1. 1 Book Cover Here Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 8 Airport, Border, and Other Exigencies Criminal Justice Procedure 8 th Edition

2. 2 Introduction Searches of any sort involve a certain amount of invasion of personal space of the person being searched. Only when public safety concerns are greater and the invasion of privacy minimal, are courts willing to allow searches to proceed without a search warrant. Two specific types of searches that benefit public safety are airports and borders. Copyright © 2013, Elsevier Inc. All Rights Reserved # Chapter Subtitle

3. 3 Airport Searches Searches of personal belongings at an airport are an exception to the search warrant requirement of the 4 th Amendment. Since a series of airline hijackings and terrorist bombings in the 1970s, travelers have had to pass through detectors before they could board airplanes. Copyright © 2013, Elsevier Inc. All Rights Reserved # Chapter Subtitle

4. 4 Airport Searches In United States v. Epperson the Fourth Circuit allowed a search of an airline passenger to be carried out solely on the basis of the activation of a magnetometer, without any regard to whether the passenger met the criteria of the hijacker profile. In United States v. Bell, the Second Circuit expanded the scope of the search allowed at airports beyond weapons which might be used against the officer personally. Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 8

5. 5 United States v. Edwards In United States v. Edwards a deputy United States Marshal searched a woman’s carryon luggage after she set off the magnetometer. – The search revealed heroin. This case affirmed the necessity of airport authority to be able to search passengers without probable cause or individualized suspicion. – The need for public safety outweighs the minimal intrusion into personal privacy. Passengers are aware that they will be searched when they go through the boarding point. As long as airport authorities conduct searches pursuant to their stated policy, any contraband retrieved is permissible evidence. Copyright © 2013, Elsevier Inc. All Rights Reserved Chapter 8

6. 6 Similar Airport Searches In United States v. Davis, a routine security check revealed that the defendant was attempting to board an airplane with a loaded gun. – When deciding whether a search is administrative in nature, the court must make a dual determination: whether the search serves a narrow but compelling administrative objective. whether the intrusion is as “limited as is consistent with satisfaction of the administrative need that justifies it.” – In Davis the court concluded that a “pre-boarding screening of all passengers and carry-on articles sufficient in scope to detect the presence of weapons or explosives is reasonably necessary “to meet the need of preventing airline hijacking. Copyright © 2013, Elsevier Inc. All Rights Reserved

7. 7 Airport Searches Since 9/11 Since the terrorist attacks on the United States on September 11, 2001, airport searches have become more frequent, and more invasive, but so has the sense of urgency about security. No court challenge to these security changes has yet made it to the Supreme Court. More recent technology requires that all persons who board commercial airplanes submit to body scanning. – If a person is unable or unwilling to submit to the full body scanners, that person must submit to pat-down frisking similar to that performed by law enforcement agents on suspected criminals, before being allowed to board an aircraft. Persons traveling from private airports are not required to be scanned, frisked or otherwise detained for surveillance and search before they board an aircraft. Copyright © 2013, Elsevier Inc. All Rights Reserved

8. 8 Border Searches The border exception to the Fourth Amendment’s warrant requirement has long been established in American jurisprudence. This extension of police power is derived from the inherent authority of the national government to defend itself from outside threats and harmful influences. Those entering the country have no reasonable expectation of privacy and routine searches of their persons and belongings are justified without the need for probable cause, reasonable suspicion, or a warrant. Copyright © 2013, Elsevier Inc. All Rights Reserved

9. 9 Border Searches Although border searches are considered an exception to the search warrant requirement, to fall under the exception, the searches must be routine. – Routine searches occur at the border and are minimally invasive. – A routine search consists of checking documents, emptying pockets, and checking of vehicles and cargo. – Non-routine searches are more intrusive with a varying style of search and occur only with reasonable suspicion to perform such search. – A non-routine search is more invasive in all forms of the search from intensively checking everything in the vehicle, a full body search, and other means of checking anything crossing the border. Copyright © 2013, Elsevier Inc. All Rights Reserved

10. 10 United States v. Montoya De Hernandez Based on this case, a routine border search can give rise to reasonable suspicion or probable cause for a more invasive detention and search. Based on the protection of the borders and the need to discover narcotics and other illegal items entering the country, courts have ruled that it is acceptable to hold an individual for a reasonable amount of time, around 48 hours, before getting a court order for continued detainment or search. Officers are generally not allowed to perform invasive searches, such as body cavity searches or X-rays without the court order, but no violation of rights occurs from detaining the individual and allowing nature to take its course. Copyright © 2013, Elsevier Inc. All Rights Reserved

11. 11 United States v. Flores-Montano In this case, the Court stated that “The Government’s authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank.” The Court noted in this case that “... on many occasions, we have noted that the expectation of privacy is less at the border than it is in the interior” and “we have long recognized that automobiles seeking entry into this country may be searched.” Copyright © 2013, Elsevier Inc. All Rights Reserved

12. 12 Almeida-Sanchez v. United States In this case, roving patrol conducted a vehicle search about 26 miles from the border of Mexico, on a highway that did not actually go to the border. – The respondent was a Mexican citizen who held a work permit for the United States and traveled frequently. – The officer found marijuana and arrested him. Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country have a right to free passage without interruption. Copyright © 2013, Elsevier Inc. All Rights Reserved

13. 13 Mincey v. Arizona This case is best understood as an issue under the “exigent circumstances” exception to the warrant requirement. In this case, police conducted a warrantless search saying that investigations of murder scenes did not need a warrant because of the seriousness of the offense. In sum, the Court said that a warrant must be obtained for crime scene investigations, regardless of the seriousness of the offense. – The only exception to this rule is if obtaining a warrant would mean that the evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. Copyright © 2013, Elsevier Inc. All Rights Reserved

14. 14 Destruction of Evidence If police have probable cause to search, and they reasonably believe evidence is about to be destroyed, they can search without a warrant. Cupp v. Murphy- the U.S. Supreme court held that police officers who had probable cause to believe Daniel Murphy had strangled his wife did not need a warrant to take scrapings of what looked like blood under his fingernails. Schmerber v. California- the Supreme Court held that rapidly declining blood alcohol levels justified giving a blood alcohol test to Schmerber without a warrant. Ker v. California- the likelihood that suspects will destroy or hide drugs has been held by the Court to justify a warrantless entry into a home. Copyright © 2013, Elsevier Inc. All Rights Reserved

15. 15 Danger to the Community Another area in which the Court has been more lenient in requiring a search warrant are those cases in which either the officers’ safety, or the safety of the community are at risk. U.S. v. Lindsey- If officers have probable cause to believe either that a suspect has committed a violent crime or that they or others in the community are in immediate danger, they may enter and search a house. U.S. v. Doe- The Court also determined that officers acted reasonably in reentering a house without a warrant to search for a weapon when police found a dead body on the front porch. Copyright © 2013, Elsevier Inc. All Rights Reserved

16. 16 Regulated Business Searches Businesses that are regulated such as places that serve alcohol and sell guns are not protected by the same rights as other non-regulated businesses. Warrantless searches are not prohibited in such businesses because it is necessary to prevent any illegal operations by such highly regulated businesses. United States v. Biswell- an official asked for entrance into a locked gunroom based on provisions to allow officers to inspect weapons being sold. Copyright © 2013, Elsevier Inc. All Rights Reserved

17. 17 Conclusion This chapter identifies and examines circumstances considered to be emergency situations, or exigencies, in which obtaining a search warrant would be detrimental to either the investigation, or the safety of the officers or the public. In airport searches, all passengers who travel on public airlines are required to submit to suspicionless searches prior to boarding. Likewise, all people entering the borders of the US are subjected to routine stops and searches. In situations in which evidence will likely be destroyed or lost police are authorized to search without a warrant. Likewise, if the safety of police or the public would be compromised by obtaining a search warrant, warrantless searches are justified. Finally, businesses that are subjected to regulations because of the nature of the products sold or business performed may be searched without search warrants. Copyright © 2013, Elsevier Inc. All Rights Reserved