Holding the Line: U.S. Custom and Border Protection’s Expansion of the Border Search Exception and the Ensuing Destruction of Interior Fourth Amendment Rights
Cardozo Law Review; Benjamin N. Cardozo School of Law
February 10, 2014
Cardozo Law Review, Forthcoming
While the Fourth Amendment governs every search conducted by government agents within the United States, the Supreme Court has sanctioned diminished Fourth Amendment protections at the border by holding warrantless and suspicionless routine border searches constitutional due to the “special need” of the government to protect its people. However, in permitting this “Border Search Exception” to the Fourth Amendment, the Supreme Court has done so with a conception of the border in mind that does not bear resemblance to the “100-mile buffer zone” described in CBP’s regulations, and under which CBP now rests its authority for its push into the interior. Rather, in sanctioning reduced Fourth Amendment protections at the border, the Court employed a narrow, common understanding of what the country’s border means — the barrier zone between the United States and its international neighbors.
This Note argues that the reduced Fourth Amendment protections at the physical border, sanctioned by the Supreme Court under the Border Search Exception doctrine, do not authorize CBP’s post-September 11 extension of suspicionless searches into the interior, to the outermost limits of the agency’s jurisdictional authority under INA § 287(a)(3) and CFR § 287.1(a)(2). In other words, CBP has usurped the investigative tools provided it for border protection work to achieve internal immigration enforcement under the guise of terrorism prevention. This expansion of diminished Fourth Amendment protections has resulted in constitutional violations that must be reigned in by the Supreme Court, if it is given the opportunity to do so, or by DHS itself, by amending 8 CFR § 287.1(a)(2) to reflect CBP’s limited authority away from the border.
Part I of this Note provides an overview of Supreme Court jurisprudence regarding Fourth Amendment protections at the border, and of the statutory and regulatory sections that govern CBP’s authority away from border. Part II discusses CBP’s push into the interior of the country after September 11 to perform internal immigration checks — a job that belongs to CBP’s sister agency, Immigration and Customs Enforcement (ICE). Part III argues that the “100-mile border zone” promoted in CBP’s regulations under 8 CFR § 287.1(a)(2) has enabled CBP to assert authority to perform interior suspicionless searches, and that such action is in direct conflict with the limitations of the Border Search Exception. Part III also suggests a regulatory and internal agency fix to this Fourth Amendment problem.
Keywords: Border Search Exception, U.S. Customs and Border Protection, CBP, INA § 287(a)(3), CFR § 287.1(a)(2)Accepted Paper Series
Date posted: March 28, 2014
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