Special Needs' and Other Fourth Amendment Searches

• Author: Deja Vishny
• Pages: 327-354

7-1

CHAPTER 7

“Special Needs” and Other

Fourth Amendment Searches

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 

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.

§7:02 SUPPRESSING CRIMINAL EVIDENCE 7-2

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



digital-privacy-border-2017-guide3.10.17.pdf.

§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