Statement of Edward M. Fox, Esq., Ed Fox & Associates, Chicago, Illinois

Testimony Before the Subcommittee on Oversight,
of the House Committee on Ways and Means

Hearing on the U.S. Customs Service Passenger Inspection Operations

May 20, 1999

INTRODUCTION

I am an attorney presently representing close to 90 African-American women who have been subjected to pat downs, strip searches, visual cavity searches, and in some cases physical cavity searches and x-rays by employees of the United States Customs Service. I have talked to many other women whose cases I have not taken for various reasons, such as because the case is too old, or a case involving an airport other than O'Hare airport in Chicago. In none of theses instances were drugs found. In all the instances the reasons for the searches were minimal/pretextual, or otherwise were simply non-existent. In all the cases the degradation of the women was at a maximum.

In this written statement there are 3 issues that I intend to discuss. They include how a large case consisting of numerous African American women was discovered and commenced; (2) a generally described ordeal of the strip search process; (3) Customs purported justifications for undertaking their very intrusive searches; and (4) the problems with the activities of Customs (including some statistical data).

A. THE ORIGINS OF THIS CASE

In August of 1997, Sharon Anderson was searched upon coming home from a vacation in Jamaica. She was and is a schoolteacher with the Chicago Board of Education. She is middle aged. She subsequently came to me about what she had endured. I filed a case on her behalf in October of 1997.

The case I filed at that time did not contain allegations of racial discrimination, nor did it contain many of the allegations that eventually found their way into subsequent complaints. I did not have information at that time showing a racial or gender bias, and I certainly had no idea of the enormity of the problem. It was simply an unlawful search case.

Subsequently, in about late March of 1998, Ms. Anderson had called me upon seeing a news report of another woman, Denise Pullian. Ms. Pullian described a remarkably similar scenario as that described by Ms. Anderson. (See below.)

Thereafter, my office called the news station, as did my client to see what information they had that might be useful. Thereafter, Ms. Anderson told others about what she went through. I and apparently the news station started receiving many telephone calls from only African-American women who also recounted startlingly similar stories. Two of the women were travel agents who had known of tens of such cases. Thus, the word of mouth coupled with additional news stories on the same subject matter served to embolden many women who before had felt too alone, scared and isolated to come forward.

It quickly became apparent that there was a racial component to the searches. Only African-American women were calling. Additionally, many of them recounted stories of seeing only other African-American women in the "secondary" area where further questioning and searching are commenced. Resulting from this and further news reports, I have now received telephone calls or visits from women in many different states, including Illinois, Florida, Texas, Pennsylvania, Maryland, California, New Jersey, Ohio, Michigan, New York, Virginia, Georgia, and Puerto Rico. Most of these women have come through an international airport terminal, and all have described similar ordeals. The number of women I spoke to about this exceed 100. They are predominately African-American.

C. THE SCENARIO TO WHICH THE WOMEN ARE SUBJECTED

As noted above, the typical search that these women have been made to endure is remarkably similar. Generally, they are questioned by a "rover" who is a Customs inspector who stands near the luggage area. The questioning has the feel of an inspector who is incredulous that the particular woman has the financial means to travel. The answers are generally irrelevant to the decision to further search.

From the questioning stage, the women are made to go to a secondary area where their baggage is searched and further questioning is done. At this stage, often, gift bottles of just bought bottles of wine are opened and therefore the gift is destroyed. Additionally, it is rare that anything suspicious is found in the luggage. That is, there is no drug or drug paraphernalia found, no lubricants, large amounts of cash or drugs that might be used to suppress bowel movements are found. Notwithstanding this, the women are then take to a small, windowless room that contains only a metal bench and sometimes a toilet that does not flush. In this room, Customs conducts pat down searches, that often are followed by strip searches and then visual body cavity searches.

Pat down searches are typically conducted in an abusive manner. When being "patted down" the women are told to spread their hands, placing them on a wall over the metal bench. They are further told to spread their legs. If they are not perceived to have spread their legs wide enough, they are yelled at, and sometimes have their legs kicked or pushed farther apart. The "pat down" consists of Customs inspectors pushing their fingers through the clothing or palpating the clothing over the skin hard, sometimes causing pain. This is done all over the body, including the breasts, and groin area. This is done regardless of whether the woman is wearing skin-tight clothing and the absence of things under the clothes is apparent.

Generally, the Customs inspectors ask the women at this stage of the search if they are menstruating. The women are then subjected to strip and visual cavity searches whether they are menstruating or not. In no case, during the pat down search was anything ever found which could then be used to justify a more intrusive search.

The strip search then proceeds. In doing a strip search, the women have been subjected to everything from having hands inserted up under their clothes, to being asked to taking off all their clothes and underwear. Some of the women are made to remain naked in the room for a substantial length of time.

Most strip-searched women are subjected to a visual body cavity search. In such a search, the women are asked to face the wall, bend over and they are then told either to
"grab your ankles and cough" and/or "to spread your cheeks." Then the inspectors examine their vaginas and anuses. In some cases, the women were physically touched during the strip search and body cavity search. In some cases, fingers were inserted into the body cavity of a woman. It is not infrequent that a woman will be asked to retrieve her bloody tampon from her vagina to be inspected.

Additional outrageous facets to these examinations are two-fold. First, and most appalling, the women are literally held incommunicado during the entire procedure. This means not only can they not contact an attorney or other person by telephone, they are not permitted to tell friends that are picking them up at the airport why they are running late. This very Kafkaesque scenario lasts for as long as Customs desires. Thus, if they take a woman to the hospital in handcuffs to be further x-rayed and examined, as sometimes occurs, no telephone call is still permitted--despite the great length of time that will lapse. The fear that these women thus go through during these ordeals is very real. Secondly, a young low ranking government official who often does not even obtain a supervisor's approval is conducting these searches

D. CUSTOMS REASONING FOR DOING THE SEARCHES

There is no dispute by Customs officials that they must have "reasonable suspicion" to undertake the searches described above. The reasons they give, however, are stunningly thin and often pretextual.

A good example of Customs officials' "suspicion" is found in the case of Denise Pullian. She was the first to be profiled on the news. In a letter of complaint that she wrote to Customs, Ms. Pullian described in vivid detail being made to undergo a rude interrogation, followed by her luggage being examined, followed by an abusive pat down search, followed by a strip search, and followed by being made to pull her bloody tampon from her vagina.

In a responsive letter, the Customs Service indicated that the only reason for the search were some allegedly evasive answers to questions regarding her reasons for travel.

In fact, nothing was found during any part of the search that should have given rise to further searching. Customs acknowledged that there were no drugs, paraphernalia, dog alert, unusual amounts of currency, a lubricant or anything else of interest found before subjecting Ms. Pullian to her ordeal. In their responsive letter to Ms. Pullian, Customs indicated in its responsive letter that it was most concerned with the fact that Ms. Pullian said she was traveling on business, and that they undertook the search because they questioned whether her "business trip was legitimate." In doing so, Customs indicated that Ms. Pullian "volunteered no corroborating documentation supporting [her] reason for travel."

In fact, Ms. Pullian responded to all the questions regarding her business (she designs Youth At-Risk programs), and had various business documents in her luggage, which was clearly seen. Interestingly, as noted by Customs in its letter, Ms. Pullian suggested and accused the investigators during the search of doing this because she was black.

This accusation has merit as seen by Customs own documents. One of the overriding themes of the searches is that, apparently, Customs does not believe that black women can afford to travel - unless they are drug couriers.

It is often noted by Customs in its incident logs that a search is recommended merely because the person has traveled frequently--without any evidence of wrongdoing. For example, in the responsive letter to Ms. Pullian, Customs wrote that: "it was quickly determined that this was your third trip out of the United States in the last three months." The implication is clear: that African-American women should not be able to afford to travel often.

It is disturbing and absolutely true that often, Customs recommends searches for these African-American women based solely on the amount of travel they do. This is so because the logs indicate a recommendation to search before the particular woman will have returned from her trip, and thus, without knowing the reason for travel, her occupation, or indeed, anything about the woman. Note the following examples taken from Customs' logs:

1. REMARKS- Date 020298

CHICAGO PAU [Passenger alert unit] LOOKOUT. INS: CODE TO REFER TO USCS. FREQ TRVLR FROM JM THRU MIA: 6/97, 8/97, 11/97. SUGGEST PROGRESSIVE NARC/$$$ EXAM. PLS SHOW OCCUPATION, REASON FOR TRVL, & OTHER PERTINENT IINFO IN REMARKS. THANKS.

2. REMARKS- DATE 102895

ORD-PAU LOOKOUT. PAX HAS 3 TRIPS WITHIN THE PAST 8 MONTHS. NO TRAVEL PRIOR TO THAT TIME. PAX HAS AIR ONLY PASSAGE TO JAMAICA. PAX WAS A NO SHOW FOR RETURN FLIGHT ON 102895. A SECONDARY EXAM IS RECOMMENDED.

3. REMARKS- DATE 102797

CHICAGO PAU L.O. CODE APPROPRIATELY AND REFER TO USCS SECONDARY 100% EXAM PLS. USCS: VERY FREQU TRAV TO MBJ; CLAIMS TO BE A TRVL AGNT/ANTIQ DEALER, BUT SHE HAS NO IATA# (SEE 6/4IOIL); PLS REPORT NAME & EXACT ADRESS OF "ANTIQUE SHOP".

In fact, one woman, Patricia Appleton was searched so frequently that a Customs inspector wrote in the log, after one such strip search, as follows: "PLS. STOP THE MADNESS." The madness did not, however, stop there. Ms. Appleton, a travel agent, has continued to be searched.

Finally, and very briefly, Customs' own statistics reveal a highly disproportionate amount of African-American women being searched at O'Hare airport. In 1997, Customs' statistics showed that of all strip searches undertaken, broken down by race and gender, black women were searched 46 percent of the time. By way of comparison, white females were searched 23 percent of the time and white males were searched 11 percent of the time. When this is coupled with the fact that the percent of negative searches of black women was far greater than any other group (more that 80 percent) and the fact that black women are a much smaller percent of the traveling population than whites, it is evident that racial profiling, and thus, discrimination occurs regularly and frequently.

II.

CONCLUSION

There is a Supreme Court case that dealt peripherally with the issue at hand here. United States v. Montoya De Hernandez, 473 U.S. 531 (1985). In that case, the issue was the reasonableness of a lengthy detention (the Court expressly did not deal with personal searches) to obtain a monitored bowel movement when the officers had only "reasonable suspicion" and not probable cause or a warrant for a search. That search was upheld. However, the dissent in that case was prophetic in noting the problems that will arise as a result. Justice Brennan made the following comment:

I do not imagine that decent and law-abiding international travelers have yet reached the point where they 'expect' to be throw into locked rooms and ordered to excrete into wastebaskets, held incommunicado until they cooperate, or led away in handcuffs to the nearest hospital for exposure to various medical procedures - all on nothing more that the 'reasonable' suspicions of low-ranking enforcement agents.

The above describe scenario might have seemed hysterical or overstated when written - but it has come to pass with an alarming frequency.

One of the most readily corrected problems with the procedure concerns the fact that these women are held incommunicado. A magistrate's authorization should be, and in fact, is legally required before such searches take place, but none ever occurs. Thus, in the same Supreme Court opinion referenced above, Justice Brennan indicated as follows:

Accordingly, in this country at least, 'the importance of informed, detached and deliberate [judicial] determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.

Respectfully submitted,

Edward M. Fox