Federal Lawsuit Addresses Government’s Authority to Detain, Search Individuals at U.S. Border Without a Warrant

The Fourth Amendment’s warrant requirement for searches and seizures by law enforcement officials has multiple exceptions, developed by the U.S. Supreme Court over more than a century of this country’s history. The “border search” exception generally allows officials to detain and search individuals and their belongings at or near the U.S. border and at airports. An American filmmaker’s lawsuit seeks an explanation for, she claims, more than 50 warrantless detentions and searches at airports, both in the U.S. and abroad. Poitras v. Dept. of Homeland Security, et al, No. 1:15-cv-01091, complaint (D.D.C., Jul. 13, 2015). Although the suit is civil in nature, it demonstrates the extent of the power law enforcement officials may attempt to exercise during border searches.

The plaintiff is a documentary filmmaker who frequently travels abroad. She won the Academy Award for Best Documentary Feature in 2015 for Citizenfour. The film covers her meetings in Hong Kong with Edward Snowden, who is currently facing charges of theft of government property and unauthorized communication of classified information. U.S. v. Snowden, No. 1:13-cr-00285, crim. complaint (E.D. Va., Jun. 14, 2013); 18 U.S.C. §§ 641, 793(d), 798(a)(3). She claims that the U.S. government began monitoring her in 2006, after she produced and directed a film about the war in Iraq in 2006 entitled My Country, My Country.

In her complaint, the plaintiff claims that she “was subjected to ‘Secondary Security Screening Selection,’ detained, and questioned at the U.S. Border on every international flight she took to the United States” over a six-year period. Poitras, complaint at 2. The first incident allegedly occurred in July 2006 at the Newark airport when she returned from the Jerusalem Film Festival. She claims that Customs and Border Protection (CBP) agents met her at the gate, escorted her to a holding room, and interrogated her for about two hours before releasing her.

These detentions allegedly occurred both upon her arrival at U.S. airports and prior to departure from foreign airports. Officials often took her laptop and other electronic devices, she claims, and in one case held them for 41 days. Id. at 6. The detentions stopped in April 2012 after the publication of an article describing her experiences. Her lawsuit alleges violations of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, based on the failure of multiple federal agencies to respond to lawful requests for information about her detentions and searches.

The “border search” exception originally held that authorities could search incoming mail and packages at the U.S. border in order to enforce customs law. U.S. v. Ramsey, 431 U.S. 606 (1977). This exception has expanded to include detentions and searches of individuals, including their luggage and electronic devices, at or near the U.S. border and at airports, for national security, immigration, and general criminal law enforcement. See U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985); U.S. v. Flores-Montano, 541 U.S. 149 (2004).

The Supreme Court has also held that the use of roadside checkpoints to enforce immigration law is permissible under the Fourth Amendment. U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976). This has led to the widespread use of highway checkpoints, such as the Sierra Blanca checkpoint in west Texas. CBP has interpreted its authority under the “border exception” very broadly, considering any location within 100 miles of the U.S. border to be subject to its authority. See 8 C.F.R. § 287.1(a)(2).

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, a board-certified criminal defense attorney, fights for the rights of west Texas defendants in state and federal criminal cases. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a knowledgeable and experienced advocate for criminal justice.

More Blog Posts:

FBI Use of Unmanned Drones for Aerial Surveillance Raises Fourth Amendment Concerns, Texas Criminal Lawyer Blog, September 9, 2015

Warrantless Use of Cell Phone Location Data by Police Remains Controversial, Texas Criminal Lawyer Blog, September 9, 2015

Facial Recognition Technology Arrives at Texas Border Patrol Stations, Texas Criminal Lawyer Blog, July 17, 2015


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