Articles Posted in Search & Seizure

Digital communications technology continues to pose questions about the extent of the Fourth Amendment’s protections against warrantless searches and seizures. Both federal and Texas criminal laws tend to progress at a much slower rate than technology. The U.S. Supreme Court has found in favor of defendants challenging searches of some new technologies, but every time the court makes such a ruling, several new technologies appear and raise new questions. A recent article in the Washington Post addresses the increasing use of devices that connect to the internet and how this affects Fourth Amendment rights. Police have used data from various “smart” devices both to corroborate and to refute statements by witnesses and suspects. One law professor describes this practice as “sensorveillance.” Whether collection of such data without a warrant violates the Fourth Amendment is an unresolved question.

For much of this country’s history, courts analyzed Fourth Amendment claims by looking at the extent of physical trespass on private property. Ninety years ago, Justice Brandeis objected to this standard, noting that Fourth Amendment violations are possible even “without a physical seizure” of evidence. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). This remark specifically referred to a police officer who obtained information from papers belonging to a defendant without ever physically intruding on the defendant’s property. It could also apply to digital searches conducted today.

The “physical trespass” standard gave way to “reasonable expectation of privacy” with Katz v. United States, 389 U.S. 347 (1967), which involved warrantless eavesdropping on telephone calls. In the 50 years since Katz, the Supreme Court has ruled against warrantless searches involving various technologies. These include the use of thermal imaging to look inside a private residence, Kyllo v. United States, 533 U.S. 27 (2001); recording a car’s movements with a global positioning system (GPS) tracker, United States v. Jones, 565 U.S. 400 (2012); and searching a cellphone after an arrest, Riley v. California, 573 U.S. __ (2014).

A common criticism heard in recent years of federal law enforcement activities on the Texas-Mexico border involves the assertion that the border area, and a significant area extending inland, is a “Constitution-free zone.” While this phrasing involves quite a bit of hyperbole, federal law gives federal immigration authorities jurisdiction over an area extending up to 100 miles into U.S. territory. When at or near the border, the “border search exception” to the Fourth Amendment’s search warrant requirement allows certain types of warrantless searches and seizures. As Customs and Border Protection (CBP) and the Border Patrol conduct more enforcement activities, the extent to which the border search exception applies to activities further inside this 100-mile zone has come into question in Texas drug crime and other criminal cases.Under the border search exception, law enforcement officials may conduct limited searches and seizures, without a warrant or probable cause, at border crossings, airports, seaports, and checkpoints set up near the border like the Sierra Blanca checkpoint in West Texas. The exception derives from the right of a country to exercise control over its borders, but courts have generally held that the exception only allows brief questioning about immigration status or citizenship and matters relating to customs enforcement. Any additional search or seizure requires a reasonable suspicion of unlawful activity. See Almeida-Sanchez v. United States, 413 U.S. 266 (1973).

The 100-mile zone in which immigration officials may operate is based on authority granted by the Immigration and Nationality Act (INA). It allows warrantless searches of vehicles “within a reasonable distance from any external boundary of the United States.” 8 U.S.C. § 1357(a)(3). “External boundaries” include the entire U.S.-Mexico and U.S.-Canada land borders, as well as all coastlines extending 12 nautical miles out to sea. 8 C.F.R. § 287.1(a)(1). “Reasonable distance” is defined as 100 air miles inland from an external boundary, although certain customs or immigration officials have discretion to increase or reduce this distance. Id. at §§ 287.1(a)(2), (b).

Law enforcement officials conducting searches at border crossings, checkpoints, seaports, and airports routinely expand the scope of their inquiries beyond basic immigration-related questions. Most border stops that receive attention from the news media involve drug-related seizures and arrests. The justification for this is based in part on the enforcement of customs laws, and also on limiting searches to situations in which basic questions about immigration and citizenship lead to a “reasonable suspicion” of other unlawful activity.

Law enforcement officials at Texas border checkpoints have some latitude to conduct warrantless searches because of the border search exception to the Fourth Amendment’s requirement of a warrant. Brief detentions of people at the border, at checkpoints near the border, and upon arrival at international airports have received judicial approval for many years. Air travelers have largely grown accustomed to submitting to electronic searches, including body scanners, but officials at border checkpoints have made increasing use of x-ray technology that can scan entire vehicles. This raises questions about Fourth Amendment rights, and also about the health effects of increasing exposure to x-ray radiation. The courts have not issued any definitive rulings on the issue in the Texas criminal context.

The border search exception derives from the sovereign right of a country to control who and what may enter its territory. It allows the brief examination travelers must undergo when arriving on an international flight or at a border crossing. In order to conduct further investigation, including actual searches, law enforcement must have a reasonable suspicion, a lesser requirement than probable cause. Under a similar exception to the Fourth Amendment’s warrant requirement, police can detain a person and conduct a search for “investigative” purposes. See Terry v. Ohio, 392 U.S. 1 (1968). The search or seizure must be based on a reasonable suspicion, and the state must “demonstrate that the seizure it seeks to justify…was sufficiently limited in scope and duration.” Florida v. Royer, 460 U.S., 491, 500 (1983).

The U.S. Supreme Court has addressed the use of x-rays in a few cases involving suspected drug smuggling. The court ruled that customs agents did not violate a woman’s Fourth Amendment rights when they detained her for 16 hours after her arrival at Los Angeles International Airport because they claimed she fit the profile of a “balloon swallower,” defined as “one who attempts to smuggle narcotics into this country hidden in her alimentary canal.” United States v. Montoya de Hernandez, 473 U.S. 531, 534 (1985). Officials informed her that “she would be detained until she agreed to an x ray or her bowels moved.” Id. at 535. They did not obtain a court order authorizing x-rays and a medical examination until the following day.

When the Fourth Amendment first became effective more than two centuries ago, “searches” generally involved physically rifling through a person’s possessions in their home, or checking for contraband or evidence on their actual person. Since then, technological changes have required courts to review new methods of conducting searches of people and their property, and courts have had to consider new situations in which law enforcement may conduct a search without a warrant. The past decade or two have brought significant changes to the way people exchange and retain information. Whereas police might once have searched for letters or other written materials, they now search for emails. The extent to which police can search the contents of electronic devices without a warrant remains a subject of dispute. A recently filed lawsuit challenges the applicability of the border search exception to warrantless searches of mobile phones and laptop computers at airports, which could have an impact on Texas criminal cases. Alasaad, et al. v. Duke, et al., No. 1:17-cv-11730, complaint (D. Mass., Sep. 13, 2017).

The “border search exception” allows law enforcement to search persons and property entering U.S. territory without a warrant for certain purposes, particularly customs and immigration enforcement. For most searches that go beyond a simple inquiry into a person’s citizenship or immigration status, or a cursory inspection for contraband, law enforcement officials must be able to show probable cause. See United States v. Montoya De Hernandez, 473 U.S. 531 (1985); United States v. Flores-Montano, 541 U.S. 149 (2004). The border search exception only applies at or near an international border, or at an international airport or seaport. See Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. Ortiz, 422 U.S. 891 (1975).

Electronic searches differ from physical searches in numerous ways, particularly in the way that electronic devices can provide access to far more information than a person could physically carry. A hard drive on a laptop, for example, can hold far more information than a person could carry in a briefcase. A laptop or smartphone with access to cloud storage could allow a person to access anything the device’s owner has stored across a wide array of computers and servers, potentially giving a law enforcement official access to a substantial portion of that person’s entire life. This was a significant part of the Supreme Court’s ruling prohibiting warrantless searches of cellphones incident to an arrest. Riley v. California, 573 U.S. __ (2014).

Among the many exceptions to the Fourth Amendment’s requirement that police obtain a warrant before conducting a search or seizing a person or their property, the “border search exception” is one of the oldest and most well-established in the law. Many exceptions to the warrant requirement are based on expediency. For example, the “exigent circumstances exception” applies when taking the time to obtain a warrant is likely to result in the loss or destruction of evidence. The right of a nation to police its own borders, on the other hand, is behind the border search exception. The exception is not without limits, of course, but the list of law enforcement activities allowed during border stops has grown over the years, and it includes drug interdiction activities that are not allowed further inside the nation’s borders. A wide variety of Texas drug seizures occur at border checkpoints like Sierra Blanca, and at other checkpoints along the U.S.-Mexico border.

As a general rule, law enforcement officials must be able to demonstrate probable cause to believe that a search will reveal contraband or evidence of criminal activity. In order to initiate a traffic stop, they must have a reasonable suspicion of some form of wrongdoing. The U.S. Supreme Court, however, has identified several situations in which law enforcement can set up checkpoints along public roadways—which result in the stopping of vehicles without probable cause or reasonable suspicion—without violating the Fourth Amendment. For example, courts have held that the public safety interest in preventing driving while intoxicated justifies checkpoints that involve a brief stop to assess whether drivers are too impaired to drive. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

Immigration officials are allowed to operate traffic checkpoints near international borders for the purpose of investigating travelers’ citizenship or immigration status. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). This includes sending vehicles to “secondary inspection” areas. The Supreme Court’s ruling specifically addressed the use of checkpoints at fixed locations, like Sierra Blanca in Texas. Immigration officials operating mobile checkpoints or conducting traffic stops must meet a greater standard of reasonable suspicion.

The “border search exception” to the Fourth Amendment’s search warrant requirement has been part of this country’s law since the very first session of the U.S. Congress. Federal officials, for example, have the authority to search “all persons coming into the United States from foreign countries.” 19 U.S.C. § 1582. The legal principle behind the border search exception is the right of the United States, as a sovereign nation, to control who and what enters its territory. The “border” is no longer limited to border crossings and seaports. It now includes international airports, and the search practices allowed for international travelers have expanded to affect purely domestic travel. As a result, Texas drug charges may result from searches at airports under federal law.

Warrantless searches at airports may be justified by a combination, depending on the circumstances, of the border search exception, which is based on national sovereignty, and exceptions that are based on individuals’ reasonable expectations of privacy. The courts have ruled that international travelers at airports do not have a reasonable expectation of privacy, comparing it to the “automobile exception” allowing warrantless searches of vehicles in some situations. Florida v. Royer, 460 U.S. 491, 515 (1983), citing United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976).

The Transportation Security Administration (TSA) is in charge of passenger security screenings at all U.S. airports. Congress created the agency in the Aviation and Transportation Security Act. Pub. L. 107-71 § 101, 115 Stat. 597 (Nov. 19, 2001); 49 U.S.C. § 114. The TSA was initially part of the U.S. Department of Transportation, but the Homeland Security Act of 2002 moved it to the newly created Department of Homeland Security (DHS). Pub. L. 107-296 § 403(2), 116 Stat. 2178 (Nov. 25, 2002); 6 U.S.C. § 203. The TSA is responsible for screening all air passengers and their luggage prior to boarding, with broad authority to do so. 49 U.S.C. §§ 114(e)(1), 44901.

The process of asset forfeiture, at least in principle, allows law enforcement to seize property used in the commission of a crime. Officials can sell the property at auction, with the proceeds often going back into law enforcement budgets. As the use of this procedure has grown, however, it has produced many unjust results. During the Obama administration, the Department of Justice (DOJ) sought to limit the use of asset forfeiture by federal law enforcement. The new Attorney General (AG), however, has rescinded the previous administration’s policy and issued a new order that could expand the use of the procedure. This has brought opposition from both parties in Washington, but it is not yet clear to Texas criminal attorneys what impact this order will have.

The principle behind asset forfeiture is to deprive criminals of property used in the commission of crimes, applying the value of that property toward law enforcement activities. In practice, asset forfeiture often strays far from this noble purpose. Criminal asset forfeiture requires a level of proof that is at least somewhat close to the state’s burden of proof in a criminal prosecution. See 18 U.S.C. § 981. Civil asset forfeiture, on the other hand, has a lower burden of proof, does not require an actual conviction for an actual crime in many cases, and does not necessarily require the joinder of the property owner as a party. Id. at § 982. A civil forfeiture case might be styled, for example, United States v. $50,000 in Cash, with the owner of that money nowhere to be found.

A particularly controversial element of federal asset forfeiture is a process known as “adoption.” When state or local police seize property and turn it over to federal authorities, adoption provides for “equitable sharing” of the proceeds of the ensuing forfeiture case. See 28 U.S.C. § 524(c). Most of the proceeds can end up back with state or local law enforcement under this program, creating an incentive for local authorities to use federal forfeiture procedures whenever possible instead of state forfeiture laws that might have more built-in protections for property owners.

The right against self-incrimination is a well-known part of the U.S. Constitution, but it is not always well understood. Applying this principle in the real world, with all of its ambiguity and uncertainty, has proven quite challenging for the courts. The Fifth Circuit Court of Appeals recently ruled on a claim that police violated a person’s First, Fourth, Fifth, and Fourteenth Amendment rights by allegedly retaliating against a person after he refused to answer their questions. The court ruled for the plaintiff on his Fourth Amendment claims but not the other claims. Alexander v. City of Round Rock, No. 16-cv-50839, slip op. (5th Cir., Apr. 18, 2017). The case is a civil lawsuit, rather than a criminal prosecution, but its interpretation of the Fifth Amendment’s right against self-incrimination could affect future Texas criminal cases.

The Fifth Amendment’s protection against self-incrimination generally means that a person cannot be compelled or coerced into saying something that could place them in criminal trouble. A refusal to answer questions because of this right is commonly known as “pleading the Fifth.” The Fifth Amendment has also been interpreted as requiring courts to suppress confessions by defendants that were not given voluntarily. The caselaw remains unclear on which remedies may be available when a Fifth Amendment violation occurs outside the context of a custodial interrogation.

According to the court’s statement of the facts of the case, all drawn from the plaintiff’s complaint, an officer stopped the plaintiff “in a hotel parking lot after observing what he perceived as suspicious activity.” Alexander, slip op. at 1. The plaintiff stated that he had stopped his vehicle and gotten out to look for a stray cat he had seen. He told the officer that he would not answer any of his questions.

Courts 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.

The criminal justice system must constantly adapt to changes brought by the increased use of the internet. Legal doctrines that once only applied to physical searches of people’s homes must now regulate “virtual” searches. Several years ago, federal prosecutors charged an individual with multiple offenses arising from his alleged administration of an online marketplace for illegal drugs and other contraband. It was reportedly the first prosecution involving the drug trade on the so-called “dark net.” A jury convicted the defendant on all seven counts in the government’s indictment, which included drug-related offenses, racketeering, and computer fraud. A judge sentenced him to life imprisonment. In May 2017, a federal appellate court denied his appeal, in which he argued in part that his Fourth Amendment rights had been violated. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

Federal law allows law enforcement to monitor electronic communications under strict limitations. Two types of surveillance allowed by federal law are known as “pen registers” and “trap and trace devices.” A pen register “records or decodes dialing, routing, addressing, or signaling information transmitted by” a telephone or other device. 18 U.S.C. § 3127(3). A trap and trace device “captures the incoming electronic or other impulses,” allowing law enforcement “to identify the source of a wire or electronic communication.” Id. at § 3127(4). Neither device may capture or record “the contents of any communication.” Id. They provide law enforcement with a record that shows the source, destination, and duration of phone calls and other communications.

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