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.