531 BRENNAN, J., dissenting I Travelers at the national border are routinely subjected to questioning, patdowns, and thorough searches of their belongings. These measures, which involve relatively limited invasions of privacy and which typically are conducted on all incoming travelers, do not violate the Fourth Amendment given the interests of "national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in." Carroll v. United States, 267 U. S. 132, 154 (1925)." Individual travelers also may be singled out on "reasonable suspicion" and briefly held for further investigation. Cf. Terry v. Ohio, 392 U. S. 1 (1968).18 At some point, however, further investigation involves such severe intrusions on the values the Fourth Amendment protects that more stringent safeguards are required. For example, the length and nature of a detention may, at least when conducted for criminal-investigative purposes, ripen into something approximating a full-scale custodial arrestindeed, the arrestee, unlike the detainee in cases such as this, is at least given such basic rights as a telephone call, Miranda warnings, a bed, a prompt hearing before the nearest federal magistrate, an appointed attorney, and consideration of bail. In addition, border detentions may involve the use of such highly intrusive investigative techniques as body-cavity searches, x-ray searches, and stomach pumping. 19 17 See generally 3 W. LaFave, Search and Seizure § 10.5, pp. 276-281 (1978) (LaFave). 18 See generally id. § 10.5, at 281-286. 19 See generally id. § 10.5, at 286-295; Note, From Bags to Body Cavities: The Law of Border Search, 74 Colum. L. Rev. 53 (1974); Comment, Intrusive Border Searches - Is Judicial Control Desirable?, 115 U. Pa. L. Rev. 276 (1966); Note, Border Searches and the Fourth Amendment, 77 Yale L. J. 1007 (1968). BRENNAN, J., dissenting 473 U. S. I believe that detentions and searches falling into these more intrusive categories are presumptively "reasonable" within the meaning of the Fourth Amendment only if authorized by a judicial officer. "Though the Fourth Amendment speaks broadly of 'unreasonable searches and seizures,' the definition of ‘reasonableness' turns, at least in part, on the more specific commands of the warrant clause." United States v. United States District Court, 407 U. S. 297, 315 (1972). "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." Johnson v. United States, 333 U. S. 10, 13–14 (1948). Accordingly, the Court repeatedly has emphasized that the Fourth Amendment's Warrant Clause is not mere "dead language" or a bothersome "inconvenience to be somehow 'weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the 'well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement." United States v. United States District Court, supra, at 315; Coolidge v. New Hampshire, 403 U. S. 443, 473-484 (1971).20 20 See Katz v. United States, 389 U. S. 347, 354 (1967); Berger v. New York, 388 U. S. 41, 57, 60 (1967); Beck v. Ohio, 379 U. S. 89, 96–97 (1964); Wong Sun v. United States, 371 U. S. 471, 481-482 (1963); Agnello v. 531 BRENNAN, J., dissenting We have, to be sure, held that executive officials need not obtain prior judicial authorization where exigent circumstances would make such authorization impractical and counterproductive. In so holding, however, we have reaffirmed the general rule that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure." Terry v. Ohio, supra, at 20. And even where a person has permissibly been taken into custody without a warrant, we have held that a prompt probable-cause determination by a detached magistrate is a constitutional "prerequisite to extended restraint of liberty following arrest." Gerstein v. Pugh, 420 U. S. 103, 114 (1975).21 Cf. Mallory v. United States, 354 U. S. 449, 451-452 (1957); McNabb v. United States, 318 U. S. 332, 342 (1943); 18 U. S. C. §3501(c); Fed. Rule Crim. Proc. 5. United States, 269 U. S. 20, 33 (1925). See also New Jersey v. T. L. O., 469 U. S. 325, 357 (1985) (BRENNAN, J., dissenting) (emphasis in original): "To require a showing of some extraordinary governmental interest before dispensing with the warrant requirement is not to undervalue society's need to apprehend violators of the criminal law. To be sure, forcing law enforcement personnel to obtain a warrant before engaging in a search will predictably deter the police from conducting some searches that they would otherwise like to conduct. But this is not an unintended result of the Fourth Amendment's protection of privacy; rather, it is the very purpose for which the Amendment was thought necessary. Only where the governmental interests at stake exceed those implicated in any ordinary law enforcement context-that is, only where there is some extraordinary governmental interest involved-is it legitimate to engage in a balancing test to determine whether a warrant is indeed necessary." 21 "Once the suspect is in custody, ... the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. . . . When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish BRENNAN, J., dissenting 473 U. S. There is no persuasive reason not to apply these principles to lengthy and intrusive criminal-investigative detentions occurring at the Nation's border. To be sure, the Court today invokes precedent stating that neither probable cause nor a warrant ever have been required for border searches. See ante, at 537, citing United States v. Ramsey, 431 U. S. 606 (1977). If this is the law as a general matter, I believe it is time that we reexamine its foundations. For while the power of Congress to authorize wide-ranging detentions and searches for purposes of immigration and customs control is unquestioned, the Court previously has emphasized that far different considerations apply when detentions and searches are carried out for purposes of investigating suspected criminal activity. See Wong Wing v. United States, 163 U. S. 228, 231, 235-236, 238 (1896); see also Abel v. United States, 362 U. S. 217, 250 (1960) (BRENNAN, J., dissenting). And even if the Court is correct that such detentions for purposes of criminal investigation were viewed as acceptable a century or two ago, see ante, at 537, we repeatedly have stressed that "this Court has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage." Payton v. New York, 445 U. S. 573, 591, n. 33 (1980); see also Tennessee v. Garner, 471 U. S. 1, 13 (1985). The Government contends, however, that because investigative detentions of the sort that occurred in this case need not be supported by probable cause, no warrant is required, given the phraseology of the Fourth Amendment's Warrant meaningful protection from unfounded interference with liberty." Gerstein v. Pugh, 420 U. S., at 114. Others agree. See, e. g., 3 LaFave § 10.5, at 325 (Ramsey offered only "a flimsy and not particularly satisfying explanation" for refusing to apply the warrant requirement); Note, 74 Colum. L. Rev., supra n. 19, at 82-86; Comment, 115 U. Pa. L. Rev., supra n. 19, at 277. See also United States v. Holtz, 479 F. 2d, at 94 (Ely, J., dissenting); Blefare v. United States, 362 F. 2d 870, 880 (CA9 1966) (Ely, J., dissenting). 531 BRENNAN, J., dissenting Clause. See Brief for United States 29, n. 26.23 Even assuming that border detentions and searches that become lengthy and highly intrusive need not be supported by probable cause, but see Part II, infra, this reasoning runs squarely contrary to the Court's administrative-warrant cases. We have repeatedly held that the Fourth Amendment's purpose of safeguarding "the privacy and security of individuals against arbitrary invasions by government officials" is so fundamental as to require, except in "certain carefully defined classes of cases," a magistrate's prior authorization even where "[p]robable cause in the criminal law sense is not required." Camara v. Municipal Court, 387 U. S. 523, 528 (1967); Marshall v. Barlow's, Inc., 436 U. S. 307, 312, 320 (1978). We have applied this requirement to fire, health, and housing-code inspections, Camara v. Municipal Court, supra; See v. Seattle, 387 U. S. 541 (1967), to occupational health and safety inspections of the workplace, Marshall v. Barlow's, Inc., supra, and to arson investigations, Michigan v. Clifford, 464 U. S. 287 (1984) (plurality opinion); Michigan v. Tyler, 436 U. S. 499 (1978). See also Almeida-Sanchez v. United States, 413 U. S. 266, 279-285 (1973) (POWELL, J., concurring) (prior judicial authorization is required for areawide roving searches near the border); United States v. United States District Court, 407 U. S., at 322-324 (prior judicial authorization of national-security wiretaps). Something has gone fundamentally awry in our constitutional jurisprudence when a neutral and detached magistrate's authorization is required before the authorities may inspect "the plumbing, heating, ventilation, gas, and electri 23 The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." |