An immigration officer’s questioning of an individual illustrates how an encounter which “may appear” to be a seizure is in fact not. Merely questioning an individual about his identity, regardless of whether he is aware he can leave the officer or refuse to cooperate by not answering, is not a seizure.
Therefore, such questioning need not be predicated on reasonable suspicion that the individual is an alien. Nonetheless, if “the circumstances are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded,” then the encounter may be deemed a seizure. When the interview becomes a seizure, either through a formal arrest or when the circumstances are such that a reasonable person would understand he could not leave, the officer must, at a minimum, have “a reasonable suspicion, based on articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States.”
Reasonableness Determining whether a government action is “reasonable” requires balancing the governmental interest justifying the intrusion against a person’s legitimate expectation of privacy. When the government interest fails to justify its intrusion of a legitimate expectation of privacy, a violation of the Fourth Amendment occurs. This violation may result in any evidence derived from the unlawful search to be suppressed and excluded from a judicial proceeding. However, this “exclusionary rule” does not generally apply in proceedings involving the removal of aliens from the United States.
The Definition of “Border” Warrantless searches are per se “unreasonable” under the Fourth Amendment, unless an established exception applies. The border search is a well-recognized and long established exception to the Fourth Amendment’s probable cause and warrant requirements.
In general, the border is the point where entry into the United States is first made by land from the neighboring countries of Mexico or Canada, at the place where a ship docks in the United States after having been to a foreign port, and at any airport in the country where international flights first land. Authorities at these locations may search a person entering or leaving the country, an individual’s automobile, baggage, or goods, and materials imported to and exported from the country.
Authorized by the First Congress, the border search exception has a history older than the Fourth Amendment and derives from Congress’s inherent authority to regulate commerce with foreign nations and to enforce immigration laws. The Fourth Amendment does not require warrants or probable cause for most stops and searches at the border because the power to control who or what comes within a nation’s borders is an inherent attribute of national sovereignty.
Although border searches may generally be conducted without a warrant or probable cause, they must still be reasonable. Federal courts have determined that border searches usually fall into two categories—routine and non-routine, the distinction generally turning on the intrusiveness of the search. Routine border searches are reasonable simply by virtue of the fact that they occur at the border and consist of only a limited intrusion, while non-routine searches generally require reasonable suspicion and vary in technique and intrusiveness. It should be noted, however, that the Supreme Court has arguably suggested that the routine/non-routine analysis may no longer be appropriate for searches of vehicles and personal property.
Functional Equivalent of the Border:
The border search exception extends to those searches conducted at the “functional equivalent” of the border. The “functional equivalent” of a border is generally the first practical detention point after a border crossing or the final port-of-entry. Places such as international airports within the country and ports within the country’s territorial waters or stations at the intersection of two or more roads extending from the border exemplify such functional equivalents.
This doctrine addresses the problem posed by the impossibility of stopping an individual for inspection who is in mid-transit when crossing the physical border. By permitting searches at the functional equivalent of the border, the doctrine permits a search to be effected at the first practicable location, namely the port-of-entry. The reasoning is that the port-of-entry is, much like a border checkpoint, the place where an individual first enters the country, and thus a search for contraband at a port-of-entry is as effective as a search at the border.
A search at the border’s functional equivalent is constitutionally valid when:
(1) a reasonable certainty exists that the person or thing crossed the border;
(2) a reasonable certainty exists that there was no change in the object of the search since it crossed the border; and
(3) the search was conducted as soon as practicable after the border crossing. In general, when applying this test, courts have given the “border” a geographically flexible reading because people can enter the
country at points other than the actual border.
Extended Border Search
The border search exception may also allow warrantless searches beyond the border or its functional equivalent. Under the “extended border search” doctrine, government officials may conduct a warrantless search beyond the border or its functional equivalent if
(1) the government officials have a reasonable certainty that a border was crossed or there exists a “high degree of probability” that a border was crossed;
(2) they also have reasonable certainty that no change in
the object of the search has occurred between the time of the border crossing and the search; and
(3) they have “reasonable suspicion” that criminal activity was occurring. This three-part test ensures that a significant temporal nexus still exists between the search and the suspect’s border crossing.
The extended border search doctrine has gained wide acceptance among the federal courts because they deem that it “strikes a sensible balance” between the “legitimate privacy interests” of the individual and the societal interests in the enforcement of border security laws.
The Distinction between the Functional Equivalent of a Border and the Extended Border Search Doctrines:
Although a search at the border’s functional equivalent and an extended border search require similar elements, the extended border search entails a potentially greater intrusion on a legitimate expectation of privacy. Thus, an extended border search always requires a showing of “reasonable suspicion” of criminal activity, while a search at the functional equivalent of the border may not require any degree of suspicion whatsoever.
Another difference is that an extended border search takes place after the first point in time when an individual might have been stopped within the country. For example, in United States v. Teng Yang, the Seventh Circuit upheld an extended border search that occurred at an international airport but after the defendant had already undergone an initial inspection at the designated U.S. border inspection site. The court determined that “it is the enforcement of the customs laws combined with the mandate of protecting the border of the United States that permits the extension of the search rights of border authorities to allow non-routine searches in areas near our nation’s borders.”
Types of Searches and Seizures at the Border:
Courts have historically analyzed border searches based on whether they are “routine” or “nonroutine.” However, this type of division may no longer be appropriate for vehicular searches. And at least one court appears to have extended this analysis to searches of electronic storage devices and other containers.
The following sections examine how federal courts generally analyze border searches of persons, vehicles, and electronic storage devices.
Searches and Seizures of People:
In order to regulate the collection of duties and to prevent the introduction of illegal aliens and contraband into this country, Congress has granted the authority to conduct routine searches of persons and their personal belongings at the border without reasonable suspicion, probable cause, or a warrant. A routine border search is a search that does not pose a “serious invasion of privacy” or offend the average traveler. For example, a routine border search may consist of limited searches for contraband or weapons through a pat-down; the removal of outer garments such as jackets, hats, or shoes, the emptying of pockets, wallets, or purses; the use of a drug-sniffing dog; the examination of outbound materials; and the inspection of luggage.
It has long been established that border crossers’ reasonable expectation of privacy is lower at the border because they generally expect border guards to search persons and property for contraband. Because this is common knowledge, border crossers are “put on notice” when approaching a border that a search may be imminent, and thus their privacy is “less invaded by [border] searches” when they occur. Thus, routine searches “do not violate the Fourth Amendment” simply because they occur at the border. Moreover, courts consider routine border searches to be permissible because they are administered to a class of people (international travelers) and are not used to target individuals.
There is no established test that determines whether a particular search procedure is routine. However, the degree of intrusiveness or invasiveness associated with the particular technique is especially indicative of whether a search is routine. The First Circuit, for example, compiled a nonexhaustive list of six factors to be considered:
(1) whether the search required the suspect to
disrobe or expose any intimate body parts;
(2) whether physical contact was made with the
suspect during the search;
(3) whether force was used;
(4) whether the type of search exposed the suspect to pain or danger; the overall manner in which the search was conducted; and whether the suspect’s reasonable expectations of privacy, if any, were abrogated by the search.
Once a search of a person’s body goes beyond a limited intrusion, a court may determine that a non-routine search has occurred. Non-routine border searches may include prolonged detentions, strip searches, body cavity searches, and some X-ray examinations. Destructive searches of
property can also qualify as non-routine.
At the very least, it appears courts require a government official to have a “reasonable suspicions of illegal activity to conduct a non-routine border search. The reasonable suspicion standard generally requires an officer at the border to have “a particularized and objective basis for suspecting the particular person” of wrongdoing. For example, in United States v. Forbicetta, the court found reasonable suspicion to exist where Customs officials acted on the following objective facts: the suspect
(1) arrived from Bogota, Colombia,
(2) was traveling alone,
(3) had only one suitcase and no items requiring Customs inspection,
(4) was young, clean-looking, and attractive, and was wearing a loose-fitting dress.These factors taken together matched the “smuggling profile” for narcotic carriers in that area, and thus, the court concluded there was a
sufficient basis to conduct the search.
The Supreme Court has not enumerated the factors that should be considered when determining whether a border search is routine or non-routine. This task has generally been left to lower federal courts. However, in United States v. Montoya De Hernandez, the Supreme Court concluded that one such standard, a “clear indication” of suspicion (i.e., a suggestion that is free from doubt), was not required by the Fourth Amendment to justify a prolonged detention in an airport. The Court determined that the use of the term “clear indication” in its past jurisprudence was only meant to indicate the necessity for particularized suspicion, “rather than as enunciating a third Fourth Amendment threshold between ‘reasonable suspicion’ and ‘probable cause.’”
Federal courts now view the Montoya de Hernandez reasoning as both a warning against using suspicion standards other than reasonable suspicion for non-routine border searches and a specific disavowal of the use of the “clear indication” standard when analyzing a border search.
Although some courts had previously required a “clear indication” to justify especially intrusive border searches other than prolonged detentions, courts generally construe the disavowal of this standard in Montoya de Hernandez to apply to other invasive border searches. “Reasonable suspicion” is the standard used to justify non-routine searches.
Prolonged detentions may be conducted in order to verify or dispel an agent’s suspicion that a traveler has committed wrongdoing. In Montoya de Hernandez, someone from Bogota, Columbia, suspected of smuggling drugs in her alimentary canal, refused to consent to an X-ray examination. In an attempt to verify or dispel their suspicions that she was engaged in criminal activity, Customs officers detained Ms. Montoya de Hernandez for over 16 hours and told her she could not leave until she eliminated the contents of her alimentary canal into a wastebasket.
The Court determined “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.”
The Court concluded that it was reasonable to detain Ms. Montoya de Hernandez for the period of time necessary to verify or dispel the suspicion of the agents in these circumstances.1 Courts have reasoned that “an otherwise permissible border detention does not run afoul of the Fourth Amendment simply because a detainee’s intestinal fortitude leads to an unexpectedly long period of detention.” However, the Fifth Circuit in United States v. Adekunle concluded that the government must, within a reasonable time (generally within 48 hours), seek a judicial determination that reasonable suspicion exists to detain a suspect for an extended period of time.
There appear to be no “hard-and-fast time limits” that automatically transform what would otherwise be a routine search into a non-routine search, nor render a non-routine search conducted under the reasonable suspicion standard unconstitutional. Rather, courts consider “whether the detention of [the traveler] was reasonably related in scope to the circumstances which justified it initially.” In order to provide perspective, the 16-hour detention in Montoya de Hernandez was considered a non-routine search (justifiable by reasonable suspicions), while a one-hour vehicular search did not require reasonable suspicion. The Second Circuit has characterized four- to six-hour-long detentions of individuals suspected of having terrorist ties as routine.
A strip search involves the removal of all or part of a suspect’s clothing in order to effect a search. Because of the perceived offensiveness of the procedure due to the embarrassment it may inflict on the individual, reviewing courts generally require reasonable suspicion that the person is concealing contraband under his clothing before such a search is justified. Often, in the course of a routine search, reasonable suspicion may arise to justify a subsequent strip search. For instance, in United States v. Flores, upon discovering 600 small undeclared emerald stones in the defendant’s pockets during a routine search, Customs agents conducted a strip search and discovered an envelope of narcotics.90 The court held that the prior discovery of the undeclared emeralds was sufficient to heighten suspicion to the level necessary to conduct the strip search.
Body Cavity Searches
Narcotics and other contraband have often been smuggled in the body cavities of travelers, and searches into such cavities have become more commonplace. Body cavity searches may include inspections of the vagina or rectum, or the use of emetics. Because of the extreme medical risks internal drug smuggling poses to the smuggler, courts have determined that body cavity searches and extraction of the drugs do not require the advance procurement of a search warrant from a magistrate. Nevertheless, a border official must have reasonable suspicion that an individual is attempting to smuggle contraband inside his body for a court to uphold a warrantless body cavity search.
Additionally, the manner in which the body cavity search is conducted must also be reasonable in light of the circumstances. Generally, conduct that “shocks the conscience” is inherently unreasonable. Such conduct has included use of a stomach pump and could potentially include medical procedures performed by nonmedical personnel
Lawsuit: Illegal Beaner Woman Faced Illegal Body Cavity Search, Observed Bowel Movement by Feds
What started as a random screening by U.S. Customs and Border Protection agents quickly became an invasive, illegal body cavity search on a New Mexico woman, a federal lawsuit charges.
Papers filed in the U.S. District Court in El Paso say the 54-year-old woman — a U.S. citizen — was strip-searched by agents in Dec. 2012, KOAT reports. The unnamed woman was taken in handcuffs to a nearby hospital, where doctors subjected her to illegal body cavity probes and an observed bowel movement, according to the lawsuit filed by the American Civil Liberties Union.
No drugs were found on the woman, but the hospital sent her a $5,000 bill anyway, according to the ACLU. On top of the observed bowel movement, the woman was forced to undergo an X-ray, an exam of her rectum and vagina, and then a CT scan.
“In the lawsuit, we are bringing it to challenge those searches,” Senior ACLU Staff Attorney told KPBS. “Securing the border has become an excuse for outright abandonment of Constitutional principles that protect our privacy and our dignity. And enough is enough.”
The lawsuit seeks an unspecified amount in compensatory and punitive damages. Roger Maier, a spokesman for the customs agency, said he wouldn’t comment on pending litigation