§ 12.5 Border Searches and the Fourth Amendment

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 12.5 BORDER SEARCHES AND THE FOURTH AMENDMENT

The Fourth Amendment to the United States Constitution protects all people within the United States from "unreasonable" searches and seizures of their persons, homes, papers, and property. The Fourth Amendment also requires that arrest and search warrants be supported by "probable cause," described with particularity, and sworn to under oath or affirmation. While the protections afforded by the Fourth Amendment still generally apply at the border, they are also limited by federal statutes and Supreme Court case law that has established a border-search exception to the warrant and probable cause requirements of the Fourth Amendment. See United States v. Montoya de Hernandez, 473 US 531, 537-39, 105 S Ct 3304, 87 L Ed 2d 381 (1985). As a constitutional matter, border search authority is premised in part on a reduced expectation of privacy associated with international travel. See United States v. Flores-Montano, 541 US 149, 154, 124 S Ct 1582, 158 L Ed 2d 311 (2004) ("the expectation of privacy is less at the border than it is in the interior"). The level of protection afforded depends on proximity to the border and invasiveness of the search conducted. In general, the Court and the federal government presume that warrantless and suspicionless border searches are critical to

(1) ensure that travelers seeking to enter the United States have proper authorization and documentation;

(2) enforce the laws regulating the importation of goods into the United States, including duty requirements;

(3) prevent the entry of harmful people (e.g., terrorists or those with harmful communicable diseases) and harmful items such as weapons, drugs, contraband, or potentially harmful flora and fauna.

See Chad C. Haddal, Cong Research Serv, RS21899, Border Security: Key Agencies and Their Missions 2 (2010), < www.fas.org/sgp/crs/homesec/RS21899.pdf >.

§ 12.5-1 Searches at Official Ports of Entry and Border Crossings

Federal authorities have the greatest freedom to conduct searches and seizures at official POEs and border crossings based on the inherent authority of a sovereign nation to regulate who and what comes across its borders. See, e.g., 6 USC § 202; 6 USC § 211; 8 USC § 1225; 8 USC § 1357; 19 USC § 482; 19 USC § 507; 19 USC § 1461; 19 USC § 1467; 19 USC § 1496; 19 USC §§ 1581-1582; 19 USC § 1589a; 19 USC § 1595a(d); 22 USC § 401.

The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again [the Supreme Court has] 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."

United States v. Flores-Montano, 541 US 149, 152-53, 124 S Ct 1582, 158 L Ed 2d 311 (2004) (quoting United States v. Ramsey, 431 US 606, ⁶16, 97 S Ct 1972, 52 L Ed 2d 617 (1977)). "Routine searches of the persons and effects of entrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant." United States v. Montoya de Hernandez, 473 US 531, 538, 105 S Ct 3304, 87 L Ed 2d 381 (1985).

§ 12.5-1(a) Searches of Vehicles at the Border

Federal agents, including CBP and immigration officers, are authorized to conduct warrantless searches of any vehicle or vessel of anyone who seeks to enter the United States at a border crossing or POE. 8 USC § 1357(a), (c); 19 USC § 482(a). CBP officers may inspect aircraft, marine vessels, or land-based vehicles without probable cause or a warrant specifically to discover whether contraband, goods subject to U.S. duties or importation laws, or unauthorized persons are present. In practice, searches of vehicles may occur randomly or at the CBP inspecting officer's discretion as long as the search is "routine" and not particularly destructive of property. A routine border search is a search that does not pose a serious invasion of privacy or offend the average traveler. United States v. Johnson, 991 F2d 1287, 1291 (7th Cir 1993).

§ 12.5-1(b) Searches of Persons and Belongings at the Border

Congress has granted U.S. immigration and customs officials the authority to conduct routine searches of persons and their personal belongings at the border without probable cause, or a warrant. See, e.g., 8 USC § 1357(c) (authorizing immigration officials to search without a warrant a person entering the country for evidence that may lead to the person's exclusion, if the officials have "reasonable cause to suspect" that they would find grounds to deny the person's entry); 19 USC § 1496 (authorizing customs officials, without warrant or suspicion, to search the baggage of any person entering the country); 19 USC § 1582 (authorizing customs officials to detain and search all persons coming into the United States from foreign countries); see also United States v. Montoya de Hernandez, 473 US 531, 538, 105 S Ct 3304, 87 L Ed 2d 381 (1985). Routine searches have been interpreted by various courts to include pat-downs for weapons or dangerous objects, the removal of outer garments, emptying of pockets, the use of service dogs, and the inspection of luggage.

In practice, government officials and agents, usually officers of either CBP or U.S. Border Patrol, may stop and question anyone at any POE. They may ask questions about citizenship, immigration status, and the eligibility basis for admission. Any authorized CBP officer or employee may "interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States" without obtaining a warrant. 8 USC § 1357(a)(1). All immigration officers are so authorized. 8 CFR § 287.5(a)(1). Officers may ask about the purpose of the trip, the destination, and what the traveler is bringing with them into the United States to ensure the traveler is not bringing contraband, dangerous materials, live flora or fauna that is prohibited or could pose a risk, or goods on which import duty may be imposed. If there is contraband or evidence of a crime or violation, CBP may confiscate that property without a warrant. See 8 USC § 1357(c) (authorizing warrantless search of persons and their belongings).

CBP agents must have reasonable suspicion based on specific, articulable facts to conduct a warrantless strip search or any kind of personal search beyond a routine search. "Supervisory approval is required for all patdown and partial body searches, except immediate patdown for weapons or dangerous objects." U.S. Customs and Border Patrol, Personal Search Handbook, CIS HB 3300-04B, at 5 (July 2004), < https://foiarr.cbp.gov/docs/Manuals_and_Instructions/2009/283167437_7/1102030829_Personal_Search_Handbook2.pdf >. CBP policy does not distinguish between adults and minors. Minors...