Special needs' and other fourth amendment searches

• Author: Deja Vishny
• Pages: 397-434

OTHER FOURTH

AMENDMENT SEARCHES

7-1

CHAPTER 7

“SPECIAL NEEDS” AND OTHER

FOURTH AMENDMENT SEARCHES

I. SPECIAL NEEDS SEARCHES

A. Border Searches

§7:01 Governing Principles

§7:02 Extended Border Searches

§7:03 Sample Fact Scenario

§7:04 Strategy

§7:05 Sample Cross-Examination

§7:05.1 No Observation of Unlawful Activity

§7:05.2 Vehicle Type is Used for Legitimate Purposes

§7:05.3 Vehicle is Common in the State and Local Area

§7:05.4 Scope of Search Unreasonable

§7:06 Sample Argument

[§§7:07–7:09 Reserved]

B. Immigration Searches

§7:10 Governing Principles

§7:11 Sample Fact Pattern

§7:12 Sample Cross-Examination

§7:12.1 Appearance of Occupants

§7:12.2 No Suspicious Conduct

§7:12.3 Area Where Stop Occurred Does Not Raise Reasonable Suspicion

§7:13 Sample Argument

[§7:14 Reserved]

C. School Searches

§7:15 Governing Principles

§7:16 Compare: Searches Initiated by Police

§7:17 State Constitutional Limitations on School Resource Off‌icers

§7:18 Sample Fact Scenario

§7:19 Sample Cross-Examination

§7:20 Sample Argument

D. Prisoners, Probationers and Parolees

§7:21 Governing Law — Limited Privacy Rights

§7:22 Steps to Challenge Suspicionless Searches of Persons on Supervision

§7:23 Sample Fact Scenario

§7:24 Sample Cross-Examination

§7:25 Sample Argument

[§§7:26-7:29 Reserved]

OTHER FOURTH

AMENDMENT SEARCHES

Suppressing Criminal Evidence 7-2

E. Other Special Needs Searches

§7:30 Body Cavity and Strip Searches

§7:31 Administrative Searches

§7:32 DNA Testing

§7:33 Drug Testing

§7:34 Airports and Transportation Locations

§7:35 Ships in Open Water

§7:36 Government Buildings

§7:37 Government Employees

§7:38 Sporting and Entertainment Venues

§7:39 Protestors

§7:40 Military Bases

§7:41 Checkpoints

[§§7:42-7:44 Reserved]

II. OTHER FOURTH AMENDMENT SEARCHES

§7:45 Invasive Body Searches

§7:46 Blood Draws in DUI Cases

§7:46.1 Sample Cross-Examination: Prosecutor Asserts Exigent Circumstances

§7:46.2 Exigent Circumstances,Unconscious Motorists, Implied Consent

§7:47 Mail and Packages

§7:48 Luggage Searches

III. FORMS

Form 7-1 Motion to Suppress School Search of Juvenile

Form 7-2 Motion to Suppress – McNeely

Form 7-3 Motion to Suppress Blood Test (Equal Protection Challenge to Implied Consent)

Appendix 7-A Pandemics and the Fourth Amendment

OTHER FOURTH

AMENDMENT SEARCHES

7-3 “Special Needs” and Other Fourth Amendment Searches §7:01

I. “SPECIAL NEEDS” SEARCHES

The Supreme Court has held that persons and property are subject to warrantless searches in certain areas

due to the special needs of government to conduct such searches. New Jersey v. TLO, 469 U.S. 325 (1985). In

determining if a special needs search is permissible, courts will balance the need to search against the intrusiveness

into one’s privacy rights that ensues. Ferguson v. City of Charleston, 532 U.S. 67 (2001). Searches that have been

allowed under the special needs doctrine include:

• Searches of schools;

• Searches of prisoners and probationers;

• Drug testing;

• Administrative searches;

• Border and immigration searches; and

• Searches related to matters involving national security.

Other common areas where special needs searches can be conducted are entrances to government buildings

(such as courthouses); airports; military bases; and large sporting and entertainment venues.

A. Border Searches

§7:01 Governing Principles

Warrantless searches and seizures without probable cause or reasonable suspicion are allowed by statute (19

U.S.C. §1581) and may be conducted on anyone crossing the United States’ borders in any direction. United States

v. Flores-Montano, 541 U.S. 149 (2004); United States v. Ramsey 

as a physical land crossing between the territory of the United States and other countries, and any port of entry,

such as airports and ship docks.

The scope of such searches may be extensive. In Flores-Montana, border agents dismantled a car’s gas tank during

the search. Cutting into a spare tire also is permissible. United States v. Cortez-Rocha, 394 F.3d 1115 (9th Cir. 2004).

Roadblock stops near the border, to check for unlawful aliens, are permitted without probable cause or reasonable

suspicion. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Customs and border patrol agents are not limited to

looking for evidence of terrorism, immigration fraud, customs violations or drug smuggling; they have the authority

to search other items at the border when they reasonably suspect that the traveler is engaged in criminal activity, even

United States v. Levy, 803 F.3d 120 (2nd Cir. 2015).

There are, though, some limits on border searches. Reasonable suspicion must exist for border agents to

conduct an extended detention of a traveler to determine whether he or she is an alimentary canal drug smuggler.

United States v. Montoyo de Hernandez, 473 U.S. 531 (1985) (detention for 16 hours). Searches that are conducted

using destructive force, such as drilling into a vehicle or container, have been held impermissible, unless there is

reasonable suspicion to conduct such a search. United States v. Robles, 45 F.3d 1 (1st Cir. 1995); United States v.

Rivas, 157 F.3d 364 (5th Cir. 1998).

The most hotly disputed area of border search litigation involves extended seizures and forensic examinations

of laptop computers. In United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013), cert. den., 134 S. Ct. 899,

the court required reasonable suspicion to seize a traveler’s laptop for an offsite forensic examination, noting that

“a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal

privacy and dignity.” See Chapter 8, Searches of Electronic Devices for more information. In United States v. Jae

Shik Kim, 103 F. Supp. 3d 32 (D.C. Cir. 2015), the court suppressed evidence seized from a traveler’s laptop after

   

owner was involved in criminal activity and had little resemblance to a permissible routine border search. It is

unclear if other courts will follow the reasoning of Cotterman and Jae Shak Kim 

warrantless border searches violate the Fourth Amendment.

In United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018), the court upheld the search and seizure of the defen

  

country. U.S. Customs and Border Protection (CBP) seized his phone and performed a data extraction over the

next 30 days. The court found that the border search doctrine applies to persons attempting to exit the country as

well as enter. Id.