Does a search warrant or probable cause need to be obtained for an X-ray scan at a border crossing?

Although neither a warrant nor probable cause is needed for ordinary searches of persons and things crossing the border, this circuit has fashioned rules requiring cause for certain kinds of more intrusive border searches. As a search becomes more intrusive, it must be justified by a correspondingly higher level of suspicion of wrongdoing. United States v. Aman, 624 F.2d 911, 912-13 (9th Cir. 1980). Our court has also expressed a strong preference that search warrants be obtained by customs agents before body cavity searches are made. United States v. Cameron, 538 F.2d at 258-259.

To conduct a strip search, the authorities must have a "real suspicion" that the person is smuggling contraband. Real suspicion is "subjective suspicion supported by objective, articulable facts." Aman, 624 F.2d at 912 (quoting United States v. Rodriguez, 592 F.2d 553, 556 (9th Cir. 1979)). To conduct a body cavity search, the authorities must meet the stricter standard of having a "clear indication" or "plain suggestion" that the person is carrying contraband within his body. Id. at 912-13. This circuit has not yet decided which of these standards applies to an X-ray search. Id. at 913.