On November 12, 2020, the Congressional Research Service (CRS) published a report that examines searches and seizures at the U.S. border in relation to the Fourth Amendment. The Department of Homeland Security (DHS) delegates to federal officers broad authority to conduct searches of persons and property at the border. This power, though, is not unlimited.
Not only does the Fourth Amendment protect all persons within the United States from unreasonable federal stops and searches, but its safeguards also apply to searches at the border. Entitled “Searches and Seizures at the Border and the Fourth Amendment,” the CRS report considers searches across various contexts including international borders, roving patrols, fixed immigration checkpoints and transportation checks. It also discusses the legality of electronic device searches, drone surveillance, biometric data collection and racial profiling at the border.
The core standard of the Fourth Amendment is the reasonableness of a search. The report highlights the uncertainty involved in determining which routine searches are considered unreasonable and in violation of the Fourth Amendment. While a warrant and probable cause are required for searches inside the United States, federal officers are permitted to perform warrantless searches at the border even if there is no suspicion of illegal activity.
The CRS, the Supreme Court has not specified what constitutes a routine border search, but it has implied that highly invasive searches may require reasonable suspicion of unlawful activity to hold up to Fourth Amendment scrutiny. This standard also applies to searches at other “functional equivalent” locations besides the border, such as U.S. airports.
Additionally, the Supreme Court has yet to specify whether the Fourth Amendment’s border search exception applies to warrantless searches of cellphones, laptops and other electronic devices that contain personal information. Lower courts have ruled that federal authorities may search such devices without a warrant or any particular suspicion in limited circumstances. But lower courts have failed to agree on whether reasonable suspicion is necessary for more intrusive searches.
The CRS report stated that recent years have seen the introduction of measures in Congress that would restrict the government’s authority to perform warrantless searches and seizures at the border and other areas. There is also legislation that would limit DHS’ authority to search electronic devices at the border.