The following is a Third Circuit opinion released today, available here (PDF).
As the defendant’s cruise ship arrived to port, boarder control agents arrived. The agents ran a list of passengers and crew members against a database which would select people for further scrutiny based on some unknown criteria (in this case, apparently, authorities in the port of departure thought there was something about the defendant that was suspicious). Out of 1,557 people the database selected 10. One of those ten was the defendant. Upon further scrutiny the border control agents determined that the defendant was selected because he routinely visited countries associated with narcotics distribution and had purchased his ticket last minute, in cash. He also had a history of felony drug convictions.
So the agents boarded the ship. Accompanied by a crew member they entered the defendant’s cabin (he wasn’t there) and “prepped” it for the canine unit. They brought in the dog, which did not alert at the doorway but, once inside, immediately indicated to a bag which seemed to be full of ladies shoes. After confirming with the crew member that no woman was listed for the room the border agents X-Rayed the shoes, finding what appeared to be little pebbles inside, which (you guessed it) turned out to be heroin.
So the defendant moves to suppress. And…
The Fourth Amendment does not prohibit all searches and seizures, only unreasonable ones. There is a constitutional presumption that a search conducted without a warrant is an unreasonable one, with various exceptions made for things like searches incident to arrest, searches of automobiles made upon probable cause, etc. Border searches are one of those exceptions – based on sovereign authority, the impracticality of obtaining a warrant for items that cannot be known until they arrive, and historical precedent, searches conducted at the boarder are reasonable as a matter of law even where there is no warrant or probable cause. (United States v. Ramsey).
However, this boarder exception only goes so far. Routine searches and seizures at the boarder are tolerated without exception, but where they go beyond the routine practice reasonable suspicion is required (Montoya de Hernandez). This is where the assistance of the Supreme Court stops.
The federal courts of appeals have looked to the intrusiveness of the search to decide whether it is routine or not. Predictably, the defendant argues the room is like his house, and the government argues his room is like his car. A prior case with almost the same facts was distinguished because the dog in that case alerted to the room before the police “prepped” it. See Illinois v. Caballes (Use of a drug dog is not, in itself, a search). Another prior case speculated that searches of private cabins on ships should be held to the reasonable suspicion standard. So based on “overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” the court treated this as a non-routine boarder search, therefore requiring reasonable suspicion.
Reasonable suspicion requires a particularized and objective basis for suspicion on the totality of the circumstances. Of course, all the circumstances here were consistent with innocence but taken together do present objective criteria on which to select the defendant out of the crowd. The defendant argued first that the suspicion was based on an uncorroborated database, and second that it amounted to drug-smuggler-profiling.
Reasonable people can argue about the criteria used to differentiate routine boarder searches from non-routine ones, and one would be justified in pointing out that the Court in Ramsey (which dealt with mail) didn’t seem very sympathetic to differentiating the mode of transportation into the country (The critical fact is that the envelopes cross the border and enter this country, not that they are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search "reasonable.").
Finally, as the court ultimately found reasonable suspicion it may have been more appropriate to just say that whatever the rule happened to be, it was not violated – that was the position of the concurrence.
-Post submitted by IBRL Student Division member
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