CA3: Cabin search of cruise ship at border non-routine, but QI granted here

This is a suit over a 2008 search at USVI port of the plaintiff’s cabin on the Adventure of the Seas cruise ship. Plaintiff was in the Treasury Enforcement Communications System (TECS), a CBP database for intel, from prior travels with suspicious answers. The entries noted he was alleged to be involved in drug smuggling in the USVI and PR from prior passage through ports. When the ship arrived back in port after traveling to islands known for their extensive drug availability, CBP officers with a dog searched the cabin by having the occupants dress and stand out in the hallway. The search produced nothing, and plaintiff sued. Coincidentally, the day before this search, this circuit held that such searches in a case with this same ship were non-routine border searches and required reasonable suspicion. United States v. Whitted, 541 F.3d 480 (3d Cir. 2008). The officers get qualified immunity because the court cannot say the law was clearly established by the time this happened. Bryan v. United States, 17-1519 (3d Cir. Jan. 18, 2019).

Update: See Volokh Conspiracy: Does New Law Take Time to Become “Clearly Established”? by Orin Kerr:
A fascinating question about qualified immunity law.

I realize that qualified immunity is a pretty unpopular doctrine, especially here at the Volokh Conspiracy. But for readers willing to accept existing Supreme Court law as a given, the Third Circuit’s new decision in Bryan v. United States asks a really cool question: Are officers expected to know instantaneously of new legal rulings that clearly establish the law? Or is there some kind of allowed time delay before an officer is held liable for not conforming his conduct to a new decision? Bryan takes the latter path, and I thought readers might be interested in knowing more about it.

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