6th Cir. adopts “extended border search” doctrine for somebody who cleared Customs

The Sixth Circuit, the first time it has faced the question, adopted the “extended border search” doctrine for somebody who cleared Customs, but her traveling companion had not and was being questioned. She was picking up luggage, and a Customs van went to get her 1500 feet from the Customs station at the Memphis airport. She had not been under surveillance after clearing Customs, but it was highly unlikely the condition of her belongings changed in the meantime. United States v. McGinnis, 247 Fed. Appx. 589, 2007 FED App. 0367P (6th Cir. 2007) (2-1):

In deciding whether to uphold an extended-border search as reasonable, courts generally have asked three questions: (1) did the individual cross the border? (2) did law enforcement seize the individual and her luggage sufficiently soon after the crossing to be reasonably confident that the condition of the individual and her luggage did not change after the border crossing? and (3) does law enforcement have a reasonable suspicion that the individual violated a criminal law? See, e.g., Yang, 286 F.3d at 945; see also United States v. Espinoza-Seanez, 862 F.2d 526, 531 (5th Cir. 1988) (applying similar test); Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966). The salient question is whether “reasonable suspicion” of criminal activity exists, paying special attention to whether the suspected criminal activity relates to a recent border crossing (e.g., smuggling as opposed to a murder charge) and whether the search occurred sufficiently close in time to the border crossing as to eliminate the risk that the individual obtained the contraband after the crossing. Except for the dice-loading name of the rule–an “extended border search” doctrine suggests that suspicion is never required in the same way that an “extended house search” doctrine would suggest that probable cause is always required–we adopt our sister circuits’ general approach to this issue.

The search of McGinnis satisfies these requirements. First, no one questions that McGinnis crossed the border. She had just traveled by plane from Amsterdam and crossed the “border” at the Memphis International Airport.

Second, the customs officials had a reasonable basis for concluding that the condition of McGinnis’s luggage had not changed by the time of the search. The illegal contraband was the $17,358 in cash that McGinnis hid in her luggage and refused to declare when asked to do so. McGinnis never left the airport terminal. While waiting for Ely, she went to “get[] tickets for the next leg of her trip,” JA 180, which at most would have permitted her to spend money, not to get more of it. It suspends reality to think that McGinnis could have acquired the necessary additional cash-over $7,000-to trigger the currency reporting requirement between the time she exited the inspection area and the time officers came to pick her up to take her back to customs–at most 1 hour and 35 minutes. See JA 125-26, 129-30, 144, 201. Obtaining more than $7,000 in an airport in general or at an ATM in particular in such a short time span strikes us as a daunting, if not a nearly impossible, task. See generally Yang, 286 F.3d at 948 (valid search even though defendant was not under surveillance in the airport for up to 45 minutes); United States v. Mejias, 452 F.2d 1190, 1192-93 (9th Cir. 1971) (valid search even though 90 minutes had elapsed since defendant, who was not under constant surveillance, passed through customs at airport); ….

Third, customs officials had reasonable suspicion that McGinnis had engaged in criminal activity. …