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Protecting the U.S. Perimeter: Border Searches Under the Fourth Amendment
Yule Kim (au)
The Fourth Amendment requires that a search or seizure conducted by a governmental agent be reasonable and supported by probable cause. The Supreme Court has interpreted the Fourth Amendment to include a presumptive warrant requirement on all searches and seizures conducted by the government. Any violation of these requirements could result in the suppression of any information derived therefrom. The Supreme Court, however, has also recognized situations thatrender obtaining a warrant impractical or against the public’s interest and has accordingly crafted various exceptions to the warrant and probable cause requirements of the Fourth Amendment. Few exceptions to the presumptive warrant and probable cause requirements are more firmly rooted than the “border search” exception. Derived from the sovereign right to stop and examine persons and property crossing into the country, border searches allow customs officials theflexibility to inspect incoming individuals and their belongings and to interdict incoming contraband without having to inform a magistrate before the search.This report first outlines the statutes authorizing certain federal officers to conduct warrantless searches: 19 U.S.C. § 482 for customs officials and Immigration and Nationality Act (INA) § 287 (codified in 8 U.S.C. § 1357) for immigration officers. It then addresses the scope of the government’s constitutional authority to search and seize persons and property at the border. It also describes the varying levels of suspicion generally required for each type of border search as interpreted by the courts. Finally, this report lists several bills before the 111th Congress that address border searches: two of which, H.R. 239 (the Securing our Borders and our Data Act of2009) and H.R. 1726 (the Border Security Search Accountability Act of 2009), address border searches of laptops and other electronic storage devices. H.R. 1900 would provide emergency deployments of federal officers to the border and would authorize funds to local law enforcement to stem the illegal trafficking of firearms into Mexico. S. 205, H.R. 495, and H.R. 1448 would also authorize funds for Bureau of Alcohol, Tobacco, Firearms, and Explosives agents to interdict the illegal trafficking of firearms to Mexico.
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