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Border search exception

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The United States Customs and Border Patrol (CBP), a division of the United States Department of Homeland Security is permitted to search travelers and their belongings at the American border without probable cause or a warrant. These searches are therefore exempted from the Fourth Amendment warrant requirement. Pursuant to this authority, CBP may generally stop and search the property of any traveler entering or exiting the United States at random, or even based largely on ethnic profiles.[1] However, CBP may only conduct searches of the traveler's body - including strip, body cavity, involutary x-ray, and in some jurisdictions, patdown searches - if the Customs agent has reasonable suspicion to believe the traveler is concealing contraband.[2]

Although border-searches are exempted from the Fourth Amendment warrant requirement,[3] they are still subject to the amendment's reasonableness requirement.[4] Whether a border search is reasonable depends on a judicial analysis that balances the intrusion into an individual’s legitimate privacy and dignity interests against the government’s legitimate interest in the subject of the search. [5] In reviewing the reasonableness of border-searches under the Fourth Amendment, many courts have distinguished between "routine" and "nonroutine" searches. [6] CBP may conduct "routine" searches without any level of suspicion, while "nonroutine" searches must be supported by "reasonable suspicion".[7] Under this analysis, searches of a traveler's property, including luggage, briefcases, wallets, and other containers are "routine," while searches of a traveler's body, including strip, body cavity and involuntary x-ray searches, are considered "nonroutine."

Property Searches

At the border CBP agents are authorized to search all travelers' closed containers without any level of suspicion.[8] This authority extends to all physical containers, regardless of size, or possible presence of personal, confidential or embarrassing materials. Pursuant to this authority, Customs may also open and search incoming international mail.[9]

Electronic Materials

Currently, the main area of contention concerning the border search exception is its application to the search of the electronic files and information contained in travelers' laptops and other electronic storage devices. The United States Government's position regarding the search of electronic devices is that these devices are functionally and qualitatively equivalent to other closed containers.[10] According to this position, the Government asserts that it may open, login and search through all the electronic information stored on traveler's electronic devices.

Some criminal defendants have challenged the government's constitutional authority to search the contents of their laptops on two basis: (1) first, they claim that searches of the contents of their laptops violate their First Amendment freedom of expression;[11] and (2) second, they claim that searches of the files on their electronic devices are unreasonable under the Fourth Amendment because they are a substantial intrusion into travelers' privacy and dignity interests.[12]

The Fourth Circuit Court of Appeals, addressing a criminal defendant's challenge to Customs' authority to search electronic files in United States v. Ickes, held that there is no First Amendment exception to the border search doctrine for expressive materials .[13] The Court based its finding in part on the demands of protecting the nation from terrorist threats that may cross the American border in expressive materials.[14] This case did not directly address the required level of suspicion for laptop searches because customs agents in this case met the reasonable suspicion standard.

However, the only court to address the Fourth Amendment protections of laptops at the national border held that such searches must be supported by reasonable suspicion.[15] In United States v. Arnold, a California District Court equated the search of travelers' files on a laptop computer to the search of a traveler's mind and memories, noting that the devices are "capable of storing thoughts."[16] Thus, the Court reasoned that "while not physically intrusive as in the case of a strip or body cavity search, the search of one's private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person."[17] The Government appealed this decision to the United States Circuit Court of Appeals for the Ninth Circuit on June 13, 2007. The case was argued before a three judge panel on October 18, 2007.[18] The Ninth Circuit has not decided the case.

Searches of Travelers' Bodies

Unlike property searches, searches of travelers’ bodies are highly intrusive and implicate travelers’ most fundamental privacy and dignity interests.[19] Thus, before CBP can order a traveler to disrobe, conduct an internal body cavity search, or force the traveler to submit to an involuntary x-ray of the traveler’s body, the CBP officer must have reasonable suspicion to believe the search will reveal contraband.[20]

References

  1. ^ United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("travelers may be stopped [and searched] at . . . the border without individualized suspicion even if the stop [or search] is based largely on ethnicity[.]") (citing United States v. Martinez-Fuerte, 428 U.S. 543, 562-563(1976))
  2. ^ See United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004); United States v. Johnson, 991 F.2d 1287, 1291-92 (7th Cir. 1993).
  3. ^ The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend IV.
  4. ^ Montoya de Hernandez, 473 U.S. at 537-38
  5. ^ Montoya de Hernandez, 473 U.S. at 537.
  6. ^ See Montoya de Hernandez, 473 U.S. at 537. However, the Supreme Court has expressly stated, in a case that reviewed whether the disassembly and search of a vehicle's gas tank is a reasonable search, that its use of "routine" and "nonroutine" terminology in Montoya de Hernandez was purely descriptive and does not embody a separate balancing test. United States v. Flores-Montano, 541 U.S. 149, 152 (2004) ("Complex balancing tests to determine what is a “routine” search of a vehicle, as opposed to a more “intrusive” search of a person, have no place in border searches of [property].") However, despite this forceful language in Flores-Montano, many Federal Courts still look to whether a border-search is "routine" or "nonroutine." see, e.g., United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006).
  7. ^ see Flores-Montano, 541 U.S. at 152-53. "Reasonable suspicion" is defined as a "particularized and objective basis for suspecting the particular person of . . . smuggling." Montoya de Hernandez, 473 U.S. at 541.
  8. ^ See Flores-Montano, 541 U.S. at 152-53; Montoya de Hernandez, 473 U.S. at 538.
  9. ^ See 19 U.S.C. § 482; United States v. Ramsey, 431 U.S. 606 (1977)
  10. ^ See Opening Brief of the United States of America 30-31, United States v. Arnold, appeal No. 06-50581 (9th Cir. June 13, 2007), 2007 WL 1407234 ("Computer devices are conceptually no different for Fourth Amendment purposes than other closed storage containers that are subject to suspicionless searches at the border.")
  11. ^ United States v. Ickes, 393 F.3d 501, 504 (4th Cir. 2005)
  12. ^ United States v. Arnold, 454 F. Supp. 2d 999, 1003-04 (N.D. Cal. 2006), appeal docketed, No. 06-50581 (9th Cir. June 13, 2007).
  13. ^ Ickes, 393 F.3d at 506-07.
  14. ^ Ickes, 393 F.3d at 506. The Court stated: "The border search doctrine is justified by the longstanding right of the sovereign to protect itself. Particularly in today's world, national security interests may require uncovering terrorist communications, which are inherently “expressive.” Following Ickes's logic would create a sanctuary at the border for all expressive material-even for terrorist plans. This would undermine the compelling reasons that lie at the very heart of the border search doctrine." Id.
  15. ^ United States v. Arnold, 454 F. Supp. 2d 999, 1003-04 (N.D. Cal. 2006), appeal docketed, No. 06-50581 (9th Cir. June 13, 2007).
  16. ^ Arnold, 454 F. Supp. 2d at 1000, 1003-04.
  17. ^ Arnold, 454 F. Supp. 2d at 1000.
  18. ^ http://www.ca9.uscourts.gov/ca9/calendar.nsf/818e02a1deab7b7b882567770063a742/69abc98ca1ea7cba8825735200836af3?OpenDocument
  19. ^ See, e.g., Flores-Montano, 541 U.S. at 152
  20. ^ Flores-Montano, 541 U.S. at 152-53.
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