs violated the Fourth Amendment); United States v. McMurray, 747 F.2d 1417, 1420 (11th Cir.1984) (“A strip search requires a particularized reasonable suspicion. This standard is met by a showing of articulable facts which are particularized as to the person and as to the place to be searched.”) (citation and internal quotations omitted); United States v. Vega-Barvo, 729 F.2d 1341, 1349 (11th Cir.1984) (“It is not the profile, however, but the factors which make up the profile which are crucial to whether or not there is a reasonable suspicion.”); United States v. Mosquera-Ramirez, 729 F.2d 1352, 1353 (11th Cir.1984) (“[A]n x-ray search performed at the border is reasonable if based on the same amount of suspicion required for a strip search.”); United States v. De Gutierrez, 667 F.2d 16, 19 (5th Cir.1982) ( “The well-established rule in this circuit is that a strip search conducted at the border meets the requirements of the Fourth Amendment if it is supported by reasonable suspicion on the part of the customs agent.”) (internal quotations omitted).

It is safe to assume that more powerful backscatter x-ray technology could tempt law enforcement into relishing “Superman” powers. Therefore, it is important to scrutinize the upcoming backscatter x-ray cases for not only the reasonableness of the suspicion claimed by law enforcement prior to resorting to a backscatter x-ray search but also for the possible surreptitious use of the backscatter x-ray followed by sham searches conducted with illegally obtained foreknowledge of the presence of contraband.