Special Needs' and Other Fourth Amendment Searches

AuthorDeja Vishny
“Special Needs” and Other
Fourth Amendment 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 
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
ough 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 the owner departed the
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
a phone one month after it was seized at the border. See United States v. Kolsuz, 185 F. Supp. 3d 843 (E.D. Va. 2016).
The number of border searches has increased exponentially over the past couple of years, According to an article
in The Atlantic Monthly, the pace of searches this year is due to quadruple from 2015, see https://www.theatlantic.com/
technology/archive/2017/04/the-steady-rise-of-digital-border-searches/522723/. A bill has been introduced in Congress
to require a warrant to search electronic devices belonging to American citizens; however, chances of passing are most
likely slim. See http://www.cnn.com/2017/04/04/politics/border-searches-phones-laptops-bill/index.html.
Practice Pointer: Lawyers should use caution when crossing the border
Lawyers crossing the border should take steps to ensure not only their own privacy, but that of their
clients if they are transporting electronic devices. The Electronic Frontier Foundation published an excellent
§7:02 Extended Border Searches
Searches which occur after a border crossing, at some distance from the border, are covered under the extended
border search doctrine. These searches are considered more intrusive than border searches and require reasonable sus-
picion. The government must demonstrate both reasonable certainty that the border was recently crossed and reasonable
  United States v. Guzman-Padilla, 573 F.3d
865,880 (9th Cir. 2009) (citing United States v. Tilton, 534 F.2d 1363, 1366-67 (9th Cir. 1976)). In Guzman-Padilla,
border patrol agents observed an SUV in a desert area, a mile-and-a-half from the border, and followed it for ten miles
   
were required for safe travel by campers in the area; and it was traveling at a high rate of speed and an unwavering
trajectory, inconsistent with recreational use of the area. The court also held that the use of the CTTD was reasonable
under the circumstances and did not convert the stop into an arrest.
Courts have given the government a great deal of leeway in extended border searches. In an extreme example, the
court upheld the warrantless search of a truck six days and 300 miles from the border when agents received a tip the
truck was used for smuggling drugs and monitored it until customs agents made the stop. United States v. Martinez,
481 F.2d 214 (5th Cir. 1973). The extended border doctrine has been held to include the search of packages. United
States v. Sahanaja, 430 F.3d 1049 (9th Cir. 2005); United States v. Cardona, 769 F.2d 625 (9th Cir. 1985).
§7:03 Sample Fact Scenario
A border patrol agent is traveling the back-roads, just outside of El Paso, Texas, about eight miles from the U.S. –
Mexican border. He sees a white cargo van, without windows, traveling just below the speed limit. The van’s plates are
stops it to see if it is transporting illegal aliens. The agent checks the driver’s license, which is valid, and asks the driver if
tells him he is going to search it anyway because he suspects the van is carrying people who crossed the border illegally
transport illegal aliens across the border, and he knew of no reason why this van should be on the road, so he stopped it.
§7:04 Strategy
    
he pulled over contained illegal aliens, other than the fact that it was a van traveling near the border. In preparing for

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