The federal agency U.S. Custom and Border Protection (CBP), a subagency of the Department of Homeland Security (DHS), is responsible for the safety of United States borders. One of CBP’s key tasks is to prevent and detect illegal entries, whether the illegal entry be an individual entering the country without documentation or an attempt to smuggle in illegal items.
One way the CBP keeps borders safe and secure is by conducting border searches. U.S. courts have granted CBP agents very extensive rights to search anything you have with you when you cross into the U.S. at the Mexican or Canadian border.
You should be aware that CBP agents have asserted the right to search anyone within 100 miles (165 km) of an international border. In fact, over 70% of Border Patrol arrests occurred in cities, townships or villages that don’t share a border with Canada or Mexico. Half of all border patrol arrests begin with stops by a local police agency, who then contact the border patrol.
Why Would You Be Searched at the Border?
Border officials have complete discretion whether to subject you to a search when you cross into the United States. They can decide to undertake a search based simply on their own instincts or hunches.
A search can also be triggered by something in your personal record. If you have been flagged for something like having a criminal record or a previous violation of immigration or customs law, you may be subject to search on every one of your future trips across the border.
You can also be searched for something as simple as having a name that matches a person of interest in a national security database.
What Should You Do if a Border Search is Requested?
Unless you have some especially compelling privacy reason, do what the officer asks you to do. Arguing with a CBP officer is not a battle you are going to win, and if you don’t comply with their requests, you run the risk of getting arrested.
One important key: Don’t lie about anything. If the officials catch you lying about something as simple as your home address, they will become suspicious. Suspicious agents conduct longer and more thorough searches, which will cause you (at best) an annoyance and a delay, or (at worst) being detained or arrested while they determine if you are doing anything wrong.
Before you travel, pack your bags neatly and keep your electronics in view. You want to give the impression that you are not trying to conceal or hide anything.
If there is something you don’t want them to see, the simplest fix is this: don’t have it with you. To protect information that would otherwise be stored on a laptop or other device, take advantage of cloud services to store important information and access it later. Always have a backup of your digital media back home, in case your laptop, cell phone, etc. is seized or damaged.
Border agents are required to document their searches, and statistics on the number and type of searches are regularly published. You should be notified of the purpose for a search, although there are a few national security exceptions to those rights. You should be allowed to be present during the search. You should also be given information on where you can complain if you are unhappy with border official conduct.
What Can They Search on Your Electronic Devices?
CBP routinely exercises its power to search and seize any electronic or digital storage device. This includes such things as laptops, tablets, cell phones, discs, digital cameras, and hard drives. Tens of thousands of phones and other electronic devices are searched every year. This power also extends to searches of documents, books, pamphlets and other printed material.
(Note: There is a steady flow of privacy court cases in the legal pipeline, so the law in this area will continue to evolve. For example, one U.S. court case mandated that CBP officers must have a “reasonable suspicion” of criminal activity before conducting comprehensive searches of laptops or other digital devices. Whether that will hold up in later court rulings, and what those terms actually mean, will continue to be litigated over time. )
These days, many of us keep the most intimate details of our lives on our laptops, tablets and smartphones. Business people often transport much of their data and their work product. Whether all of that information is completely available to law enforcement is likely to be in front of courts for a very long time.
As of today, border agencies have successfully asserted the right to examine all files on all electrical devices, including personal or business financial information, emails, and your browsing history. You can be forced to open encrypted files, or the government can take the time to do it themselves.
If a foreign visitor doesn’t comply with a border official’s request, they are likely to be denied entry to the country. American citizens cannot be denied entry, even if they refuse to unlock a device or provide a password. However, CBP may then seize their devices and copy their content for on-site or off-site forensic tests. These tests can take weeks and sometimes months.
Agents look at text messages, emails, photo albums and other personal data for evidence of terrorism links or criminal activity, such as child pornography.
If they suspect illegal activity, CBP officials are allowed to search your devices by looking at apps connected to the internet, or by copying the information in the device, or confiscating it altogether.
No compensation is provided for any losses suffered by the owners of laptops or other media as a result of its seizure, even if the contents are destroyed by the government. A laptop can be held for over a year, and during that time the owner is not allowed to get a copy of the contents of their hard drive.
What Do They Already Know About You?
Every time you cross a border, information is captured and put into a database: your name, date of birth, citizenship, address, the purpose of your travel, and more. This information forms your “passage history.” Computers analyze passage histories to pinpoint people who have suspicious travel patterns.
If you are pulled over for a secondary inspection or search, even more information is collected and put into the database. This includes the reason for the additional screening, the results of any search and any action taken, and the names of the people you are traveling with.
If they want to dig deeper, they can see your criminal history, the identity of your family members and relatives, your current job, certain types of tax information, dishonorable discharge from the armed forces, credit card information, your social media posts, and much, much more.
Thanks to license plate readers and RFID technology in passports and other documents, border agents know who is approaching them before you arrive at the customs station. This information is run against their databases, which will automatically flag persons who warrant additional inspection.
To help evaluate whether to allow you to enter the country, border agents have access to a wide variety of databases, including the FBI’s electronic clearinghouse of crime data called the National Crime Information Center (NCIC). Other available databases include the U.S. Border Crossing Information (BCI) system, the FBI’s Terrorist Screening Database (TSDB), and the U.S. Interagency Border Inspection System (IBIS).
These databases capture an enormous amount of information about travelers. The U.S. Department of Homeland Security (DHS) also maintains something called the Automated Targeting System (ATS). This system scrutinizes a large volume of data for every person who crosses a US border and then automatically assigns them a “terrorist” rating.
What Is the Border Search Exception to the Fourth Amendment?
The Fourth Amendment to the U.S. Constitution protects citizens against “unreasonable searches and seizures” by police. Over time this doctrine has been developed to mean that when the police want to search your person, your home or your property, they must obtain a written warrant from a judge. If there is not enough time for them to obtain a warrant, they must have “probable cause” to conduct a search.
“Probable cause” means that the facts and circumstances of a situation, combined with the police officer’s knowledge and experience, lead them to believe that criminal activity is occurring. Probable cause is somewhere above having a “mere suspicion” but is less than believing it “beyond a reasonable doubt.”
There are exceptions to the demand for a warrant or probable cause:
- When a suspect is fleeing the police (i.e., the police are in “hot pursuit”)
- When the evidence is in “plain view”
- If there is a danger that incriminating evidence may be lost or destroyed
- If law enforcement received consent from either the person being searched, or the owner of the property being searched
- When the search is done in connection with a valid arrest, a stop-and-frisk incident, or an automobile search.
One of the exceptions is the “border search” exception. According to the current court interpretation of the U.S. Constitution, agencies such as the CBP can search anyone coming into the country. The agencies also have a right to search any property the person has with them. The agencies do not need the permission of the person being searched, nor do they need a warrant.
CBP’s position is that normal Fourth Amendment privacy rights do not apply because there is no fundamental or constitutional right to cross into the United States. U.S. courts have upheld the CBP’s right to perform searches that might otherwise violate a U.S. citizen’s Fourth Amendment rights.
Should I Contact an Attorney About Border Search Laws?
It is advisable for you to contact an immigration attorney in your area if you have any questions about border search laws. These laws are complex, and failing to comply with them can result in criminal charges or deportation.
