Protecting the U.S. Perimeter: "Border Searches" under the Fourth Amendment

Protecting the U.S. Perimeter:
“Border Searches” Under
the Fourth Amendment
Updated June 27, 2008
Yule Kim
Legislative Attorney
American Law Division

Protecting the U.S. Perimeter: “Border Searches”
Under the Fourth Amendment
Many border security initiatives were developed after the events of September

11, 2001.1 Because security initiatives often contain a search and seizure component,

Fourth Amendment implications may arise. The Fourth Amendment establishes that
a search or seizure conducted by a governmental agent must be reasonable, and that
probable cause supports any judicially granted warrant. The Supreme Court has
interpreted the Fourth Amendment to include a presumptive warrant requirement on
all searches and seizures conducted by the government, and has ruled that any
violations of this standard will result in the suppression of any information derived
therefrom. The Supreme Court, however, has also recognized situations that render
obtaining a warrant impractical or against the public’s interest, and has accordingly
crafted various exceptions to the warrant and probable cause requirements of the
Fourth Amendment.
Few exceptions to the presumptive warrant and probable cause requirements are
more firmly rooted than the “border search” exception. Pursuant to the right of the
United States to protect itself by stopping and examining persons and property
crossing into the country, routine border searches are reasonable simply by virtue of
the fact that they occur at the border. Courts have recognized two different legal
concepts for authorizing border searches away from the actual physical border: (1)
searches at the functional equivalent of the border; and (2) extended border searches.
Courts have determined that border searches usually fall into two categories —
routine and non-routine — though this bifurcation may no longer apply to vehicle
searches. Generally, the distinction between “routine” and “non-routine” turns on the
level of intrusiveness. Routine border searches are reasonable simply by virtue of the
fact that they occur at the border and consist of only a limited intrusion, while non-
routine searches generally require “reasonable suspicion” and vary in technique and
intrusiveness. Though related to a border search, the suspicionless screening of
passengers boarding an airplane is based on a different Fourth Amendment
This report addresses the scope of the government’s authority to search and
seize individuals at the border pursuant to the constitutional framework that
encompasses the border search exception to the warrant and probable cause
requirements of the Fourth Amendment. This report also describes the varying levels
of suspicion generally associated with each type of border search as interpreted by
the courts. In addition, this report highlights some of the border security
recommendations made by the 9/11 Commission and legislative actions taken in the
108th, 109th, and 110th Congresses. This report does not address interior searches and
seizures performed by immigration personnel since they are not traditional “border
searches” in the Court’s view. It will be updated as warranted.

1 This report was originally prepared by Stephen R. Vina. Yule Kim has rewritten and
updated the report. He is available to answer questions about the issues.

In troduction ......................................................1
Statutory Authorization .............................................2
Customs Officials.........................................2
Immigration Officers.......................................3
The Fourth Amendment.............................................5
Searches .................................................5
Seizures .................................................6
Immigration Seizures.......................................6
Border Searches...................................................7
Functional Equivalent..........................................7
Extended Border Search.........................................8
Types of Searches and Seizures at the Border............................9
Searches and Seizures of People and their Belongings.................9
Routine Searches..........................................9
Non-Routine Searches.....................................11
Searches and Seizures of Vehicles................................16
Searches of Electronic Storage Devices............................18
The 9/11 Commission Recommendations and Legislative Action on Border
Security ....................................................19

Protecting the U.S. Perimeter:
“Border Searches” Under
the Fourth Amendment
United States border policy seeks to balance legitimate cross-border commerce
and travel with the right of the sovereign to protect itself from terrorist activities,
illegal immigrants, and contraband. The events of September 11, 2001, refocused
attention on where the balance should be, and new security initiatives were
developed. Congress has acted on many of the recommendations of the 9/11
Commission, and those recommendations and other proposals continue to receive
congressional attention.
Security initiatives, however, often contain a search and seizure component that
implicate Fourth Amendment protections. The Fourth Amendment mandates that a
search or seizure conducted by a governmental agent be reasonable, and that probable
cause support any judicially granted warrant. Although the Supreme Court has
interpreted the language of the Fourth Amendment as imposing a presumptive
warrant requirement on all searches and seizures conducted by governmental
authority, the Court has recognized exceptions. Few exceptions to the usual Fourth
Amendment requirements are more firmly rooted in the history of the United States
than the “border search” exception. Based on the inherent authority of a sovereign
nation to regulate who and what comes within it, routine border searches are
reasonable simply by virtue of the fact that they occur at the border.
Routine searches are usually very limited intrusions into a person’s privacy,
generally consist of document checks or a patdown or the emptying of pockets, and
do not require suspicion of criminal activity to be conducted. Similarly, limited
inspections of cars generally do not require suspicion. Furthermore, upon a
“reasonable suspicion” of smuggling or other illegal activity, government officials
may generally conduct a non-routine border search. Non-routine searches may
include destructive searches of inanimate objects, prolonged detentions, strip
searches, body cavity searches, and X-ray searches. Although there is support to
require a stronger suspicion requirement for some non-routine border searches, courts
have interpreted Supreme Court precedent as warning against the development of
multiple gradations of suspicion in the context of non-routine border searches.

Statutory Authorization
There are two statutory provisions that confer border search powers on agents
of the United States: R.S. § 3061, which allows customs officials to conduct searches
of persons, vehicles, and mail at the border, and Section 287 of the Immigration and
Nationality Act (INA), which gives immigration officers broad powers to interrogate,
detain, and search individuals and vehicles. Both statutes have been interpreted to
authorize searches and arrests without warrant or probable cause. However, the
exercise of these powers still must comport with the requirements of the Fourth
Customs Officials. R.S. § 3061,2 also found in 19 U.S.C. § 482, is the
statutory provision that authorizes customs officials to conduct searches for
unlawfully imported materials. The provision specifically confers upon customs
officials who are authorized to board and search sea vessels the additional power to
search “any vehicle, beast, or person,” on which an official suspects there is
merchandise subject to U.S. duties or that has been introduced inside the United
States contrary to law.3 Federal courts have interpreted this to mean that customs
officials are empowered to search vehicles for both aliens and contraband.4 A
customs official need not have a warrant or probable cause in order to conduct a
border search.5 However, even though border searches do not have to comply with
the Fourth Amendment warrant requirements, they still have to be “reasonable” in
light of the circumstances.6
Furthermore, customs officials may also search “any trunk or envelope,
wherever found,” in which an official has “reasonable cause” to suspect there is
merchandise imported contrary to law.7 The U.S. Supreme Court has interpreted “any
trunk or envelope” to include all international mail entering the United States.8 This
means customs officials need not have probable cause, nor must they procure a
warrant, to commence a search of a piece of international mail.9 However, even
though a customs official may conduct a border search of incoming international

2 Act of July 18, 1866, ch. 201, § 3, 14 Stat. 178 (codified at 19 U.S.C. § 482).
3 19 U.S.C. § 482.
4 United States v. Rivera, 595 F.2d 1095 (5th Cir. 1979); United States v. Bilir, 592 F.2d 735
(4th Cir. 1979).
5 United States v. Glaziou, 402 F.2d 8 (2d Cir. 1968); United States v. Berard, 281 F. Supp.

328 (D. Mass. 1968).

6 United States v. Montoya de Hernandez, 473 U.S. 53, 539 (1985) (“Having presented
herself at the border for admission, and having subjected herself to the criminal enforcement
powers of the Federal Government, respondent was entitled to be free from unreasonableth
search and seizure.”). See also United States v. Bilir, 592 F.2d 735 (4 Cir. 1979); United
States v. Bowman, 502 F.2d 1215 (1974).
7 19 U.S.C. § 482.
8 United States v. Ramsey, 431 U.S. 606 (1977).
9 Id. at 612-613.

mail, the search is still “subject to the substantive limitations imposed by the
Immigration Officers. Section 287 of the Immigration and Nationality Act
(INA) expressly confers upon immigration officers broad powers to question and
detain individuals without warrant. Immigration officers may, without warrant,11
interrogate an alien about his right to be within the United States. Furthermore,
immigration officers may also arrest without warrant:
!any alien who, in the presence of the officer, is attempting to enter12
the United States in violation of the federal immigration laws;
!any alien who the officer has a reason to believe is an alien currently
within the United States in violation of the federal immigration
!any person for any felony regulating the admission or removal of
!any person for any offense against the United States committed in
the presence of the officer;15 or
!any person for any felony if the officer has reasonable grounds to
believe the person committed the felony, the arrest was made while
the officer was performing duties relating to the enforcement of the
federal immigration laws, there is a likelihood that the suspect would
escape before a warrant can be obtained, and the officer is properly
certified to make those types of arrests.16

10 Id. at 619.
11 INA § 287(a)(1), 8 U.S.C. § 1357(a)(1) (authorizing any officer or employee “to
interrogate any alien or person believed to be an alien as to his right to be or remain in the
United States” without obtaining a warrant).
12 INA § 287(a)(2), 8 U.S.C. § 1357(a)(2) (authorizing any officer or employee “to arrest any
alien who in [the officer’s] presence or view is entering or attempting to enter the United
States in violation of any law or regulation made in pursuance of law regulating the
admission, exclusion, expulsion, or removal of aliens,” or “arrest any alien in the United
States, if [the officer] has reason to believe that the alien so arrested is in the United States
in violation of any such law or regulation and is likely to escape before a warrant can be
obtained for his arrest.”)
13 Id.
14 INA § 287(a)(4), 8 U.S.C. § 1357(a)(4) (authorizing any officer or employee “to make
arrests for felonies which have been committed and which are cognizable under any law of
the United States regulating the admission, exclusion, expulsion or removal of aliens, if he
has reason to believe that the person so arrested is guilty of such felony and if there is
likelihood of the person escaping before a warrant can be obtained for his arrest.”)
15 INA § 287(a)(5)(A), 8 U.S.C. § 1357(a)(5)(A).
16 INA § 287(a)(5)(B), 8 U.S.C. § 1357(a)(5)(B). See also 8 C.F.R. § 287.5(c)(4).

Immigration officers may also conduct searches without warrant. The INA
expressly authorizes immigration officers, within “a reasonable distance”17 from the
external boundary of the United States,18 to search any land-based vehicle or
conveyance, and any vessel within U.S. territorial waters.19 Immigration officers may
also without warrant have access to any private lands located within 25 miles of the
U.S. border, but not dwellings, for the purpose of patrolling for aliens illegally
entering the United States.20 Moreover, immigration officers, authorized and
designated under prescribed regulations, have the power to search, without warrant,
a person and the personal effects in his possession, if the person seeks admission to
the United States and the officer has reasonable cause to suspect that grounds exist
for denial of admission that would be disclosed by a search.21
When Congress conferred the power to interrogate and detain aliens without
warrant upon immigration officers, it did not add any additional statutory limitations
to the power, thereby granting it to the fullest extent permissible under the Fourth
Amendment.22 However, an immigration officer’s powers to make arrests or conduct
searches without warrant are still subject to constitutional constraints, and any
exercise of the power must satisfy the Fourth Amendment requirement that all
searches and seizures be reasonable.23 As discussed below, the “reasonableness” of
a search or arrest varies depending on the surrounding circumstances, which include
the justifications for the search, the scope, place, and manner of the search, and
whether an appropriate exception to the Fourth Amendment’s warrant requirement

17 INA §287(a)(3), 8 U.S.C. § 1357(a)(3), authorizes searches without warrant “within a
reasonable distance from any external boundary of the United States.” “Reasonable
distance” is defined by 8 C.F.R. § 287.1(a)(2) to mean “within 100 air miles from any
external boundary of the United States or any shorter distance which may be fixed by the
chief patrol agent of CBP, or the special agent in charge of ICE . . .”
18 “External boundary” is defined by 8 C.F.R. § 287.1(a)(1) to mean “the land boundaries
and the territorial sea of the United States extending 12 nautical miles from the baselines of
the United States determined in accordance with international law.”
19 INA § 287(a)(3), 8 U.S.C. § 1357(a)(3).
20 Id.
21 INA § 287(c), 8 U.S.C. § 1357(c).
22 Zepeda v. INS, 753 F.2d. 719, 726 (9th Cir. 1983). See also Babula v. INS, 665 F.2d 293
(3d Cir. 1981).
23 United States v. Brignoni-Ponce, 422 U.S. 873 (1975). See also United States v. Rogers,
436 F. Supp. 1 (E.D. Mich. 1976) (holding that the Fourth Amendment prohibits
identification stops by roving patrols which are not based on articulable suspicion of illegal
activity); Illinois Migrant Council v. Pilliod, 531 F. Supp. 1011 (N.D. Ill. 1982) (holding
that the Fourth Amendment prohibits INS from conducting investigatory seizures based only
on reasonable suspicion that a person seized is an alien).

The Fourth Amendment
The Fourth Amendment mandates that a search or seizure conducted by a24
government agent must be reasonable, and that probable cause must support any
judicially granted warrant.25 Although the Supreme Court has interpreted the
“reasonableness” standard of the Fourth Amendment to impose a presumptive
warrant requirement and individualized suspicion,26 the Court has recognized
“specifically established exceptions” to the warrant and probable cause requirements
of the Fourth Amendment.27
At its broadest, a Fourth Amendment analysis is a two-stage inquiry: (1)
whether the government action was sufficiently intrusive to constitute a “search” or
“seizure” and (2) whether the intrusion was “reasonable” in light of the28
circumstances. “Reasonableness” of a government action is judged by balancing
the governmental interest justifying the intrusion against a person’s legitimate
expectation of privacy. A Fourth Amendment violation occurs when the government
intrusion constituting the “search” or “seizure” is not reasonable in light of these
interests. While a violation of the Fourth Amendment may result in the suppression
of any information derived therefrom in a judicial proceeding, such a rule does not29
apply to deportation proceedings.
Searches. A “search” does not occur for purposes of the Fourth Amendment
unless (1) the individual exhibits “an actual (subjective) expectation of privacy” in
the searched object and (2) society is willing to recognize that expectation as
reasonable.30 Legitimate expectations of privacy must have a source outside of the
Fourth Amendment, either by reference to concepts of real or personal property law
or to understandings that are recognized and permitted by society.31 For example,
where the government uses a remote surveillance device that is not in general public
use to explore physical activities within a home or other “constitutionally protected

24 The Supreme Court has interpreted probable cause to mean “a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 238 (1983). See also Ornelas v. United States, 517 U.S. 690, 696 (1996).
25 U.S. Const., Amend. IV.
26 Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the
judicial process without prior approval by judge or magistrate are per se unreasonable under
the Fourth Amendment — subject only to a few specifically established and well delineated
27 Camara v. Municipal Court, 387 U.S. 523, 539-540 (1967).
28 See Oliver v. United States, 466 U.S. 170, 177-78 (1984). See also Walter v. United
States, 447 U.S. 649, 656 (1980) (noting that a wrongful search or seizure conducted by a
private party does not violate the Fourth Amendment).
29 INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). See also Mapp v. Ohio, 367 U.S. 643, 648
(1961) (exclusionary rule in general).
30 Katz, 389 U.S. at 361 (Harlan, J., concurring).
31 Minnesota v. Carter, 525 U.S. 83, 88 (1998).

area” that would have been otherwise unknowable without physical intrusion, the
surveillance is a “search” and is presumptively unreasonable without a warrant.32
Seizures. Seizures may be of individuals or property. The Supreme Court has
described a seizure of property as “some meaningful interference with an individual’s
possessory interests in that property.”33 An individual is “seized” when a government
official makes a person reasonably believe that he is not at liberty to ignore the
government’s presence and go about his business in view of all the circumstances34
surrounding the incident. Additionally, a refusal to cooperate, without more, does
not furnish the minimal level of objective justification needed for a detention or35
seizure. A seizure of a person, therefore, can include full arrests, investigatory
detentions, checkpoint stops for citizenship inquiries, and detentions of a person
against his will.
Immigration Seizures. A consensual encounter in which an immigration
officer questions an alien about his identity is not necessarily a Fourth Amendment
seizure even if the alien is unaware that he has a right not to answer.36 Furthermore,
“questioning about immigration status, in the absence of a seizure, does not require
reasonable suspicion of alienage.”37 However, there is a Fourth Amendment seizure
if “the circumstances are so intimidating as to demonstrate that a reasonable person
would have believed he was not free to leave if he had not responded.”38 Generally,
in order to detain, without warrant, a person for questioning, an immigration officer
must have “a reasonable suspicion based on articulable facts, that the person being
questioned is, or is attempting to be, engaged in an offense against the United States
or is an alien illegally in the United States.”39

32 Kyllo v. United States, 533 U.S. 27, 40 (2001).
33 Sodal v. Cook County, 506 U.S. 56, 61 (1992) quoting United States v. Jacobsen, 466 U.S.

109, 113 (1984).

34 Florida v. Bostick, 501 U.S. 429, 437 (1991) citing Michigan v. Chesternut, 486 U.S. 567,

573 (1988). See also United States v. Mendenhall, 446 U.S. 544 (1980); Brendlin v.

California, 127 S. Ct. 2400 (2007).
35 INS v. Delgado, 466 U.S. 210, 216 (1984).
36 Delgado, 466 U.S. at 216; United States v. Rodriguez-Franco, 749 F.2d 1555, 1560 (11th
Cir. 1985). See also 8 C.F.R. § 287.8(b)(1) (“An immigration officer, like any other person,
has the right to ask questions of anyone as long as the immigration officer does not restrain
the freedom of an individual, not under arrest, to walk away.”).
37 Zepeda, 753 F.2d at 731. See also Cuevas-Ortega v. INS, 588 F.2d 1274 (9th Cir. 1979);
Cordon de Ruano v. INS, 588 F.2d 1274 (9th Cir. 1977).
38 Delgado, 466 U.S. at 216. See also Zepeda, 753 F.2d at 730.
39 8 C.F.R. § 287.8(b)(2).

Border Searches
Warrantless searches are per se unreasonable under the Fourth Amendment,
unless a court determines that the search is subject to an established exception. The
border search is a well-recognized and long established exception to the Fourth
Amendment’s probable cause and warrant requirements. Authorized by the First
Congress,40 the border search exception has a history older than the Fourth
Amendment and obtains its broad power from Congress’s authority to regulate
commerce with foreign nations and to enforce immigration laws.41 The Fourth
Amendment does not require warrants or probable cause for routine stops and
searches at the border because the power to control who or what comes within its42
borders is an inherent attribute of national sovereignty.
Although the border search is an exception to the Fourth Amendment’s warrant
and probable cause requirements, it is not exempt from the Fourth Amendment’s
“reasonableness” standard because a “search” has still occurred (i.e., the
government’s search is still subject to a balancing test).43 Courts have determined
that border searches usually fall into two categories — routine and non-routine —
though the Supreme Court has arguably suggested that this bifurcation may no longer
be appropriate for vehicular searches. Generally, the distinction between “routine”
and “non-routine” turns on the level of intrusiveness. Routine border searches are
reasonable simply by virtue of the fact that they occur at the border and consist of
only a limited intrusion, while non-routine searches generally require reasonable
suspicion and vary in technique and intrusiveness. Border searches may occur when
entry is made by land from the neighboring countries of Mexico or Canada, at the
place where a ship docks in the United States after having been to a foreign port, and
at any airport in the country where international flights first land. In general,
authorities at the border may search a person entering or leaving the country, an
individual’s automobile, baggage, or goods, and inbound and outbound international
Functional Equivalent
The border search exception extends to those searches conducted at the
“functional equivalent” of the border. The “functional equivalent” of a border is
generally the first practical detention point after a border crossing or the final port of

40 Act of July 31, 1789, ch.5 §§23-24, 1 Stat. 29, 43 (current version at 19 U.S.C. §§482,


41 United States v. Ramsey, 431 U.S. 606, 619 (1977) (citing U.S. Const., Art. I, §8, cl. 3).
42 See Ramsey, 431 U.S. at 616. It should be noted that many of nation’s border security
agencies or functions have been transferred to the newly created Department of Homeland
Security. See P.L. 107-296. For purposes of consistency, this report refers to agency names
as maintained in the case law.
43 Marsh v. United States, 344 F.2d 317, 324 (5th Cir. 1965).

entry.44 It is justified because in essence, it is no different than a search conducted
at the border and occurs only because of the impossibility of requiring the subject
searched to stop at the physical border. A search occurs at the border’s functional
equivalent when: (1) a reasonable certainty exists that the person or thing crossed the
border; (2) a reasonable certainty exists that there was no change in the object of the
search since it crossed the border; and (3) the search was conducted as soon as
practicable after the border crossing.45 Places such as international airports within
the country and ports within the country’s territorial waters or stations at the
intersection of two or more roads extending from the border exemplify such
functional equivalents.46 In general, courts have given the “border” a geographically
flexible reading because of the significant difficulties in detecting the increasingly
mobile smuggler.
Extended Border Search
The border search exception may be extended to allow warrantless searches
beyond the border or its functional equivalent. Under the “extended border search”
doctrine, government officials may conduct a warrantless search beyond the border
or its functional equivalent if (1) the government officials have reasonable certainty
or a “high degree of probability” that a border was crossed; (2) they also have
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) they have “reasonable
suspicion” that criminal activity was occurring.47 This three-part test ensures that a
suspect still has a significant nexus with a border crossing so that border officials can
reasonably base their search on statutory and constitutional authority and to ensure
that the search is reasonable.48
Although a search at the border’s functional equivalent and an extended border
search require similar elements, the extended border search entails a greater intrusion
on a legitimate expectation of privacy, and thus, requires a showing of “reasonable
suspicion” of criminal activity. Another difference between the functional equivalent
of a border search and an extended border search is that the latter takes place after the
first point in time when the entity might have been stopped within the country.49 For
example, in United States v. Teng Yang, the Seventh Circuit upheld an extended

44 Thirty-First Annual Review of Criminal Procedure; Border Searches, 90 Geo. L.J. 1087,

1190 (2002) (9th Cir. 1973).

45 See United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991).
46 Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).
47 “Reasonable certainty” in this context has been defined as a standard which requires more
than probable cause, but less than proof beyond a reasonable doubt. United States
Cardenas, 9 F.3d 1139, 1148 (5 Cir. 1993); see, e.g., Delgado, 810 F.2d at 482. In
Delgado, smugglers used a foot-bridge to transfer narcotics to delivery trucks on a farm near
El Paso, Texas. The court upheld an extended border search conducted on a farm road near
and leading from the border but otherwise away from the official border checkpoint.
48 United States v. Teng Yang, 286 F.3d. 940, 946 (7th Cir. 2002).
49 United States v. Niver, 689 F.2d 520, 526 (5th Cir. 1982).

border search that occurred at an international airport but at a time after the
Defendant’s initial inspection process and at a location away from the designated
U.S. border inspection sites.50 The court determined that “[i]t is the enforcement of
the customs laws combined with the mandate of protecting the border of the United
States that permits the extension of the search rights of border authorities to allow
non-routine searches in areas near our nation’s borders.”51 Because of the dynamics
of cross-border travel, the extended border search doctrine has gained wide
acceptance among the courts because it strikes a sensible balance between the
legitimate privacy interests of the individual and societal interests in the enforcement
of border security laws.52
Types of Searches and Seizures at the Border
As mentioned above, courts have generally analyzed all the various types of
border searches under a routine/non-routine scheme. Recent courts, however, have
interpreted a Supreme Court ruling to suggest that this type of division may no longer
be appropriate for vehicular searches. The following paragraphs examine the typical
routine/non-routine analysis for persons and their belongings and then discuss border
searches for vehicles.
Searches and Seizures of People and their Belongings
Routine Searches. In order to regulate the collection of duties and to prevent
the introduction of illegal aliens and contraband into this country, Congress has
granted the Executive plenary power to conduct routine searches of persons and their53
personal belongings without reasonable suspicion, probable cause, or a warrant. In
fact, routine searches made at the border require no suspicion and are “reasonable”54
simply by the fact that they occur at the border. A routine border search is a search

50 286 F.3d. 940 (7th Cir. 2002).
51 Id. at 947.
52 See, e.g., Teng Yang, 286 F.3d. 940; United States v. Sahanaja, 430 F.3d 1049 (9th Cir.

2005); United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1989); United States

Caicedo-Guarnizo, 723 F.2d 1420 (9 Cir. 1984); United States v. Garcia, 672 F.2d 1349thth
(11 Cir. 1982); United States v. Bilir, 592 F.2d 735 (4 Cir. 1979).
53 See, e.g., 8 U.S.C. §1357(c) (authorizing immigration officials to search without a warrant
persons entering the country for evidence which may lead to the individual’s exclusion); 19
U.S.C. §1496 (authorizing customs officials to search the baggage of person entering the
country); 19 U.S.C. §1582 (authorizing customs officials to detain and search all persons
coming into the United States from foreign countries). See also United States v. Montoya
de Hernandez, 473 U.S. 531, 538 (1985).
54 United States v. Odland, 502 F.2d 148 (7th Cir. 1974) citing Carroll v. United States, 267
U.S. 132, 153 (1925). Some courts have indicated a need for “mere suspicion” to conduct
a routine border search, which usually requires at least some knowledge identifying anth
individual as a suspect. See, e.g., Rodriguez-Gonzalez v. United States, 378 F.2d 256 (9
Cir. 1967) (also using the term “unsupported suspicion”). This standard, however, is an

that does not pose a serious invasion of privacy or offend the average traveler.55 For
example, a routine border search may consist of limited searches for contraband or
weapons through a pat-down,56 the removal of outer garments such as jackets, hats,
or shoes, the emptying of pockets, wallets, or purses,57 the use of a drug-sniffing
dog,58 the examination of outbound materials,59 and the inspection of luggage.60
Similar to routine searches, border searches of vehicles generally do not require any
articulable level of suspicion unless the agency action is especially destructive or
intrusive (see later discussion).61 The consistent approval of routine border searches
by courts reflects a longstanding concern for the protection of the integrity of the
It has long been established that an individual’s reasonable expectation of
privacy is lower at the border than in the interior of the country. Because a person
crossing the border is on notice that a search may be likely, his privacy is “less
invaded by those searches.”62 Routine border searches are also arguably less intrusive
because they are administered to a class of people (international travelers) rather than

54 (...continued)
inaccurate articulation of the general rule that no suspicion is required. See Odland, 502
F.2d at 151 (“Any person or thing coming into the United States is subject to search by that
fact alone, whether or not there be any suspicion of illegality directed to the particular
person or thing to be searched.”); Bradley v. United States, 299 F.3d 197, n.7 (3d Cir. 2002)
(stating “mere suspicion” standard effectively overruled by Montoya de Hernandez).
55 United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993).
56 See, e.g., United States v. Beras, 183 F.3d 22, 24 (1st Cir. 1999) (holding that a patdown
of an international traveler’s legs was not intrusive enough to qualify as non-routine).
57 United States v. Sandler, 644 F.2d 1163, 1169 (5th Cir. 1981).
58 United States v. Kelly, 302 F.3d 291, 294-95 (5th Cir. 2002) (sniff by a dog of a person at
the border upheld as a routine border search); cf. United States v. Garcia-Garcia, 319 F.3dth
726, 730 (5 Cir. 2003) (dog sniff of a person on a bus at an immigration checkpoint upheld
and seen as analogous to a pat down).
59 United States v. Kolawole Odutayo, 406 F.3d 386, 392 (5th Cir. 2005) (joining sister
circuits in holding that the border search exception applies for all outgoing searches at the
60 United States v. Okafor, 285 F.3d 842 (9th Cir. 2002) (finding an X-ray examination and
subsequent probe of luggage a routine search because it requires no force, poses no risk to
the bag’s owner or to the public, causes no psychological fear, and does not harm theth
baggage); United States v. Lawson, 461 F.3d 697, 701 (6 Cir. 2006) (accepting the
“commonsense conclusion that customs officers may x-ray an airline passenger’s luggage
at the border without reasonable suspicion”).
61 United States v. Flores-Montano, 541 U.S. 149 (2004) (no suspicion required for the
disassembly, removal, and reassembly of a vehicle’s fuel tank).
62 Gary N. Jacobs, Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007,
1012 (1968). It should also be noted that the “reasonable person” test presupposes an
innocent person. Bostick, 501 U.S. at 437.

to individuals.63 The degree of intrusiveness or invasiveness associated with the
particular technique is particularly indicative of whether a search is routine. The First
Circuit, for example, compiled a nonexhaustive list of six factors to be considered:
(1) whether the search required the suspect to disrobe or expose any intimate body
parts; (2) whether physical contact was made with the suspect during the search; (3)
whether force was used; (4) whether the type of search exposed the suspect to pain
or danger; (5) the overall manner in which the search was conducted; and (6) whether
the suspect’s reasonable expectations of privacy, if any, were abrogated by the
search. 64
Non-Routine Searches. Once a personal search by a government official
goes beyond a limited intrusion, a court may determine that a non-routine search has
occurred. Non-routine border searches may include destructive searches of inanimate
objects, prolonged detentions, strip searches, body cavity searches, and some X-ray65
examinations. At the very least, it appears courts require a government official
have a “reasonable suspicion” of illegal activity to conduct a non-routine border66
search on an individual entering the country. The reasonable suspicion standard
generally requires an officer at the border to have “a particularized and objective67
basis for suspecting the particular person” of wrongdoing. For example, in United
States v. Forbicetta, the court found reasonable suspicion to exist where Customs
officials acted on the following objective facts: the suspect (1) arrived from Bogota,
Colombia, (2) was traveling alone, (3) had only one suitcase and no items requiring
Customs inspection, (4) was young, clean-looking, and attractive, and (5) was
wearing a loose-fitting dress.68 Some courts, however, have required a higher degree69

of suspicion to justify the more intrusive of the procedures.
63 77 Yale L.J. 1007, 1012 (1968).
64 United States v. Braks, 842 F.2d 509, 511-12 (1st Cir. 1988). The Braks court concluded
that only strip searches and body cavity searches are consistently non-routine.
65 See, e.g., United States v. Reyes, 821 F.2d 168, 170-71 (2d Cir. 1987) (strip search);
United States v. Oyekan, 786 F.2d 832, 837 (8th Cir. 1986) (strip search); United States
Adekunle, 2 F.3d 559, 562 (5 Cir. 1993) (continued detention and X-ray examination ofth
alimentary canal); United States v. Rivas, 157 F.3d 364, 367 (5 Cir. 1998) (drilling of hole
into body of automobile).
66 Montoya de Hernandez, 473 U.S. at 541; United States v. Garcia-Garcia, 319 F.3d 726,
730 (5th Cir. 2003) (an alert by a drug sniffing dog provided reasonable suspicion to detain
a bus long enough to investigate the reason for the dog’s response).
67 See Montoya de Hernandez, 473 U.S. at 541 citing Terry v. Ohio, 392 U.S. 1, 21 (1968)
(“And in justifying the particular intrusion the police officer must be able to point to specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.”).
68 484 F.2d 645 (5th Cir. 1973). These factors taken together matched the “smuggling
profile” for narcotic carriers in that area, and thus, the court concluded there was a sufficient
basis to conduct the search. But see Reid v. Georgia, 448 U.S. 438, 441(1980) (rejecting the
argument that arrival from a source location could, by itself, provide reasonable suspicion).
69 See, e.g., United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994) (requiring the
higher “clear indication” standard for a body cavity search); United States v. Ek, 676 F.2d

The Supreme Court has not articulated the level of suspicion required for the
various non-routine border searches or the factors that render a border search routine
or non-routine;70 however, in United States v. Montoya de Hernandez the Supreme
Court concluded that a third suspicion standard (i.e., clear indication) in addition to
“reasonable suspicion” and “probable cause” was not consistent with the Fourth
Amendment’s emphasis upon reasonableness in the prolonged detention setting.71
The Court determined that the “clear indication” standard (a suggestion that is free
from doubt) was to be used to indicate the necessity for particularized suspicion,
“rather than as enunciating a third Fourth Amendment threshold between ‘reasonable
suspicion’ and ‘probable cause.’”72 Although the Court has not articulated a level of
suspicion for all non-routine searches, courts have viewed the Montoya de Hernandez
reasoning as a warning against the development of multiple gradations of suspicion
for non-routine border searches in general.73
Prolonged Detentions. Prolonged detentions are seizures conducted in
order to either verify or dispel an agent’s suspicion that a traveler will introduce a
harmful agent into the country through alimentary canal smuggling. In United States
v. Montoya de Hernandez, the Supreme Court was confronted with a passenger on
a flight from Bogota, Columbia, suspected of alimentary canal smuggling who
refused to consent to an X-ray examination. In an attempt to verify or dispel their
suspicions, Customs detained Ms. Montoya de Hernandez for over 16 hours and told
her she could not leave until she had excreted into a wastebasket.74
The Court determined “that the detention of a traveler at the border, beyond the
scope of a routine Customs search and inspection, is justified at its inception if
Customs agents, considering all the facts surrounding the traveler and her trip,
reasonably suspect that the traveler is smuggling contraband in her alimentary

69 (...continued)

379, 382 (9th Cir. 1982) (requiring a “clear indication” for X-ray search).

70 See Montoya de Hernandez, 473 U.S. at 541 n.4.
71 Id. at 541.
72 Id. at 540.
73 United States v. Charleus, 871 F.2d 265, 268 n.2 (2d Cir. 1989); United States v. Oyekan,

786 F.2d 832, 837-39 (8th Cir. 1986); Bradley v. United States, 299 F.3d 197, 202-04 (3dth

Cir. 2002). United States v. Aguebor, 1999 U.S. App. Lexis 25, at *9 (4 Cir. January 4,
1999) (this unpublished opinion is cited merely as an example and is not intended to have
precedential value). According to Professor LaFave, however, extending Montoya de
Hernandez to other non-routine searches would require a broad reading of the case, which
does not consider the fact that body cavity searches are more intrusive. See 4 Wayne R.
LaFave, Search and Seizure, A Treatise on the Fourth Amendment §10.5(e), 556 (3d ed.

1996 & Supp. 2003).

74 According to Professor LaFave, Montoya de Hernandez does not stand for a “detention
until defecation” proposition. The court narrowly decided that the particular detention “was
not unreasonably long” under “these circumstances.” In fact, the agents expected Ms. de
Hernandez to produce a bowel movement without extended delay because she had just
disembarked from a 10-hour flight. 4 Wayne R. LaFave, Search and Seizure, A Treatise on
the Fourth Amendment §10.5(b), 546 (3d ed. 1996 & Supp. 2003).

canal.”75 The Court concluded that it was reasonable to detain Ms. Montoya de
Hernandez for the period of time necessary to either verify or dispel the suspicion of
the agents in these circumstances. Courts have reasoned that “an otherwise
permissible border detention does not run afoul of the Fourth Amendment simply
because a detainee’s intestinal fortitude leads to an unexpectedly long period of
detention.”76 Notably however, the Fifth Circuit in United States v. Adekunle
concluded that the government must, within a reasonable time (generally within 48
hours), seek a judicial determination that reasonable suspicion exists to detain a
suspect for an extended period of time.77
In general, it seems that most prolonged detentions are classified as routine
searches. There appear to be no “hard-and-fast time limits” that would automatically
make a routine search rise to the level of a non-routine search,78 nor render a non-
routine search conducted under the reasonable suspicion standard unconstitutional.79
Rather, courts must consider “whether the detention of [the traveler] was reasonably
related in scope to the circumstances which justified it initially.”80 In order to provide
perspective, the 16 hour detention in Montoya de Hernandez was considered a non-
routine search (justifiable by reasonable suspicions),81 while the one hour vehicular
search in Flores-Montano was considered routine.82 The Second Circuit characterized
four- to six-hour-long detentions of individuals, suspected of terrorist ties because
of their association with an Islamic Conference that took place in Canada, as
Strip Searches. A strip search consists of removing one’s clothing either all
or in part to a state which would be offensive to the average person. Accordingly,
reviewing courts generally require the presence of reasonable suspicion that a person
is concealing something illegal on the place to be searched in order for such a search

75 Montoya de Hernandez, 473 U.S. at 541. See also United States v. Esieke, 940 F.2d 29
(2d Cir. 1991) (court upheld a detention of one and half days before first bowel movement
and another two and half days until all balloons were expelled); United States v. Yakubu,th

936 F.2d 936 (7 Cir. 1991) (16-hour detention upheld after refusal to be X-rayed).

76 Esieke, 940 F.2d at 35.
77 2 F.3d 559, 562 (5th Cir. 1993). The court opined that a formal determination is not
necessary; rather, an informal presentation of the evidence supporting the government’s
suspicion before a neutral and detached judicial officer satisfies this requirement.
Furthermore, the court concluded that the failure to obtain such a judicial determination
within 48 hours shifts the burden to the government to demonstrate a bona fide emergency
justifying the extended detainment.
78 See Tabbaa v. Chertoff, 2007 U.S. App. LEXIS 27258, 28-29 (2007) (quoting Montoya
de Hernandez, 473 U.S. at 543).
79 See Montoya de Hernandez, 473 U.S. at 543 (quoting United States v. Sharpe, 470 U.S.

675, 685 (1985)).

80 Tabbaa, 2007 U.S. App. LEXIS 27258 at 28.
81 Montoya de Hernandez, 473 U.S. at 535.
82 Flores-Montano, 541 U.S. at 151.
83 Tabbaa, 2007 U.S. App. LEXIS 27258 at 29.

to be justified. Because strip searches generally involve an embarrassing imposition
upon a traveler, it appears to be unreasonable to conduct such searches without
reasonable suspicion.84 Often, routine searches give rise to the reasonable suspicion
required to conduct strip searches. For instance, in United States v. Flores, upon
discovering 600 small undeclared emerald stones in the defendant’s pockets during
a routine search, Customs agents conducted a strip search and discovered an envelope
of narcotics.85 The court held that the prior discovery of the undeclared emeralds was
clearly sufficient to heighten suspicion to the level necessary to conduct the strip
search. 86
Body Cavity Searches. Government officials are well aware that narcotic
smuggling often has been concealed in the body cavities of travelers, and searches
into such cavities have become more commonplace. Body cavity searches may
include inspections of the vagina, rectum, or the use of emetics.87 Because of the
extreme medical risks involved in internal drug smuggling, courts have determined
that body cavity searches do not require the advance procurement of a search warrant88
from a magistrate. Nevertheless, a border official must “reasonably suspect” that
an individual is attempting to smuggle contraband inside his body for a court89
subsequently to uphold a body cavity search. Some courts historically required a
“clear indication” (a suggestion that is free from doubt) of alimentary canal90
smuggling due to the significant intrusion beyond the body’s surface. However,
ever since the Supreme Court articulated a more general, but firm rejection of the
“subtle verbal gradations” being developed by courts of appeals to enunciate the
Fourth Amendment standard of reasonableness, courts have apparently been
unwilling to adopt the “clear indication” standard in the context of body cavity
searches.91 Additionally, the manner in which the body cavity search is conducted

84 United States v. Chase, 503 F.2d 571 (9th Cir. 1974).
85 477 F.2d 608 (1st Cir. 1973).
86 Id.
87 See, e.g., United States v. Ogberaha, 771 F.2d 655, 657 (2d Cir. 1985) (vagina); United
States v. Pino, 729 F.2d 1357, 1358 (11th Cir. 1984) (rectum); United States v. Briones, 423th
F.2d 742, 743 (5 Cir. 1970) (emetics).
88 See, e.g., United States v. Sosa, 469 F.2d 271 (9th Cir. 1972) (no warrant for rectal probe);
United States v. Mason, 480 F.2d 563 (9th Cir. 1973) (no warrant for vaginal probe); Unitedth
States v. Briones, 423 F.2d 742 (5 Cir. 1970) (no warrant for administration of an emetic).th
But see United States v. Holtz, 479 F.2d 89 (9 Cir. 1973) (Ely, J., dissenting); Blefare
United States, 362 F.2d 870 (9 Cir. 1966) (Ely, J., dissenting).
89 See, e.g., United States v. Ogberaha, 771 F.2d 658 (2d Cir. 1985); Swain v. Spinney, 117
F.3d 1, 7 (1st Cir. 1997) (only required reasonable suspicion for visual body cavity search);th
United States v. Gonzalez-Ricon, 36 F.3d 859, 864 (9 Cir. 1984) (noting in dictum that a
body cavity search must be supported by reasonable suspicion).
90 See, e.g., United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994) (affirming clear
indication standard).
91 See, e.g., United States v. Ogberaha, 771 F.2d 658 (2d Cir. 1985); Swain v. Spinney, 117
F.3d 1, 7 (1st Cir. 1997) (only required reasonable suspicion for visual body cavity search);

must also be reasonable in light of the circumstances. Generally, conduct that
“shocks the conscience” is inherently unreasonable.92 Such conduct has included use
of a stomach pump93 and could potentially include medical procedures performed by
nonmedical personnel.94
X-Ray Searches. X-ray searches have also been used at the border, instead
of, or in conjunction with, body cavity searches. X-ray searches raise Fourth
Amendment concerns because they locate items where there is normally an
expectation of privacy. Their level of intrusion has been questioned by courts
because they do not constitute an actual physical invasion but can pose harmful95
medical effects. A question arises as to whether an involuntary X-ray search is
more akin to a strip search, and thus only requires a “reasonable suspicion,” for its
application, or whether the intrusion is so great that it could potentially require a
greater level of suspicion.
In examining this issue, the Eleventh Circuit in United States v. Vega-Barvo96
determined that an X-ray search is no more intrusive than a strip search. The Vega-
Barvo court examined (1) the physical contact between the searcher and the person97
searched; (2) the exposure of intimate body parts; and (3) the use of force. These
factors helped the court examine the level of intrusiveness endured by the defendant
and to ultimately conclude that the government agents, acting under a reasonable
suspicion of illegal activity, properly detained and X-rayed the smuggler. The court
reasoned that X-rays do not require physical contact or usually expose intimate body
parts. The court also determined that “an x-ray is one of the more dignified ways of98
searching the intestinal cavity.” In general, courts have likened X-ray searches to
strip searches, and thus, “reasonable suspicion” is the level of suspicion necessary to99

conduct an X-ray examination of a suspected alimentary canal smuggler.
91 (...continued)
United States v. Bravo, 295 F.3d 1002, (9th Cir. 2002) (noting in dictum that a body cavity
search must be supported by reasonable suspicion).
92 Rochin v. California, 342 U.S. 165 (1952).
93 Id.
94 Rectal searches have been upheld when conducted by medical personnel using accepted
and customary medical techniques in medical surroundings. See, e.g., Rivas v. Unitedth
States, 368 F.2d 703 (9 Cir. 1966) (upholding rectal search by a doctor at doctor’s office).
There is little case law on vaginal searches, however rectal search cases are arguably
95 United States v. Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir. 1984) (asking whether an X-
ray is more intrusive than a cavity search because it will reveal more than the cavity search,
or less intrusive because it does not infringe upon human dignity to the same extent as a
search of private parts).
96 Id. at 1341.
97 Vega-Barvo, 729 F.2d at 1346.
98 Id. at 1348.
99 Although some courts required a “clear indication” for X-ray searches, courts now

Cumulative Effect of Multiple Routine Searches. Some have argued that
subjecting an individual at the border to multiple routine searches during a period of
detention can rise to the level of a non-routine search. The argument was raised in
Tabbaa v. Chertoff, where the plaintiffs alleged that they were subjected to intrusive
questioning, pat-down searches, the forcible spreading of their feet, and being
fingerprinted and photographed, all in the course of a four- to six-hour period of100
detention at the border. The Second Circuit first noted that, based on prior case
law, “each of the individual elements of the searches was routine.”101 However, even
though the court did “leave open the possibility that in some circumstances the
cumulative effect of several routine search methods could render an overall search
non-routine,” the court did not find this particular sequence of search methods to be
non-routine.102 This was because the decisive factor in determining whether a search
is non-routine is in evaluating “the invasiveness of privacy” the search caused to the
traveler, rather than the level of inconvenience, and in this particular case, even taken
collectively, the searches “were routine in the border context, albeit near the outer
limits of what is permissible absent reasonable suspicion.”103 Thus, although most
cases of multiple routine searches will not rise to the level of non-routine, the Second
Circuit does leave open the possibility that a particularly long sequence of routine
searches can rise to the level of a non-routine search.
Searches and Seizures of Vehicles
Although early courts generally analyzed vehicular border searches within the
context of the routine/non-routine dichotomy, a 2004 decision by the Supreme Court
appears to have placed this bifurcation into question. In United States v. Flores-
Montano — a border search case that upheld the dismantling, removal, and
reassembly of a vehicle’s fuel tank — the Supreme Court found that the dignity and
privacy interests that require reasonable suspicion for highly intrusive searches of the
person do not apply to vehicles being examined at the border.104 The Supreme Court
stated that the “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.”105

99 (...continued)
generally analogize X-rays with strip searches, and thus, only require reasonable
Compare United States v. Ek, 676 F.2d 379, 382 (9 Cir. 1982) (determining that while an
X-ray search may not be as humiliating as a strip search, “it is more intrusive since the
search is potentially harmful to the health of the suspect”) with United States v. Oyekan, 786th
F.2d 832, 837 (8 Cir. 1986) (requiring reasonable suspicion for X-ray search); Unitedth
States v. Pino, 729 F.2d 1357, 1359 (11 Cir. 1984) (X-ray search equal to strip search).
100 2007 U.S. App. LEXIS 27258 at 24-25.
101 Id. at 25.
102 Id.
103 Id. at 26.
104 Flores-Montano, 541 U.S. at 152.
105 Id.

The Supreme Court in Flores-Montano held that the dismantling, removal, and
reassembly of a vehicle’s fuel tank at the border was justified by the United States’
paramount interest in protecting itself and that it did not require reasonable
suspicion.106 In upholding the suspicionless search, the Court noted the factual
difference between a search that ultimately reassembles what is examined and those
that use a potentially destructive drilling practice.107 It then determined that “while
it may be true that some searches of property are so destructive as to require a
different result, this was not one of them.”108 The Court, however, left open the
question of “whether, and under what circumstances, a border search might be
deemed ‘unreasonable’ because of the particularly offensive manner [in which] it is
carried out.”109 Thus, while a suspicionless border search of a vehicle seems to be
viewed as reasonable because it does not pose the same degree of intrusiveness as
searches of the human body, especially destructive vehicular searches may require
reasonable suspicion.110
Subsequent Ninth Circuit decisions have determined that the routine/non-routine
bifurcation in the vehicular inspection context has been “severely undermined if not
completely overruled,” by Flores-Montano, and have relied on the Supreme Court
case to allow other suspicionless search techniques on vehicles.111 In United States
v. Cortez-Rocha, for example, the court upheld the suspicionless slashing of a
vehicle’s spare tire.112 In so holding, the court examined (1) the degree of damage
to the vehicle and (2) any potential effect on the safety or security of the vehicle or
its passengers. It then concluded that the “disabling of a spare tire does not
undermine the immediate safety of the vehicle or threaten the security of the vehicle’s
driver or passengers.”113 Other Ninth Circuit border search cases have upheld the
suspicionless drilling of a single 5/16-inch hole in the bed of a pickup truck,114 the
use of a radioactive density meter called a “Buster” to search the inside of a spare

106 Id.
107 Id. at 155, n. 2 (citing United States v. Rivas, 157 F.3d 364 (5th Cir. 1998) (drilling into
body of trailer required reasonable suspicion); United States v. Robles, 45 F.3d 1 (1st Cir.

1995) (drilling into machine part required reasonable suspicion); United States v. Carreon,th

872 F.2d 1436 (10 Cir. 1989) (drilling into camper required reasonable suspicion).

108 Flores-Montano, 541 U.S. at 155-156.
109 Id. at 155, n. 2.
110 Flores-Montano, 541 U.S. at 155-156; United States v. Bennett, 363 F.3d 947, 951 (9th
Cir. 2004). Cf. Okafor, 285 F.3d at 846 (qualifying its holding by stating that a suspicionless
X-ray search of luggage may be done at the border “[s]o long as the means of examination
are not personally intrusive, do not significantly harm the objects scrutinized, and do not
unduly delay transit”).
111 Flores-Montano, 424 F.3d at 1049, n.6 (This case dealt with the same defendant as the
Supreme Court case but posed a different legal question.). See also United States v. Cortez-th
Rocha, 394 F.3d 1115, 1119 (9 Cir. 2005); United States v. Chaudhry, 424 F.3d 1051, 1054th
(9 Cir. 2005).
112 United States v. Cortez-Rocha, 394 F.3d 1115 (9th Cir. 2005).
113 Id. at 1119-1120.
114 United States v. Chaudhry, 424 F.3d 1051, 1053 (9th Cir. 2005).

tire,115 and the removal of an interior door panel.116 In all of these cases, the court
found determinative the limited amount of damage to the vehicles and the fact that
safety was not compromised. Concurring opinions, however, questioned whether the
government needed a broad “suspicionless” search argument to prevail when the
results in these cases could have been sustained on narrower grounds (i.e., the
existence of reasonable suspicion).117
Searches of Electronic Storage Devices
A recently developing issue is whether, at the border, the Fourth Amendment
permits warrantless searches of the contents of laptop computers and other electronic
storage devices, and if it does, whether these searches are routine or non-routine. The
U.S. Supreme Court has yet to address this matter. Some lower federal courts,
however, have held that searches of laptops and other forms of electronic storage
devices fall under the border search exception as to warrants.118 Yet these courts have
also been far more reticent in determining whether these types of searches are either
routine or non-routine, instead finding that the searches were supported by reasonable
suspicions.119 Even when a court has held that searches of electronic storage devices
were routine, there is usually an accompanying finding of reasonable suspicion to
support the searches.120 The one exception is the Ninth Circuit, which has expressly

115 United States v. Camacho, 368 F.3d 1182 (9th Cir. 2004). The Ninth Circuit in this case
distinguished prior precedent (Ek, 676 F.2d 379) requiring a heightened level of suspicion
for X-ray searches of persons because such searches were potentially harmful to the health
of the suspect and the “Buster” search was not harmful to motorists.
116 United States v. Hernandez, 424 F.3d 1056 (9th Cir. 2005).
117 Chaudhry, 424 F.3d at 1054-1055 (Fletcher, J., concurring) (“In each case, the
government chose to create a dispute where none existed, rather than to prove up its
officers’ valid suspicions.”); (Fisher, J. concurring) (“I am troubled by the government’s
evident decision in this and other cases to eschew reliance on dog alerts or other evidence
supporting reasonable suspicion.”) Id. at 1055.
118 See e.g. United States v. Ickes, 393 F.3d 501, 505 (4th Cir. 2005); United States v. Romm,

455 F.3d 990, 997 (9th Cir. 2006); United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006)

(“An airport is considered the functional equivalent of a border and thus a search there may
fit within the border search exception”); United States v. Furukawa, No. 06-145, slip op. (D.
Minn., November 16, 2006), 2006 U.S. Dist. LEXIS 83767; United States v. Hampe, No.

07-3-B-W, slip op. (D. Me., April 18, 2007), 2007 U.S. Dist. LEXIS 29218.

119 See e.g. Irving, 452 F.3d at 124 (“Because these searches were supported by reasonable
suspicion, we need not determine whether they were routine or non-routine.”); Furukawa,
supra (“[T]he court need not determine whether a border search of a laptop is “routine” for
purposes of the Fourth Amendment because, regardless, the magistrate judge correctly found
the customs official had a reasonable suspicion in this case.”).
120 Ickes, 393 F.3d at 507 (noting that the computer search did not begin until the custom
agents found marijuana paraphernalia and child pornography which raised a reasonable
suspicion); Hampe, supra (holding that even though the laptop search did not implicate any
of the serious concerns that would characterize a search as non-routine, that the peculiar
facts of the case gave rise to reasonable suspicions).

held that reasonable suspicion is not required to support a border search of a
As a side note, even though these cases usually arise in child pornography
prosecutions, there are national security implications involved as well. One of the
justifications given for not requiring probable cause to conduct a laptop search is that
to do so would enable terrorists to smuggle potentially incriminating information on
electronic media without fear of it being searched.122 Another potential issue that
might arise is the possibility that the search power can be abused if an officer does
not need to provide an articulable reason for his search.
The 9/11 Commission Recommendations and
Legislative Action on Border Security
The 9/11 Commission made several recommendations and observations in its
Report for changes to U.S. border security operations. Most of these proposed
changes involve enhancing the detection of travelers who would pose the United
States harm and promoting cooperation between U.S. federal agencies and with
foreign governments. The 9/11 Report emphasizes the importance of constraining
and intercepting terrorist travel by using better technology and training to detect123
falsified documents. To accomplish this end, the Commission recommends: (1)
creating a strategy to combine terrorist intelligence, operations and law enforcement;
(2) integrating the U.S. border security system into a larger network of screening
points; (3) implementing a biometric entry-exit screening system; and (4) enhancing
international cooperation, particularly with Canada and Mexico, to raise global
border security standards.124 The 108th Congress implemented some of these
recommendations, as well as other Commission recommendations and observations,
in the 9/11 Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)
— a compromise piece of legislation drawn from H.R. 10, the 9/11
Recommendations Implementation Act and S. 2845, the National Intelligence
Reform Act of 2004 during conference.
The 109th Congress continued to address issues covered by the 9/11 Commission
and in the 9/11 Intelligence Reform law. The 109th Congress passed the FY2005
Emergency Supplemental Appropriation Act for Defense, the Global War on Terror,
and Tsunami Relief (P.L. 109-13), which calls on DHS to study the technology,
equipment, and personnel needed to address security vulnerabilities near the U.S.
borders and to develop a pilot program to utilize or increase the use of ground
surveillance technologies (e.g., video cameras, sensor technology, motion detectors)
on both the northern and southern borders. The 109th Congress also passed the

121 United States v. Arnold, No. 06-50581, slip. op. 4173 (9th Cir. April 21, 2008). It is also
interesting to note that the case’s analysis also disregarded the routine/non-routine
distinction used in most other border search analyses.
122 Ickes, 393 F.3d at 506.
123 The 9/11 Commission Report: Final Report on the National Commission on Terrorist
Attacks Upon the United States, p. 385 (Official Gov’t Ed. 2004).
124 Id. at 385-390.

Secure Fence Act of 2006 (P.L. 109-367), which requires the Secretary of DHS to
take all actions the Secretary determines necessary to achieve and maintain
operational control over the entire international land and maritime borders of the
United States. The Secretary is to use systematic surveillance and physical
infrastructure enhancements, including fencing, to achieve control of the border.
The 110th Congress passed the Implementing Recommendations of the 9/11
Commission Act of 2007.125 Within this act, Congress addresses a number of issues
related to border security. The law attempts to modernize and strengthen the visa
waiver program in INA § 217 by enhancing program security requirements through
an electronic travel authorization system to collect biographical information about
passengers, and extending visa-free travel privileges to nationals of countries that are
cooperating with the United States in its anti-terrorism campaign. The law also
authorizes: (1) a Terrorist Travel Program to monitor terrorists and prevent their
entry into the United States; (2) the creation of a “model” port-of-entry program to
help provide a more efficient and welcoming international arrival process at ports-of-
entry; and (3) a pilot program to develop, with states, a machine-readable and
tamper-proof driver’s license that can be used for admission into the United States
from either the Canadian or Mexican border.
Pending bills in the 110th Congress seek “operational control” of the borders,
which is defined as “the prevention of all unlawful entries into the United States,
including entries by terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband.”126 Most of the proposals also seek to increase
border security through a variety of means, such as an increase in Border Patrol
agents, the construction of fencing, the use of unmanned aerial vehicles, and the
deployment of cameras, radar, and other forms of surveillance equipment.127 There
are also bills authorizing the Secretary of Homeland Security to require that aliens
entering or leaving the United States provide biometric data and other information
related to their immigration status.128 One bill seeks to establish procedures that
would limit the use of solitary confinement, shackling, and strip searches in detention
facilities to those situations where the use of such techniques is necessitated by
security interests.129 Congress did not act on any of these proposed bills during the
first session of the 110th Congress.

125 Implementing Recommendations of 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat.


126 See Immigration Enforcement and Border Security Act of 2007 , S. 1984 § 101 (2007);
Secure Borders FIRST Act of 2007, H.R. 2954 § 101 (2007); America’s Border Security Act
of 2007, H.R. 3469 (2007). See also Secure Fence Act of 2006, P.L. 109-367, 120 Stat.


127 See Immigration Enforcement and Border Security Act of 2007, S. 1984 (2007);
America’s Border Security Act of 2007, H.R. 3469 (2007).
128 Unaccompanied Alien Child Protection Act of 2007, S. 1639, § 111 (2007); Immigration
Enforcement and Border Security Act of 2007, S. 1984. § 123 (2007).
129 Unaccompanied Alien Child Protection Act of 2007, S. 1639, § 146 (2007).