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.
Multiple law enforcement agencies routinely conduct searches at airports. The patchwork of state laws dealing with marijuana has complicated how airport security officials handle searches, but the potential results of airport searches may depend on which law enforcement agency conducts the search. Marijuana remains a Schedule I controlled substance under federal law, meaning that transporting it across state lines is still illegal. The TSA, according to a recent report in the New York Times, is not concerned with drug enforcement, since its mandate is to search for threats to airport and airline security. If a TSA agent finds marijuana, they might notify local police. Whether or not local police respond might depend on local marijuana laws.
Customs and Border Protection (CBP), also part of DHS, is very interested in drug enforcement. It frequently conducts searches, including the use of drug-sniffing dogs, on passengers arriving in the U.S., although its jurisdiction is limited to international travelers. The Drug Enforcement Administration, part of the U.S. Department of Justice, has authority over domestic drug interdiction. Its ability to conduct searches at airports is probably limited by a Supreme Court ruling that prohibited checkpoints for the sole purpose of drug interdiction. Indianapolis v. Edmond, 531 U.S. 32 (2000).
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 drug crime attorney in West Texas, has defended people against state and federal charges since 1992. To schedule a confidential consultation with an experienced and knowledgeable criminal justice advocate, contact us today online or at (432) 687-5157.
More Blog Posts:
West Texas Drug Busts Show Extent of Law Enforcement’s Power to Search People at the Border, Texas Criminal Lawyer Blog, November 2, 2017
Appellate Court Rules on Question of Whether the Fourth Amendment Protects IP Addresses from Surveillance, Texas Criminal Lawyer Blog, November 2, 2017
Law Enforcement Tactic Originally Authorized for Anti-Terror Operations Reportedly Being Used in Drug Enforcement Instead, Texas Criminal Lawyer Blog, Jun 25, 2017