Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 4
Border Searches, Aliens, and the Fourth Amendment
By Robert James McWhirter
Robert James McWhirter is an assistant federal public defender for the District of Arizona with a specialty in criminal immigration law. He also teaches seminars on criminal immigration law and the consequences of criminal convictions for the Criminal Justice Act sponsored by the Administrative Office of the U.S. Courts.
Editor’s Note: This article is excerpted and adapted from The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers , published by the ABA’s Criminal Justice Section. Space constraints preclude including appendices and other material. Also, this text does not incorporate changes in the law that have resulted from the Patriot Act and other statutes enacted since September 11, 2001. For information on the book and its post-9/11 supplement, see the book ad in this issue.
This article is for prosecutors and defense attorneys who deal with border searches of both aliens and citizens. The Fourth Amendment works differently at the border (some would say it works not at all), and it is important to understand the distinctions.
How is the Fourth Amendment different at the border?
Under the Fourth Amendment, there must be a warrant or individualized suspicion before police can search a person. At the border, however, officials can search all persons and property without individualized suspicion or a warrant. Thus, routine searches of persons and their property are not subject to requirements of reasonable suspicion, probable cause, or warrant; even first-class mail can be opened without a warrant or on less than probable cause. Notions of national security control these questions. ( United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985); Carroll v. United States, 267 U.S. 132, 145 (1925).)
So, is a border search an exception to the Fourth Amendment?
Yes. This exception is nearly as old as the Fourth Amendment, which has been in existence since 1789. (Act of July 31, 1789, chap. 5, 1 stat. 29, 43 (1789). See also United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993).)
Although a border search is an exception to the Fourth Amendment, it is limited to the immediate vicinity of the border or the functional equivalent of the border. ( Almeida-Sanchez v. United States, 413 U.S. 266 (1973).) Border officials on roving patrols away from the border must have a reasonable suspicion before stopping a motor vehicle, for example. ( United States v. Brignoni-Ponce, 422 U.S. 873 (1975).)
How does the Fourth Amendment apply to aliens in general?
This is something of an open question. Aliens lawfully present in the U.S. have standing to raise Fourth Amendment defenses—even aliens unlawfully in the country had this access in the past. ( See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 105 S. Ct. 3304 (1985).) However, in United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056 (1990), the Court called into question whether aliens unlawfully in the country have standing to use the Fourth Amendment in their defense. The analysis may involve whether the unlawful alien has a "substantial connection" with the United States. (See Gavin Skok, Protecting the Right of Aliens Unlawfully Present in the U.S. to Raise Fourth Amendment Defenses in Criminal Prosecutions, 3:12 Bender’s Immigr. Bull. 604 (June 15, 1998).)
What about a person who leaves instead of enters the country?
It makes no difference. The Fourth Amendment does not apply when an alien exits the United States. ( United States v. Oriakhi, 57 F.3d 1290, 1296 (4th Cir. 1995) ("The rationale from exempting border searches from the Fourth Amendment’s probable cause and warrant requirements rests on fundamental principles of national sovereignty, which apply equally to exit and entry searches."); United States v. Berisha, 925 F.2d 791, 795 (5th Cir. 1991) ("given the substantial national interest in regulating the exportation of domestic currency at the border and similar features of incoming and outgoing border crossing searches for Fourth Amendment purposes, we hold that in the context of a routine stop and search for currency, the rationale applied to border searches under the Fourth Amendment encompasses persons exiting as well as entering our borders").)
What about border stops based on ethnicity, which is usually contrary to the Fourth Amendment?
Border searches are reasonable under constitutional analysis simply because the person or item in question enters into the country from the outside. There is no additional requirement that the search be reasonable or involve probable cause. Thus, if a search is based largely on the basis of race or ethnicity, it is not a constitutional violation. ( See United States v. Ojebode, 957 F.2d 1218, 1223 (5th Cir. 1992) ("even if such stops are made largely on the basis of ethnicity, there is no constitutional violation").)
What about when the border search is non-routine and targets a specific person?
Here, the rule might be a little different. If the border search is "non-routine," there must be reasonable suspicion before the search is lawful. Several factors influence this determination, such as the force used to effect the search. ( See United States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995).)
Can all government agents conduct border searches?
No. Only agents with specific statutory authorization, namely the Immigration Service, Customs, and the Coast Guard, can conduct a border search. ( See United States v. Whiting, 781 F.2d 692, 696–98 (9th Cir. 1986) (court refused to apply border search exception where search undertaken by Department of Commerce agent).)
Are there limitations to the Border Patrol officer’s powers?
Yes. Under 8 U.S.C. § 1357, a border patrol agent’s powers are defined as follows:
Any officer employed with the Service authorized under regulations prescribed by the Attorney General shall have power without warrant (1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the U.S.; (2) to arrest any alien who in his presence or view is entering or attempting to enter the U.S. in violation of any law or regulation made . . . (3) within a reasonable distance from any external boundary of the U.S. to board and search for aliens any vessels within the territorial waters of the U.S. and any railway car, aircraft, conveyance, or vehicle, and within a distance of 25 miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the U.S.
Does Miranda apply at the border?
As part of the same idea of constitutional exception, government officials at the border can initially question a person and even conduct a secondary interview as part of the border routine. Miranda warnings are not required. ( United States v. Moya, 74 F.3d 1117, 1120 (11th Cir. 1996) ("a secondary interview is part of the border routine that does not require Miranda warning").) Further interrogation, however, usually requires Miranda warnings.
An issue when dealing with border interrogations is the language of the defendant. Courts have invalidated waivers of Miranda rights because the waiver and interrogation were in English, although the defendant’s primary language was Spanish. ( See, e.g., United States v. Garibay, 143 F.3d 534 (9th Cir. 1999).)
Can border officials detain a person during a search?
Yes. Moreover, the detention can be quite long—six hours or more, because the Fourth Amendment balance of interest leans heavily in the government’s favor. ( United States v. Montoya de Hernandez, 473 U.S. 531, 544 (1985) (upholding detention of suspected alimentary canal smugglers for 16 hours); United States v. Ramsey, 431 U.S. 606, 619 (1977) ("border searches . . . have been considered to be reasonable by the single fact that the person or item in question had entered into our country from outside. . . . This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless reasonable has a history as old as the Fourth Amendment itself"); United States v. Gonzalez-Rincon, 36 F.3d 859, 864 (9th Cir. 1994) ("at the border one’s expectation of privacy is less than in the interior and the Fourth Amendment balance between the government’s interest and the traveler’s privacy rights is struck more favorably to the government . . . such searches are deemed reasonable under the Fourth Amendment by the single fact that the person or item in question has entered into our country from outside").)
Does a border search have to be conducted as soon as someone crosses the border?
Not necessarily. For example, one court held that even though the passenger had left the customs area, proceeded to baggage claims, moved about the airport for 30 minutes after leaving the plane, and checked into an adjacent hotel, a valid "border search" could occur. ( United States v. Hill, 939 F.3d 934, 937 (11th Cir. 1991).) An immediate search is not necessary because customs agents can reasonably search even in crowded or busy airports.
When arresting a suspect at the border, must the agents have probable cause?
Yes, when there is no warrant. ( United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999).) Although an agent does not need probable cause to search at the border, probable cause to arrest is required.
Can border officials search all baggage?
Yes. Border officials, be they customs agents or border patrol, may search the baggage of anybody seeking to enter the United States. ( Torres v. Puerto Rico, 442 U.S. 465, 472 (1979) ("The authority of U.S. to search [the luggage of] arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity").)
Can border officials strip-search people?
Yes. To do so legally, however, the officials must have real or reasonable suspicion of criminal activity, because strip searches are nonroutine searches. The suspicion of illegal concealment must be based upon something more than the border crossing, and substantial enough to make the search a reasonable exercise of authority. ( United States v. Gonzales-Rincon, 36 F.3d 859, 864 (9th Cir. 1994); United States v. Asbury, 586 F.2d 973, 975–76 (2d Cir. 1978).) The analysis looks to the degree of intrusiveness and the type of search. For example, border searches involving the removal of shoes are less intrusive and more routine than strip and body cavity searches. ( United States v. Ramos-Saenz, 36 F.3d 59, 61–62 (9th Cir. 1994); United States v. Reyes, 821 F.2d 168, 170 (2d Cir. 1987); United States v. Henao-Castano, 729 F.2d 1364, 1366 (11th Cir. 1984).)
What are the requirements for body cavity searches?
Body cavity searches at the border must be based on an even higher standard of suspicion than strip searches. Generally, a body cavity search requires a clear indication that the suspect is carrying contraband in a body cavity. Courts take the view that the greater the intrusion, the greater the standard of required suspicion. ( United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir. 1978).)
What about people suspected of smuggling contraband in their alimentary canals?
Border officials may detain suspected alimentary canal smugglers for a reasonable period, place them under surveillance, and give them laxatives. Once a reasonable suspicion exists that a person is an internal drug smuggler, the government may detain the traveler until sufficient time has passed to allow the contents of the suspect’s stomach to void. ( United States v. Rodriguez, 74 F.3d 1164, 1164–65 (11th Cir. 1996).) A judicial determination of the reasonableness of an extended restraint of liberty must be made within a reasonable period. Generally speaking, failure to obtain such a judicial determination within 48 hours shifts the burden to the government to demonstrate a bona fide emergency or extraordinary circumstances justifying the lengthy delay. ( United States v. Adekunle, 2 F.3d 559, 562 (5th Cir. 1993).)
Can officials conduct "border searches" elsewhere than at the border?
Yes. Courts have come up with the notion of the "functional equivalent" of the border. Thus, searches at an established station near the border or searches at a point marking the confluence of two or more roads extending from the border might be the "functional equivalents of border searches." ( Almedia-Sanchez v. United States, 413 U.S. 266, 272–73 (1973).)
What is the legal test for "functional equivalent of the border"?
The courts have applied a three-pronged test: (1) reasonable certainty that the border was crossed; (2) no opportunity for the object of the search to have changed materially since the crossing; and (3) the search must have occurred at the earliest practical point after the border to the crossing. ( United States v. Hill, 939 F.2d 934, 937 (11th Cir. 1991).)
Is a port the functional equivalent of a border?
Yes. The "functional equivalent of the border" is generally thought of as the first point at which an entrant may practically be detained. ( United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993).)
Are airports—even well within the U.S.—borders?
Yes. Airports are the "functional equivalent" of a border. ( Almedia-Sanchez v. United States, 413 U.S. 266, 272–73 (1973).) For an excellent, easy-to-understand chart of the law of airport stops and searches, see Jon M. Sands and Robyn Greenberg Varcoe, "Buying the Reasonable Suspicion Ticket at Airports," The Champion, 1998, at 20–21.
How does a search not at the border compare with a functional equivalent search?
There is an open question whether the Fourth Amendment reasonable suspicion requirement applies. Courts have used the "extended border" search analysis to allow certain searches to occur long before or after the person or item crossed the actual border. ( United States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986).) The main difference between a functional equivalent of the border search and an extended border search is that the latter takes place after the first practical point where the entering person or package may have been stopped. ( United States v. Cardenas, 9 F.3d 1139, 1148 (5th Cir. 1993).) Courts have upheld extended "border searches" conducted 15 hours and 20 miles from the border, Rodriguez-Gonzales v. United States, 378 F.2d 256 (9th Cir. 1967); seven hours and 100 miles from the border, Castillo-Garcia v. United States, 424 F.2d 482 (9th Cir. 1970); and even 24 hours before the anticipated crossing and 3,000 miles from the border, United States v. Cardona, 769 F.2d 625, 628–29 (9th Cir. 1985) (where condition of the Federal Express package bound for Colombia but opened in California was "all but certain to remain unchanged" until crossing out of the U.S.).
On the other hand, because extended border searches involve a higher degree of intrusion upon an individual’s expectation of privacy than searches at the border, other courts have held that they must be justified by "reasonable suspicion." ( United States v. Cardona, 769 F.2d 625, 628–29 (9th Cir. 1985).) Moreover, there must be a reasonable certainty that a border was crossed, United States v. Perez, 644 F.2d 1299, 1302 (9th Cir. 1981); United States v. Cardenas, 3 F.3d 1139, 1150 (5th Cir. 1994). For automobiles, there must be a reasonable certainty that any contraband was in the vehicle at the crossing, United States v. Perez, 644 F.2d 1299, 1302 (9th Cir. 1981).
Can "reasonable suspicion" be based solely on ethnic profiling?
No. Reasonable suspicion must not be based on "broad profiles that cast suspicion on entire categories of people," nor may it be based on the hunch of an agent. Objective facts must support the stop. ( United States v. Jimenez-Medina, 173 F.3d 752 (9th Cir. 1999).) However, ethnicity can be one specific factor in determining reasonable suspicion.
What about checkpoint stops away from the border?
Border officials may stop vehicles routinely and question passengers at traffic or airport checkpoints so long as certain conditions are met—like stopping all cars. Random stops are not allowed. Thus, the border patrol may maintain permanent checkpoints at intersections of roads leading away from the border and stop vehicles to question the occupants briefly, even though the agents have no reason to believe that a particular vehicle contains contraband or illegal aliens. ( United States v. Villamonte-Marquez, 462 U.S. 579, 587 (1983).) ( See also United States v. Martinez-Fuerte, 428 U.S. 543, 557, 562 (1976) ("stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located check-point").)
Can border officials do more at checkpoints without Fourth Amendment considerations?
No. At traffic checkpoints, border officials may direct a vehicle to the side and conduct a search only if they have probable cause or a valid consent. ( United States v. Martinez-Fuerte, 428 U.S. 543, 566–67 (1976) ("checkpoint searches are constitutional only if justified by consent or probable cause to search"); United States v. Ortiz, 422 U.S. 891, 896–97 (1975) ("[a]t traffic check points removed from the border and its functional equivalents, officials may not search private vehicles without consent or probable cause"); United States v. Pinedo-Montoya, 966 F.2d 591, 594 (10th Cir. 1992) ("officials may not selectively search vehicles at a border unless they have probable cause or consent to justify the search"); United States v. Inocencio, 40 F.3d 716, 723 (5th Cir. 1994) ("Although only reasonable suspicion is needed to stop a vehicle at an immigration check, probable cause or consent is necessary in order to search a vehicle").)
What about roving patrols of border officials away from a border?
The Fourth Amendment may apply here. For example, a roving patrol conducted 20 miles from the border must conform to the requirements of the Fourth Amendment. ( United States v. Venzor-Castillo, 991 F.2d 634, 637 (10th Cir. 1993) ("because the stop was not a functional equivalent of the border, the court applied Fourth Amendment considerations in determining it was unreasonable").) Although border officials still have a lot of power here, courts "are not prepared to approve the wholesale seizure of miscellaneous persons, citizens or non-citizens in the absence of well-founded suspicion based on particular, individualized, and objectively observable factors which indicate that the person is engaged in criminal activity." ( United States v. Garcia-Camacho, 53 F.3d 244, 249 (9th Cir. 1995).)
What standards must the officials follow?
Roving patrols must have reasonable suspicion to stop a vehicle. "Except at a border or its functional equivalent, officers on roving patrol may stop vehicles only if they are aware of specific articulated facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who might be illegally in the country." ( United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975); United States v. Cortez, 449 U.S. 411, 421 (1981) ("[T]he test is . . . whether, based upon the whole picture, they, as experienced Border Patrol agents, could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity").)
Is race a factor in whether there is reasonable suspicion on a roving patrol?
Yes. Under United States v. Brignoni-Ponce, 422 U.S. 873 (1975), Mexican appearance is a relevant factor when the stop occurs near the U.S./Mexico border. ( United States v. Lopez-Martinez, 25 F.3d 1481, 1487 (10th Cir. 1994).) However, it cannot be the only factor. The fact that a passenger appears to be Hispanic is not alone sufficient to create a reasonable suspicion to conduct a roving border stop. "[T]ested by any objective standard there is nothing suspicious about six persons riding in a sedan. The conduct does not become suspicious simply because the skins of the occupants are non-white or because they sit up straight or because they do not look at a passing police car." ( Gonzales-Rivera v. INS, 22 F.3d 1441, 1446 (9th Cir. 1997).)
The Ninth Circuit has recently gone a step further specifically holding that race or ethnicity cannot be a factor in determining reasonable suspicion, finding language to that effect in Brignoni-Ponce dictum. ( United States v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000).) This is due to the changing ethnic composition in the Southwest, where Hispanic background is no longer so out of the norm to justify it as a factor of reasonable suspicion. ( Id.)
What do roving border officers need to justify a vehicle search?
Border officials on roving patrol need probable cause or a valid consent to search a stopped vehicle. ( United States v. Brignoni-Ponce, 422 U.S. 873, 881–82 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973) ("[t]he search of the [defendant’s] automobile by a roving patrol . . . in the absence of probable cause of consent . . . violated the . . . Fourth Amendment right to be free of unreasonable searches and seizures").)
Can foreign mail be searched?
Yes. Under the rationale justifying border searches, mail arriving from foreign countries can be searched without regard to Fourth Amendment requirements. ( United States v. Ramsey, 431 U.S. 606, 620 (1977) ("no different constitutional standards should apply simply because the envelopes were mailed, not carried"); United States v. Richards, 638 F.2d 765, 772 (5th Cir. 1981) ("affixing a postage stamp to a parcel should not grant it immunity that would not be accorded a package carried by a traveler").)
Are there limitations to the search of international mail?
Border or customs officials need to have "reasonable cause," which is a much lower standard than probable cause or reasonable suspicion. Officials may search mail and packages as long as they are aware of specific articulated facts and rational inferences of the facts that reasonably warrant a suspicion that the package contains illegal materials. ( United States v. Taghizadeh, 87 F.3d 287, 289 (9th Cir. 1996) ("the reasons for the application of such a mild standard are clear—border searches of international mail intrude on neither a constitutional nor a statutory expectation of privacy").)
Can officials make "controlled deliveries" of mail, e.g., can officials open mail to check for contraband and then reseal it and deliver it to the intended recipient?
Yes. When law enforcement agents lawfully learn that there is contraband in a container, they may reseal the container and deliver it to the intended recipient. ( Illinois v. Andreas, 463 U.S. 765, 769 (1983).)
What about seizure of suspected aliens?
A border patrol agent may seize a person in order to investigate whether he is an illegal alien. To justify the seizure, however, the agent must articulate objective facts that provide a reasonable suspicion that the person (in this case, the subject of the seizure) was an alien illegally in this country. The agent must have a rational basis for separating illegal aliens from American citizens and legal aliens; the sole basis for the seizure cannot be simply the defendant’s racial background or national origin. ( Orhorhagahe v. INS, 38 F.3d 488, 497 (9th Cir. 1994).)
What about searching private property for aliens?
The Fourth Amendment applies, and a warrant is required to search private buildings for illegal aliens. In this case, the strict probable cause standards of the Fourth Amendment are required in criminal cases but not in civil deportation proceedings. ( Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1222, 1225 (D.C. Cir. 1981).)
Can illegally seized evidence be admitted in deportation
Yes. Although such evidence would be suppressed in the criminal case, the evidence can be admitted in deportation proceedings, which are civil. ( INS v. Lopez-Mendoza, 468 U.S. 1032, 1051 (1984).)
What is a "blind mule"?
"Blind mule" describes a person who is used without his knowledge to transport narcotics into the United States. ( United States v. Chu, 988 F.2d 981, 983 (9th Cir. 1993).) Most cases arise from the border circuits—the Fifth, Ninth, and Tenth Circuits. The cases involve many similar traits, for example, the client is a Mexican national, is poor, speaks little or no English, denies knowing of the drugs, and generally has no significant criminal record.
Can the government offer expert testimony in blind mule cases?
Agents have testified, as "experts," that drug smugglers do not entrust large quantities to unknowing dupes. ( See United States v. Cordoba, 104 F.3d 225, 229 (9th Cir. 1997) (agent testimony that sophisticated drug organizations do not entrust 300 kilograms of cocaine to someone who does not know what he is transporting). See also United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir. 1989) (agent testimony that drugs worth $10,000 demonstrates that the accused had knowledge). But see United States v. Litterell, 574 F.2d 828, 833 (5th Cir. 1978) ("[I]t might be an asset for . . . courier to be uninformed about the nature of his delivery, since he would have no need to be nervous or apprehensive about a task he believed to be perfectly legitimate").)
Should such "expert" testimony be subject to a pretrial hearing as to admissibility?
Under the Supreme Court’s holding in Kumho Tire Co. v. Carmichel, 526 U.S. 137, 119 S. Ct. 1167 (1999), it should. Trial courts must ensure all expert testimony, not just scientific expert testimony, is relevant and reliable. Moreover, recently amended Federal Rule of Evidence 702, incorporating Kumho, indicates this as well. At the present time, however, courts seem to be allowing this type of agent testimony. ( See United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) (trial court’s admission of testimony by a police gang expert allowed because testimony is based "on the knowledge and experience of the expert, rather than the methodology or theory behind it") Id. at 1169).) This issue undoubtedly will continue to play out in the courts.
Is sufficiency of evidence an issue in these cases?
Courts have reversed blind mule convictions on appeal for lack of sufficient evidence. ( U.S. v. Ortega-Reyna, 148 F.3d 540 (5th Cir. 1998) (drug possession convictions reversed because circumstantial evidence was insufficient to prove defendant’s knowledge); United States. v. Reveles, 190 F.3d 678 (5th Cir. 1999) (conviction reversed because circumstantial evidence insufficient to show knowledge).) With this in mind, defense counsel should be prepared to make—and prosecutors to defend against—Rule 29 motions for judgments of acquittal. Also, failure to renew a motion for judgment of acquittal at the end of evidence may result in review for plain error instead of de novo review. ( United States v. Carpenter, 95 F.3d 773, 775 (9th Cir. 1996); United States v. Johnson, 87 F.3d 133, 136 (9th Cir. 1996).)
Are there language issues in blind mule cases?
Most certainly. They include not only translations of the defendant’s interrogation, but also mistaken translations during trial. As the Ninth Circuit ruled, "an incorrect or incomplete translation is the functional equivalent of no translation." ( Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000).) Thus, when court interpreters mistranslate statements for the court or the jury, the mistake should be corrected immediately. Mistranslations include the subtleties of regional dialects; for example, on the border someone may say that he met with an amigo, normally translated into English as "friend." In northern Mexico and in some areas of the border, however, the term amigo more often denotes an acquaintance or someone just met. People from this region generally use a term like compadre to denote a friend. This has great relevance if a defendant states that a "friend" provided him a truck that was later found to contain drugs.