The Border Search Doctrine is one of the longstanding warrantless search exceptions to the 4th Amendment.
Most searches at the border do not require a warrant or probable cause because of Congress’s authority to regulate commerce and maintain sovereignty.
• Border Search can be classified as “routine” or “non-routine”.
o Pat-Down or X-Ray versus Body Cavity Search.
o Non-Routine require reasonable suspicion
• Distiction does not apply in the context of vehicles.
o United States v. Flores-Montano – suspicionless disassembly of a fuel tank at the border
Extended Border Search (Checkpoints)
• Travelers who have not crossed the border cannot be thought to have given their implied consent to warrantless searches merely by traveling near the border.
• Require Reasonable Suspicion
• Law enforcement must also have “reasonable certainty” that the vehicle or contraband crossed the border.
• The Code of Federal Regulations defines “reasonable distance” to “mean within 100 air miles from any external boundary of the United States or any shorter distance that may be fixed by the chief patrol agent for CBP, or the special agent in charge for ICE.”
• 2/3 of the U.S. population, or about 200 million people, reside within this expanded border region.
Reasonable Suspicion, Time and Distance
• United States v. Alfonso, 759 F.2d 728, 728 (9th Cir. 1985). – Search ship a second time within a day and a half of arrival at port
• United States v. Rangel-Portillo, 586 F.3d 376, 376 (5th Cir. 2009) – No Reasonable Suspicion. Vehicle about 500 yards from the border.
• The Ninth Circuit upheld extended border searches in these scenarios:
o Castillo-Garcia v. United States, 424 F.2d 482, 482–84 (9th Cir. 1970) (concluding that while the search of the vehicle occurred seven hours and 105 miles from the border, the fact that there was “constant surveillance after the border crossing until the search, and there had been a change of drivers,” the possibility that the 165 pounds of marijuana being placed after the crossing was obviated and the search was thus lawful).
o Rodriguez-Gonzalez v. United States, 378 F.2d 256, 256–59 (9th Cir. 1967) (affirming the lower court’s decision that a valid border search occurred even though it was fifteen hours and twenty miles from the border, because while there was a change in drivers after crossing the border, the information provided by an informant gave the customs officials reasonable suspicion that the defendants may have been carrying marijuana).
o United States v. Cotterman, 709 F.3d 952, 961–62 (9th Cir.) (en banc), cert. denied, 571 U.S. 1156 (2014). Held that property, such as a laptop and other electronic storage devices, presented for inspection when entering the United States at the border may not be subject to forensic examination without a reason for suspicion. Computer taken at the border, but search occurring miles away in a forensic lab. Because “Cotterman’s computer never cleared customs [and] entry was never effected,” the extended border search doctrine did not apply.
Watch Part 1: https://youtu.be/xMW2tY3VZuc
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Anton Vialtsin, Esq.
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