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Border search exception

February 02, 2023

In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause.[1] The doctrine is not regarded as an exception to the Fourth Amendment, but rather to its requirement for a warrant or probable cause.[1][2] Balanced against the sovereign's interests at the border are the Fourth Amendment rights of entrants. Not only is the expectation of privacy less at the border than in the interior,[2][3] the Fourth Amendment balance between the interests of the government and the privacy right of the individual is also struck much more favorably to the government at the border.[4] This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the Fourth Amendment's proscription against "unreasonable searches and seizures".

Map of the "100 mile zone"

Federal law allows certain federal agents to conduct search and seizures within 100 miles of the border into the interior of the United States.[5] The Supreme Court has clearly and repeatedly confirmed that the border search exception applies within 100 miles of the border of the United States as seen in cases such as United States v. Martinez-Fuerte where it was held that the Border Patrol's routine stopping of a vehicle at a permanent checkpoint located on a major highway away from the Mexican border for brief questioning of the vehicle's occupants is consistent with the Fourth Amendment.[6] However, searches of automobiles without a warrant by roving patrols have been deemed unconstitutional.[4]

The U.S. Customs and Border Protection (CBP) officers, U.S. Border Patrol agents, U.S. Immigration and Customs Enforcement Special Agents, and U.S. Coast Guard officers (E4 grade and above) who are all customs officers (those tasked with enforcing Title 19 of the United States Code) with the U.S. Department of Homeland Security, are permitted to search travelers and their belongings at the American border without probable cause or a warrant.[7] Pursuant to this authority, customs officers may generally stop and search the property of any traveler entering the United States at random, or even based largely on ethnic profiles.[8]

Property searches

At the border, customs officers and Border Patrol agents are authorized to search all travelers' closed containers without any level of suspicion.[9] This authority extends to all physical containers, regardless of size or the possible presence of personal, confidential or embarrassing materials. Pursuant to this authority, Customs may also open and search incoming international mail.[10]

Use of scanning devices

In United States v. Camacho (2004), the United States Court of Appeals for the Ninth Circuit ruled that the use of radioactive scanning devices in customs searches along the United States-Mexico border was reasonable. The judges found that the device used was not a danger to the vehicle or its occupant, and its use did not violate the Fourth Amendment. Their ruling was based on the fact that the Fourth Amendment protects against intrusive searches of the person, but not against searches of a vehicle.[11][12][13]

Searching of electronic devices

Currently, the main area of contention concerning the border search exception is its application to search a traveler's cell phone or other electronic device.[14] In 2014, the US Supreme Court issued its landmark ruling in Riley v. California, which held that law enforcement officials violated the Fourth Amendment when they searched an arrestee's cellphone without a warrant. The court explained, “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."[15]

In 2013, before Riley was decided, the Ninth Circuit court of appeals held that reasonable suspicion is required to subject a computer seized at the border to forensic examination.

United States v. Vergara is the first federal circuit court to address whether Riley's reasoning extends to a search of a traveler's cell phone at the border.[16] In Vergara, a divided panel of the Eleventh Circuit Court of Appeals held that, “border searches never require probable cause or a warrant,” and Riley's analysis does not apply to border searches, even for forensic searches of cell phones.[17] The dissent, authored by Judge Jill Pryor, disagreed, concluding that, “my answer to the question of what law enforcement officials must do before forensically searching a cell phone at the border, like the Supreme Court’s answer to manually searching a cell phone incident to arrest, ‘is accordingly simple—get a warrant.’”[18]

The Supreme Court has not addressed the standard of suspicion necessary for a warrantless border search of electronic materials, even though the number of cell phone border searches continues to rise each year.[19] Notably, Vergara has called upon the Court to resolve the level of Fourth Amendment process necessary for warrantless cell phone searches.[20]

One impact of these cases is that commerce may be impacted. Sensitive business information, academic materials for conferences, and other types of valuable information may be delayed by these practices.[21]

In May of 2018, in U.S. v. Kolsuz, the Fourth Circuit Court of Appeals has held that it is unconstitutional for US border officials to subject visitors' devices to forensic searches without individualized suspicion of criminal wrongdoing.[22] Just five days later, in U.S. v. Touset, the Eleventh Circuit Court of Appeals split with the Fourth and Ninth Circuits, ruling that the Fourth Amendment does not require suspicion for forensic searches of electronic devices at the border.[23] The existence of a circuit split is one of the factors that the Supreme Court of the United States considers when deciding whether to grant review of a case.[24]

Living contraband

CBP is tasked with enforcing some other border and international commerce laws, including inspecting for invasive species of plants and animals.[25]

Searches of travelers' bodies

Although routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant,[1] more invasive searches or seizures of a person's body require some suspicion.

The Supreme Court has held "that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal."[26] Characterized in terms of the Fourth Amendment, the Court was saying that such a detention ("seizure") was "reasonable", and therefore did not violate the Fourth Amendment. (The federal agents in this particular case did not X-ray ("search") her because she claimed she was pregnant. They instead decided to detain her long enough for ordinary bowel movements to evacuate the alimentary canal, despite her "heroic" efforts otherwise.)

The Supreme Court expressly did not rule what level of suspicion would be necessary for a strip, body-cavity, or involuntary x-ray search,[27] though they did say that the only two standards for Fourth Amendment purposes short of a warrant were "reasonable suspicion" and "probable cause" (rejecting a "clear indication" standard).

In the border search context, reasonable suspicion means that the facts known to the customs officer at the time of the search, combined with the officer's reasonable inferences from those facts, provides the officer with a particularized and objective basis for suspecting that the search will reveal contraband.[28] To form a basis for reasonable suspicion, a customs officer may rely on his training and prior experience, and may rely on entirely innocent factors, if the totality of the circumstances provide the officer with reasonable suspicion.

See also

References

  1. ^ a b c "United States v. Ramsey, 431 US 606 (1977)". Retrieved 9 September 2012.
  2. ^ a b Carroll v. United States
  3. ^ Florida v. Royer
  4. ^ a b Almeida-Sanchez v. United States, 413 US 266 - Supreme Court 1973
  5. ^ § 287 (a) (3) of the Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. § 1357(a)(3), which provides for warrantless searches of automobiles and other conveyances "within a reasonable distance from any external boundary of the United States," as authorized by regulations to be promulgated by the Attorney General. The Attorney General's regulation, 8 CFR § 287.1, defines "reasonable distance" as "within 100 air miles from any external boundary of the United States."
  6. ^ United States v. Martinez-Fuerte, 428 U.S. 543, 562-563 (1976)
  7. ^ Although it has been claimed "These searches are therefore exempted from the Fourth Amendment warrant requirement" (emphasis added), federal law never supersedes the U.S. Constitution as interpreted by the U.S. Supreme Court. Such federal law is enforceable only to the extent that its application does not conflict with the U.S. Constitution.
  8. ^ United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("travelers may be stopped [and searched] at . . . the border without individualized suspicion.") (citing United States v. Martinez-Fuerte, 428 U.S. 543, 562-563(1976))
  9. ^ See Flores-Montano, 541 U.S. at 152-53; Montoya de Hernandez, 473 U.S. at 538.
  10. ^ See 19 U.S.C. § 482; United States v. Ramsey, 431 U.S. 606 (1977)
  11. ^ Thomas K. Clancy, "2008 Fourth Amendment Symposium-The Fourth Amendment at the International Border", 78 Mississippi Law Journal (2008-2009
  12. ^ Yule Kim, Protecting the U.S. Perimeter: Border Searches Under the Fourth Amendment (2010), p. 16
  13. ^ "Investigations and Police Practices: Warrantless Searches and Seizures", 40 Annual Review of Criminal Procedure 44 (2011)
  14. ^ "NACDL - Border Searches & Digital Devices: Case List". www.nacdl.org. Retrieved 2018-05-14.
  15. ^ "Riley v. California, 573 U.S. ___ (2014) (Slip. Op. at 28)". Justia Law. Retrieved 2018-05-14.
  16. ^ "United States v. Vergara, No. 16-15059, 884 F.3d 1309 (11th Cir. 2018)". Justia Law. Retrieved 2018-05-14.
  17. ^ Vergara, Slip. Op at 5-8.
  18. ^ Vergara, Slip. Op. at 21 (Pryor, J., dissenting).
  19. ^ "Cellphone and Computer Searches at U.S. Border Rise Under Trump". The New York Times. 2018-01-05. ISSN 0362-4331. Retrieved 2018-05-14.
  20. ^ "Vergara v. United States, No. 17-8639 - Supreme Court of the United States". www.supremecourt.gov. Retrieved 2018-05-14.
  21. ^ . Archived from the original on 16 September 2009.
  22. ^ "Victory! Fourth Circuit rules that border officials can't subject electronic devices to suspicionless forensic searches / Boing Boing". boingboing.net. Retrieved 2018-09-21.
  23. ^ "Summary: Circuit Split on Device Searches at the Border in US v. Touset". Lawfare. 2018-05-30. Retrieved 2018-09-21.
  24. ^ Sup. Ct. R. 10(a) (2013) 2017-06-05 at the Wayback Machine; see also Tom Cummins & Adam Aft, Appellate Review, 2 J.L.: Periodical Laboratory of Leg. Scholarship 59, 60 (2012) (discussing definition of the term "circuit split").
  25. ^ "U.S. Customs and Border Protection's Powers and Limitations: A Primer". CRS Reports (Congressional Research Service). CRS Legal Sidebar. 2021-11-30. LSB10559. Retrieved 2022-09-26.
  26. ^ United States v. Montoya de Hernandez, 473 US 531 - Supreme Court 1985
  27. ^ The Montoya de Hernandez Court said, "It is also important to note what we do not hold. Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches. Both parties would have us decide the issue of whether aliens possess lesser Fourth Amendment rights at the border; that question was not raised in either court below and we do not consider it today."
  28. ^ Montoya de Hernandez, 473 U.S. at 541.

External links

February 02, 2023
border, search, exception, united, states, criminal, border, search, exception, doctrine, that, allows, searches, seizures, international, borders, their, functional, equivalent, without, warrant, probable, cause, doctrine, regarded, exception, fourth, amendme. In United States criminal law the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause 1 The doctrine is not regarded as an exception to the Fourth Amendment but rather to its requirement for a warrant or probable cause 1 2 Balanced against the sovereign s interests at the border are the Fourth Amendment rights of entrants Not only is the expectation of privacy less at the border than in the interior 2 3 the Fourth Amendment balance between the interests of the government and the privacy right of the individual is also struck much more favorably to the government at the border 4 This balance at international borders means that routine searches are reasonable there and therefore do not violate the Fourth Amendment s proscription against unreasonable searches and seizures Map of the 100 mile zone Federal law allows certain federal agents to conduct search and seizures within 100 miles of the border into the interior of the United States 5 The Supreme Court has clearly and repeatedly confirmed that the border search exception applies within 100 miles of the border of the United States as seen in cases such as United States v Martinez Fuerte where it was held that the Border Patrol s routine stopping of a vehicle at a permanent checkpoint located on a major highway away from the Mexican border for brief questioning of the vehicle s occupants is consistent with the Fourth Amendment 6 However searches of automobiles without a warrant by roving patrols have been deemed unconstitutional 4 The U S Customs and Border Protection CBP officers U S Border Patrol agents U S Immigration and Customs Enforcement Special Agents and U S Coast Guard officers E4 grade and above who are all customs officers those tasked with enforcing Title 19 of the United States Code with the U S Department of Homeland Security are permitted to search travelers and their belongings at the American border without probable cause or a warrant 7 Pursuant to this authority customs officers may generally stop and search the property of any traveler entering the United States at random or even based largely on ethnic profiles 8 Contents 1 Property searches 1 1 Use of scanning devices 1 2 Searching of electronic devices 2 Living contraband 3 Searches of travelers bodies 4 See also 5 References 6 External linksProperty searches EditAt the border customs officers and Border Patrol agents are authorized to search all travelers closed containers without any level of suspicion 9 This authority extends to all physical containers regardless of size or the possible presence of personal confidential or embarrassing materials Pursuant to this authority Customs may also open and search incoming international mail 10 Use of scanning devices Edit In United States v Camacho 2004 the United States Court of Appeals for the Ninth Circuit ruled that the use of radioactive scanning devices in customs searches along the United States Mexico border was reasonable The judges found that the device used was not a danger to the vehicle or its occupant and its use did not violate the Fourth Amendment Their ruling was based on the fact that the Fourth Amendment protects against intrusive searches of the person but not against searches of a vehicle 11 12 13 Searching of electronic devices Edit Currently the main area of contention concerning the border search exception is its application to search a traveler s cell phone or other electronic device 14 In 2014 the US Supreme Court issued its landmark ruling in Riley v California which held that law enforcement officials violated the Fourth Amendment when they searched an arrestee s cellphone without a warrant The court explained Modern cell phones are not just another technological convenience With all they contain and all they may reveal they hold for many Americans the privacies of life The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought 15 In 2013 before Riley was decided the Ninth Circuit court of appeals held that reasonable suspicion is required to subject a computer seized at the border to forensic examination United States v Vergara is the first federal circuit court to address whether Riley s reasoning extends to a search of a traveler s cell phone at the border 16 In Vergara a divided panel of the Eleventh Circuit Court of Appeals held that border searches never require probable cause or a warrant and Riley s analysis does not apply to border searches even for forensic searches of cell phones 17 The dissent authored by Judge Jill Pryor disagreed concluding that my answer to the question of what law enforcement officials must do before forensically searching a cell phone at the border like the Supreme Court s answer to manually searching a cell phone incident to arrest is accordingly simple get a warrant 18 The Supreme Court has not addressed the standard of suspicion necessary for a warrantless border search of electronic materials even though the number of cell phone border searches continues to rise each year 19 Notably Vergara has called upon the Court to resolve the level of Fourth Amendment process necessary for warrantless cell phone searches 20 One impact of these cases is that commerce may be impacted Sensitive business information academic materials for conferences and other types of valuable information may be delayed by these practices 21 In May of 2018 in U S v Kolsuz the Fourth Circuit Court of Appeals has held that it is unconstitutional for US border officials to subject visitors devices to forensic searches without individualized suspicion of criminal wrongdoing 22 Just five days later in U S v Touset the Eleventh Circuit Court of Appeals split with the Fourth and Ninth Circuits ruling that the Fourth Amendment does not require suspicion for forensic searches of electronic devices at the border 23 The existence of a circuit split is one of the factors that the Supreme Court of the United States considers when deciding whether to grant review of a case 24 Living contraband EditCBP is tasked with enforcing some other border and international commerce laws including inspecting for invasive species of plants and animals 25 Searches of travelers bodies EditAlthough routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion probable cause or warrant 1 more invasive searches or seizures of a person s body require some suspicion The Supreme Court has held that the detention of a traveler at the border beyond the scope of a routine customs search and inspection is justified at its inception if customs agents considering all the facts surrounding the traveler and her trip reasonably suspect that the traveler is smuggling contraband in her alimentary canal 26 Characterized in terms of the Fourth Amendment the Court was saying that such a detention seizure was reasonable and therefore did not violate the Fourth Amendment The federal agents in this particular case did not X ray search her because she claimed she was pregnant They instead decided to detain her long enough for ordinary bowel movements to evacuate the alimentary canal despite her heroic efforts otherwise The Supreme Court expressly did not rule what level of suspicion would be necessary for a strip body cavity or involuntary x ray search 27 though they did say that the only two standards for Fourth Amendment purposes short of a warrant were reasonable suspicion and probable cause rejecting a clear indication standard In the border search context reasonable suspicion means that the facts known to the customs officer at the time of the search combined with the officer s reasonable inferences from those facts provides the officer with a particularized and objective basis for suspecting that the search will reveal contraband 28 To form a basis for reasonable suspicion a customs officer may rely on his training and prior experience and may rely on entirely innocent factors if the totality of the circumstances provide the officer with reasonable suspicion See also EditU S Coast Guard USCG U S Customs and Border Protection CBP U S Immigration and Customs Enforcement ICE References Edit a b c United States v Ramsey 431 US 606 1977 Retrieved 9 September 2012 a b Carroll v United States Florida v Royer a b Almeida Sanchez v United States 413 US 266 Supreme Court 1973 287 a 3 of the Immigration and Nationality Act 66 Stat 233 8 U S C 1357 a 3 which provides for warrantless searches of automobiles and other conveyances within a reasonable distance from any external boundary of the United States as authorized by regulations to be promulgated by the Attorney General The Attorney General s regulation 8 CFR 287 1 defines reasonable distance as within 100 air miles from any external boundary of the United States United States v Martinez Fuerte 428 U S 543 562 563 1976 Although it has been claimed These searches are therefore exempted from the Fourth Amendment warrant requirement emphasis added federal law never supersedes the U S Constitution as interpreted by the U S Supreme Court Such federal law is enforceable only to the extent that its application does not conflict with the U S Constitution United States v Montoya de Hernandez 473 U S 531 538 1985 travelers may be stopped and searched at the border without individualized suspicion citing United States v Martinez Fuerte 428 U S 543 562 563 1976 See Flores Montano 541 U S at 152 53 Montoya de Hernandez 473 U S at 538 See 19 U S C 482 United States v Ramsey 431 U S 606 1977 Thomas K Clancy 2008 Fourth Amendment Symposium The Fourth Amendment at the International Border 78 Mississippi Law Journal 2008 2009 Yule Kim Protecting the U S Perimeter Border Searches Under the Fourth Amendment 2010 p 16 Investigations and Police Practices Warrantless Searches and Seizures 40 Annual Review of Criminal Procedure 44 2011 NACDL Border Searches amp Digital Devices Case List www nacdl org Retrieved 2018 05 14 Riley v California 573 U S 2014 Slip Op at 28 Justia Law Retrieved 2018 05 14 United States v Vergara No 16 15059 884 F 3d 1309 11th Cir 2018 Justia Law Retrieved 2018 05 14 Vergara Slip Op at 5 8 Vergara Slip Op at 21 Pryor J dissenting Cellphone and Computer Searches at U S Border Rise Under Trump The New York Times 2018 01 05 ISSN 0362 4331 Retrieved 2018 05 14 Vergara v United States No 17 8639 Supreme Court of the United States www supremecourt gov Retrieved 2018 05 14 Homeland Security formalizes laptop seizure rules sort of Archived from the original on 16 September 2009 Victory Fourth Circuit rules that border officials can t subject electronic devices to suspicionless forensic searches Boing Boing boingboing net Retrieved 2018 09 21 Summary Circuit Split on Device Searches at the Border in US v Touset Lawfare 2018 05 30 Retrieved 2018 09 21 Sup Ct R 10 a 2013 Archived 2017 06 05 at the Wayback Machine see also Tom Cummins amp Adam Aft Appellate Review 2 J L Periodical Laboratory of Leg Scholarship 59 60 2012 discussing definition of the term circuit split U S Customs and Border Protection s Powers and Limitations A Primer CRS Reports Congressional Research Service CRS Legal Sidebar 2021 11 30 LSB10559 Retrieved 2022 09 26 United States v Montoya de Hernandez 473 US 531 Supreme Court 1985 The Montoya de Hernandez Court said It is also important to note what we do not hold Because the issues are not presented today we suggest no view on what level of suspicion if any is required for nonroutine border searches such as strip body cavity or involuntary x ray searches Both parties would have us decide the issue of whether aliens possess lesser Fourth Amendment rights at the border that question was not raised in either court below and we do not consider it today Montoya de Hernandez 473 U S at 541 External links EditThe Constitution in the 100 Mile Border Zone American Civil Liberties Union Retrieved from https en wikipedia org w index php title Border search exception amp oldid 1112503040, wikipedia, wiki, book, books, library,

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