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Even in the border zone, searches and seizures must be reasonable

| Oct 9, 2018 | Criminal Defense |

The Fourth Amendment of the U.S. Constitution prohibits unreasonable government searches and seizures. The general rule is that the government needs a warrant, or an exception to the warrant requirement, for a search or seizure to be constitutional. However, the U.S. Supreme Court has repeatedly ruled that no warrant or even probable cause is required for customs officers to search at the U.S. border or 100 miles into the interior in what is called the “border zone.” The border zone includes Houston, San Antonio and even New Braunfels.

Does that mean the Fourth Amendment doesn’t apply in the border zone? Do the residents of Houston or San Antonio have fewer constitutional rights than other Americans? No, according to a recent opinion by a federal judge.

The case involved a family who was on their way home from Canada when they reported to the Portal, North Dakota, border station. They had just handed over their passports and birth certificates when suddenly Customs and Border Patrol (CBP) officers swarmed their minivan, guns drawn, and forced the father out of the vehicle.

They held the man, handcuffed, for almost 11 hours. At one point, he passed out because he was given no food or water. His wife and terrified children were taken into custody and told they were detainees. Ultimately, they were allowed to go with no charges. The entire ordeal was terrifying, bewildering and humiliating, according to the ACLU.

It turns out there was a reason for this aggressive, armed attack and detention. The CBP agents had discovered the father’s name on a terrorism watchlist. People can be placed on the watchlist based on uncorroborated information of questionable reliability, and there are no safeguards to prevent errors.

Despite the father’s inclusion on the watchlist, the family contends that the CPB’s actions were unreasonable. When they sued, however, the CPB tried to have their lawsuit thrown out because the events occurred within the border zone.

The federal judge refused to dismiss the case. He found it was true that no warrant or probable cause is required for routine searches and seizures carried out in the border zone. However, he ruled that this was not a routine search or seizure — it was highly intrusive and even destructive. In such a case, the government must demonstrate it has reasonable suspicion of a crime before it can lawfully search or seize. In other words, government searches and seizures must still be reasonable, even in the border zone.

CBP officers often tell people within the border zone, including U.S. citizens, that there are no Constitutional rights at the border. They’re wrong.