The Florida Bar
The Florida Bar Journal
November, 2013 Volume 87, No. 9
Crossing the Line: Border Searches at Florida’s International Airports

by Jerrold R. Dennis

Page 8

Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.1

Our country has maintained a traditional policy of balancing legitimate international commerce with the right of the government to protect its citizens from acts of terrorism, illegal immigration, and rampant contraband importation. The chaos that followed the tragedy of September 11 heightened the awareness for more thorough security and inspections at U.S. borders. These more stringent safety measures often result in complex search and seizure issues for the courts to decide.

The Fourth Amendment provides that a search or seizure conducted through state action must be reasonable and that any warrant issued by a magistrate be supported by probable cause. The Supreme Court has defined the Fourth Amendment as creating a presumed warrant requirement on all governmentally conducted searches and seizures, but courts have judicially created certain exceptions to these requirements. Probably the most notable exception to the Fourth Amendment requirements is found in searches and seizures occurring at our international borders. By virtue of the sovereign’s right to protect its citizens by searching persons and property crossing its borders, routine searches have been found to be reasonable simply due to the fact that they occur at the border. While at first blush one does not consider Florida to be a border state, it nonetheless is treated as such by virtue of the fact that it has no less than 14 international airports,2 which are deemed the functional equivalent of the border.

An Overview of the Fourth Amendment
The Fourth Amendment to the Constitution, ratified by the Congress in 1791, reads as follows: “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.”3

The basic purpose of the Fourth Amendment, “as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”4

The Supreme Court has traditionally interpreted the reasonableness standard of the Fourth Amendment as creating a presumptive warrant requirement, stating that “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”5 The requirement to obtain a search warrant in a criminal case has been viewed as a protective measure, as noted in Johnson v. United States, 333 U.S. 10 (1947), in which the Court found:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.6

The Court, however, has acknowledged that exceptions do exist, determining, for example, that since the “founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.”7

The Principles of Border Searches
It is well established that searches conducted without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment.8 However, this principle is not without exception. In United States v. Ramsey, 431 U.S. 606 (1977), the Supreme Court stated that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” In fact, the warrantless border search exception is deeply rooted in the Fourth Amendment and is empowered by Congress’ authority to police international trade and immigration policy.9

While the border search is exempt from the Fourth Amendment’s warrant and probable cause requirements, it must still comply with the “reasonableness” standard. In United States v. Montoya de Hernandez, 473 U.S. 531 (1985), the Supreme Court stated that the “Fourth Amendment commands that searches and seizures be reasonable. What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.10

A typical border search has been found to fall into one of two categories, being either a routine search or a nonroutine search, depending on the degree and nature of the intrusion.11 Border searches that are classified as routine usually provide for very limited intrusions into a person’s privacy, generally consisting of a patdown search, the emptying of pockets, or the inspection of a vehicle, and do not require any suspicion of criminal activity. However, once a reasonable suspicion of criminal activity exists at the border, government officials may generally conduct what is classified as a nonroutine search. Nonroutine searches have been found to include searches of personal property, prolonged detentions, strip searches, body cavity searches, and x-ray searches. A routine border search is deemed reasonable as a result of the fact that it occurs at the border and consists of only a limited intrusion, while a nonroutine search generally requires reasonable suspicion.12 Generally, border searches occur at some point of entry, either by land from our northern or southern borders, at seaports where ships dock upon entering our territorial waters, or at one of dozens of international airports, many of which are well within our interior. A search at the border may include a person entering or leaving the country,13 an individual’s luggage or personal effects,14 and a variety of international cargo.15

The Functional Equivalency Doctrine and Florida’s International Airports
In many instances, it is not possible for federal agents to conduct their search at the actual border. A search and seizure that does not technically occur at the border may still fall within the border exception, so long as it takes place at the functional equivalent of the border.16 Florida has multiple airports designated as international facilities. By virtue of the fact that they receive nonstop incoming flights from international destinations qualifies them as functional equivalents of the border for search and seizure purposes.

The U.S. Supreme Court, in Almeida-Sanchez v. United States, 413 U.S. 266 (1973), stated that border searches “may in certain circumstances take place not only at the border itself, but at its functional equivalents as well.”17 The courts have found that a search may occur at the border’s functional equivalent if 1) a reasonable certainty exists that the person or thing crossed the border; 2) a reasonable certainty exists that there was no change in the object of the search since it crossed the border; and 3) the search was conducted as soon as practicable after the border crossing.18

[S]earches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of passengers and cargo of an airplane at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.19

Searches Conducted at the Extended Border
Under certain circumstances, the border search exception may be expanded beyond the border or its functional equivalent. Courts have held that customs officials may conduct warrantless searches if 1) they have a reasonable certainty or high degree of probability that a border was crossed; 2) they have a reasonable certainty that no change in the object of the search has occurred between the time of the border crossing and the search; and 3) they have a reasonable suspicion that criminal activity was occurring.20 While border searches and extended border searches have many similarities, the extended border search leads to a more significant violation of one’s privacy, and, therefore, mandates that reasonable suspicion exists. Also, the extended border search takes place sometime after the first instance when the entering party could have been stopped inside the border.21

What Constitutes a Search?
In its simplest terms, a search has been found to consist of a governmental intrusion into a constitutionally protected area.22 In the cornerstone search case of Katz v. United States, 389 U.S. 347 (1967), the U.S. Supreme Court devised an analysis purposely written to provide that the Fourth Amendment “protects people — and not simply ‘areas’ — against unreasonable searches and seizures.”

In Katz, an electronic surveillance device was attached to the outside of a public telephone booth. In concluding that one’s person, papers, and effects had not been violated, the lower court determined there was no search, since the device did not penetrate the wall of the telephone booth. On appeal the Supreme Court found that the Fourth Amendment was not limited by the presence or absence of a physical intrusion. Justice Stewart, in his majority opinion, concluded: “These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.”23

In his separate concurring opinion, Justice Harlan wrote that a search does not occur under the Fourth Amendment unless 1) the individual exhibited a subjective expectation of privacy in the searched object, and 2) society is prepared to recognize that expectation as reasonable.24 This test is still used today in the analysis of many search cases.25

It should also be noted that border patrol agents now rely on modern technologies. The Supreme Court, in Kyllo v. United States, 533 U.S. 27 (2001), examined this trend when it weighed the privacy issues involved in the government’s use of sensory-enhancing technology. When a thermal-imaging device was used to detect relative amounts of heat within a private residence, the Court found that a search took place.26 The Court concluded that the use of such a device, for the purpose of eavesdropping on a private residence or other “constitutionally protected area” is a search and necessitates the issuance of a warrant.27

What Constitutes a Seizure?
The Supreme Court, in United States v. Jacobsen, 466 U.S. 109 (1984), described a seizure of property as “some meaningful interference with an individual’s possessory interests in that property.” An individual is seized when law enforcement causes a person to reasonably believe that he or she is not free to terminate the encounter.28 The Supreme Court has identified a number of factors to be considered when making a determination that a seizure has occurred, including 1) any intimidating movement by officers, 2) their display of weapons, and 3) their tone of voice.29

Routine Searches
Because of the importance of controlling our borders and those who cross them, Congress has legislated broad powers to conduct routine searches of persons, luggage, personal belongings, and vehicles.30 As stated earlier, routine searches at the border or its functional equivalent require no suspicion and are reasonable because they occur at the border.31 A routine border search is one that does not seriously invade one’s privacy.32 A routine border search may include limited searches for contraband through a pat-down,33 the removal of clothing or shoes, or the emptying of pockets or purses,34 some inspection of cars,35 and the use of trained narcotics canines.36

It is clear that a traveler’s expectation of privacy is lower at border crossings. Because a person crossing the border is reasonably certain that a search is likely, his or her privacy is less invaded by those searches. In determining whether a search is routine, the courts may consider the level or intensity of the invasion associated with the search. In United States v. Braks, 842 F.2d 509 (1st Cir. 1988), the court found six factors to be considered in determining the routineness of a search: 1) whether the search required the suspect to disrobe or expose any intimate body parts; 2) whether physical contact was made with the suspect during the search; 3) whether force was used; 4) whether the type of search exposed the suspect to pain or danger; 5) the overall manner in which the search was conducted; and 6) whether the suspect’s reasonable expectations of privacy were violated by the search.

Nonroutine Searches with Reasonable Suspicion
If a search by a government official goes beyond a limited intrusion, the court is likely to determine that a nonroutine search now exists. Nonroutine border searches may include searches that cause damage to personal property, and can include prolonged or extended detentions, strip searches, body cavity searches, and some x-ray examinations.37 It is now generally required that the government have a “reasonable suspicion” of illegal activity in order to support a nonroutine border search.38 This requires that an officer at the border have “a particularized and objective basis for suspecting the particular person” of wrongdoing.39 In United States v. Forbicetta, 484 F.2d 645 (5th Cir. 1973), the following objective facts were observed: 1) the suspect arrived from Bogota, Colombia; 2) she was traveling alone; 3) she possessed only one suitcase and no items requiring customs inspection; 4) she was young, properly dressed, and attractive; and 5) was wearing loose-fitting apparel. The court found that reasonable suspicion existed, particularly since the suspect fit the “smuggler profile” established by customs agents for the area.

The Search of Personal Property
A physical search or x-ray search at the border of personal property without suspicion, such as luggage or vehicles, is generally acceptable because it does not present the same level of intensity or invasiveness as searches of the person. The Ninth Circuit held, in United States v. Okafor, 285 F.3d 842 (9th Cir. 2002), that “an x-ray examination of luggage requires no force, poses no risk to the bag’s owner or to the public, and does not harm the baggage. . . . X-ray examination of luggage, bags, and other containers at a border is routine and requires neither warrant nor individualized suspicion.”

In United States v. Flores-Montano, 541 U.S. 149 (2004), the Supreme Court held that the removal and reassembly of a vehicle’s gas tank was supported by the government’s interest in protecting its citizens and did not require reasonable suspicion. Chief Justice Rehnquist, in the Court’s majority opinion, stated, “It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile’s passenger compartment.”40 The Court determined that the privacy interests that require reasonable suspicion for invasive personal searches were not applicable to vehicle searches at the border.41

Prolonged Detentions
Prolonged detentions are used when a suspicion exists that a suspect is attempting to bring contraband across the border through alimentary canal smuggling. In the leading prolonged detention case of United States v. Montoya de Hernandez, 473 U.S. 531 (1985), customs agents confronted a female passenger on a flight from Columbia, whom they suspected of alimentary canal smuggling. The passenger refused to consent to an x-ray examination and was subsequently detained for 16 hours. Customs officials ultimately obtained a court order for a pregnancy test, which proved negative, and a rectal exam. Over the ensuing four days, the suspect passed 88 balloons of pure cocaine through her rectum. The Court concluded that the detention of a traveler at the border, beyond the scope of a routine search, is justified if customs agents reasonably suspect that the traveler is smuggling contraband in his or her alimentary canal.42 The Court found the detention to be reasonable for the period of time necessary to verify the suspicion of the agents. Again, Chief Justice Rehnquist delivered the majority opinion, where he stated, “we conclude that the detention in this case was not necessarily long. It occurred at the international border, where the Fourth Amendment balance of interests leans heavily to the [g]overnment.”43

Strip Searches
Black’s Law Dictionary defines “strip search” as “a search of a person conducted after that person’s clothes have been removed, the purpose usually being to find any contraband the person might be hiding.”44 Since a strip search involves an embarrassing imposition, it is unreasonable to conduct them without reasonable suspicion.45 Occasionally, a routine search will provide the threshold suspicion required to conduct a strip search. In United States v. Chase, 503 F.2d 571 (9th Cir. 1974), customs agents found cocaine in the suspect’s sock during a routine border search. This discovery gave rise to a nonroutine strip search in which more packages of cocaine were found taped around the suspect’s waist. Each of the searches was upheld.

In United States v. Flores, 477 F.2d 608 (1st Cir. 1973), authorities discovered several hundred undeclared emerald stones in the defendant’s pockets during a routine search. They then conducted a strip search, which produced an envelope of illegal drugs. The court determined that the discovery of the emeralds during the routine search was sufficient to warrant the higher level of suspicion necessary to conduct the strip search.46

Body Cavity Searches
Due to the increased trafficking of illegal contraband, border patrol agents are acutely aware of illegal drugs being smuggled by concealing them in body cavities. As a result, searches of these cavities have become more prevalent. Border officials must have a reasonable suspicion that the suspect is attempting to transport contraband in a body cavity for a court to approve a body cavity search.47 In United States v. Sosa, 469 F.2d 271 (9th Cir. 1972), the Ninth Circuit determined that in order to support a body cavity search, there must be “a clear indication or plain suggestion that contraband may be located in a body cavity.” Finding that real suspicion was clearly present, the court approved the rectal probe of the suspect, which produced three packets of heroin.48

The manner in which the body cavity search is conducted must also be reasonable, and conduct that “shocks the conscience” is inherently unreasonable.49 In Rochin v. California, 342 U.S. 165 (1952), sheriff’s deputies subdued Rochin after observing him put two capsules in his mouth. Following a struggle, he was handcuffed and taken to a hospital, where a tube containing an emetic solution was forced into his stomach, causing him to vomit. The two capsules were seized and were found to contain morphine. The Court said, “This is conduct that shocks the conscience,” and Rochin’s conviction was reversed.

The Use of X-ray Searches
X-ray searches used at the border raise Fourth Amendment issues because they invade areas where one normally has some expectation of privacy. In United States v. Vega-Barvo, 729 F.2d 1341 (11th Cir. 1984), the court determined that an x-ray search is tantamount to a strip search, and, therefore, requires reasonable suspicion. The court took into consideration the physical contact between the searcher and the person searched, the exposure of intimate body parts, and the use of force.50 These factors allowed the court to conclude that the government’s use of x-ray technology was proper.51 The court found that x-rays do not require physical contact or usually expose intimate body parts, and that “an x-ray is one of the more dignified ways of searching the intestinal cavity.”52

Border Searches of Laptops and other Electronic Storage Devices
There are a handful of lower court rulings addressing whether the border search exception applies to electronic storage devices, either routine or nonroutine, and what level of suspicion is necessary to warrant such a search. In United States v. Ickes, 393 F.3d 501 (4th Cir. 2005), the Fourth Circuit was faced with the warrantless search of Mr. Ickes’s van as it was entering the United States from Canada. A U.S. Customs inspector instituted a comprehensive search of the van after finding marijuana paraphernalia, a previous arrest warrant, a computer, several dozen computer disks, and photos depicting child pornography.53 The court approved the warrantless search of the vehicle under the border search exception,54 but went on to suggest, but not require, the need that reasonable suspicion exist to conduct computer searches, when it said “computer searches are most likely to occur where — as here — the traveler’s conduct or the presence of other items in his possession suggest the need to search further.”55

A few years later, the Ninth Circuit cited Ickes in United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), expressly ruling that searches of electronic storage devices at the border do not require reasonable suspicion. Mr. Arnold arrived at Los Angeles International Airport after vacationing for several weeks in the Philippines, and was detained for questioning by customs and border protection agents.56 As part of a luggage search, Arnold was asked to turn on his computer, which he did, revealing nude images. Although Arnold was released at the time, his computer along with other storage devices were seized, and a few weeks later a warrant was obtained to further search the devices.57 On appeal, the Ninth Circuit determined that the intrusiveness of a computer search was not significant enough to invoke the reasonableness requirement of the Fourth Amendment.58 The court, in its summation, said, “Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have followed.”59

Following the catastrophic events of 9/11, the monitoring of our nation’s borders has been stepped up considerably. Border patrol agents are faced with a growing concern for the safety and well-being of international travelers, thousands of whom cross our borders daily. While Florida is not a traditional border state, by virtue of it being the functional equivalent of a border regarding incoming nonstop flights from foreign destinations, search and seizure issues have become the topic of choice in the law enforcement arena. Each traveler and each factual scenario present challenging legal issues for the courts to consider. Even by availing themselves of all of the basic Fourth Amendment rules and a wealth of case law, the courts face challenging decisions in light of the fact that the dynamics of domestic and foreign travel continues to change in the face of international terror.

1 United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).


3 U.S. Const. amend. IV.

4 Camara v. Municipal Court, 387 U.S. 523, 528 (1967).

5 Id.

6 Johnson v. United States, 333 U.S. 10, 14 (1947).

7 United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).

8 Katz v. United States, 389 U.S. 347, 357 (1967).

9 See, e.g., 8 U.S.C. §1357(c) (authorizing warrantless searches by immigration officials); 19 U.S.C. §162.6 (authorizing customs officials to conduct warrantless searches of luggage); 19 U.S.C. §482 (authorizing customs officials to board and search vessels coming in U.S. territorial waters); 19 U.S.C. §1496 (customs officials authorized to search baggage of persons entering the country); 19 U.S.C. §1582 (authorizing the search of persons and baggage coming into the U.S. from foreign countries).

10 United States v. Villamonte-Marquez, 462 U.S. 579, 585 (1983).

11 United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994).

12 United States v. Braks, 842 F.2d 509, 511-12 (1st Cir. 1988).

13 See, e.g., United States v. Ramos, 645 F.2d 318 (5th Cir. 1981); United States v. Beras, 183 F.3d 22 (1st Cir. 1999).

14 United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993).

15 See Ramsey, 431 U.S. 606 (1977).

16 United States v. Moreno, 778 F.2d 719, 721 (11th Cir. 1985).

17 Almeida-Sanchez, 413 U.S. at 272.

18 United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991).

19 Almeida-Sanchez, 413 U.S. at 273.

20 See, e.g., United States v. Cardenas, 9 F.3d 1139, 1148 (5th Cir. 1993); United States v. Delgado, 810 F.2d 480, 482 (5th Cir. 1987); United States v. Teng Yang, 286 F.3d 940, 946 (7th Cir. 2002).

21 United States v. Niver, 689 F.2d 520, 526 (5th Cir. 1982).

22 Silverman v. United States, 365 U.S. 505 (1961).

23 Katz v. United States, 389 U.S. 347, 359 (1967).

24 Id. at 361.

25 See, e.g., Kyllo v. United States, 533 U.S. 27 (2001); United States v. Elmore, 304 F.3d 557 (6th Cir. 2002).

26 Kyllo v. United States, 533 U.S. 27, 37 (2001).

27 Id. at 40.

28 See, e.g., United States v. Drayton, 536 U.S. 194 (2002).

29 Id.

30 See, e.g., 8 U.S.C. §1357; 19 U.S.C. §1496; 19 U.S.C. §1582.

31 Carroll v. United States, 267 U.S. 132, 153 (1925).

32 United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993).

33 United States v. Beras, 183 F.3d 22, 24 (1st Cir. 1999).

34 United States v. Sandler, 644 F.2d 1163, 1169 (5th Cir. 1981).

35 United States v. Flores-Montano, 124 S. Ct. 1582 (2004).

36 United States v. Kelly, 302 F.3d 291 (5th Cir. 2002).

37 See, e.g., United States v. Reyes, 821 F.2d 168, 170-71 (2d Cir. 1987).

38 United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985).

39 Id.

40 United States v. Flores-Montano, 541 U.S. 149, 154 (2004).

41 Id. at 155.

42 United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985).

43 Id. at 544.

44 Black’s Law Dictionary, Strip Search (9th ed. 2009).

45 United States v. Chase, 503 F.2d 571, 574 (9th Cir. 1974).

46 United States v. Flores, 477 F.2d 608 (1st Cir. 1973).

47 See, e.g., United States v. Ogberaha, 771 F.2d 658 (2d Cir. 1985).

48 See also id. (The court found that reasonable suspicion existed to warrant a body cavity search, culminating in the retrieval of a heroin-filled condom from the suspect’s vagina).

49 Rochin v. California, 342 U.S. 165 (1952).

50 Vega-Barvo, 729 F.2d 1341,1346 (11th Cir. 1984).

51 Id. at 1344. (Vega-Barvo was taken to a hospital from Miami International Airport and after signing a consent form, was x-rayed. The x-ray revealed foreign objects in her stomach. She then confessed to swallowing 135 cocaine-filled condoms, which were subsequently retrieved from her fecal matter.).

52 Id. at 1348.

53 United States v. Ickes, 393 F.3d 501, 503 (4th Cir. 2005).

54 Id. at 505.

55 Id. at 507.

56 United States v. Arnold, 523 F.3d 941, 943 (9th Cir. 2008).

57 Id. at 943.

58 Id. at 946.

59 Id. at 947. Note: After the U.S. Supreme Court denied Arnold’s writ of certiorari, he was found dead of an apparent suicide at his home two days later. See Appellee Arnold’s Motion to De-publish Opinion, No. 06-50581 (9th Cir. 2009).

Jerrold R. Dennis is a general practice attorney with the Law Offices of Jerrold R. Dennis in Pryor, Okla. He received his B.A. from Monmouth College; M.B.A. from Northeastern State University; and J.D. from The University of Tulsa College of Law.

[Revised: 10-28-2013]