Amdt4.6.6.3 Searches Beyond the Border

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Under the “border search exception,” federal officers may generally conduct routine, warrantless searches of persons and items entering the United States without reasonable suspicion or probable cause of unlawful activity. However, stops and searches conducted in areas farther from the border may require at least heightened suspicion or probable cause of unlawful activity to withstand Fourth Amendment scrutiny.

The Supreme Court has addressed Fourth Amendment limitations on “roving patrols” near the border.1 In Almeida-Sanchez v. United States, the Court held that a warrantless stop and search of an automobile some twenty miles from the border violated the Fourth Amendment because the Border Patrol officers lacked probable cause to believe that the vehicle contained unlawfully present aliens.2 While recognizing the government’s authority to conduct routine inspections and searches at the border without a warrant or any individualized suspicion, the Court determined that vehicle searches in areas away from the physical border were “of a wholly different sort” because individuals have greater Fourth Amendment protections in the interior of the United States.3

In United States v. Brignoni-Ponce, the Supreme Court considered whether roving patrol stops for the more limited purpose of questioning motorists about immigration status or any suspicious circumstance is constitutionally permissible.4 The Court held that roving patrol stops must be supported by “specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that an automobile contains unlawfully present aliens.5 The Court reasoned that stops absent suspicion would risk “potentially unlimited interference” with border area residents’ use of the highways, and determined that the “reasonable suspicion” standard should apply to roving patrol stops given their “modest intrusion.” 6 The Court held that federal officers who stopped a vehicle near the border lacked reasonable suspicion because they relied solely on the apparent Mexican ancestry of the vehicle’s occupants, and that the occupants’ ancestry in itself failed to provide reasonable belief that the vehicle concealed unlawfully present aliens.7

Applying Brignoni-Ponce's reasonable suspicion test, the Supreme Court held in United States v. Cortez that there was reasonable suspicion for a stop near the border because the agents had previously uncovered clues of alien smuggling in the area and knew where the suspects would likely appear.8 In United States v. Arvizu, the Court concluded that a Border Patrol agent had reasonable suspicion to stop a minivan found to be carrying more than 100 pounds of contraband based on observing the van on a remote road often used by smugglers and other observations of the van’s occupants.9 “Taken together,” these observations raised a reasonable inference of criminal activity.10

The Supreme Court has also addressed vehicle stops at fixed immigration checkpoints, which, unlike roving patrols, are typically located at stationary points on major highways near the border. In United States v. Martinez-Fuerte, the Supreme Court held that federal officers may briefly stop and question motorists at “reasonably located” checkpoints, even in the absence of reasonable suspicion that a vehicle contains unlawfully present aliens.11 Given the “regularized manner” of immigration checkpoints, the Court reasoned, motorists “are not taken by any surprise” when they see a checkpoint and can be reasonably certain that the stops are authorized.12

However, there are Fourth Amendment constraints on Border Patrol agents’ ability to engage in more intrusive actions at fixed immigration checkpoints.13 In United States v. Ortiz, the Supreme Court held that “at traffic checkpoints removed from the border and its functional equivalents, officers may not search private vehicles without consent or probable cause” of unlawful activity.14 The Court reasoned that the routine nature of a checkpoint stop “does not mitigate the invasion of privacy that a search entails” and that allowing agents to have unlimited discretion to search a vehicle at a checkpoint would be antithetical to the Fourth Amendment.15 Thus, in that case, the Court held that Border Patrol agents unlawfully searched a vehicle at a checkpoint because they lacked probable cause that the vehicle contained unlawfully present aliens.16

The Supreme Court has also considered the constitutionality of warrantless stops and inspections of vessels within interior U.S. waters away from the border.17 In United States v. Villamonte-Marquez, the Court held that government officers may board vessels on inland waters with ready access to the open sea for routine document checks without suspicion of criminal activity.18 The Court reasoned that the government has a strong interest in assuring compliance with vessel documentation requirements, especially in heavy drug trafficking areas, and that the nature of maritime commerce made it impracticable to stop all vessels at permanent water checkpoints.19

Roving patrols occur when immigration officers traverse certain areas near the border and stop vehicles suspected of carrying unlawfully present aliens or contraband, even in the absence of an indication that the vehicle had crossed the border. See United States v. Ortiz, 422 U.S. 891, 894 (1975) (noting that roving patrols “often operate at night on seldom-traveled roads” and “look for criminal activity, both alien smuggling and contraband smuggling” ). back
Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973). back
Id. at 273–75. In a dissenting opinion, Justices Byron White, Harry Blackmun, William Rehnquist, and Chief Justice Warren Burger would have found the search reasonable based on Congress’s determination that roving patrol searches were the only effective means to police border smuggling. Id. at 293, 298 (White, J., dissenting). back
United States v. Brignoni-Ponce, 422 U.S. 873, 874 (1975). back
Id. at 884. back
Id. at 879–82. The Court cited its prior decisions in Terry v. Ohio, 392 U.S. 1 (1968), and Adams v. Williams, 407 U.S. 143 (1972), which applied the reasonable suspicion standard to brief investigatory stops, and the Court stated that those cases “establish that in appropriate circumstances the Fourth Amendment allows a properly limited ‘search’ or ‘seizure’ on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime.” Brignoni-Ponce, 422 U.S. at 881. The Court concluded that applying this standard “allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.” Id. at 883. The Court listed the criteria that would bear upon the reasonable suspicion analysis, including the characteristics of the area in which the vehicle is found, the vehicle’s proximity to the border, the driver’s physical characteristics and behavior, and the appearance of the persons inside the vehicle. Id. at 884–85. back
Id. at 885–86. back
United States v. Cortez, 449 U.S. 411, 413–21 (1981). back
United States v. Arvizu, 534 U.S. 266, 269–70 (2002). back
Id. at 277–78. back
United States v. Martinez-Fuerte, 428 U.S. 543, 545, 562, 566 (1976). back
Id. at 559. Similarly, outside of the border context, the Court has upheld the use of fixed “sobriety” checkpoints at which all motorists are briefly stopped for preliminary questioning and observation for signs of intoxication. Michigan v. Sitz, 496 U.S. 444, 455 (1990). back
Martinez-Fuerte, 428 U.S. at 567. back
United States v. Ortiz, 422 U.S. 891, 896–97 (1975). back
Id. at 894–96. back
Id. at 897–98. back
United States v. Villamonte-Marquez, 462 U.S. 579 (1983). back
Id. at 593. back
Id. at 588–92. back