Plaintiff made a wrong turn heading to summer camp and ended up on a bridge to Canada. He was allowed to turn around without leaving the country, but he could only get into a lane with motorists coming from Canada in line at Customs. He was searched at U.S. Customs and a misdemeanor quantity of marijuana was found, for which he pled to in state court getting youthful offender treatment. The search at the border was valid, and the fact he was given a card by the toll booth operator that he didn’t cross the border isn’t binding on CBP officers. The fact he didn’t cross into Canada doesn’t prohibit his search at U.S. Customs. D.E. v. John Doe I, 2016 U.S. App. LEXIS 15670 (6th Cir. Aug. 25, 2016):
That D.E. did not cross the border is irrelevant, as officers may conduct suspicionless searches on outbound persons and effects, which have not yet crossed the border, see United States v. Boumelhem, 339 F.3d 414, 420-23 (6th Cir. 2003). That D.E. subjectively did not intend to cross the border is also irrelevant. There is no reliable way for the CBP officers to tell the difference between a motorist who has just crossed the border or who intends to cross the border and a “turnaround motorist” who is at the border area by mistake. It would be dangerous (and quite stupid) for CBP officers to assume that every traveler who claims to be there by mistake—or who possesses an easily fabricated laminated card—is telling the truth, especially considering that D.E.’s vehicle was in the same lane as motorists arriving from Canada. CBP officers are not infallible lie detectors capable of correctly determining the subjective intent of travelers at the border. Instead, because the “Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” Flores-Montano, 541 U.S. at 152, officers may conduct suspicionless searches of vehicles at the border (or at its functional equivalent, Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973)) without regard to the reasons why motorists are at the border.
D.E.’s arguments to the contrary are without merit. His reliance on United States v. Ortiz, 422 U.S. 891 (1975), is misplaced. Ortiz, which held that officers may not search vehicles at traffic checkpoints removed from the border or its functional equivalent without consent or probable cause, id. at 896-97, does not constrain officers’ ability to search vehicles that are, in fact, at the border or its functional equivalent. Additionally, D.E.’s claim that the purpose of the search was illegal misses the mark, as officers need no specific purpose or suspicion to search a vehicle at the border, see Flores-Montano, 541 U.S. at 152-53. Instead, “searches 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, 616 (1977). Nor was CBP’s detention of D.E. unlawful. D.E.’s detention for roughly one hour was reasonable, given that “delays of one to two hours at international borders are to be expected,” Flores-Montano, 541 U.S. at 155 n.3, and that the detention was for the sole purpose of waiting for local law enforcement to take custody of D.E. after marijuana and drug paraphernalia had been discovered. Furthermore, the fact that marijuana can be legally possessed in Michigan in some circumstances—which were not the circumstances under which D.E. possessed it—has no bearing on whether the CBP officers could conduct a suspicionless canine sniff on a vehicle stopped at the border. A canine sniff is not a constitutionally cognizable infringement under the Fourth Amendment when conducted during a lawful traffic stop, see Illinois v. Caballes, 543 U.S. 405, 409-10 (2005), and, even if it were, as explained above, both the stop and the search of D.E.’s vehicle were lawful under the border-search exception. Finally, contrary to D.E.’s arguments, the CBP officers had statutory authority to conduct a suspicionless border search on his vehicle pursuant to 19 U.S.C. § 1581(a), which grants general authorization for border searches of vehicles, see Boumelhem, 339 F.3d at 419-20.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)