Border search exception

The border search exception is a doctrine of United States criminal law that exempts searches of travelers and their property from the Fourth Amendment warrant requirement.

The United States Customs and Border Protection (CBP), ICE-HSI Special Agents, and 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 United States Department of Homeland Security, are 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, customs officers 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, customs may only conduct searches of the traveler's body — including strip, body cavity, involuntary x-ray, and in some jurisdictions, pat-down searches — if the Customs officer has reasonable suspicion to believe the traveler is concealing contraband.^[2]

Although border-searches are exempted from the Fourth Amendment warrant requirement, they are still subject to the amendment's reasonableness requirement.^[3] 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.^[4] In reviewing the reasonableness of border-searches under the Fourth Amendment, many courts have distinguished between "routine" and "nonroutine" searches.^[5] Customs may conduct "routine" searches without any level of suspicion, while "nonroutine" searches must be supported by "reasonable suspicion".^[6] 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."^[7]

Property searches

At the border customs officers 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 the 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. Two notable decisions have been rendered with the respective intermediate appellate courts backing the United States Government's position that the search of electronic devices falls under the category of property searches and that the 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. The only federal appeals court to address this issue directly, the Ninth Circuit Court of Appeals, agreed with the government's position and held that "reasonable suspicion is not needed for customs officials to search a laptop or other electronic device at the international border."^[11]

Some have challenged the government's constitutional authority to search the contents of their laptops on two bases: (1) first, they claim that searches of the contents of their laptops violate their First Amendment freedom of expression;^[12] 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.^[13]

The Fourth Circuit Court of Appeals, addressing a 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 .^[14] 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.^[15] in its analysis, 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."^[16]

Ickes did not directly address the required level of suspicion for laptop searches because customs officers 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 customs may search any electronic device at the border without any level of suspicion.^[17] In United States v. Arnold, the Ninth Circuit Court of Appeals rejected a defendant's contention that search of travelers' files on a laptop computer intrude upon a person's dignity and privacy interests to the same degree as searches of a traveler's body.^[18] Instead, the court ruled that searches of electronic materials are legally equivalent to searches of property. As such, Customs' authority to search electronic materials at the border are limited in only two ways: (1) the search may not cause exceptional damage to the property; and (2) the search may not be conducted in "a particularly offensive manner."^[19] These restrictions are applicable to all border searches of property, at least under the jurisdiction of these courts.^[20] According to Arnold, the characteristics that make electronic storage devices unique, including vast storage capacity and the ability to track its user's habits, tastes, and preferences, are not legally significant. Additionally, the Ninth Circuit held that searching through personal electronic information in a laptop does not constitute an "offensive search."^[21]

Although the Supreme Court has not addressed the standard of suspicion necessary for a warrantless border search of electronic materials, the only jurisprudence thus far, guided by Ickes and Arnold, suggests that customs officers may search any electronic materials (including laptops, CDs, MP3 players, cellular phones, and digital cameras) randomly, without any suspicion, and without any first amendment restrictions.

One major impact of these cases is that commerce may be exceptionally impacted. Sensitive business information, academic materials for conferences, and other types of valuable information may be delayed by these practices. Some devices may be held for years, effectively making this a deprivation of property under the Fifth Amendment.^[22] Sensitive information that is withheld that long could lose all value. Many devices depreciate in value over time due to introduction of new devices, and this depreciation of the physical device could also be considered a taking.

Searches of travelers' bodies

Unlike property searches, searches of travelers’ bodies are highly intrusive and implicate travelers’ most fundamental privacy and dignity interests.^[23] Thus, before customs 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 customs officer must have reasonable suspicion to believe the search will reveal contraband, and may have to have a higher standard or court-reviewed warrant for some of the more invasive searches.^[24]

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. ^[25] 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.

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. ^ Montoya de Hernandez, 473 U.S. at 537-38
4. ^ Montoya de Hernandez, 473 U.S. at 537.
5. ^ 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).
6. ^ 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.
7. ^ See, e.g., Flores-Montano, 541 U.S. at 152-53.
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. Arnold, 2008 WL 1776525 at *4 (9th Cir. 2008). see The Ninth Circuit reversed the District Court's holding on April 21, 2008.[1]
12. ^ United States v. Ickes, 393 F.3d 501, 504 (4th Cir. 2005)
13. ^ United States v. Arnold, 454 F. Supp. 2d 999, 1003-04 (N.D. Cal. 2006); rev'd 2008 WL 1776525 (9th Cir. 2008).
14. ^ Ickes, 393 F.3d at 506-07.
15. ^ Ickes, 393 F.3d at 506.
16. ^ Ickes, 393 F.3d at 506.
17. ^ United States v. Arnold, 2008 WL 1776525 (9th Cir. 2008).
18. ^ Arnold, 2008 WL 1776525 at *2-3.
19. ^ Arnold, 2008 WL 1776525 at *4-5.
20. ^ see United States v. Ross, 456 U.S. 798 (1982).
21. ^ Arnold, 2008 WL 1776525 at *5.
22. ^ http://tech.yahoo.com/blogs/null/148203
23. ^ See, e.g., Flores-Montano, 541 U.S. at 152
24. ^ Flores-Montano, 541 U.S. at 152-53.
25. ^ Montoya de Hernandez, 473 U.S. at 541.