Special Needs' and Other Fourth Amendment Searches

• Author: Deja Vishny
• Pages: 341-368

SUPPRESSING CRIMINAL EVIDENCE7-1 §7:02

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

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).

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), 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.

§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 suspicion.

The government must demonstrate both reasonable certainty that the border was recently crossed and reasonable



 

    United States v. Guzman-Padilla,

“SPECIAL NEEDS” AND OTHER FOURTH AMENDMENT SEARCHES 7-2§7:03

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

  

  

     

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

           

border, he 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 he is a U.S. citizen, which he is. The agent then asks for permission to search the van. The driver

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

       

      

that this type of van is commonly used to 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

     

pulled over contained illegal aliens, other than the fact that it was a van traveling near the border. In preparing for

the hearing, investigate how many of this particular type of vehicle exist in the state (or in the local area, if possible).



for legitimate purposes that have nothing to do with smuggling. This will allow you to argue that the criteria the



§7:05 Sample Cross-Examination

§7:05.1 No Observation of Unlawful Activity

Q: You decided to stop this van to search for illegal aliens entering the United States?

A: Yes.

Q: Before the stop, you didn’t know anything about this van?

A: I don’t understand what you mean, counsel.

Q: You hadn’t encountered this van before?

A: No.

Q: You didn’t have the van under surveillance?

A: I watched it as I drove behind it on the highway.

Q: But that was only for a few minutes?

 

Q: You had not seen this van cross the border?