In what is a significant border search case from the Second Circuit, five men attended an Islamic conference in Toronto, and Homeland Security received intelligence information that people attending the conference had potential terrorist connections. So, the government watched for any coming into the U.S. near Toronto. The plaintiffs crossed at Buffalo and, without any individualized suspicion (and without any criminal history), they were subjected to Customs treatment expected for a suspected terrorist: forced patdowns and fingerprinting, photographing, and detention and questioning for up to six hours. After it was determined that they were not a threat, they were released and permitted entry, and their fingerprints and photographs were later purged. They sued, inter alia, under the First and Fourth Amendment. The Second Circuit held that, assuming the facts stated by the plaintiffs were true, the government had plenary authority at the border, and it was permissible based on the intelligence the government received. Tabbaa v. Chertoff, 2007 U.S. App. LEXIS 27258 (2d Cir. November 26, 2007):

Plaintiffs' second claim is that CBP's searches were unreasonable in violation of the Fourth Amendment to the U.S. Constitution.

It is well established that the government has broad powers to conduct searches at the border even where, as here, there is no reasonable suspicion that the prospective entrant has committed a crime. See, e.g., United States v. Flores-Montano, 541 U.S. 149, 153 (2004) ("Congress, since the beginning of our Government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant ....") (internal quotation marks omitted); United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant ...."); United States v. Ramsey, 431 U.S. 606, 616 (1977) ("[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. Nieves, 609 F.2d 642, 645 (2d Cir. 1979) ("It long has been established that routine border searches, conducted for the purpose of controlling the movement of people and goods across our national boundaries, do not violate the Fourth Amendment's prohibition against unreasonable searches."). Accordingly, a suspicionless search at the border is permissible under the Fourth Amendment so long as it is considered to be "routine." See, e.g., United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006).

The precise line between what is routine and what is not routine, however, has not been clearly delineated. On the one hand, it has been held that "[r]outine searches include those searches of outer clothing, luggage, a purse, wallet, pockets, or shoes which, unlike strip searches, do not substantially infringe on a traveler's privacy rights." Id. (citing United States v. Grotke, 702 F.2d 49, 51-52 (2d Cir. 1983)). By contrast, "more invasive searches, like strip searches, require reasonable suspicion." Id. The Supreme Court has stated that "non-routine" searches include "strip, body cavity, or involuntary x-ray searches." Montoya de Hernandez, 473 U.S. at 541 n.4. The determining factor is not how ordinary or commonplace a search is, but rather "the level of intrusion into a person's privacy." Irving, 452 F.3d at 123.

. . .

Plaintiffs focus on three aspects of the searches in question, which we address in turn. First, plaintiffs urge us to find that their treatment, when considered in its entirety, was not routine because of the combined effect of the various measures employed, including intrusive questioning, photographing, and fingerprinting. We are sympathetic to plaintiffs' argument because there arguably was a stigma associated with being subject to the IDSO procedures. In MacWade v. Kelly, 460 F.3d 260, 273 (2d Cir. 2006), we found that police searches of subway passengers' bags were "minimally intrusive" in part because the searches were conducted "out in the open, which reduces the fear and stigma that removal to a hidden area can cause ...." Here, plaintiffs were gathered into a separate building along with several other Muslims who had attended the RIS Conference--and all of these attendees were subject to a form of border processing normally reserved for suspected terrorists. As a result, it is not unreasonable for plaintiffs to have felt there was a stigma attached to the searches. Cf. United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974) ("The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily ....") (emphasis added and citation omitted).

On the other hand, none of the specific measures taken by CBP was more invasive than the types of searches at the border that courts have regularly held to be routine. Plaintiffs complain that they were required to answer intrusive questions about their activities at the conference, the content of the lectures they attended, and their reasons for attending. But these questions are not materially different than the types of questions border officers typically ask prospective entrants in an effort to determine the places they have visited and the purpose and duration of their trip. See United States v. Silva, 715 F.2d 43, 47 (2d Cir. 1983) (noting that questions about "citizenship, the length and purpose of [an applicant's] trip to Canada, [and] what items she had acquired or bought in Canada" are all routine). Likewise, pat-down searches have repeatedly been found to be routine, even when they were followed by the lifting of an applicant's shirt or the forced removal of shoes. See, e.g., United States v. Charleus, 871 F.2d 265, 268 (2d Cir. 1989) (While "[t]he light touching of appellant's back followed by a lifting of his shirt arguably straddles the line between the two categories of border searches," it can be considered a routine search because "the potential indignity ... fail[ed] to compare with the much greater level of intrusion associated with a body cavity or full strip search ...."). The forcing open of plaintiffs' feet that we assume to have occurred here in at least two instances, while perhaps marginally more invasive than the lifting of a shirt, is not so invasive of plaintiffs' privacy as to be distinguishable from our holdings that pat-down searches are routine.

We also conclude that the fingerprinting and photographing of plaintiffs does not take the searches out of the realm of what is considered routine because, at least in the context of a border search, being fingerprinted (even forcibly) and photographed is not particularly invasive, especially considering that the photographs and fingerprints were used solely to verify plaintiffs' identities and then were discarded from the government's databases. See Davis v. Mississippi, 394 U.S. 721, 727 (1969) ("Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search."); Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir. 2005) (noting that the Supreme Court has suggested that fingerprinting is not entitled to Fourth Amendment protection and describing fingerprinting as a "non-intrusive means of obtaining physical evidence ..."); Montoya de Hernandez, 473 U.S. at 539-40 ("[N]ot only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border.") (internal citation omitted).

Thus, each of the individual elements of the searches was routine. And while we leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine, we do not find that to be the case here. While plaintiffs were undoubtedly made uncomfortable and angry by the searches, and they may understandably have felt stigmatized, their personal privacy was not invaded in the same way as it would have been had they been subject to a body cavity or strip search, or involuntary x-ray. Because the decisive factor in the analysis is invasiveness of privacy--not overall inconvenience--we find that CBP's searches of plaintiffs, considered in their entirety, were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.

Plaintiffs' First Amendment and other arguments were also rejected.