I’ve had a friend or two who has been overseas, and when they returned to the United States customs officials picked them out for no apparent reason and performed strip searches on them. I didn’t ask if they were presented with a warrant but I got the impression it wasn’t required. Does anyone have any experience with the legalities?
Welcome to the War on Drugs. It’s really a pain in the ass to have to consider trite things like Constitutional protections when we’ve got to get those EVIL, EVIL drugs out of America!
And under our new idiot-in-chief…I don’t see things changing a hell of a lot 
The Supreme Court has ruled that the government has the right to undertake whatever reasonable measures necessary to protect its borders. I don’t have the details, but basically they’ve said that the 4th amendment doesn’t apply when it comes to border issues. While this is certain useful when the government wants to fight its insane war on drugs, I’d wager that the ruling probably goes back well before that.
I appreciate your sarcasm, I think the whole war on drugs is a crock of shit. Ttthhhppppp . . . seriously. But neither of these guys were smuggling drugs or anything else. Even though X-ray machines and drug sniffing dogs aren’t 100% safe or reliable, they’re a better alternative than having some bastard pick people out at random (or profiling) so that he can take them to the back room and get elbow deep in their insides. Somebody please explain to me how ** this ** doesn’t apply to the Customs Department (or whatever their official title is):
**Ammendment 4
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized. **
From what my friend has told me and from what I’ve seen in movies, on 20/20, whatever ( I know, show me a cite. I’ll look for one in a sec.) these guys need no probable cause or warrant. Is the situation really so urgent that we throw the 4th amendment out the window? If a guys got a few ounces of coke or heroine shoved up his ass it’s going to come out eventually. What’s the rush, what is the driving need to reach up there and feel around? Wouldn’t an X-ray suffice? Do they have a judge down the hall 24 hrs a day to sign the warrants?
National security demands the urgency to throw away the Bill of Rights and sodomize U.S. citizens at random?
Bullshit
Fine, I’m all for that. But shouldn’t they put just as much emphasis on reasonable as most common Americans do? I guarantee (I assume) a poll would say most people would feel the government steps way beyond what’s reasonable here.
quote:
“Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizure at the border without probable cause or a warrant, in order to regulate the collection of duties and prevent the introduction of contraband into this country”
United States v. Montoya De Hernandez, 473 U.S. 531, 537 (1985) Here’s the link.
I’m the first one to argue that the war on drugs has probably caused more problems than it has ever solved. But I don’t disagree with the above quote.
Whine about it all you want, Loki, but the hooligan has it right. (And damn, I was about to cite that case myself!) As a general principle of U.S. Constitutional law, you may assume that fourth amendment protections do not apply until you’ve made it past customs.
Thanks soccerhooligan for the cite, I’ll check it out. But don’t we have adequate means available today (through X-ray and K9) to determine whether someone is smuggling drugs (or diamonds, or the Mona Lisa) up their ass without having to strip them and submit them to a ‘digital exam’? (It’s not as innocuous as it sounds)
As far as I recall there’s a bit of legal fiction which says that you aren’t in the US until you pass through the Customs Zone. This means the protections of the US Constitution do not apply.
Well, if you’re not in the US, US customs officers have no jurisdiction, so they don’t have any right to search you.
Well, that pretty much satisfies me.
Though I prefer The Court of Appeals ruling. I think they stood strong on the principle of the matter.
Rosa Elvira Montoya de Hernandez was a damned sad poster child for defending the 4th Ammendment. Anyone who doubts she was guilty should read the cite posted above.
Rosa, Rosa, Rosa, you dumb bitch. Thanks to you none of our bowels are safe from prying eyes.
But this still bothers me…
What’s up with that?
And this especially.
The way I interpret the 4th ammendment it requires not only reasonable cause, but also a judges signature on a warrant. The warrant is deemed justified by reasonable cause, not replaced by it. Isn’t that what The Court of Appeals said? Read this again and please explain to me how I’m misinterpreting.
Why the hell would we give the customs officials power to circumvent that?
good pointThe Ryan, though flodnak labeled his own remark correctly as legal fiction.
Let me rephrase that last sentence. Please insert the word “probably” in front of the word “labeled” as posted above. I didn’t mean to dis old flodnak like that.
Just though I’d dash off a quick reply because it’s too darn late for me to digest the whole case at the moment (as opposed to digesting cocaine balloons :)).
The Bill of Rights is not absolute. The most famous example is that yelling “fire” in a crowded theater, where no such fire exists, is not protected by the First Amendment.
See how the Justices cite prior cases. They haven’t decided this particular case in a vacuum. This was an issue before the Drug War.
As another quick example, the Supreme Court has upheld the warrantless administartive search. Such a search might be, let’s say, the F.D.A.'s unannounced search of a food processing plant. In New York v. Burger, 482 U.S. 691, 704 the Court held that warrantless administartive searches are generally valid when 1. the government has a substantial interest writing the statute which authorizes the inspection (in my example, protecting the food supply) 2. the inspection is necessary in conjuction with the statute (e.g. inspecting the plant for unsanitary conditions) and 3. the subjects of the inspection are aware that they are in a situation where such inspections occur (the owners of a food processing plant are aware that they will be inspected). Furthermore, the inspection must be conducted in a reasonable time, place and method. 21 U.S.C.S. sect. 374(a)(1)(B); Burger, 482 U.S. at 704.
So that you don’t have bugs crawling out of your Wheaties, the government can inspect a milling plant without a warrant.
For what it’s worth, I think (not 100% sure on this) that all sovereign states reserve the right to make random searches on persons crossing into them. That’s certainly the case here in Sweden, where I was searched once (although you can believe me when I tell you they sure as hell didn’t sodomize me!).
So in a sense the US is just following international precedent here.
Loki, the 4th Amendment doesn’t apply because control of our borders is one of the enumerated powers given Congress in the Constitution. Since they are both Constitutional, the 4th Amendment doesn’t trump Congressional authority in this area. Congress could choose to allow the 4th Amendment to apply, but they are not required to do so, and they never have, even before the war on drugs.
Sua
If the Fourth Ammendment doesn’t take affect until after I’ve made it past customs/immigration, could someone explain the following: About 20 miles north of San Diego on an interstate highway there’s an immigration “checkpoint” to stop and search anyone who looks like they may be an illegal alien. How do they get away with this little stunt?
Umm, the powers of Customs to search your luggage, etc- have existed since 18th Century here in the USA- long before the “war on drugs”. However, some things Customs/INS does are questionable: 1. Searching your luggage even if you have not left the USA- if the “Flight” you were on did. 2. Those INS searches way above the border that bizerta mentioned. I think both of those could be challenged.
The theory - and I’m not saying that I agree with it - is that you haven’t entered the U.S. until you have passed through customs. Your actual geographical location is irrelevant. This explains why you have to go through customs when arriving on an international flight in a place like Denver.
There was a relatively recent Supreme Court case that addressed this. I have reviewed it, so I can’t comment on it.
Sua