Border search exception
Encyclopedia
The border search exception is a doctrine of United States
criminal law
that exempts searches of travelers and their property from the Fourth Amendment
warrant requirement.
The United States Customs and Border Protection (CBP), ICE-HSI Special Agents, and Coast Guard officers (E4 grade and above) who are all customs officers (those tasked with enforcing Title 19 of the United States Code) with the United States Department of Homeland Security, are permitted to search travelers and their belongings at the American border without probable cause
or a warrant
. These searches are therefore exempted from the Fourth Amendment
warrant requirement. Pursuant to this authority, customs officers may generally stop and search the property of any traveler entering or exiting the United States at random, or even based largely on ethnic profiles. However, customs may only conduct searches of the traveler's body — including strip
, body cavity
, involuntary x-ray, and in some jurisdictions, pat-down searches
— if the Customs officer has reasonable suspicion
to believe the traveler is concealing contraband.
Although border-searches are exempted from the Fourth Amendment
warrant requirement, they are still subject to the amendment's reasonableness requirement. Whether a border search is reasonable depends on a judicial analysis that balances the intrusion into an individual’s legitimate privacy and dignity interests against the government’s legitimate interest in the subject of the search. In reviewing the reasonableness of border-searches under the Fourth Amendment, many courts have distinguished between "routine" and "nonroutine" searches. Customs may conduct "routine" searches without any level of suspicion, while "nonroutine" searches must be supported by "reasonable suspicion
". Under this analysis, searches of a traveler's property, including luggage, briefcases, wallets, and other containers are "routine," while searches of a traveler's body, including strip, body cavity and involuntary x-ray searches, are considered "nonroutine."
, agreed with the government's position and held that "reasonable suspicion
is not needed for customs officials to search a laptop or other electronic device at the international border."
Some have challenged the government's constitutional authority to search the contents of their laptops on two bases: (1) first, they claim that searches of the contents of their laptops violate their First Amendment freedom of expression; and (2) second, they claim that searches of the files on their electronic devices are unreasonable under the Fourth Amendment because they are a substantial intrusion into travelers' privacy and dignity interests.
The Fourth Circuit Court of Appeals
, addressing a challenge to Customs' authority to search electronic files in United States v. Ickes, held that there is no First Amendment exception to the border search doctrine for expressive materials . The Court based its finding in part on the demands of protecting the nation from terrorist threats that may cross the American border in expressive materials. in its analysis, the Court stated:
Ickes did not directly address the required level of suspicion for laptop searches because customs officers in this case met the reasonable suspicion standard. However, the only court to address the Fourth Amendment protections of laptops at the national border held that customs may search any electronic device at the border without any level of suspicion. In United States v. Arnold
, the Ninth Circuit Court of Appeals
rejected a defendant's contention that search of travelers' files on a laptop computer intrude upon a person's dignity and privacy interests to the same degree as searches of a traveler's body. Instead, the court ruled that searches of electronic materials are legally equivalent to searches of property. As such, Customs' authority to search electronic materials at the border are limited in only two ways: (1) the search may not cause exceptional damage to the property; and (2) the search may not be conducted in "a particularly offensive manner." These restrictions are applicable to all border searches of property, at least under the jurisdiction of these courts. According to Arnold, the characteristics that make electronic storage devices unique, including vast storage capacity and the ability to track its user's habits, tastes, and preferences, are not legally significant. Additionally, the Ninth Circuit held that searching through personal electronic information in a laptop does not constitute an "offensive search."
Although the Supreme Court has not addressed the standard of suspicion necessary for a warrantless border search of electronic materials, the only jurisprudence thus far, guided by Ickes and Arnold, suggests that customs officers may search any electronic materials (including laptops, CDs, MP3 players, cellular phones, and digital cameras) randomly, without any suspicion, and without any first amendment restrictions.
One major impact of these cases is that commerce may be exceptionally impacted. Sensitive business information, academic materials for conferences, and other types of valuable information may be delayed by these practices. Some devices may be held for years, effectively making this a deprivation of property under the Fifth Amendment
. Sensitive information that is withheld that long could lose all value. Many devices depreciate in value over time due to introduction of new devices, and this depreciation of the physical device could also be considered a taking.
to believe the search will reveal contraband, and may have to have a higher standard or court-reviewed warrant for some of the more invasive searches.
In the border search context, reasonable suspicion means that the facts known to the customs officer at the time of the search, combined with the officer's reasonable inferences from those facts, provides the officer with a particularized and objective basis for suspecting that the search will reveal contraband. To form a basis for reasonable suspicion, a customs officer may rely on his training and prior experience, and may rely on entirely innocent factors, if the totality of the circumstances provide the officer with reasonable suspicion.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
that exempts searches of travelers and their property from the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
warrant requirement.
The United States Customs and Border Protection (CBP), ICE-HSI Special Agents, and Coast Guard officers (E4 grade and above) who are all customs officers (those tasked with enforcing Title 19 of the United States Code) with the United States Department of Homeland Security, are permitted to search travelers and their belongings at the American border without probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
or a warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
. These searches are therefore exempted from the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
warrant requirement. Pursuant to this authority, customs officers may generally stop and search the property of any traveler entering or exiting the United States at random, or even based largely on ethnic profiles. However, customs may only conduct searches of the traveler's body — including strip
Strip search
A strip search is the stripping of a person to check for weapons or other contraband.-Legality of strip searches:...
, body cavity
Body cavity search
A body cavity search is either a visual search or a manual internal inspection of body cavities such as for prohibited material , such as illegal drugs, money, jewelry, or weapons...
, involuntary x-ray, and in some jurisdictions, pat-down searches
Frisking
Frisking is a search of a person's outer clothing wherein a person runs his or her hands along the outer garments to detect any concealed weapons or contraband.-Stop and frisk:...
— if the Customs officer has reasonable suspicion
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
to believe the traveler is concealing contraband.
Although border-searches are exempted from the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
warrant requirement, they are still subject to the amendment's reasonableness requirement. Whether a border search is reasonable depends on a judicial analysis that balances the intrusion into an individual’s legitimate privacy and dignity interests against the government’s legitimate interest in the subject of the search. In reviewing the reasonableness of border-searches under the Fourth Amendment, many courts have distinguished between "routine" and "nonroutine" searches. Customs may conduct "routine" searches without any level of suspicion, while "nonroutine" searches must be supported by "reasonable suspicion
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
". Under this analysis, searches of a traveler's property, including luggage, briefcases, wallets, and other containers are "routine," while searches of a traveler's body, including strip, body cavity and involuntary x-ray searches, are considered "nonroutine."
Property searches
At the border customs officers are authorized to search all travelers' closed containers without any level of suspicion. This authority extends to all physical containers, regardless of size or the possible presence of personal, confidential or embarrassing materials. Pursuant to this authority, Customs may also open and search incoming international mail.Electronic materials
Currently, the main area of contention concerning the border search exception is its application to the search of the electronic files and information contained in travelers' laptops and other electronic storage devices. Two notable decisions have been rendered with the respective intermediate appellate courts backing the United States Government's position that the search of electronic devices falls under the category of property searches and that the devices are functionally and qualitatively equivalent to other closed containers. According to this position, the Government asserts that it may open, login, and search through all the electronic information stored on traveler's electronic devices. The only federal appeals court to address this issue directly, the Ninth Circuit Court of AppealsUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
, agreed with the government's position and held that "reasonable suspicion
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
is not needed for customs officials to search a laptop or other electronic device at the international border."
Some have challenged the government's constitutional authority to search the contents of their laptops on two bases: (1) first, they claim that searches of the contents of their laptops violate their First Amendment freedom of expression; and (2) second, they claim that searches of the files on their electronic devices are unreasonable under the Fourth Amendment because they are a substantial intrusion into travelers' privacy and dignity interests.
The Fourth Circuit Court of Appeals
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
, addressing a challenge to Customs' authority to search electronic files in United States v. Ickes, held that there is no First Amendment exception to the border search doctrine for expressive materials . The Court based its finding in part on the demands of protecting the nation from terrorist threats that may cross the American border in expressive materials. in its analysis, the Court stated:
The border search doctrine is justified by the longstanding right of the sovereign to protect itself. Particularly in today's world, national security interests may require uncovering terrorist communications, which are inherently “expressive.” Following Ickes's logic would create a sanctuary at the border for all expressive material-even for terrorist plans. This would undermine the compelling reasons that lie at the very heart of the border search doctrine."
Ickes did not directly address the required level of suspicion for laptop searches because customs officers in this case met the reasonable suspicion standard. However, the only court to address the Fourth Amendment protections of laptops at the national border held that customs may search any electronic device at the border without any level of suspicion. In United States v. Arnold
United States v. Arnold
United States v. Arnold, 523 F.3d 941 , is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that the Fourth Amendment to the United States Constitution does not require government agents to have reasonable suspicion before searching laptops or other...
, the Ninth Circuit Court of Appeals
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
rejected a defendant's contention that search of travelers' files on a laptop computer intrude upon a person's dignity and privacy interests to the same degree as searches of a traveler's body. Instead, the court ruled that searches of electronic materials are legally equivalent to searches of property. As such, Customs' authority to search electronic materials at the border are limited in only two ways: (1) the search may not cause exceptional damage to the property; and (2) the search may not be conducted in "a particularly offensive manner." These restrictions are applicable to all border searches of property, at least under the jurisdiction of these courts. According to Arnold, the characteristics that make electronic storage devices unique, including vast storage capacity and the ability to track its user's habits, tastes, and preferences, are not legally significant. Additionally, the Ninth Circuit held that searching through personal electronic information in a laptop does not constitute an "offensive search."
Although the Supreme Court has not addressed the standard of suspicion necessary for a warrantless border search of electronic materials, the only jurisprudence thus far, guided by Ickes and Arnold, suggests that customs officers may search any electronic materials (including laptops, CDs, MP3 players, cellular phones, and digital cameras) randomly, without any suspicion, and without any first amendment restrictions.
One major impact of these cases is that commerce may be exceptionally impacted. Sensitive business information, academic materials for conferences, and other types of valuable information may be delayed by these practices. Some devices may be held for years, effectively making this a deprivation of property under the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. Sensitive information that is withheld that long could lose all value. Many devices depreciate in value over time due to introduction of new devices, and this depreciation of the physical device could also be considered a taking.
Searches of travelers' bodies
Unlike property searches, searches of travelers’ bodies are highly intrusive and implicate travelers’ most fundamental privacy and dignity interests. Thus, before customs can order a traveler to disrobe, conduct an internal body cavity search, or force the traveler to submit to an involuntary x-ray of the traveler’s body, the customs officer must have reasonable suspicionReasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
to believe the search will reveal contraband, and may have to have a higher standard or court-reviewed warrant for some of the more invasive searches.
In the border search context, reasonable suspicion means that the facts known to the customs officer at the time of the search, combined with the officer's reasonable inferences from those facts, provides the officer with a particularized and objective basis for suspecting that the search will reveal contraband. To form a basis for reasonable suspicion, a customs officer may rely on his training and prior experience, and may rely on entirely innocent factors, if the totality of the circumstances provide the officer with reasonable suspicion.