CA3: Border search of cruise ship cabins requires reasonable suspicion

Border search of a cruise cabin intrudes into an expectation of privacy, and it requires reasonable suspicion. [Following the weight of authority, but analyzing in detail on its own.] United States v. Whitted, 541 F.3d 480 (3d Cir. 2008):

We believe that these courts correctly recognize that the search of private living quarters aboard a ship at the functional equivalent of a border is a nonroutine border search and must be supported by reasonable suspicion of criminal conduct. The cruise ship cabin is both living quarters and located at the national border. As a result, one principle underlying the caselaw on border searches–namely, that “a port of entry is not a traveler’s home,” United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)–runs headlong into the “overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” foremost in our nation’s Fourth Amendment jurisprudence, Payton v. New York, 445 U.S. 573, 601 (1980) (quoting United States v. Watson, 423 U.S. 411, 429 (1976) (Powell, J., concurring)). We find that requiring reasonable suspicion strikes the proper balance between the interests of the government and the privacy rights of the individual. It also best comports with the case law, which treats border searches permissively but gives special protection to an individual’s dwelling place, however temporary. We, therefore, join those courts that require reasonable suspicion to search of a passenger cabin aboard a ship.

As an initial matter, we have little trouble concluding that a passenger cabin is more like an individual’s home than an automobile. Whereas the “dignity and privacy interests of the person” do not carry over to border searches of an automobile, Flores-Montano, 541 U.S. at 152, the privacy interests of an individual in his or her living quarters are significantly greater and compel more rigorous Fourth Amendment protection. The sanctity of private dwellings, whether temporary or permanent, ordinarily gives rise to “the most stringent Fourth Amendment protection.” United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); see also Minnesota v. Carter, 525 U.S. 83, 89 (1998) (acknowledging that “in some circumstances a person may have a legitimate expectation of privacy in the house of someone else”); Minnesota v. Olson, 495 U.S. 91, 98-99 (1990) (holding that overnight guests in the house of someone else have a reasonable expectation of privacy); Stoner v. California, 376 U.S. 483, 490 (1964) (hotel room); McDonald v. United States, 335 U.S. 451 (1946) (living quarters in rooming house). We believe that “one’s expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one’s residence,” Martinez-Fuerte, 428 U.S. at 561, even where one’s residence is aboard a ship.