Deeg

I believe you mean reasonable suspicion, not probable cause. Big difference. And, besides, the issue is far from settled conclusively.

polonius

Ah, yes, and we know that because you, who is one of the privileged few who does have access to these secret laws, have told us about their exisitence.

A law does not come into effect until it's published.

cynicalflyer

Such "a seasoned spook" mind you, you advertise your occupation as "Spookie-Dawg" and claim to be U.S. Government SES (Senior Executive Service).

http://64.233.169.104/search?q=cache...lnk&cd=2&gl=us

You will let us know when you find those "secret laws" (versus secret POLICIES), yes?

cynicalflyer

Shhhh!
He could show you the "secret law", but then he'd have to use his laser watch to kill you!

He is "a seasoned spook" you know.

(Cue James Bond music)

polonius

duplicate

polonius

I don't think you read the cases Law Dawg referred to. Only one (Montoya De Hernandez) involves searches at the border, and it confirms the requirement for reasonable suspicion. Two others (Almeida-Sanchez and Carroll) refer to the special, limited exceptions to the need for a warrant that apply to searches of vehicles, have nothing to do with searches at the border, and established the need for such a search to be supported by probable cause. The final case, which the US government lost, was a first amendment case in which CBP seized pornography at the border on the grounds that it was obscene. The victim sued and won on the grounds that he a first amendment right to the material, so again, I'm not sure why this is being cited.

What is clear is that you made two posts cheerleading the case law cited by Law Dog without even bothering to read what the cases were about.

Finally, Brignoni-Ponce was another case that the U.S. government lost, and again, they lost it because although the vehicle stop by IMMIGRATION (not customs) agents was made NEAR a border, it was not AT the border. They did not search or attempt to search the vehicle, nor did the government assert they had the right to search the vehicle. They asserted only that they could stop the vehicle and do an ID check on the occupants to verify their ciitzenship. The court ruled that even though the government has a compelling interest in controlling immigration, being NEAR a border and APPEARING to be Mexican does give government agents grounds to do a check. So once again, an interesting case but irrelevant to questions concerning 4th amendment rights at the border.

cynicalflyer

We are talking past each other I think because there are 2 conversations:

1) The OP's, which was that he should not have been questioned after uttering the magic words that he was a US Citizen and
2) Exactly how far up your alimentary canal can customs or immigration crawl before needding reasonable suspicion, probable cause and/or a warrant?

These cases do support the proposition that a person, U.S. citizen or no, may be questioned at the border. As for the rest, that's between you and Law Dawg et al.

cynicalflyer

See also Article: Rights at United States Borders, 19 BYU J. Pub. L. 353


Again, to repeat: I am not discussing here the PHYSICAL SEARCH element being discussed about computers and cavity checks, etc. ONLY that the customs or immigration may ask QUESTIONS, such as the one the OP was asked.n93. See United States v. Lueck, 678 F.2d 895 (11th Cir. 1982) (holding that Fifth Amendment guarantee against self-incrimination is not offended by routine questioning of those seeking entry to the United States).

cynicalflyer

United States v. Lueck, 678 F.2d 895

"Interrogation at the border constitutes one notable exception to the constitutional protection of Miranda. Because of the overriding power and responsibility of the sovereign to police national borders, the fifth amendment guarantee against self-incrimination is not offended by routine questioning of those seeking entry to the United States. Hence, individuals arriving in this country are not entitled to Miranda warnings. United States v. Gray, 659 F.2d 1296, 1301 (5th Cir. 1981); United States v. Warren, 578 F.2d 1058, 1070 (5th Cir. 1978) (en banc), cert. denied, 446 U.S. 956, 100 S. Ct. 2928, 64 L. Ed. 2d 815 (1980).

We concur fully in the trial court's conclusion that the questioning of the appellant following his debarkation at the Titusville-Cocoa Airport constituted a permissible border search. "

polonius

The answers are a lot clearer than the board makes it appear:

1) They can ASK anything they want, even "Do you know a good buttermilk pancake recipe?" With the exception of the requirement to submit a properly completed customs declaration, you can choose to answer or not answer. Any lawyer would advise you to decline to answer any questions without counsel present.

2) "Routine" searches AT THE BORDER, need no reasonable suspicion, no probable cause and no warrant. "Non-routine" searches need to at least meet the "reasonable suspicion" standard. There are some grey areas concerning what is "routine" and what is "reasonable" suspicion, but case law has established that destructive searches, strip searches, body cavity searches AND having a look at your hard drive are "non-routine". Having (non-kiddie) porn, or being part of particular racial or age group, or visiting southeast asia do not form a basis for "reasonable" suspicion. Any search of a vehicle NOT at the border needs to meet the higher standard of "probable cause," and any other search needs a warrant.

polonius

Yes, as I said, although you have the right not to answer, if you voluntarily waive that right by responding, anything you say can be held against you. Hence, the less said the better.

cynicalflyer

Right, however the OP made it appear that the question itself somehow offended his rights and implied, and I believe later stated, that once he said he was U.S. citizen any questions should have stopped.

As for the searches and kiddie porn and computers and what not, no way am I going to wade into that. If it appeared I did, I apologize.

law dawg

A "routine" inspection that entails rifling through your stuff? You consider that routine? Ok........

And actually, the requisite level of suspicion is not PC but reasonable suspicion:
United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004); United States v. Johnson, 991 F.2d 1287, 1291-92 (7th Cir. 1993).

What about going through your bag? Is that "routine?" My comparison is based upon what one would be subject to in the street with a LEO. A border search is MUCH broader than what a LEO could initiate in the street.

The Arnold ruling was held up on Appeal in October, and another ruling in Vermont also has confirmed that looking at your computer files is at least as personally intrusive (and arguably more so) as having a look up your back side and most definitely requires probable cause. And again, the case also established that finding pictures of nude ADULTS does not provide probable cause that there are likely to be illegal pictures of minors on the same hard drive. (Other cases have also established that nude pictures of minors are not by definition pornography, but that's another issue).[/QUOTE]
My point is that your stuff can be searched with little to no suspicion. More invasive searches (I forgot about strip searches, for some reason - maybe my wife has beaten the word "strip" out of my vocabulary ) require some articulable suspicion. But not too many fall into that realm.

In Arnold the court held that at least reasonable suspicion is necessary, not PC. Also, look up U.S. v. Ickes, 393 F.3d 501 (4th Cir. 2005.). In that case, the 4th Circuit upheld a man's conviction in ruling that a laptop search at the border did not violate his First Amendment right of expression.

Isn't Arnold still pending as well? I believe the 9th Circuit has yet to rule? I couldn't find anything on a ruling, just the case being heard in October. You have a link?

polonius

As I said, despite a fairly significant amount of case law, there are still some ambiguities surrounding what is "routine" and "reasonable." In Ickes, the authorities had no just one, but a whole bouquet of things that were evident in a very routine search, each of which alone would have given them all the justification they would need for a more extensive search. As I recall, these included kiddie porn, drugs, weapons and even a copy of a warrant for his arrest. Citing Ickes doesn't support an argument that no justification is needed to do a search of a laptop -- they had tons of justification in that case.

I think its been established that "routine" means they can open your bag and have look inside. It doesn't mean they can demand you empty your pockets. It means they can tap the side of your suitcase to see if it has a false bottom. It doesn't mean they can start drilling holes into it. It does mean that if you have a big bulge about your middle, they can give it a pat. Reasonable suspicion also means they can only search to address their suspcions, e.g., you have a bulge around your middle. They do a routine pat-down. It is obvious from the pat-down you have something under your coat. They could then search you, or more likely, ask you what it it. You say, oh, yeah, I forgot was carrying an emergency bag of tortilla chips under there - here it is. They pat you down again and no longer feel anything suspsicious. That does NOT mean that they can now go give you a strip search. If, however, the pat down turned up drugs, THEN they could give a strip search, because it's not unreasonable to think that if they have found some drugs, they might find more. But even though the suspicions about the bulge about your middle were reasonable enough that they could do whatever they needed to verify you were not hiding anything, once they established it was only a bags of tortilla chips, they cannot use those reasonable suspicions about your middle to go checking your shoes for hollow heels, for example.

In any case, yes, absolutely right that what it "reasonable" at the border would require a warrant elsewhere. But looking into your laptop is not "reasonable" in any circumstance -- look at EFF's amicus brief in Arnold -- if the government has the right it claims to, then doesn't this imply that they are asserting the right to make copies of every bit of data on every laptop that crosses the border without providing any justification or needing to meet any standard whatsoever of reasonableness? Obviously, this is not in the least bit reasonable no matter how you look at it.

bdschobel

This is perhaps an overstatement of the OP's position. Rather than try to read his mind, I'll just state my own position, which is probably pretty close:

Once I have established through production of documents and answering relevant questions that I am a U.S. citizen -- and not merely said so -- then asking me about my occupation or the purpose of my trip serves no useful purpose. It wastes the time of both the government and me. Regardless of how I earn my income or what I may have been doing outside the country, I have an absolute right to reenter. Asking me questions cannot take away that absolute right; it can only result in my saying something foolish or incriminating, which I won't willingly do. Thus, I ask politely that questioning cease -- and it has the few times that I asked.

Bruce