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>Search at the border for the purposes of detecting contraband has been considered reasonable from the moment Constitution was in force. Is this really true, t

>Search at the border for the purposes of detecting contraband has been considered reasonable from the moment Constitution was in force. Is this really true, though? Would you be able to provide a sourced example of this -- Searching a person's personal effects and papers at the border, ideally in a case that went to the courts?

int_19h 9y ago
It is generally assumed to follow from the fact that the United States Customs Service was established back in 1789, and its duties, from the very beginning, involved dealing with contraband. I poked around a bit, and while the first SCOTUS decision addressing this head on seems to be from 1977, it goes into more detail: "That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . . ." This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place . . ." where a warrant upon "cause to suspect" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago. In Boyd v. United States, 116 U. S. 616, 623 (1886), this Court observed: "The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as `unreasonable,' and they are not embraced within the prohibition of the amendment." (https://scholar.google.com/scholar_case?case=6107136132398268257 https://scholar.google.com/scholar_case?case=610713613239826...)
- gsnedders 9y ago
  This provides a justification for customs to carry out searches, but very few countries undertake customs checks on departing passengers. What about searches at security, be it by the TSA or otherwise? They're obviously very different (you can always opt-out and travel by another means), but I suppose one can both argue that they're a) reasonable and b) justified by contractual means (i.e., a requirement to pass through security before boarding).
  - int_19h 9y ago
    TSA searches for air travellers are not done under the border search exception. They instead claim something called "administrative exception". It's a much more tenuous construct: it's basically saying that the search is reasonable, because "the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack" - which is a valid and important public interest - and because the means used are the least intrusive that are necessary to secure that interest (are you laughing already?). Here's some more on this. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1683&context=wmborj http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=16...
Sacho 9y ago
Here's a fairly detailed paper with links to many of the laws and court decisions that are the bedrock of the border search principle - http://trac.syr.edu/immigration/library/P1075.pdf http://trac.syr.edu/immigration/library/P1075.pdf

int_19h 9y ago

It is generally assumed to follow from the fact that the United States Customs Service was established back in 1789, and its duties, from the very beginning, involved dealing with contraband. I poked around a bit, and while the first SCOTUS decision addressing this head on seems to be from 1977, it goes into more detail: "That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . . ." This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place . . ." where a warrant upon "cause to suspect" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago. In Boyd v. United States, 116 U. S. 616, 623 (1886), this Court observed: "The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as `unreasonable,' and they are not embraced within the prohibition of the amendment." (https://scholar.google.com/scholar_case?case=6107136132398268257 https://scholar.google.com/scholar_case?case=610713613239826...)

gsnedders 9y ago
This provides a justification for customs to carry out searches, but very few countries undertake customs checks on departing passengers. What about searches at security, be it by the TSA or otherwise? They're obviously very different (you can always opt-out and travel by another means), but I suppose one can both argue that they're a) reasonable and b) justified by contractual means (i.e., a requirement to pass through security before boarding).
- int_19h 9y ago
  TSA searches for air travellers are not done under the border search exception. They instead claim something called "administrative exception". It's a much more tenuous construct: it's basically saying that the search is reasonable, because "the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack" - which is a valid and important public interest - and because the means used are the least intrusive that are necessary to secure that interest (are you laughing already?). Here's some more on this. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1683&context=wmborj http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=16...

Sacho 9y ago

Here's a fairly detailed paper with links to many of the laws and court decisions that are the bedrock of the border search principle - http://trac.syr.edu/immigration/library/P1075.pdf http://trac.syr.edu/immigration/library/P1075.pdf