Sunday, August 09, 2020

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Border Searches. The Fourth Amendment does not require warrants for routine stops and searches at borders because the sovereign state and its public officials have the right to protect the United States by stopping and examining persons and property entering or leaving the country. Under the “border search” exception to the warrant requirement, routine border stops and searches of persons, luggage, personal effects, and vehicles may be conducted without probable cause or reasonable suspicion. Detention beyond a routine customs stop, however, requires at least reasonable suspicion of wrongdoing. Although the Supreme Court has not stated what distinguishes a routine from a nonroutine border search, several factors have been examined in making such a determination. Most searches of persons, luggage, personal effects, and vehicles are found to be sufficiently nonintrusive and, therefore, qualify as routine border searches. Circuit courts generally agree that reasonable suspicion is required to justify strip searches and X-ray examinations of persons. An even higher level of suspicion is required to justify body-cavity searches.

The border search exception also applies to searches conducted at the “functional equivalent” of a border, which is defined as the first practical detention point after a border crossing or the final port of entry. The Eleventh Circuit has established three criteria to determine whether a search occurs at the functional equivalent of a border: (1) reasonable certainty that the person or thing crossed the border; (2) reasonable certainty that there was no change in the object of the search since it crossed the border; and (3) reasonable certainty that the search was conducted as soon as practicable after the border crossing. In addition, under the “extended border search” doctrine adopted by several circuits, government officials may conduct a warrantless search beyond the border, or its functional equivalent, if the following three factors are satisfied: (1) there is “reasonable certainty” or a “high degree of probability” that a border was crossed; (2) there is “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) there is “reasonable suspicion” that criminal activity is occurring.

The border search exception allows the government to conduct warrantless searches for illegal aliens. In United States v. Martinez-Fuerte, the Supreme Court established guidelines for permanent checkpoint stops and searches and held that government officials may stop vehicles at a permanent border checkpoint for brief questioning of the driver and passengers without individualized suspicion. The vehicle and occupants may also be selectively referred to a secondary checkpoint for further questioning without individualized suspicion. Any detention or search beyond this point must be justified by consent or probable cause.

Under certain circumstances, a border search for illegal aliens may justify use of a roving border patrol. A roving border patrol may stop a vehicle in the general area of the border and question its occupants if “specific articulable facts” give rise to reasonable suspicion that the vehicle may contain illegal aliens. The officer who stops the vehicle may inquire about citizenship, immigration status, and suspicious circumstances, but any further detention or search must be based on consent or probable cause.

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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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