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Border search exception

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Overview Edit

Warrantless searches are per se unreasonable under the Fourth Amendment, unless a court determines that the search is subject to an established exception. Few exceptions to the presumptive warrant and probable cause requirements of the Fourth Amendment are more firmly rooted than the border search exception.

Authorized by the First Congress,[1] the border search exception has a history as old as the Fourth Amendment and obtains its broad power from Congress’s authority to regulate commerce with foreign nations and to enforce immigration laws.[2]

Courts have determined that border searches usually fall into two categories — routine and nonroutine. Generally, the distinction between "routine" and "nonroutine" turns on the level of intrusiveness.

Routine searches Edit

The Fourth Amendment does not require warrants or probable cause for routine stops and searches at the border because it is within the power of the federal government to protect itself by inspecting persons and property entering and leaving the country.[3] Courts have recognized two different legal concepts for authorizing border searches away from the actual physical border: (1) searches at the functional equivalent of the border; and (2) extended border searches.

Border searches may occur when entry is made by land from the neighboring countries of Mexico or Canada, at the place where a ship docks in the United States after having been to a foreign port, and at any airport in the country where international flights first land. In general, authorities at the border may search a person entering or leaving the country, an individual's automobile, baggage, or goods, and inbound and outbound international materials.[4]

A routine border search is a search that does not pose a serious invasion of privacy or offend the average traveler.[5] For example, a routine border search may consist of limited searches for contraband or weapons through a pat-down;[6] the removal of outer garments such as jackets, hats, or shoes, the emptying of pockets, wallets, or purses;[7] the use of a drug-sniffing dog;[8] some inspection of cars;[9] the cutting of a spare tire;[10] and some x-ray searches of inanimate objects.[11] The consistent approval of routine border searches by courts reflects a long-standing concern for the protection of the integrity of the border.

It has long been established that an individual’s reasonable expectation of privacy is lower at the border than in the interior of the country. In essence, because a person crossing the border is on notice that a search may be likely, his privacy is "less invaded by those searches."[12] A person crossing the border apparently has an opportunity to decrease the amount of intrusion by limiting the nature and character of the items which he brings with him.[13] Routine border searches are also arguably less intrusive because they are administered to a class of people (international travelers) rather than to individuals.[14] The degree of intrusiveness or invasiveness associated with the particular technique is particularly helpful in determining whether a search is routine. The First Circuit, for example, compiled a non-exhaustive list of six factors to be considered: (1) whether the search required the suspect to disrobe or expose any intimate body parts; (2) whether physical contact was made with the suspect during the search; (3) whether force was used; (4) whether the type of search exposed the suspect to pain or danger; (5) the overall manner in which the search was conducted; and (6) whether the suspect’s reasonable expectations of privacy, if any, were abrogated by the search.[15]

Nonroutine searches Edit

Once a personal search by a government official goes beyond a limited intrusion, a court may determine that a nonroutine search has occurred. In general, nonroutine border searches are conducted in order to detect and search individuals who have resorted to alimentary canal smuggling. Nonroutine border searches may include destructive searches of inanimate objects, prolonged detentions, strip searches, body cavity searches, and some x-ray examinations.[16]

At the very least, it appears courts require a government official have a “reasonable suspicion” of illegal activity to conduct a nonroutine border search on an individual entering the country.[17] The reasonable suspicion standard generally requires an officer at the border to have “a particularized and objective basis for suspecting the particular person” of wrongdoing.[18] For example, in United States v. Forbicetta, the court found reasonable suspicion to exist where Customs officials acted on the following objective facts: (1) the suspect arrived from Bogota, Colombia, (2) was traveling alone, (3) had only one suitcase and no items requiring Customs inspection, (4) was young, clean-looking, and attractive, and (5) was wearing a loose-fitting dress.[19] Some courts, however, have required a higher degree of suspicion to justify the more intrusive of the procedures.[20]

The U.S. Supreme Court has not articulated the level of suspicion required for the various non-routine border searches or the factors that render a border search routine or nonroutine;[21] however, in United States v. Montoya de Hernandez the Supreme Court concluded that a third suspicion standard (i.e., clear indication) in addition to “reasonable suspicion” and “probable cause” was not consistent with the Fourth Amendment’s emphasis upon reasonableness in the prolonged detention setting.[22] The Court determined that the “clear indication” standard (a suggestion that is free from doubt) was to be used to indicate the necessity for particularized suspicion, “rather than as enunciating a third Fourth Amendment threshold between ‘reasonable suspicion’ and ‘probable cause.’”[23] Although the Court has not articulated a level of suspicion for all nonroutine searches, courts have viewed the Montoya de Hernandez reasoning as a warning against the development of multiple gradations of suspicion for non-routine border searches in general.[24]

Extended border search Edit

The border search exception may be extended to allow warrantless searches beyond the border or its functional equivalent. Under the “extended border search” doctrine, government officials may conduct a warrantless search beyond the border or its functional equivalent if (1) the government officials have reasonable certainty or a “high degree of probability” that a border was crossed; (2) they also have reasonable certainty that no change in the object of the search has occurred between the time of the border crossing and the search; and (3) they have “reasonable suspicion” that criminal activity was occurring.[25] This three-part test ensures that a suspect still has a significant nexus with a border crossing so that border officials can reasonably base their search on statutory and constitutional authority and to ensure that the search is reasonable.[26]

Although a search at the border’s functional equivalent and an extended border search require similar elements, the extended border search entails a greater intrusion on a legitimate expectation of privacy, and thus, requires a showing of “reasonable suspicion” of criminal activity. Another difference between the functional equivalent of a border search and an extended border search is that the latter takes place after the first point in time when the entity might have been stopped within the country.[27]

For example, in United States v. Teng Yang, the 7th Circuit upheld an extended border search that occurred at an international airport but at a time after the defendant’s initial inspection process and at a location away from the designated U.S. border inspection sites.[28] The court determined that “[i]t is the enforcement of the customs laws combined with the mandate of protecting the border of the United States that permits the extension of the search rights of border authorities to allow non-routine searches in areas near our nations’s borders.”[29] Due to the dynamics of cross-border travel, the extended border search doctrine has gained wide acceptance among the courts because it strikes a sensible balance between the legitimate privacy interests of the individual and society’s vital interest in the enforcement of U.S. laws.[30]

References Edit

  1. Act of July 31, 1789, ch.5 §§23-24, 1 Stat. 29, 43 (current version at 19 U.S.C. §§482, 1582).
  2. United States v. Ramsey, 431 U.S. 606, 619 (1977) (full-text) (citing U.S. Const., Art. I, §8, cl. 3).
  3. Id. at 616. It should be noted that many of nation's border security agencies or functions have been transferred to the Department of Homeland Security. See Pub. L. No. 107-296. For purposes of consistency, this article refers to agency names as maintained in the case law.
  4. See Ramsey, 431 U.S. 606 (inbound international mail); United States v. Ezeiruaku, 936 F.2d 136 (3d Cir. 1991) (routine searches of outbound materials). The Fifth Circuit has found the search of outbound materials permissible when: (1) the outbound search is at the border or its functional equivalent; (2) customs agents have reasonable suspicion that a particular traveler will imminently engage in the felonious transportation of specific contraband in foreign commerce; and (3) the search is relatively unintrusive and only of the area where the contraband is allegedly secreted. United States v. Roberts, 274 F.3d 1007, 1014 (5th Cir. 2001) (full-text).
  5. United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993) (full-text).
  6. See, e.g., United States v. Beras, 183 F.3d 22, 24 (1st Cir. 1999) (full-text) (holding that a pat-down of an international traveler's legs was not intrusive enough to qualify as non-routine).
  7. United States v. Sandler, 644 F.2d 1163, 1169 (5th Cir. 1981) (full-text) (removal of outer garments).
  8. United States v. Kelly, 302 F.3d 291, 294-95 (5th Cir. 2002) (full-text) (sniff by a dog of a person at the border upheld as a routine border search); cf. United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir. 2003) (full-text) (dog sniff of a person on a bus at an immigration checkpoint upheld and seen as analogous to a pat-down).
  9. United States v. Flores-Montano, 541 U.S. 149 (2004) (full-text) (disassembly, removal, and reassembly of a vehicle's fuel tank); Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973); United States v. Uribe-Galindo, 990 F.2d 522, 525-26 (10th Cir. 1993); United States v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir. 2003).
  10. United States v. Julio Cortez-Rocha, 383 F.3d 1093 (9th Cir. 2004).
  11. United States v. Okafor, 285 F.3d 842 (9th Cir. 2002) (finding an x-ray examination and subsequent probe of luggage a routine search because it requires no force, poses no risk to the bag’s owner or to the public, causes no psychological fear, and does not harm the baggage).
  12. Gary N. Jacobs, "Note, Border Searches and the Fourth Amendment," 77 Yale L.J. 1007, 1012 (1968).
  13. It should be noted that the "reasonable person" test presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 437 (1991).
  14. 77 Yale L.J. 1007, 1012 (1968).
  15. United States v. Braks, 842 F.2d 509, 511-12 (1st Cir. 1988). The Braks court concluded that only strip searches and body cavity searches are consistently nonroutine.
  16. See, e.g., United States v. Reyes, 821 F.2d 168, 170-71 (2d Cir. 1987) (strip search); United States v. Oyekan, 786 F.2d 832, 837 (8th Cir. 1986) (strip search); United States v. Adekunle, 2 F.3d 559, 562 (5th Cir. 1993) (continued detention and x-ray examination of alimentary canal); United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 1998) (drilling of hole into body of automobile).
  17. United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985); United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir. 2003) (an alert by a drug sniffing dog provided reasonable suspicion to detain a bus long enough to investigate the reason for the dog’s response).
  18. See Montoya de Hernandez, 473 U.S. at 541 citing Terry v. Ohio, 392 U.S. 1, 21 (1968) (“And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”).
  19. 484 F.2d 645 (5th Cir. 1973). These factors taken together matched the “smuggling profile” for narcotic carriers in that area, and thus, the court concluded there was a sufficient basis to conduct the search. But see Reid v. Georgia, 448 U.S. 438, 441(1980) (rejecting the argument that arrival from a source location could, by itself, provide reasonable suspicion).
  20. See, e.g., United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994) (requiring the higher “clear indication” standard for a body cavity search); United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982) (requiring a “clear indication” for x-ray search).
  21. See Montoya de Hernandez, 473 U.S. at 541 n.4.
  22. Id. at 541.
  23. Id. at 540.
  24. United States v. Charleus, 871 F.2d 265, 268 n.2 (2d Cir. 1989); United States v. Oyekan, 786 F.2d 832, 837-39 (8th Cir. 1986); Bradley v. United States, 299 F.3d 197, 202-04 (3d Cir. 2002). United States v. Aguebor, 1999 U.S. App. Lexis 25, at *9 (4th Cir. Jan. 4, 1999). According to Professor LaFave, however, extending Montoya de Hernandez to other nonroutine searches would require a broad reading of the case, which doesn’t consider the fact that body cavity searches are more intrusive. See 4 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment §10.5(e), 556 (3d ed. 1996 & Supp. 2003).
  25. “Reasonable certainty” in this context has been defined as a standard which requires more than probable cause, but less than proof beyond a reasonable doubt. United States v. Cardenas, 9 F.3d 1139, 1148 (5th Cir. 1993); see, e.g., United States v. Delgado, 810 F.2d 480, 482 (5th Cir. 1987). In Delgado, smugglers used a foot-bridge to transfer narcotics to delivery trucks on a farm near El Paso, Texas. The court upheld an extended border search conducted on a farm road near and leading from the border but otherwise away from the official border checkpoint.
  26. United States v. Teng Yang, 286 F.3d. 940, 946 (7th Cir. 2002).
  27. United States v. Niver, 689 F.2d 520, 526 (5th Cir. 1982).
  28. 286 F.3d. 940 (7th Cir. 2002).
  29. Id. at 947.
  30. See, e.g., Teng Yang, 286 F.3d. 940; United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1989); United States v. Caicedo-Guarnizo, 723 F.2d 1420 (9th Cir. 1984); United States v. Garcia, 672 F.2d 1349 (11th Cir. 1982); United States v. Bilir, 592 F.2d 735 (4th Cir. 1979).

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