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It is somewhat amazing what passes for “routine” these days, especially when it comes to border searches. Since the “War on Terrorism” began in 2001, courts have continually expanded the law enforcement powers of border agents. Although it is unclear whether these greater powers have netted more terrorists, they certainly are being used earnestly in America’s other prominent war�the War on Drugs. Twenty years ago, ‘Montoya’ made a splash Almost 20 years ago, in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), the Supreme Court reaffirmed that ordinary Fourth Amendment requirements do not apply to “routine” searches of persons and belongings as they cross the American border. Because of America’s interest in safeguarding its borders, border agents need not obtain a warrant, nor demonstrate probable cause or even reasonable suspicion, to conduct a routine search at the border. “[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606 (1977). Thus, the executive branch has always had the power to conduct routine searches and seizures at the border without probable cause or a warrant. This power is now reflected in 19 U.S.C. 1581(a), a statute derived from a law passed by the First Congress in 1790. Today, the Supreme Court considers it “axiomatic” that the United States can conduct routine border searches to protect its territorial integrity. United States v. Flores-Montano, 124 S. Ct. 1582, 158 L. Ed. 2d 31 (2004). Although border officials have a free hand when it comes to “routine” border searches, they must demonstrate individualized, reasonable suspicion for nonroutine border searches. Montoya, 473 U.S. at 541-42. The officers may be relieved of demonstrating probable cause or getting a warrant, but they must have some objective evidence to point to, just like in a Terry stop, to conduct a nonroutine search of people and their possessions. Failure to demonstrate reasonable suspicion may result in suppression of evidence they find during their search. Given the heightened burden on agents if they conduct a nonroutine border search, the battle in the courts has focused on where to draw the line between “routine” and “nonroutine” searches. Simply referring a person from primary border inspection to secondary inspection is considered part of a “routine” border search. See, e.g., United States v. Sandoval Vargas, 854 F.2d 1132 (9th Cir. 1988). So are brief canine sniffs or a patdown of the person. See United States v. Nava, 363 F.3d 942 (9th Cir. 2004); United States v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003). By contrast, courts have found that drilling into a person’s possessions or vehicle is considered a nonroutine search requiring individualized suspicion. See, e.g., United States v. Bennett, 363 F.3d 947 (9th Cir. 2004); United States v. Rivas, 157 F.3d 364 (5th Cir. 1998); United States v. Robles, 45 F.3d 1 (1st Cir. 1995); United States v. Carreon, 872 F.2d 1436 (10th Cir. 1989); United States v. Puig, 810 F.2d 1085 (11th Cir. 1987). Similarly, requiring an entrant to remove his artificial limb so that officers can search for drugs requires reasonable suspicion (see, e.g., United States v. Sanders, 663 F.2d 1 (2d Cir. 1981)), as does lengthy detention of someone suspected of swallowing drug balloons to monitor their bowel movements, or subject them to X-rays, probes or laxatives. ( Montoya, supra). In an effort to draw a line between “routine” and “nonroutine” searches, some courts have tried to use a series of factors to make their determination. In United States v. Braks, 842 F.2d 509 (1st Cir. 1988), the court considered the following factors relevant in determining whether there had been a nonroutine search: (1) whether the search requires the suspect to disrobe or results in the exposure of intimate body parts; (2) whether there is physical contact during the search; (3) the amount of force used during the search; (4) any pain or danger from the search: (5) the overall manner in which the search is conducted; and (6) to what extent the suspect’s reasonable expectations of privacy were violated. Thus, actually probing a suspect’s body may indeed change the search of an individual from routine to nonroutine. See United States v. Pino, 729 F.2d 1357 (11th Cir. 1984); Garcia v. United States, 913 F. Supp. 905 (E.D. Pa. 1996). This past term, the U.S. Supreme Court again stepped into the debate over what should qualify as a “routine” border search. In United States v. Flores-Montano, the defendant challenged a suspicionless search of his car at the border. As Manuel Flores-Montano was attempting to enter the United States from Mexico, he was stopped by customs officials. They referred his station wagon to the secondary inspection station. There, his car was hoisted on a hydraulic lift and a mechanic removed the gas tank. Inside, an officer found 81 pounds of marijuana. Flores-Montano complained that taking apart a vehicle should not be considered a “routine” border search, but the Supreme Court disagreed. Writing for the court, Chief Justice William Rehnquist held that the relatively brief procedure of 20 to 30 minutes, which did not damage the vehicle, was a “routine” search that did not require reasonable suspicion. Since Flores-Montano, the lower courts have been willing to view a wide range of search activity at the borders as “routine.” Just last month, the 9th U.S. Circuit Court of Appeals in United States v. Cortez-Rocha, 2004 U.S. App. Lexis 19583 (9th Cir. Sept. 21, 2004), held that it was a “routine” search when border officials sliced open Cortez’s spare tire and found 42 kilograms of marijuana. The 9th Circuit held that cutting open a vehicle’s spare tire is analogous to opening a closed suitcase. Because the officers did not damage any operational part of the vehicle, the search could still viewed as “routine.” In a strong dissent, Judge Sidney Thomas challenged the panel’s willingness to allow the government “to indiscriminately destroy the property of any person crossing the border.” Id. at *24. However, writing for the majority, Judge Stephen Trott sought to defend the honor of border officials. Border officials should not be considered as “cyborgs” set on destroying property; rather, they “can be counted on to be intelligent and respectful” as they carry out their tasks. Id. at *8. The 9th Circuit also defied its extremely liberal reputation when it upheld as “routine” border searches that use a new device called a “Buster” to search vehicle parts in secondary inspections at the border. Always on the hunt for new technology to assist with their work, border agents have started using the Buster, a radioactive density-measuring device, to conduct secondary inspections. The Buster allows officials to measure the density of an object to determine if it likely contains contraband. In United States v. Camacho, 368 F.3d 1182 (9th Cir. 1182), border officials used the Buster to measure the density of Alfonso Camacho’s spare tire. The 9th Circuit upheld the search as routine even though the Buster causes low levels of radiation exposure. A trend toward flexible interpretation of ‘routine’ Although most border-search cases will come from the 9th Circuit because it reaches both the Mexican and Canadian borders, the trend toward a flexible interpretation of “routine” searches is affecting related cases from America’s heartland. For example, in United States v. Mohrmann, 2004 U.S. Dist. Lexis 8569 (D. Kan. Apr. 9, 2004), the defendant challenged suspicionless searches of nonmilitary vehicles entering Fort Leavenworth in Kansas. Shawn Mohrmann, a civilian, had his truck detained and searched when he sought to enter the Army base. During a search of the vehicle, a police officer opened a closed compartment that served as an armrest between the two front seats. Inside, the police found marijuana. However, the officer let Mohrmann go when he claimed that he had no idea the illegal substance was in the truck. Undeterred, Mohrmann drove the same pickup truck to the base 10 days later. This time, his vehicle was inspected by federalized National Guard soldiers, and the search revealed cannabis in his glove box. Mohrmann’s luck had run out; he was charged with unlawful possession of a controlled substance. Noting the Supreme Court’s decision in United States v. Flores-Montano, the court held that the extensive search of Mohrmann and his belongings was a routine checkpoint search. Certainly, if we want to protect the nation from terrorists at our borders, we also want to protect our military facilities from danger. Moreover, given the current approach to searches designed to protect our sovereign authority, the court noted in its decision that “the government’s interest would outweigh even a much more intrusive search than those at issue.” Id. at *23-24. Sept. 11, 2001, permanently changed perceptions in the United States, including the law’s perception of what should be considered “routine,” and how privacy rights should be weighed against government security interests. Although there are still limits on what border officials can do without suspicion, most efforts, short of actually probing a suspect’s body, may now be viewed as routine. The combination of the War on Drugs and the War on Terrorism has forever influenced how the Fourth Amendment will apply to border and security searches. Laurie L. Levenson is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. She can be reached at [email protected].

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