Border Search – What is Legal?


Immigration Lawyers South FloridaIt is legal for any person entering the United States from a foreign country to undergo a full customs border search without cause or warrant. A U.S. Customs and Border Protection (CBP) officer has a right to inspections based on federal statutes and regulations as stated in 19 CFR 162.6: “All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection and search by a Customs officer.”

The blanket authority for routine border searches ends when the CBP looks to engage in more invasive procedures such as body cavity searches. There must be some level of suspicion of an illicit activity before resulting to these means.

With the exception of diplomatic status, all persons entering the US are subject to examination and search.

Many different departments and federal agencies and bureaus are part of the border search process. The CBP relies on information from both the Advance Passenger Information System (APIS) and the Interagency Border Inspection System (IBIS) to provide information on individuals entering the country.

IBIS helps expedite clearance at ports of entry so that border enforcement agencies can focus on non-compliant travelers. It is not, however, legal for these searches to take place away from the borders for no reason. The courts have upheld the rights of individuals who were stopped and searched without a warrant at checkpoints away from the borders. While fixed checkpoints are legal and do provide further safeguards, there cannot be a legal search without reasonable warrant suspicion. It should be noted that border officials do have search powers that extend 100 air miles inland from US external boundaries.

Phones, Laptops, and Border Searches

Do you have to turn over your phone, laptop, or other electronic device for a border search? According to the CBP, the answer is yes, and they back up their justification with several different statutes.

The legal answer (according to the ACLU) is no, however, you could find your device seized if you do not comply with the agent’s request for examination.

A lawsuit filed against the Department of Homeland Security by the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) on behalf of 11 individuals may change that. The individuals represented in the lawsuit had their laptops and smartphones searched without a warrant. In some instances, the devices were confiscated for months.

As soon as you unlock your phone or device, the agents have immediate access to any social media or email accounts that do not require additional passwords. You cannot be forced to hand over passwords, but officials can make it unpleasant for you not to do so. Long detainee times, more intrusive bag searches, and aggressive questioning have been reported.

What Actions Can You Take During a Border Search?

The first thing you can do to prepare for a border search is understand the possibility and not put yourself in a situation that could cause problems. Know what you can and cannot bring into the country.

Protect your data by traveling with the least amount you need. Encrypting your devices are helpful, but the device may still be subject to confiscation for an undefined period. Some people choose to buy a burner phone that can be discarded before entering the airport – but this can also raise red flags to border officials who may wonder why you chose to do that.

Complying with agents if you are subject to a border search is always the best option. If you have nothing to worry about the process should be a simple one. In some cases, although you have a right to ask for an attorney, that could add fuel to the fire. Authorities will immediately want to know why you need an attorney and may dig deeper.

More often than not, the search will end in a timely fashion, and you will be on your way. Once you are free to go, do not hesitate to contact an attorney if you feel your rights were in some way violated.

Please contact Coral Springs attorneys Brodzki Jacobs & Associates, PL at (954) 344-7737 if you have any legal questions that we can answer.

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