BSE Presentation

U.S. v.
Arnold 1
2008 Ninth Circuit Court of Appeals held
Warrantless searches of laptops under the Border Search Exception did NOT violate the 4th Amendment to the U.S. Constitution.
533 F.3d 1003 (2008).
Border Search Exception to the 4th Amendment
Daniel Sweet, 2009
Arnold Facts
On July 17, 2005, Michael Arnold arrived into LAX from the Philippines and presented himself for inspection and entry into the U.S. The customs officer asked Arnold to turn on his computer. The officer then looked into several folders named Kodak Pictures and Kodak Memories and found photos of nude women. Upon further search, pornographic photos of children were found. Arnold was charged with transporting child pornography.
Daniel Sweet, 2009
Arnold Holding
District Court held that particularized suspicion is required to search laptops. Ninth Circuit Court of Appeals holds that no suspicion is required for this type of search of the laptop under the Border Search Exception.
Daniel Sweet, 2009
Border Search Exception (BSE)

Federal Search Jurisprudence Border Search Exception U.S. Supreme Court Ninth Circuit Argument Against Ninth Circuit
Examples Pictures Video
Border Search Exception to the 4th Amendment Daniel Sweet, 2009
My Background
B.A. Criminal Justice
Emphasis: Law Enforcement
United States Customs Service Officer 3L Law Student Criminal Law Teaching Assistant under Professor Andrew King-Ries
Daniel Sweet, 2009
Federal Search Jurisprudence

4th Amendment to the U.S. Constitution
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[emphasis added]1
1U.S.
Const. amend. IV.

Daniel Sweet, 2009

What is a search?
Katz 2-part test1
1) A person must exhibit an actual, subjective expectation to privacy in an area. 2) Society must be willing to accept that expectation as reasonable.
Katz v. U.S., 389 US 347 (1967)
Daniel Sweet, 2009

Examples
Shooting heroin in a public restroom after barricading the door. Loud conversations within your home, but spoken so loudly that one can hear the conversations from the sidewalk through an open window. Marijuana hidden in the gas tank of your vehicle.
Daniel Sweet, 2009

How can an officer search your vehicles gas tank?
4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[emphasis added]1
Warrants based on probable cause Exceptions based on reasonableness
1U.S.
Const. amend. IV.

Daniel Sweet, 2009
Federal Search Example

A suspect has 35 kilograms of marijuana in his vehicles gas tank. How does an officer find it?
Officer needs probable cause to effectuate a vehicle stop. Suspect makes an invalid lane change without signaling. This is probable cause for a vehicle stop. During the stop, the officer, develops additional suspicion that the driver may be smuggling contraband. A canine unit is called to the scene and the dog hits on the gas tank The officer now has probable cause to make and arrest but a search of the gas tank would be outside the scope of a search incident to arrest exception. Officer secures a search warrant for the vehicle and finds marijuana in the gas tank.
Example Using BSE

A suspect has 35 kilograms of marijuana in his vehicles gas tank. How does an officer find it?
Suspect presents himself for entry into the U.S. Officer decides to check the gas tank by hitting it with his flashlight. The officer is not satisfied, so he removes the suspect from the vehicle. The officer then disassembles the gas tank and finds
Daniel Sweet, 2009
34.62 Kgs. of Marijuana
Daniel Sweet, 2009
BSE Defined
Certain authorized officers, with little or no articulable suspicion, can search persons, property or vehicles without a warrant when the search is executed on or near an international border or the borders equivalent.
Daniel Sweet, 2009
BSE History
The Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 19 U.S.C. 1467
Whenever a vessel from a foreign port or place or from a port or place in any Territory or possession of
the United States arrives at a port or place in the United States or the Virgin Islands, whether directly or via another port or place in the United States or the Virgin Islands, the appropriate customs officer for such port or place of arrival may, under such regulations as the Secretary of the Treasury may prescribe and for the purpose of assuring compliance with any law, regulation, or instruction which the Secretary of the Treasury or the Customs Service is authorized to enforce, cause inspection, examination, and search to be made of the persons, baggage, and merchandise discharged or unladen from such vessel, whether or not any or all such persons, baggage, or merchandise has previously been inspected, examined, or searched by officers of the customs. [emphasis added]
Daniel Sweet, 2009
BSE History
19 C.F.R 162.6
All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection and search by a Customs officer. Port directors and special agents in charge are authorized to cause inspection, examination, and search to be made under section 467, Tariff Act of 1930, as amended (19 U.S.C. 1467), of persons, baggage, or merchandise, even though such persons, baggage, or merchandise were inspected, examined, searched, or taken on board the vessel at another port or place in the United States or the Virgin Islands, if such action is deemed necessary or appropriate. [emphasis added]
Commerce Power1 Plenary search authority
1 U.S.
Const. art. I, 8, cl. 3

Daniel Sweet, 2009
Why BSE?
National security1 Illegal aliens2 Smuggling3
Carroll v. U.S., 267 U.S. 132 (1925) 2 Almeida-Sanchez v. U.S., 413 U.S. 266 (1973) 3 U.S. v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 (1973)
Daniel Sweet, 2009
Seizures Under BSE
Daniel Sweet, 2009
Seizures Under BSE
Daniel Sweet, 2009
Seizures Under BSE
Daniel Sweet, 2009
Questions
Who can search under the exception? Where can the search be effectuated? What level of suspicion, if any, is needed?
Is it a search of a person? Is it a search of property (luggage)? Is it a search of a vehicle?
Daniel Sweet, 2009
Who Can Search?

Customs Officer1

1
Customs agents Customs patrol officers Customs inspectors and investigators Customs mail entry aides Border Patrol agents Immigration officers Coast Guard officers Coast Guard personnel
61 A.L.R. Fed.
Where Can a BSE Search Occur?

Border
Ports of entry (POE)
Functional Equivalent of the Border (FEB)

International airports Seaports
Extended Border
Border Patrol checkpoints Roving patrols
Ports of Entry
327 ports of entry1
Over 396 million travelers 122 million vehicles
1 http://www.cbp.gov/xp/cgov/newsroom/highlights/08year_review.xml on November 25, 2009.
Daniel Sweet, 2009
Functional Equivalent of the Border

a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.1
Almeida-Sanchez v. U.S., 413 U.S. 266, 273 (1973).

Extended Border
Border Patrol checkpoints
Extended border stops and subsequent questioning at checkpoints may be made in the absence of any individualized suspicion at reasonably located checkpoints.1
Distant enough from the border to avoid interference with traffic in populated areas near the border, Close to the confluence of two or more significant roads leading away from the border, Situated in terrain that restricts vehicle passage around the checkpoint, On a stretch of highway compatible with safe operation, and Beyond the 25-mile zone in which border passes are valid.
1 Martinez-Fuente
v. U.S., 428 U.S. 543 (1976)

Daniel Sweet, 2009
Extended Border
Roving Patrols
Officers conducting roving patrol stops must be aware of of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.1
Characteristics of the area in which the vehicle is encountered, Proximity to the border, Usual patterns of local traffic, Previous experience with local traffic, Recent illegal border crossings in the area, Drivers behavior, Erratic driving or obvious attempts to evade officers, and Aspects of the vehicle itself.
U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)

Level of Suspicion Needed

Persons
Patdowns Body carriers Strip searches Involuntary x-rays Body cavity searches
Property
X-ray of luggage Searches on laptops Shoes
Vehicles
Gas tanks Exploratory drilling Spare tires Density-sensing equipment (Buster)
Daniel Sweet, 2009
Important Notes
Transportation Security Administration checkpoints within airports do NOT fall within the scope of the BSE. The authority to use BSE does NOT always follow the officer. The ability to use the BSE is broadly a function of place and time, NOT necessarily a function of the customs officer. Most BSE case law involves the scope of BSE and the required levels of suspicion.
Daniel Sweet, 2009
Video
U.S. Supreme Court Rulings

Persons
Routine: no articulable suspicion needed Non-routine
Balloon swallowers: reasonable suspicion1 Strip search: ? Body cavity search: ? Involuntary x-ray: ?
U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985)
Daniel Sweet, 2009
U.S. Supreme Court Rulings

Vehicles
No suspicion is needed Not a routine versus non-routine analysis Maybe, reasonable suspicion IF:
Offensive Destructive
Gas tanks can be removed, disassembled and reassembled without any level of suspicion.1
1
U.S. v. Flores-Montano, 541 U.S. 149 (2004)

Ninth Circuit Rulings

Persons
Routine: no suspicion needed Nonroutine:
Totality of the circumstances1 Factors:2 Intrusiveness
Extent of search AND Degree of indignity
Length of detention
1
U.S. v. Arvizu, 534 U.S. 266 (2002) 2 U.S. v. Ramos-Saenz, 36 F.3d 59 (1994)
Daniel Sweet, 2009

Level of Suspicion (non-routine search of person)
Strip search: real suspicion1
Real suspicion is facts that would reasonably lead an experienced, prudent Customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law.2
1
U.S. v. Couch, 688 F.2d 599 (1982) 2 U.S. v. Rodriguez, 592 F.2d 553 (1979)
Daniel Sweet, 2009

Body cavity search: clear indication1 Intrusion into body of person: clear indication2
Clear indication a plain suggestion that the suspect is concealing contraband in his body cavity.3
U.S. v. Couch, 688 F.2d 599 (1982) 2 U.S v. Summerfield, 421 F.2d 684 (1970) 3 U.S. v. Aman, 624 F.2d 911 (1980)
Daniel Sweet, 2009

X-ray of person: clear indication1 X-ray of shoes: no suspicion2 X-ray of luggage: no suspicion3
1 U.S.
v. Ek, 676 F.2d 379 (1982) 2 U.S. v. Ramos-Saenz, 36 F.3d 59 (1994) 3 U.S. v. Okafor, 285 F.3d 842 (2002)
Daniel Sweet, 2009

Vehicles
U.S. Supreme Court:
The balancing between a routine search and nonroutine search has not place in analyzing vehicle searches but, some searches of property are so destructive as to require a different result.1
U.S. v. Flores-Montano, 541 U.S. 149 (2004)


Ninth Circuit:1
Did the vehicle search damage the vehicle in a manner that affected the safety or operability of the vehicle? Was the search conducted in a particularly offensive manner?
If the defendant shows by preponderance of the evidence that the answer to either of the above questions is yes, then the government must show that reasonable suspicion existed for the search.
U.S. v. Cortez-Rivera, 454 F.3d 1038 (2006)
Daniel Sweet, 2009

The following vehicle searches need no level of suspicion because they are neither so destructive as to cause operational or safety damage to the vehicle nor conducted in a particularly offensive manner.
Exploratory drilling (5/16 hole)1 Buster--radioactive density measuring equipment2
1 U.S.
v. Chaudhry, 424 F.3d 1051 (2005) 2 U.S. v. Camacho, 368 F.3d 1182 (2004)

Cutting into a spare tire1
U.S. v. Cortez-Rocha, 394 F.3d 1115 (2005)
Daniel Sweet, 2009
BSE Example
Daniel Sweet, 2009
Daniel Sweet, 2009
Daniel Sweet, 2009
Daniel Sweet, 2009
Daniel Sweet, 2009
Daniel Sweet, 2009
Daniel Sweet, 2009
Laptop Searches
U.S. v. Arnold, 533 F.3d 1003 (2008)
Defendant Arnold, applied for entry into the U.S. at LAX. The officer asked Arnold to turn on his laptop. The officer opened a folder on the computers desktop and saw photos of two nude women. Upon further search, child pornography was found on Arnolds computer.
Daniel Sweet, 2009
Laptop Searches
Arnolds argument
Laptops can hold massive amounts of personal information Search is intrusive and non-routine
Synonymous with search of home 1st Amendment protection
Requires reasonable suspicion
Daniel Sweet, 2009
Laptop Searches
Ninth Circuit Court of Appeals
Home analogy is misplaced 1st Amendment expressive material too difficult for officer to distinguish This is not a search of a person Like a search of a vehicle
Search not conducted in an offensive manner Search did not damage computer
No suspicion needed
Daniel Sweet, 2009
Laptop Searches
IMPORTANT NOTE:
The Court did not say that all laptop searches are not offensive, but that the way this particular search was conducted was not offensive.
Whatever particularly offensive manner might mean, this search certainly does not meet that test.1
U.S. v. Arnold, 533 F.3d 1003 (2008)
Daniel Sweet, 2009
What Might Be Offensive?

Cracking passwords1
Beyond the scope of officer training2 Length of time to accomplish
Encrypted files
Beyond the scope of officer training2 Length of time to accomplish
Reading material
2-tier process3
Scanning Plain-view doctrine
1 Allowance
for breaking locks 2 Current use of contractors to remove gas tanks. 3 U.S. v. Seljan, 547 F.3d 993 (2008) Border Search Exception to the 4th Amendment Daniel Sweet, 2009
Recap
Person
Routine/Non-routine Analysis
Based on degree of intrusiveness1

1 2 U.S.
Body carriers2 Strip search3 Body cavity3 Involuntary x-rays4 Intrusion into a persons body5
U.S v. Flores-Montano, 541 U.S. 150 (2004) v. Montoya de Hernandez, 473 U.S. 531(1985) 3 U.S. v. Couch, 688 F.2d 599, 604 (1982) 4 U.S. v. Ek, 676 F.2d 379, 382 (1982) 5 U.S v. Summerfield, 421 F.2d 684 (1970)
Daniel Sweet, 2009
Recap
Vehicle
Destruction/Operational Safety
Routine/Non-routine Analysis is inappropriate1

1
Gas tank removal1 Drilling holes2 Spare tires3 Buster4
U.S v. Flores-Montano, 541 U.S. 150 (2004) 2 U.S. v. Chaudhry, 424 F.3d 1051 (2005) 3 U.S. v. Cortez-Rocha, 394 F.3d 1115 (2005) 4 U.S. v. Camacho, 368 F.3d 1182, 1186 (2004)
Daniel Sweet, 2009
Was the Ninth Circuit Wrong?

Arnold argues that the district court was correct to apply an intrusiveness analysis to a laptop search despite the Supreme Court's holding in Flores-Montano, by distinguishing between one's privacy interest in a vehicle compared to a laptop. However, this attempt to distinguish Flores-Montano is off the mark. The Supreme Court's analysis determining what protection to give a vehicle was not based on the unique characteristics of vehicles with respect to other property, but was based on the fact that a vehicle, as a piece of property, simply does not implicate the same dignity and privacy concerns as highly intrusive searches of the person. Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582.1 [emphasis added].
1U.S.
v. Arnold, 533 F.3d 1003 (2008)
Daniel Sweet, 2009

But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person-dignity and privacy interests of the person being searched-simply do not carry over to vehicles. Complex balancing tests to determine what is a routine search of a vehicle, as opposed to a more intrusive search of a person, have no place in border searches of vehicles.1 [emphasis added].
1 U.S.
v. Flores-Montano, 541 U.S. 153, 154 (2004).
Daniel Sweet, 2009

Furthermore, we have expressly repudiated this type of least restrictive means test in the border search context. See Cortez-Rocha, 394 F.3d at 1123(refusing to fashion a least restrictive means test for border control vehicular searches, and ... refus[ing] to tie the hands of border control inspectors in such a fashion). Moreover, in both United States v. Chaudhry, 424 F.3d 1051, 1054 (9th Cir.2005) (finding the distinction between routine and non-routine inapplicable to searches of property) and Cortez-Rocha, 394 F.3d at 1122-23, we have recognized that Flores-Montano rejected our prior approach of using an intrusiveness analysis to determine the reasonableness of property searches at the international border.1
1U.S.
v. Arnold, 533 F.3d 1003 (2008) Daniel Sweet, 2009
Wyoming v. Houghton1
Facts:
Officer makes traffic stop. Ascertains that a syringe was used for drug use. Searches automobile under automobile exception includes a passengers purse. Finds contraband.
1 526
U.S. 295 (1999)

Daniel Sweet, 2009
Wyoming v. Houghton
U.S. Supreme Court
We hold that police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search.1
1 Wyoming
v. Houghton, 526 U.S. 295, 307 (1999)

Daniel Sweet, 2009
Justice Breyers Concurrence

Purses are special containers. They are repositories of especially personal items that people generally like to keep with them at all times. So I am tempted to say that a search of a purse involves an intrusion so similar to a search of one's person that the same rule should govern bothBut I can say that it would matter if a woman's purse, like a man's billfold, were attached to her person. It might then amount to a kind of outer clothing,which under the Court's cases would properly receive increased protection.1
Wyoming v. Houghton, 526 U.S. 295, 308 (1999)

Alternate Approach
Recognize the unique characteristics of modern technology. Apply the intrusiveness/dignity and privacy analysis in Flores-Montano and use the routine/non-routine test. Similar to Montoya de Hernandez, designate laptop searches as non-routine and require reasonable suspicion.
Alternate Approach Contd

Using this alternate approach will not overturn any case law set prior to the Arnold decision. Stare Decisis can still be followed without expanding definition of vehicle to mean any property.
Daniel Sweet, 2009

BSE Presentation

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

BSE Presentation

Загружено:

Авторское право:

Доступные форматы

U.S. v.

533 F.3d 1003 (2008).

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Border Search Exception (BSE)

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Federal Search Jurisprudence

Const. amend. IV.

Border Search Exception to the 4th Amendment

Federal Search Jurisprudence

Katz v. U.S., 389 US 347 (1967)

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Federal Search Jurisprudence

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Federal Search Jurisprudence

Warrants based on probable cause Exceptions based on reasonableness

Const. amend. IV.

Border Search Exception to the 4th Amendment

Federal Search Example

Example Using BSE

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

34.62 Kgs. of Marijuana

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Commerce Power1 Plenary search authority

Const. art. I, 8, cl. 3

Border Search Exception to the 4th Amendment

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Seizures Under BSE

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Seizures Under BSE

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Seizures Under BSE

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Who Can Search?

Where Can a BSE Search Occur?

Functional Equivalent of the Border (FEB)

1 http://www.cbp.gov/xp/cgov/newsroom/highlights/08year_review.xml on November 25, 2009.

Border Search Exception to the 4th Amendment

Daniel Sweet, 2009

Functional Equivalent of the Border

Almeida-Sanchez v. U.S., 413 U.S. 266, 273 (1973).

v. U.S., 428 U.S. 543 (1976)

Border Search Exception to the 4th Amendment

U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)

Level of Suspicion Needed