How The Border Search Exception May Affect West Texas Residents

The U.S. Supreme Court has identified numerous exceptions to the Fourth Amendment’s requirement that law enforcement officers obtain a warrant before conducting a search of, or seizing, a person or their property. The “border search exception” is of particular concern in west Texas, but it affects people all over the country’s border and coastal regions. Federal law gives immigration and border patrol agents the authority to search people and their property near U.S. borders for the purpose of enforcing federal immigration and criminal laws. The border region, as defined by immigration authorities, is bigger than one might think, extending 100 miles inward from the nation’s borders and coastal areas.

U.S. Customs and Border Protection (CBP) operates stations throughout the border region, such as the Sierra Blanca Border Patrol station in Hudspeth County, Texas. These facilities are intended to intercept people violating immigration law, and they also serve other law enforcement purposes. Agents have wide latitude under federal law to conduct warrantless searches “within a reasonable distance from any external boundary of the United States,” 8 U.S.C. § 1357(a)(3), and to make arrests for suspected federal crimes. Federal immigration authorities have interpreted “reasonable distance” to mean “within 100 air miles” since the 1950s. 8 C.F.R. § 287.1(a)(2), 22 Fed. Reg. 9808 (Dec. 6, 1957).

Permanent highway checkpoints, intended to stop vehicles and question drivers and passengers, do not inherently violate the Fourth Amendment, according to the U.S. Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Border patrol agents are permitted to detain a person without a warrant if they have reasonable suspicion of an offense such as drug smuggling, United States v. Montoya de Hernandez, 473 U.S. 531 (1985); and to conduct thorough vehicle searches to look for drugs and other contraband, United States v. Flores-Montano, 541 U.S. 149 (2004).

The main area of dispute currently is the extent of border patrol agents’ authority to search laptops and other digital devices without a warrant or reasonable suspicion. The government has claimed that this authority is necessary in order to interdict contraband like child pornography, but the only federal appellate court to rule on the issue rejected that argument in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).

Distance from the border is also a “vital element” in determining whether a stop or search falls under the border search exception. U.S. v. Rubio-Hernandez, 39 F. Supp. 2d 808, 810 (W.D. Tex. 1999). Some federal courts have expressed concern about CBP activities conducted far into the U.S. interior. See, e.g., United States v. Gabriel, 405 F. Supp. 2d 50 (D. Me. 2005). At least one federal appellate court has ruled against Border Patrol activities more than 200 miles from the border. United States v. Venzor-Castillo, 991 F.2d 634 (10th Cir. 1993).

Despite these concerns, some legislators have proposed reducing or eliminating even more legal restrictions on CBP activities in the border region. The National Security and Federal Lands Protection Act, H.R. 1505 (112th Congress, introduced Apr. 13, 2011), for example, would have removed various constraints placed by federal environmental laws.

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.

For over 20 years, board-certified criminal defense attorney Michael J. Brown has fought for the rights of people facing charges in the state and federal courts of west Texas. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a skilled and experienced criminal justice advocate.

More Blog Posts:

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

El Paso Intelligence Center Monitors U.S. Border and Much More, Texas Criminal Lawyer Blog, July 29, 2012

Wanderings of a West Texas Criminal Lawyer, Texas Criminal Lawyer Blog, July 24, 2008


Contact Information