Discuss the cases in this chapter relevant to border searches. Why are border agents free from the requirement of probable cause or particular suspicion? Do you believe there is any "underlying" reason (besides drug interdiction) for these searches? If your answer is yes, what do you think it might be? If no, why not?

Question

What will be an ideal response?

Answer 1

In the 2004 case of United States v. Flores-Montano, the U.S. Supreme Court rejected a balancing test based on the routine/nonroutine nature of the search. The Court said that the reasonableness requirement does not require border agents to have any "particularized suspicion" before searching a vehicle. In Flores-Montano, agents removed and disassembled a vehicle's fuel tank looking for illegal drugs. The Court upheld the agents' actions, stating that the test for determining whether a search was unreasonable should be the "intrusiveness" of the search, not its routine or nonroutine character. The Court did state that a search of a vehicle could be so "destructive" that it became unreasonable.
In United States v. Cortez-Rocha, the court upheld a border search of the spare tire in a vehicle attempting to cross the border at a checkpoint. Agents suspected that the tire on the vehicle might contain illegal drugs, and agents slashed the tire, finding 42 kilograms of marijuana. The court held that the tire slashing was not so "destructive" that the search was unreasonable because it did not hinder the operation of the vehicle or prevent the occupants from continuing their travels.
Following these decisions most courts have held that the "border search" doctrine means that any search at a border can be made without suspicion, unless the search is unusually excessive and destructive. In the 2008 case of United States v. Arnold, the Ninth Circuit Court of Appeals held that federal border agents did not need any "particularized suspicion" to view the files on a laptop computer brought into this country by a passenger on an international flight. The border agents required the passenger to turn on the laptop, and then the agents browsed through the files, finally discovering child pornography photographs. At the trial on child pornography charges, the district court suppressed the laptop photographs, and the government appealed. The court of appeals reversed. The passenger argued that in
Flores-Montano the Supreme Court had left open the question whether a suspicionless border search might be unreasonable "because of the particularly offensive manner in which it is carried out." Because so much personal information might be stored in a laptop, the passenger argued, the search by the border agents was "particularly offensive." The court disagreed, noting that in the many cases where suspicionless border searches of containers have been upheld, the Supreme Court never suggested that the capacity of the container had any bearing on the offensiveness of the search. The court also refused to create a special exception based on the potential for the presence of "expressive materials" protected by the First Amendment in the property searched, choosing instead to follow the decision of the Fourth Circuit Court of Appeals in United States v. Ickes. Student responses regarding opinion should be grounded in an understanding of the content.