With the presidential election around the corner including two candidates with vastly different levels of concern about national security, I thought it would be appropriate to touch on the issue of search and seizures at our national borders.
I would venture to say that most of you have seen shows like “Locked Up Abroad,” movies like “Blow,” or perhaps the famous documentary “Cocaine Cowboys.” Each of these productions deal with the issue of drug trafficking across international borders. It seems that each episode of “Locked Up Abroad” includes a very inexperienced drug trafficker trying to slip through customs security at some international airport. They are always “sweating bullets” and almost always get caught on the show.
Well, these and other similar shows and documentaries are really quite factual. Thousands of people try to enter the United States each year with illegal contraband on their person. This can be drugs, weapons, explosives, etc. From a national security standpoint, U.S. law is very deferential to law enforcement in protecting our country from external threats. Most of these external threats must approach and confront some border of the United States.
Interestingly, a search at a border incident to the entrance of a person into the United States is not protected by the 4th Amendment. Therefore, there is no search warrant requirement for these types of searches. The United States Supreme Court has held that travelers may be stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.
Another interesting aspect to border searches is that they are particularly important in the state of Georgia. This is because Atlanta has one of the largest international airports in the world. The United States Supreme Court has also held that an airport at which passengers arrive after a non-stop flight from outside the country is the “functional equivalent to a border” of the United States. A search by customs agents of passengers at such an airport is not limited by the 4th Amendment. Therefore, a person and his luggage arriving at a customs area may be searched without the slightest suspicion even after the passenger has cleared the customs area.
While border searches are not controlled by the 4th Amendment, the nature and extent of the search by custom officials is limited. Mere suspicion alone will not justify certain types of searches. If a customs official wants for someone to disrobe, for instance, a real suspicion justifying the search must exist. The general rule is that the more intrusive the search, the more justified it must be by a corresponding higher level of suspicion of criminal activity.
Additionally, the federal statute providing for border searches does not go so far as to allow warrantless searches of residences, but only of people and vehicles. However, the border search exception does cover the warrantless search of pieces of international mail, even after its delivery to the recipient, if there has been continuous surveillance of the mail and reasonable suspicion exists that it contains contraband.
As a huge supporter of the 4th Amendment of the Constitution, I must say that I agree with U.S. and Georgia law when it comes to the diminished personal protections during legal border searches. The first, and arguably the only, mandated responsibility of a government is to protect the citizens living within its borders from outside threats, military aggression, or invasion.
National security begins at the borders of the Republic.
Swindle is a local attorney at law.