CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, September 30, 2008

Third Circuit Requires Reasonable Suspicion for Border Searches of Sleeping Compartments

RcclradianceThe Fourth Amendment generally prohibits federal agents from conducting border searches of sleeping compartments on vessels unless the agents have reasonable suspicion, the U.S. Court of Appeals for the Third Circuit announced Sept. 4 (United States v. Whitted, 3d Cir., No. 06-3271, 9/4/08).

The court framed the critical issue in the case as "whether the search of a cabin of a cruise ship sufficiently intrudes upon an individual's privacy to render it non-routine, so that reasonable suspicion of criminal activity is required." It also reported "a surprising dearth of authority on the matter."

The defendant in this case was a passenger on a large cruise ship sailing from the foreign port of St. Maarten. Officers of U.S. Customs and Border Protection had received a tip that the defendant bought his ticket at the last minute, had visited "drug source countries," and had a criminal record. When the cruise ship docked in St. Thomas, the officers entered his locked stateroom with a narcotics-detection dog and found heroin used to convict the defendant in federal court.

Border Search Doctrine

The U.S. Supreme Court has repeatedly held that warrantless, suspicionless searches of travelers' belongings at the border are "reasonable" for Fourth Amendment purposes. The most recent Supreme Court decision addressing the issue, United States v. Flores-Montano, 541 U.S. 149, 72 U.S.L.W. 4263 (2004), reiterated that "[i]t is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity."
The court in Flores-Montano criticized a distinction that the lower courts have drawn between "routine" and "non-routine" border searches. The court said the distinction makes too much out of language in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), that was intended to be descriptive only.

The justices focused instead on the intrusiveness of the search, which in that case was the suspicionless disassembly and inspection of an automobile's fuel tank. The court had previously held that the Fourth Amendment requires reasonable suspicion for border searches that intrude on travelers' bodily integrity, and the Flores-Montano court made clear that "the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over to vehicles." The court, however, left open the possibility that "a border search might be deemed 'unreasonable' because of the particularly offensive manner it is carried out."

Home Away From Home

In an opinion by Judge Marjorie O. Rendell, the Third Circuit said it had "little trouble concluding that a passenger cabin is more like an individual's home than an automobile." Citing Montoya de Hernandez and quoting from circuit precedent decided before Flores-Montano, the court explained that "[b]order searches ... fall into two categories: 'routine searches that require no suspicion and non-routine searches that require reasonable suspicion.' "

To determine whether the border search of a room on a cruise ship can be classified as "routine," the court examined the degree to which the search intrudes on a traveler's privacy. It found "compelling" the defendant's argument that "an individual's expectation of privacy in a cabin of a ship is no different from any other temporary place of abode." The heightened privacy protections that the Fourth Amendment affords to homes have previously been extended by the Supreme Court to overnight guests at the homes of friends and in hotels. With this in mind, the Third Circuit said:

Just as individuals seek privacy in hotel rooms or another's home to sleep, cruise ship passengers seek out privacy in their sleeping cabins and expect that they will not be opened or intruded upon without consent. Mindful of the "centuries-old principle of respect for the privacy of the home," we, therefore, consider a search of an individual's living quarters among the most intrusive of searches--invading as it does a place where the individual expects not to be disturbed.

The court also noted that other circuits have reached the same conclusion when addressing other types of searches of sleeping areas on ships.

Read full article here. [Brooks Holland]

Criminal Law, Search and Seizure | Permalink

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