West Texas Drug Busts Show Extent of Law Enforcement’s Power to Search People at the Border

1942 Nash Ambassador X-rayCourts have identified numerous exceptions to the Fourth Amendment’s search warrant requirement, meaning that law enforcement may conduct a search without first obtaining a warrant if they can demonstrate that the situation falls under a recognized exception. They must still demonstrate probable cause to believe that the search would yield contraband or evidence of criminal activity. The “border search exception,” however, goes further than most exceptions. It states that law enforcement, specifically the U.S. Border Patrol and U.S. Customs and Border Protection (CBP), can conduct searches of people and property entering the U.S. without a warrant, and without probable cause under some circumstances. Two Texas drug crime-related searches and seizures at a border crossing in early 2017, using high-tech imaging equipment, demonstrate how searches at or near the border can be different from searches elsewhere.

The border search exception is based in part on the sovereign right to control entry to the country. The U.S. Supreme Court has held that customs officials may search mail and other items arriving at the border without a warrant. United States v. Ramsey, 431 U.S. 606 (1977). With regard to searches of people and their property, the court has held that people have a lessened expectation of privacy at border crossings. Florida v. Royer, 460 U.S. 491, 515 (1983). Law enforcement can stop vehicles at fixed checkpoints for the purpose of immigration enforcement, even without any specific suspicion about individual vehicles, and they can refer some vehicles to a “secondary inspection area.” United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976).

Congress has given immigration officials the authority to perform these types of immigration enforcement functions up to 100 miles from international borders within the U.S. 8 U.S.C. § 1357(a)(3). When law enforcement officials are not operating out of a fixed checkpoint, such as by pulling over individual vehicles on public roads, the Supreme Court has held that they must be able to demonstrate probable cause. Almeida-Sanchez v. United States, 413 U.S. 266 (1973). Fixed checkpoints therefore provide law enforcement with their greatest amount of power to conduct warrantless searches.

Two additional Supreme Court cases are notable with regard to recent news about searches at border checkpoints. The automobile exception, first identified by the court in Carroll v. United States, 267 U.S. 132 (1925), states that police may search an automobile without a warrant, provided that they can demonstrate both probable cause to believe that the automobile contains evidence and exigent circumstances presenting a risk of loss of the evidence. The court ruled on the use of imaging equipment in Kyllo v. United States, 533 U.S. 27 (2001), finding that police needed a warrant to conduct infrared imaging of a person’s residence.

In January 2017, Border Patrol agents at a border crossing in Presidio, Texas seized more than 60 pounds of methamphetamine from two vehicles. In both cases, agents referred the vehicles for secondary inspection. One vehicle was subjected to x-rays, while the other vehicle was scanned by a device known as a Z-Portal. These searches might seem to violate Kyllo, but both most likely fall under both the border search and automobile exceptions.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown is a board-certified drug crime attorney who has defended people against charges in West Texas state and federal courts for over 20 years. To schedule a confidential consultation with a knowledgeable and skilled criminal justice advocate, contact us today online or at (432) 687-5157.

More Blog Posts:

How The Border Search Exception May Affect West Texas Residents, Texas Criminal Lawyer Blog, May 25, 2017

Sierra Blanca Border Patrol Checkpoint No Longer Has Local Sheriff’s Cooperation for Drug Busts, Texas Criminal Lawyer Blog, January 25, 2017

Federal Lawsuit Addresses Government’s Authority to Detain, Search Individuals at U.S. Border Without a Warrant, Texas Criminal Lawyer Blog, October 30, 2015

Photo credit: The original uploader was CZmarlin at English Wikipedia (Transferred from en.wikipedia to Commons.) [Public domain], via Wikimedia Commons.