Searches by Police and Border Agents

Contrary to popular belief, technically speaking, “border searches” do not just take place between the U.S. and Mexico and/or Canada.  In fact, the Commonwealth of Virginia must pay close attention to the rules governing border searches for two reasons: First, because of the presence of implicated ports located in the Tidewater region. Second, all airports with incoming, non-stop flights from other countries are treated as borders for all intents and purposes (or the “functional equivalent.” See U.S. v. McGlone, 394 F.2d 75 (4th Cir. 1968); Almeida-Sanchez v. U.S., 414 U.S.266 (1973).

If ports and even some airports give rise to the relaxed “border search” rules, what are the implications to American travelers? Our government views the work of customs agents as special, in the sense that the searches these employees execute are not subject to Fourth Amendment limitations like most other searches. This is because, as mentioned, these government workers have special duties that are rooted in protection of our country. (See U.S. v. Warner, 441 F.2d 821 (5th Cir. 1971). Thus, luggage that arrives from another country can be searched without much reprise.  For individuals who regularly travel, consulting your local Virginia Beach Criminal Lawyer may be a wise move in the event of uncertainty.

It only takes a basic understanding of criminal procedure and constitutional law to appreciate the fact that “searches and seizures” must be executed pursuant to a warrant, or one of the various exceptions.  But in the case of a border search or seizure, there is no requirement for probable cause or a warrant.  However, the search or seizure must be “routine” in nature and the purpose must be to prevent illegal contraband from entering the U.S. (U.S. v. Montoya de Hernandez, 473 U.S. 531 (1981).  Even in the event that the search in question was not part of a routine procedure, law enforcement has more leeway than in a normal, street encounter.  In this non-routine context case, the standard is “reasonable suspicion.” Reasonable suspicion is a term that means a law enforcement officer has a suspicion less than probable cause, but that suspicion is more than merely a “hunch.”  These rules may seemingly not be worth researching to the average citizen, but for people who travel often between countries and are not certain about the legality of their possessions, the concepts discussed in this article do possess some relevance. For more questions on your rights when traveling abroad or reentering the United States, speak with your local Virginia Beach Criminal Lawyer.