The 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.
Under what is typically referred to as the “border search exception” to the Fourth Amendment, federal officers may generally conduct warrantless searches of persons and items upon their entry into the United States without needing reasonable suspicion or probable cause of wrongdoing.1 The Supreme Court has stated, “[t]hat 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, should, by now, require no extended demonstration.” 2 The Court has cited a lower expectation of privacy at the border, articulating that “the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border.” 3 While searches subject to this reduced Fourth Amendment scrutiny may potentially take place along any segment of the international border, stops and searches may also occur at the “functional equivalent” of the border, including international airports in the United States and post offices receiving international airmail.4
When determining whether a border search or detention is reasonable, courts have generally distinguished between routine and nonroutine searches and seizures—with the latter requiring a level of particularized suspicion of illegal activity. The Supreme Court has described a nonroutine search or seizure as one that goes beyond a limited intrusion, such as prolonged detentions, strip searches, body cavity searches, and involuntary x-ray searches.5
In United States v. Montoya de Hernandez, the Supreme Court ruled that a sixteen hour detention of an arriving airline traveler from Colombia did not violate the Fourth Amendment—even though it went beyond the scope of a routine customs inspection—because it was based on reasonable suspicion that she was smuggling contraband.6 Additionally, according to the Court, an extended detention as a result of a border search may be constitutionally permissible if the detention “was reasonably related in scope to the circumstances which justified it initially.” 7
In United States v. Flores-Montano, the Supreme Court held that federal officers may search motor vehicles at the border without a warrant, reasonable suspicion, or probable cause, even to the extent of removing, disassembling, and reassembling the fuel tank.8 The Court observed, however, that there may be circumstances in which a search of a vehicle at the international border would “be deemed unreasonable because of the particularly offensive manner in which it is carried out.” 9
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Footnotes
- 1
- See Montoya de Hernandez, 473 U.S. at 538 ( “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. Ramsey, 431 U.S. 606, 616–19 (1977); Almeida-Sanchez v. United States, 413 U.S. 266, 272–73 (1973); Carroll v. United States, 267 U.S. 132, 154 (1925) ( “Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country identify himself as entitled to come in and his belongings as effects which may be lawfully brought in.” ).
- 2
- United States v. Ramsey, 431 U.S. 606, 616 (1977) (sustaining warrantless search of incoming mail). See also Illinois v. Andreas, 463 U.S. 765, 773 (1983) (sustaining a customs inspector’s opening of a locked container that had been shipped from abroad).
- 3
- United States v. Montoya de Hernandez, 473 U.S. 531, 540 (1985).
- 4
- Id. at 538 (examining the detention and search of an air traveler arriving at an airport in the United States on an international flight); Ramsey, 431 U.S. at 620 (rejecting any distinction between items mailed to the United States and items carried into the United States); Almeida-Sanchez, 413 U.S. at 272–73 (describing the border’s functional equivalent to include an international airport or “an established station near the border, at a point marking the confluence of two or more roads that extend from the border” ).
- 5
- Montoya de Hernandez, 473 U.S. at 541 n.4. The Supreme Court has not explicitly defined the scope of searches that may be categorized as routine. According to lower courts, routine searches generally include searches of automobiles, baggage, purses, wallets, outer clothing, and other goods entering the country. See, e.g., Angulo v. Brown, 978 F.3d 942, 949 (5th Cir. 2020) ( “The Government does not need to show any level of suspicion to thoroughly search an entrant’s vehicle at the border.” ); Bradley v. United States, 299 F.3d 197 (3d Cir. 2002) (pat down over clothing); United States v. Johnson, 991 F.2d 1287 (7th Cir. 1993) (suitcase, purse, wallet, and overcoat); United States v. Sandoval Vargas, 854 F.2d 1132 (9th Cir. 1988) (car); United States v. Braks, 842 F.2d 509 (1st Cir. 1988) (dress); United States v. Flores, 594 F.2d 438 (5th Cir. 1979) (car); United States v. Lafroscia, 485 F.2d 457 (2d Cir. 1973) (car); United States v. Gonzalez, 483 F.2d 223 (2d Cir. 1973) (baggage); United States v. Stornini, 443 F.2d 833 (1st Cir. 1971) (baggage).
- 6
- Montoya de Hernandez, 473 U.S. at 541. For more discussion about reasonable suspicion, see Amdt4.6.5.1 Terry Stop and Frisks Doctrine and Practice.
- 7
- Montoya de Hernandez, 473 U.S. at 542; see also United States v. Flores-Montano, 541 U.S. 149, 155 n.3 (2004) (noting that a 1-hour delay incident to a border search did not render the search into one requiring reasonable suspicion, reasoning that “delays of one to two hours at international borders are to be expected” ).
- 8
- Flores-Montano, 541 U.S. at 155.
- 9
- Id. at 155 n.2 (internal quotation omitted).