§ 18.03 International Border Searches and Seizures

• Jurisdiction: North Carolina

§ 18.03 International Border Searches and Seizures¹⁹

[A] At the Border

The Supreme Court ruled in United States v. Ramsey²⁰ that people may be stopped (seized) at the international border or its "functional equivalent" (e.g., at an airport where an international flight arrives), and they and their belongings may be searched, without a warrant and in the absence of individualized suspicion of wrongdoing, "pursuant to the longstanding right of the sovereign to protect itself from the entry of persons or objects dangerous to the nation. In short, relatively brief, warrantless, suspicionless searches and seizures are "reasonable simply by virtue of the fact that they occur at the border."

In the post-September 11 world, the Supreme Court is evidently prepared to authorize fairly substantial warrantless, suspicionless searches and seizures of property entering the country. For example, in United States v. Flores-Montano,²¹ customs officials, without reasonable suspicion, seized F's car at the international border, removed the gas tank, disassembled it, and thereafter seized 37 kilograms of marijuana they discovered inside the tank. The seizure and subsequent search took a little less than an hour. The Court unanimously approved the warrantless, suspicionless search and seizure. It remarked that "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border." It observed that "[i]t is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile's passenger compartment."²²

The Court seemingly is somewhat more protective of the interests of persons, as distinguished from their property, at international borders (at least this was the case prior to 9/11). Thus, a person lawfully stopped at the border for routine inspection may be detained further if the agents have reasonable suspicion of criminal activity. But, perhaps again because it is an international border situation — the societal interests are considerable — the Court has been willing to justify extended seizures in this context. For example, in United States v. Montoya de Hernandez,²³ the Court approved a 16-hour detention of M, a woman whom officers reasonably suspected of having swallowed balloons containing heroin in order to avoid detection. After M refused to undergo an x-ray (she falsely claimed she was pregnant), she was...