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Summary:
Many border security initiatives were developed after the events of September 11, 2001. Because security initiatives often maintain 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 support any judicially granted warrant. An invalid "search" is an infringement of an expectation of privacy that society is prepared to consider reasonable. A "seizure" of a person occurs when a government official makes an individual reasonably believe that he or she is not at liberty to ignore the government's presence in view of all the circumstances surrounding the incident. The 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 Court, however, has also recognized situations that render the obtainment of 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 nonroutine. Generally, the distinction between "routine" and "nonroutine" turns on the level of intrusiveness. Routine border searches are usually very limited intrusions into a person's privacy and require no suspicion of illegal activity to be upheld by a court. Nonroutine border searches must generally be supported by "reasonable suspicion" and can include intrusive searches of inanimate objects, prolonged detentions, strip searches, body cavity searches, and x-ray searches. 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. 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. This report will be updated as warranted.
