Border search exception

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Border search exception
Map of the "100 mile zone"

In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. [1] Generally speaking, searches within 100 miles of the border are more permissible without a warrant than those conducted elsewhere in the U.S. The doctrine also allows federal agents to search people at border crossings without a warrant or probable cause. The government is allowed to use scanning devices and to search personal electronics. Invasive bodily searches, however, require reasonable suspicion.

Contents

Overview

The border search exception doctrine is not regarded as an exception to the Fourth Amendment, but rather to its requirement for a warrant or probable cause. [1] [2] Balanced against the sovereign's interests at the border are the Fourth Amendment rights of entrants. Not only is the expectation of privacy less at the border than in the interior, [2] [3] the Fourth Amendment balance between the interests of the government and the privacy right of the individual is also struck much more favorably to the government at the border. [4] This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the Fourth Amendment's proscription against "unreasonable searches and seizures".

Federal law allows certain federal agents to conduct search and seizures within 100 miles of the border into the interior of the United States. [5] The Supreme Court has clearly and repeatedly confirmed that the border search exception applies within 100 miles of the border of the United States as seen in cases such as United States v. Martinez-Fuerte where it was held that the Border Patrol's routine stopping of a vehicle at a permanent checkpoint located on a major highway away from the Mexican border for brief questioning of the vehicle's occupants is consistent with the Fourth Amendment. [6] However, searches of automobiles without a warrant by roving patrols have been deemed unconstitutional. [4]

The U.S. Customs and Border Protection (CBP) officers, U.S. Border Patrol agents, U.S. Homeland Security Investigations Special Agents, and U.S. Coast Guard officers (E4 grade and above) who are all customs officers (those tasked with enforcing Title 19 of the United States Code) with the U.S. Department of Homeland Security, are permitted to search travelers and their belongings at the American border without probable cause or a warrant. [7] Pursuant to this authority, customs officers may generally stop and search the property of any traveler entering the United States at random, or even based largely on ethnic profiles. [8]

Property searches

At the border, customs officers and Border Patrol agents are authorized to search all travelers' closed containers without any level of suspicion. [9] This authority extends to all physical containers, regardless of size or the possible presence of personal, confidential or embarrassing materials. Pursuant to this authority, Customs may also open and search incoming international mail. [10]

Use of scanning devices

In United States v. Camacho (2004), the United States Court of Appeals for the Ninth Circuit ruled that the use of radioactive scanning devices in customs searches along the United States-Mexico border was reasonable. The judges found that the device used was not a danger to the vehicle or its occupant, and its use did not violate the Fourth Amendment. Their ruling was based on the fact that the Fourth Amendment protects against intrusive searches of the person, but not against searches of a vehicle. [11] [12] [13]

Searching of electronic devices

Currently, the main area of contention concerning the border search exception is its application to search a traveler's cell phone or other electronic device. [14] In 2014, the US Supreme Court issued its landmark ruling in Riley v. California , which held that law enforcement officials violated the Fourth Amendment when they searched an arrestee's cellphone without a warrant. The court explained, "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought." [15]

In 2013, before Riley was decided, the Ninth Circuit court of appeals held that reasonable suspicion is required to subject a computer seized at the border to forensic examination.

United States v. Vergara is the first federal circuit court to address whether Riley's reasoning extends to a search of a traveler's cell phone at the border. [16] In Vergara, a divided panel of the Eleventh Circuit Court of Appeals held that, "border searches never require probable cause or a warrant," and Riley's analysis does not apply to border searches, even for forensic searches of cell phones. [17] The dissent, authored by Judge Jill Pryor, disagreed, concluding that, "my answer to the question of what law enforcement officials must do before forensically searching a cell phone at the border, like the Supreme Court’s answer to manually searching a cell phone incident to arrest, 'is accordingly simple—get a warrant.'" [18]

The Supreme Court has not addressed the standard of suspicion necessary for a warrantless border search of electronic materials, even though the number of cell phone border searches continues to rise each year. [19] Notably, Vergara has called upon the Court to resolve the level of Fourth Amendment process necessary for warrantless cell phone searches. [20]

One impact of these cases is that commerce may be impacted. Sensitive business information, academic materials for conferences, and other types of valuable information may be delayed by these practices. [21]

In May of 2018, in U.S. v. Kolsuz, the Fourth Circuit Court of Appeals has held that it is unconstitutional for US border officials to subject visitors' devices to forensic searches without individualized suspicion of criminal wrongdoing. [22] Just five days later, in U.S. v. Touset, the Eleventh Circuit Court of Appeals split with the Fourth and Ninth Circuits, ruling that the Fourth Amendment does not require suspicion for forensic searches of electronic devices at the border. [23] The existence of a circuit split is one of the factors that the Supreme Court of the United States considers when deciding whether to grant review of a case. [24]

Living contraband

CBP is tasked with enforcing some other border and international commerce laws, including inspecting for invasive species of plants and animals. [25]

Searches of travelers' bodies

Although routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, [1] more invasive searches or seizures of a person's body require some suspicion.

The Supreme Court has 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 canal." [26] Characterized in terms of the Fourth Amendment, the Court was saying that such a detention ("seizure") was "reasonable", and therefore did not violate the Fourth Amendment. (The federal agents in this particular case did not X-ray ("search") her because she claimed she was pregnant. They instead decided to detain her long enough for ordinary bowel movements to evacuate the alimentary canal, despite her "heroic" efforts otherwise.)

The Supreme Court expressly did not rule what level of suspicion would be necessary for a strip, body-cavity, or involuntary x-ray search, [27] though they did say that the only two standards for Fourth Amendment purposes short of a warrant were "reasonable suspicion" and "probable cause" (rejecting a "clear indication" standard).

In the border search context, reasonable suspicion means that the facts known to the customs officer at the time of the search, combined with the officer's reasonable inferences from those facts, provides the officer with a particularized and objective basis for suspecting that the search will reveal contraband. [28] To form a basis for reasonable suspicion, a customs officer may rely on his training and prior experience, and may rely on entirely innocent factors, if the totality of the circumstances provide the officer with reasonable suspicion.

See also

Related Research Articles

<span class="mw-page-title-main">Fourth Amendment to the United States Constitution</span> 1791 amendment prohibiting unreasonable searches and seizures

The Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court's 1964 decision Beck v. Ohio, is when "whether at [the moment of arrest] the facts and circumstances within [an officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense."

<span class="mw-page-title-main">Search and seizure</span> Police power to confiscate any relevant evidence found in connection to a crime

Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime.

United States v. Place, 462 U.S. 696 (1983), is a decision by the Supreme Court of the United States in which the Court held that it does not violate the Fourth Amendment to the U.S. Constitution for a trained police dog to sniff of a person's luggage or property in a public place.

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch'"; it must be based on "specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with the specific individual. If police additionally have reasonable suspicion that a person so detained is armed and dangerous, they may "frisk" the person for weapons, but not for contraband like drugs. However, if the police develop probable cause during a weapons frisk, they may then conduct a full search. Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard, in which said person in the same circumstances could reasonably suspect a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

United States v. Montoya De Hernandez, 473 U.S. 531 (1985), was a U.S. Supreme Court case regarding the Fourth Amendment's border search exception and balloon swallowing.

United States v. Flores-Montano, 541 U.S. 149 (2004), was a United States Supreme Court case in which the Court held that customs agents may remove the gas tank from a vehicle crossing the international border in an effort to look for contraband.

United States v. Ortiz, 422 U.S. 891 (1975), was a United States Supreme Court case in which the Court held that the Fourth Amendment prevented Border Patrol officers from conducting warrantless, suspicionless searches of private vehicles removed from the border or its functional equivalent.

<i>United States v. Arnold</i>

United States v. Arnold, 533 F.3d 1003, is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that the Fourth Amendment to the United States Constitution does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports.

Almeida-Sanchez v. United States, 413 U.S. 266 (1973), was a United States Supreme Court case holding that the search of an automobile by the United States Border Patrol without a warrant or probable cause violates the Fourth Amendment. The vehicle was stopped and searched for illegal aliens twenty-five miles (40 km) from the Mexican border. The Court approached the search from four views: automobile search, administrative inspection, heavily regulated industry inspection, and border search. As to the validity of the search under the automobile exception, the Court found no justification for the search under the Carroll doctrine because there was no probable cause. As to the validity of the search under various administrative inspection doctrines, the Court found that the officers lacked an area warrant. As to the validity of the heavily regulated industry inspection, the Court found that the doctrine is not applicable to traveling on a state highway. As to the validity of a border search, the Court found that the site of the stop and the entirety of the road on which the stop occurred was too far from the border to be considered a border search.

Kentucky v. King, 563 U.S. 452 (2011), was a decision by the US Supreme Court, which held that warrantless searches conducted in police-created exigent circumstances do not violate the Fourth Amendment as long as the police did not create the exigency by violating or threatening to violate the Fourth Amendment.

United States v. Jones, 565 U.S. 400 (2012), was a landmark United States Supreme Court case in which the court held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.

<i>United States v. Cotterman</i> 2013 court case regarding electronic storage devices

United States v. Cotterman,, is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that property, such as a laptop and other electronic storage devices, presented for inspection when entering the United States at the border may not be subject to forensic examination without a reason for suspicion, a holding that weakened the border search exception of the Fourth Amendment to the United States Constitution.

<i>United States v. Graham</i>

United States v. Graham, 846 F. Supp. 2d 384, was a Maryland District Court case in which the Court held that historical cell site location data is not protected by the Fourth Amendment. Reacting to the precedent established by the recent Supreme Court case United States v. Jones in conjunction with the application of the third party doctrine, Judge Richard D. Bennett, found that "information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection" because that information no longer belongs to the consumer, but rather to the telecommunications company that handles the transmissions records. The historical cell site location data is then not subject to the privacy protections afforded by the Fourth Amendment standard of probable cause, but rather to the Stored Communications Act, which governs the voluntary or compelled disclosure of stored electronic communications records.

The third-party doctrine is a United States legal doctrine that holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have "no reasonable expectation of privacy" in that information. A lack of privacy protection allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment prohibition against search and seizure without probable cause and a judicial search warrant.

<i>House v. Napolitano</i>

House v. Napolitano is a United States District Court for the District of Massachusetts case involving David House, a known supporter of Chelsea Manning and co-founder of the Manning Support Network, who brought action against Janet Napolitano, Secretary of the United States Department of Homeland Security(DHS), Alan Bersin, Commissioner of the U.S. Customs and Border Protection(CBP), and John T. Morton, Director of the U.S. Immigration and Customs Enforcement(ICE) for the search and seizure of his electronic devices by federal agents at the border. Defendants moved to dismiss, and the court denied the motion on First Amendment and Fourth Amendment grounds. House subsequently reached a settlement with the government in May 2013, to return or destroy all information obtained from the investigation.

Riley v. California, 573 U.S. 373 (2014), is a landmark United States Supreme Court case in which the court ruled that the warrantless search and seizure of the digital contents of a cell phone during an arrest is unconstitutional under the Fourth Amendment.

<i>United States v. Davis</i> (2014)

United States v. Quartavious Davis is a United States federal legal case that challenged the use in a criminal trial of location data obtained without a search warrant from MetroPCS, a cell phone service provider. Mobile phone tracking data had helped place the defendant in this case at the scene of several crimes, for which he was convicted. The defendant appealed to the Eleventh Circuit Court of Appeals, which found the warrantless data collection had violated his constitutional rights under the Fourth Amendment to the United States Constitution, but declined to order a new trial because the evidence was collected in good faith. The Eleventh Circuit has since vacated this decision pending a rehearing by the Eleventh Circuit en banc. United States v. Davis, 573 Fed. Appx. 925. On 5 May 2015, the en banc order upheld the use of the information. On 9th Nov 2015, the Supreme Court of the United States declined to hear this case on appeal.

United States v. Ramsey, 431 U.S. 606 (1977), was a United States Supreme Court case in which the Court held the search of letters or envelopes from foreign countries falls under the border exception to the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures.

The "special needs" exception is an exception to the Fourth Amendment’s general requirement that government searches be supported by a warrant and probable cause. The exception applies when (1) the government conducts programmatic searches that are primarily aimed at advancing some special need other than criminal law enforcement, and (2) the government’s search program is reasonable given the balance of public and private interests.

References

  1. 1 2 3 "United States v. Ramsey, 431 US 606 (1977)" . Retrieved 9 September 2012.
  2. 1 2 Carroll v. United States
  3. ↑ Florida v. Royer
  4. 1 2 Almeida-Sanchez v. United States, 413 US 266 - Supreme Court 1973
  5. ↑ § 287 (a) (3) of the Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C.   § 1357(a)(3) , which provides for warrantless searches of automobiles and other conveyances "within a reasonable distance from any external boundary of the United States," as authorized by regulations to be promulgated by the Attorney General. The Attorney General's regulation, 8 CFR § 287.1, defines "reasonable distance" as "within 100 air miles from any external boundary of the United States."
  6. ↑ United States v. Martinez-Fuerte , 428 U.S. 543, 562-563 (1976)
  7. ↑ Although it has been claimed "These searches are therefore exempted from the Fourth Amendment warrant requirement" (emphasis added), federal law never supersedes the U.S. Constitution as interpreted by the U.S. Supreme Court. Such federal law is enforceable only to the extent that its application does not conflict with the U.S. Constitution.
  8. ↑ United States v. Montoya de Hernandez , 473 U.S. 531, 538 (1985) ("travelers may be stopped [and searched] at . . . the border without individualized suspicion.") (citing United States v. Martinez-Fuerte , 428 U.S. 543, 562-563(1976))
  9. ↑ See Flores-Montano, 541 U.S. at 152-53; Montoya de Hernandez, 473 U.S. at 538.
  10. ↑ See 19 U.S.C. § 482; United States v. Ramsey, 431 U.S. 606 (1977)
  11. ↑ Thomas K. Clancy, "2008 Fourth Amendment Symposium-The Fourth Amendment at the International Border", 78 Mississippi Law Journal (2008-2009
  12. ↑ Yule Kim, Protecting the U.S. Perimeter: Border Searches Under the Fourth Amendment (2010), p. 16
  13. ↑ "Investigations and Police Practices: Warrantless Searches and Seizures", 40 Annual Review of Criminal Procedure 44 (2011)
  14. ↑ "NACDL - Border Searches & Digital Devices: Case List". www.nacdl.org. Retrieved 2018-05-14.
  15. ↑ "Riley v. California, 573 U.S. ___ (2014) (Slip. Op. at 28)". Justia Law. Retrieved 2018-05-14.
  16. ↑ "United States v. Vergara, No. 16-15059, 884 F.3d 1309 (11th Cir. 2018)". Justia Law. Retrieved 2018-05-14.
  17. ↑ Vergara, Slip. Op at 5-8.
  18. ↑ Vergara, Slip. Op. at 21 (Pryor, J., dissenting).
  19. ↑ "Cellphone and Computer Searches at U.S. Border Rise Under Trump". The New York Times. 2018-01-05. ISSN   0362-4331 . Retrieved 2018-05-14.
  20. ↑ "Vergara v. United States, No. 17-8639 - Supreme Court of the United States". www.supremecourt.gov. Retrieved 2018-05-14.
  21. ↑ "Homeland Security formalizes laptop seizure rules -- sort of". Archived from the original on 16 September 2009.
  22. ↑ "Victory! Fourth Circuit rules that border officials can't subject electronic devices to suspicionless forensic searches / Boing Boing". boingboing.net. Retrieved 2018-09-21.
  23. ↑ "Summary: Circuit Split on Device Searches at the Border in US v. Touset". Lawfare. 2018-05-30. Retrieved 2018-09-21.
  24. ↑ Sup. Ct. R. 10(a) (2013) Archived 2017-06-05 at the Wayback Machine ; see also Tom Cummins & Adam Aft, Appellate Review, 2 J.L.: Periodical Laboratory of Leg. Scholarship 59, 60 (2012) (discussing definition of the term "circuit split").
  25. ↑ "U.S. Customs and Border Protection's Powers and Limitations: A Primer". CRS Reports (Congressional Research Service). CRS Legal Sidebar. 2021-11-30. LSB10559. Retrieved 2022-09-26.
  26. ↑ United States v. Montoya de Hernandez, 473 US 531 - Supreme Court 1985
  27. ↑ The Montoya de Hernandez Court said, "It is also important to note what we do not hold. Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches. Both parties would have us decide the issue of whether aliens possess lesser Fourth Amendment rights at the border; that question was not raised in either court below and we do not consider it today."
  28. ↑ Montoya de Hernandez, 473 U.S. at 541.
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