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
Watch Part 2: https://youtu.be/n04dqhZVIQU

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The Fourth Amendment protects individuals from unreasonable government searches and seizures.
• Seizures can be split into two categories.
o A seizure of property is “some meaningful interference with an individual’s possessory interests in that property.”
o A seizure of an individual occurs when an individual reasonably believes that he is not at liberty to leave a government official’s presence, given all of the circumstances surrounding the incident.
• Warrantless searches under the Fourth Amendment are typically per se unreasonable.
o The Supreme Court decided in Katz v. United States that the attachment of an eavesdropping device outside of a public phone booth constituted an unreasonable search.
 REP. If an individual has a subjective expectation of privacy over the domain in question and society objectively recognizes that expectation as reasonable, then the search is unconstitutional unless law enforcement acquired a warrant or one of the exceptions to the warrant requirement applies.

• Technology and 4th Amendment
o In United States v. Knotts, the Supreme Court concluded that the surveillance, tracking, and following of an individual traveling on a public roadway did not constitute as a search or seizure.
 Beeper
 Consent from original owner
 No REP on public roadways
 Does not address duration of the surveillance

o In United States v. Karo, the Supreme Court held that the warrantless use of an electronic monitor within a container was reasonable and did not infringe on Karo’s interests within the meaning of the Fourth Amendment.
 Beeper
 Led to the facility and not the specific locker
 No REP on public roadway

o In United States v. Jones, the Supreme Court held that law enforcement committed a search by attaching a GPS tracking device to a vehicle.

 GPS
 Government “physically occupied private property for the purpose of obtaining information,” the encroachment and intrusion on a protected area constituted a search under the Fourth Amendment.
 Distinguished Karo, where law enforcement obtained consent of the original owner prior to the beeper being placed in the container to track the vehicle.
 “The Katz reasonable-expectation-of-privacy test [] added to, not substituted for, the common-law trespassory test.”

o Carpenter v. United States, holding that the warrantless acquisition of cell-site information violated Carpenter’s Fourth Amendment right against searches and seizures.
https://youtu.be/VmjsxoM83rM
 cell-site information implicated greater privacy concerns than did GPS tracking
 A cell-site information system would allow the Government to gather “near perfect surveillance”

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The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This protection is not limited to only a physical intrusion on property. It also protects a person’s “reasonable expectation of privacy.” Warrants are therefore necessary in almost all instances for a valid search to occur, unless an exception applies. The Border Search Doctrine, however, is one of the few exceptions to this general rule.

The Border Search Doctrine predates the Fourth Amendment and derives its powers from Congress’s inherent authority to regulate commerce and enforce immigration laws. No warrant is necessary at the border for most searches and seizures because of the government’s inherent power to control who or what comes within a nation’s borders. This is an intrinsic attribute of national sovereignty. The Fourth Amendment’s balance of interests thus leans heavily in favor of the government at the border. Even though courts favor government interests at the border, searches and seizures must remain “reasonable” dependent on the facts and circumstances in question.

What about GPS Searches and Tracking that is initiated at the border with a continuous surveillance within the United States?

Much of the information discussed in these videos, came from Kimberly Shi, GPS Tracking at the Border: A Mistaken Expectation or a Chilling Reality, 27 Wash. & Lee J. Civ. Rts. & Soc. Just. 161 (2020).
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol27/iss1/6

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Warrant. Defendant argues that the affidavit was insufficient because there is no information on the reliability of either confidential informant provided therein. Although the Court acknowledges that the affidavit lacks evidence related to the reliability of the two confidential informants, the information provided by the informants was sufficiently corroborated. First, each informant corroborates the other. See Schaefer, 87 F.3d at 566 For example, both informants stated that they had observed the same types of firearms in the Defendant’s residence and said that Defendant was stockpiling firearms to “prepare for the end of the world.” Both informants also similarly described the inside of the Defendant’s apartment. Thus, the Court finds that the affidavit submitted by Agent McNeil sufficiently established probable cause to issue the search warrant for Defendant’s apartment.

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Custodial Interrogation. The key to determining whether an interrogation was custodial, and therefore whether Miranda warnings should have been given prior to interrogation, is whether “a reasonable person would believe he is `in custody’ under the circumstances.” See United States v. Pagan-Santini, 451 F.3d 258, 263 (1st Cir. 2006). The Supreme Court has held “the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a `degree associated with formal arrest.'” Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)).

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Van Seizure. The Supreme Court has held that moving an individual’s belongings from one location to another constituted a substantial intrusion on the individual’s possessory interests. United States v. Place, 462 U.S. 696, 710 n. 9, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

(“Under the `automobile exception,’ the only essential predicate for a valid warrantless search of a motor vehicle by law enforcement officers is `probable cause to believe that the vehicle contains contraband or other evidence of criminal activity.'”) (quoting United States v. Panitz, 907 F.2d 1267, 1271 (1st Cir.1990)). There is nothing immediately apparent about the criminality of a vehicle itself. Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (“The word `automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”). Absent some information linking the van to the crimes for which the Defendant was arrested, the Court cannot find that there was probable cause to seize the van.

Full case here: US v. Widi, 686 F. Supp. 2d 107 – Dist. Court, D. Maine 2010, https://scholar.google.com/scholar_case?case=11852379228199280172&q=us+v.+widi+686+F.Supp.2d+107&hl=en&as_sdt=2006&as_vis=1

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But intoxication alone does not preclude a valid waiver. See United States v. Figueroa-Serrano, 971 F.3d 806, 815 (8th Cir. 2020) (finding a valid Miranda waiver when the suspect, after using marijuana, did not appear affected by intoxication and told officers he understood his rights). Instead, the test is whether, considering the totality of the circumstances, the mental impairment “caused the defendant’s will to be overborne.” United States v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016).

Read full case here: United States v. Harris, — F.4th —- (2023), https://ecf.ca8.uscourts.gov/opndir/23/04/221210P.pdf

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Held: A state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. Ferguson v. City of Charleston, 532 U.S. 67, 67–68, 121 S. Ct. 1281, 1283, 149 L. Ed. 2d 205 (2001)

While state hospital employees, like other citizens, may have a duty to provide the police with evidence *85 of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.24 Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Ferguson v. City of Charleston, 532 U.S. 67, 84–85, 121 S. Ct. 1281, 1292, 149 L. Ed. 2d 205 (2001)

Read the full case here: Ferguson v. City of Charleston 532 U.S. 67 (2001), https://www.oyez.org/cases/2000/99-936

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Passenger and vehicle searches have played a prominent role in Fourth Amendment jurisprudence. The Supreme Court has consistently held that probable cause is necessary to conduct a warrantless search of a vehicle. See Carroll v. United States, 267 U.S. 132, 160–62, 45 S.Ct. 280, 69 L.Ed. 543 (1925); California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).

In recent years, the Court has clarified that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” the search may extend to any area where evidence might be found. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1721, 173 L.Ed.2d 485 (2009) (citing United States v. Ross, 456 U.S. 798, 820–21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). In addition, when an arrest is made, a warrantless search is permitted “if the arrestee is within reaching distance of the passenger compartment … or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723. But the Court has never sanctioned a vehicle search simply because there was probable cause to arrest a passenger or because a passenger could not provide identification. The Fourth Amendment requires more.

…

The focus of the arrest inquiry is different from that of the search inquiry. See Greene v. Reeves, 80 F.3d 1101, 1106 (6th Cir.1996). Officers have probable cause for an arrest if at the time of the arrest, “the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in believing” that the defendant committed an offense. *1029 Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). Officers have probable cause for a search when “the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). “[T]here may be probable cause to search without probable cause to arrest, and vice-versa.” Id. (citing 2 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 3.1(b) at 9 (3d ed. 1996)).
241 F.3d 638, 647–48 (9th Cir.2000).

Both the Supreme Court and this court have highlighted this distinction. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.”); United States v. O’Connor, 658 F.2d 688, 693 n. 7 (9th Cir.1981) (“Probable cause to arrest concerns the guilt of the arrestee, whereas probable cause to search an item concerns the connection of the items sought with the crime and the present location of the items.”); Millender v. County of Los Angeles, 620 F.3d 1016, 1029 n. 6 (9th Cir.2010) (en banc).

Read the case here: United States v. Rodgers, 656 F.3d 1023, 1024 (9th Cir. 2011), https://cdn.ca9.uscourts.gov/datastore/opinions/2011/09/07/10-30254.pdf

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