ON THE CONSTITUTIONAL FRONTIER

Traveling internationally can be exhilarating.  Coming home can be comforting.  But in the middle, our constitutional rights disappear.

Courts from the Supremes on down have ruled or that searches at international borders (whether you are leaving or, more traditionally, reentering the country) may be conducted without a warrant and without probable cause.  The Government has full authority to conduct suspicionless inspections of people and their possession at the border. Even a non-routine search, one that is intrusive or invasive, needs only be justified by a “reasonable suspicion” of criminal activity.

So when a man suspected of securities fraud found himself in the no man’s land between the plane and the terminal, custom agents, alerted by law enforcement officers from another agency, searched his luggage, found a notebook, and photocopied it. The federal government made those copies a central piece of evidence at trial and obtained a conviction.

His defense team, and later his appellate counsel, tried to establish some limits to rampant border searches, without success.  They first tried to distinguish cases where a traveler’s behavior gives rise to an agent’s suspicion, to cases like their client’s where the reasonable suspicion was a tip from another law enforcement agency.  The courts had none of it, at trial or on appeal.  On the contrary, they took pains to laud interagency cooperation and would do nothing to deter it.

The defense also raised whether copying a notebook to further a securities fraud allegation was even within the purview of Custom and Border Protection.  The Courts brushed this aside too.  Contraband, immigration, or terrorism may be the primary laws enforced at the border, but that does not mean customs agents should ignore evidence of other federal offenses. The notebook’s photocopy was in.  The conviction stood.

To some, what happened at the airport that day was little more than an end run around the Fourth Amendment; to others, a small price to pay for vigilance at the border. Either way, it shows how even constitutional rights have some limits, and legal counsel ought to advise their clients accordingly.