Crossing the line: border searches at Florida's international airports.

• Author: Dennis, Jerrold R.
• Position: Cover story

Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country. (1)

Our country has maintained a traditional policy of balancing legitimate international commerce with the right of the government to protect its citizens from acts of terrorism, illegal immigration, and rampant contraband importation. The chaos that followed the tragedy of September 11 heightened the awareness for more thorough security and inspections at U.S. borders. These more stringent safety measures often result in complex search and seizure issues for the courts to decide.

The Fourth Amendment provides that a search or seizure conducted through state action must be reasonable and that any warrant issued by a magistrate be supported by probable cause. The Supreme Court has defined the Fourth Amendment as creating a presumed warrant requirement on all governmentally conducted searches and seizures, but courts have judicially created certain exceptions to these requirements. Probably the most notable exception to the Fourth Amendment requirements is found in searches and seizures occurring at our international borders. By virtue of the sovereign's right to protect its citizens by searching persons and property crossing its borders, routine searches have been found to be reasonable simply due to the fact that they occur at the border. While at first blush one does not consider Florida to be a border state, it nonetheless is treated as such by virtue of the fact that it has no less than 14 international airports, (2) which are deemed the functional equivalent of the border.

An Overview of the Fourth Amendment

The Fourth Amendment to the Constitution, ratified by the Congress in 1791, reads as follows: "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." (3)

The basic purpose of the Fourth Amendment, "as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." (4)

The Supreme Court has traditionally interpreted the reasonableness standard of the Fourth Amendment as creating a presumptive warrant requirement, stating that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." (5) The requirement to obtain a search warrant in a criminal case has been viewed as a protective measure, as noted in Johnson v. United States, 333 U.S. 10 (1947), in which the Court found:

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. (6)

The Court, however, has acknowledged that exceptions do exist, determining, for example, that since the "founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." (7)

The Principles of Border Searches

It is well established that searches conducted without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment. (8) However, this principle is not without exception. In United States v. Ramsey, 431 U.S. 606 (1977), the Supreme Court stated that "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border." In fact, the warrantless border search exception is deeply rooted in the Fourth Amendment and is empowered by Congress' authority to police international trade and immigration policy. (9)

While the border search is exempt from the Fourth Amendment's warrant and probable cause requirements, it must still comply with the "reasonableness" standard. In United States v. Montoya de Hernandez, 473 U.S. 531 (1985), the Supreme Court stated that the "Fourth Amendment commands that searches and seizures be reasonable. What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. (10)

A typical border search has been found to fall into one of two categories, being either a routine search or a nonroutine search, depending on the degree and nature of the intrusion. (11) Border searches that are classified as routine usually provide for very limited intrusions into a person's privacy, generally consisting of a patdown search, the emptying of pockets, or the inspection of a vehicle, and do not require any suspicion of criminal activity. However, once a reasonable suspicion of criminal activity exists at the border, government officials may generally conduct what is classified as a nonroutine search. Nonroutine searches have been found to include searches of personal property, prolonged detentions, strip searches, body cavity searches, and x-ray searches. A routine border search is deemed reasonable as a result of the fact that it occurs at the border and consists of only a limited intrusion, while a nonroutine search generally requires reasonable suspicion. (12) Generally, border searches occur at some point of entry, either by land from our northern or southern borders, at seaports where ships dock upon entering our territorial waters, or at one of dozens of international airports, many of which are well within our interior. A search at the border may include a person entering or leaving the country, (13) an individual's luggage or personal effects, (14) and a variety of international cargo. (15)

The Functional Equivalency Doctrine and Florida's International Airports

In many instances, it is not possible for federal agents to...