Searches and Seizures at the Border and the Fourth Amendment - Softcover

Inhaltsangabe

Congress has broad authority to regulate persons or items entering the United States, an authority that is rooted in its power to regulate foreign commerce and to protect the integrity of the nation’s borders. Exercising this authority, Congress has established a comprehensive framework that authorizes federal law enforcement officers to inspect and search persons and property at the border to ensure that their entry conforms with governing laws, including those relating to customs and immigration.

While federal statutes confer substantial authority to conduct border searches, this authority is not absolute. The Fourth Amendment to the U.S. Constitution forbids unreasonable government searches and seizures of “the people,” and this limitation extends to searches conducted at the border. While law enforcement searches and seizures within the interior of the United States typically require a judicial warrant supported by probable cause, federal officers may conduct routine inspections and searches of persons attempting to cross the international border without a warrant or any particularized suspicion of unlawful activity.

The Supreme Court and lower courts have applied this border search exception not only to the physical border itself, but also to searches at the border’s “functional equivalent,” such as at a port of entry in the interior of the United States (e.g., an international airport). Border-related searches and seizures in areas beyond the border or its functional equivalent are generally subject to greater Fourth Amendment scrutiny.

Recent years have seen legal challenges to border searches of electronic devices such as cell phones and computers, which often contain more personal and sensitive information than other items frequently searched at the border, such as a wallet or briefcase. The Supreme Court has not yet addressed this issue. Lower courts have generally held that government officers may conduct relatively limited, manual searches of such devices without a warrant or any particularized suspicion. The courts, however, are split over whether more intrusive, forensic searches require at least reasonable suspicion. Additionally, there is some debate over warrantless drone surveillance at the border and surrounding areas, given a drone’s potential capability to access more information about a person than other forms of aerial surveillance. Another emerging issue concerns the use of biometrics, particularly the collection of DNA samples from detained aliens at the border. Apart from these issues, there have also been concerns about the use of “racial profiling” during investigatory stops near the border.

Legislation introduced in recent Congresses would clarify the government’s ability to conduct searches and seizures at the border and surrounding regions.

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