Border Searches  (See Full Document for Citations)


The Fourth Amendment does not require warrants for routine stops and searches at borders because the 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 this “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 and search, however, requires at least a reasonable suspicion of wrongdoing. Although the Supreme Court has not stated what distinguishes a routine from a nonroutine border search, circuit courts have examined several factors 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 strip searches, X-ray examinations of persons, and body-cavity searches are “nonroutine” and thus require reasonable suspicion.

The border search exception also applies to searches conducted at the “functional equivalent” of a border, which has been construed as the first practical detention point after a border crossing or a final port of entry. 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 there is (1) “reasonable certainty” or a “high degree of probability” that a border was crossed; (2) “reasonable certainty” that no change in the object of the search has occurred between the time of crossing and the search; and (3) “reasonable suspicion” that criminal activity is occurring.

The border search exception allows the government to conduct warrantless searches of persons who appear to be undocumented immigrants. In United States v. Martinez-Fuerte, the Supreme Court held that government officials may, without individualized suspicion, briefly stop vehicles at a permanent border checkpoint and question the driver and passengers. The vehicle and its 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 undocumented immigrants may justify use of a roving border patrol. Roving border patrol agents may stop a vehicle if specific articulable facts, together with rational inferences derived from those facts, provide reasonable suspicion that the vehicle contains undocumented immigrants. 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.