Trump’s border wall and the Fourth Amendment.

On March 13, 2018 President Trump arrived to San Diego to tour border wall prototypes. This administration made it clear that the national security, which starts with a secure border, is on the top of their agenda list. But this wall will become just a barrier between the countries. The more interesting question is what happens to the the searches at the border. Trial attorneys at Lawstache Law Firm represent individuals accused of bringing in drugs and illegal immigrants across the border. These arrests and prosecutions start, however, with a simple search at the border. But what does the constitution say about searches conducted at the border? The Constitution has an invisible wall built into it and at the same time gives some rights to the people.  

The Fourth Amendment states, “[t]he 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.” So some searches are deemed reasonable by the Constitution, and thus the government does not need a warrant or probable cause to search. Over the years, the case law established different tests to establish reasonableness. For example, the officer needs reasonable suspicion to stop a vehicle and probable cause to search it. But the border is different. 

In 1985, the Supreme Court stated, “routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). The case set a standard that some searches are so routine, that they are reasonable under the Fourth amendment. Examples of non-routine searches are strip, body-cavity, and involuntary x-ray searches. The reason that some searches require a heightened level of suspicion is that some searches are highly intrusive of the person’s dignity.

Then came a case of a vehicle. How intrusive can a search of the vehicle be at the border? Manuel Flores-Montano drove his 1987 Ford Taurus station wagon through the Otay Mesa Port of Entry just south of San Diego. A customs inspector requested Mr. Flores-Montano to proceed to the secondary search. There, a second customs inspector tapped on the gas tank and noted that it sounded solid. The inspector called a mechanic, who arrived 20-30 minutes later.  This mechanic removed the gas tank and found 37 kilograms of marijuana bricks. This process took about 15-25 minutes. 

The government does not argue, however, that they had reasonable suspicion or probable cause to search Mr. Flores-Montano’s gas tank. Government made an argument that all Fourth Amendment protections should be waived at the border, simply because it’s a border. “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 vehicles.” Additionally, “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the  border.” Id. 152–53, quoting  United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977).

Mr. Flores-Montano makes two arguments. First, he urges the Court that he has a privacy interest in his fuel tank and that the disassembly of his tank is an invasion of his privacy. The Court disagrees. Travelers are stopped at the border everyday and their belongings searched.  Also, the Court does not see a difference between taking the gas tank apart and searching the vehicle’s passenger compartment. Second, he argues that disassembly of his gas tank is a significant deprivation of his property interest as it may damage the vehicle. Again, the Court says that the disassembly is not insignificant, but the government is still justified. And if something gets damages, he will be able to sue for damages. 

Most people will not be caught with drugs at the border. And their gas tank will simply have $4/gallon California fuel. It hard to imagine yourself in Mr. Flores-Montano’s position, but the border “exception” to the Fourth amendment requirement effects everyone, not just foreigners who come through the border, but citizens as well. And by the way, the border includes all ports of entry and international terminals at the airports. It even includes some lands inside the border. On the drive from San Diego to Orange County on I-5, travelers are likely to pass through a “border checkpoint” in San Clemente and think to themselves, “where is the border?” But this topic will be discussed another time. 

Most people will agree that the government should be able to search cars for drugs and weapons while keeping its hands off people’s privates (cavity searches). The difficult questions become what do we do with cell phones, laptops, and iPads. Is it more like a car, so there are no protections? Is it more intrusive and requires some level of suspicion by the border patrol.  Cell phones contain vast quantities of personal and private information. A search of the information on a cell phone bears little resemblance to a search of a gas tank. 

The wall will perhaps be a new addition to the Southern border, but the invisible/legal wall created by the Fourth Amendment existed well before Trump’s presidency. Some things did change in the last year. In 2017, Customs and Border Protection conducted 30,200 border searches, both inbound and outbound, of electronic devices, compared to 19,051 in 2016. We know where law enforcement is likely to stand when it comes to cell phone searches at the border. “In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people,” says Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner.  The Supreme Court, however, is yet to speak on the level of suspicion the government needs to conduct these searches at the border. 

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