The Border Search Exception as Applied to Exit and Export Searches: A Global Conceptualization

Abstract

The so-called "border search exception" to the Fourth Amendment permits law enforcement authorities to conduct searches of persons or objects that enter the United States. For routine border searches, the Fourth Amendment does not require any degree of suspicion or a warrant. The Supreme Court has never directly addressed whether this exception applies to exit searches: persons or objects leaving the country. The lower courts have, for the most part, upheld such suspicionless and warrantless searches but their rationales have been divergent and often supported with summary conclusions. Academic critics and a few dissents have argued that the Fourth Amendment prohibits the searching of exiting individuals or property at the border unless the authorities have, at a minimum, some degree of suspicion. They argue that the rationales for the border search exception only support incoming searches. In this article, I will show that routine suspicionless and warrantless searches of exiting individuals and property are inherently "reasonable" under the Fourth Amendment, but not necessarily for the reasons espoused by a majority of courts. Those that have considered this issue have had an overly narrow view of both the problem and the impact. I will propose a new, global way of conceptualizing the interests of both the government and the individual. In Part I of this article, I will give an overview of the border search exception. In Part II, I will discuss the principal cases applying the border search exception to exit or export searches, as well as the criticisms of these cases. In Part III, I will demonstrate that the rationales for the border search exception, in general, applies to exit searches. In an Appendix, I have included a circuit-by-circuit and state-by-state list of the cases that have considered this issue.

Keywords: Fourth Amendment, border, search, exception, Fourth Amendment, export, exit