Know Your Rights at U.S. Points of Entry

Fourth Amendment

The Fourth Amendment of the U.S. Constitution states in part, quote, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The Fourth Amendment applies to any person that is present within the physical United States, regardless of whether they are a U.S. citizen.

Border Searches

However, while the Fourth Amendment of the U.S. Constitution generally requires government officials to first obtain a warrant from a neutral and detached judicial official, based upon a finding or probable cause, before a search of  persons, houses, papers and effects could be conducted, the U.S. Supreme Court has found that searches of individuals and the items they enter the country with are considered reasonable and do not require warrants or probable cause.

The U.S. Supreme Court stated in a case called Carroll v. United States, Travelers may be 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.

The U.S. Supreme Court stated in a case called United States v. Ramsey, (1977), quote, “Border searches, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depend on existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless “reasonable” has a history as old as the Fourth Amendment itself.

Electronic Device Search

As it currently stands in the law, the government appears to have the right to search luggage, bags and electronic devices at points of entry into the United States including at airports, seaports and land crossings, such as at border crossing locations from Mexico and Canada.

If government officials do a basic search of an electronic device, like your cell phone, they will generally look at text messages, images and highly private information. Typically, if they don’t find anything on the phone that leads them to believe that further review of your phone would produce any illegal materials, contraband, or any reason to prolong your detention then in many cases they will give you your phone back and let you go.

Authorities are currently permitted to conduct a basic search of your phone, just like they are allowed to take your bag through a further inspection after they initially scan your bag. Be aware that the basic device search can often lead into what is called an advanced search.

After a basic search, someone from the U.S. Department of Homeland Security may approach you and say something along the lines of, “based on some things that we found concerning, we’d like to speak to you further.” What that typically means is that the basic device search has been escalated from a normal border search, to a real investigation, which usually means that they’ve seen something on your phone that they believes warrants further investigation. This often means that DHS is going to keep your phone and actually download information off your device and that is where things can get very potentially intrusive of your rights.

They may keep your phone if there is some suspicion of illegal activity or if they believe that you may pose a national security threat. They will also usually let you leave the airport if there is not anything blatantly illegal that gives them probable cause to arrest or detain you. They should give paper work including a property receipt, which essentially says we have taken your phone and we will be in contact with you.

If you don’t hire an attorney, it could be days or even weeks with you waiting in suspense wondering what is going on with your phone. Additionally, if this happens, you may have a viable civil action against the government to recover damages for a potential violation of your Fourth Amendment rights.

Say No to Advanced Search

If this happens to you, you must contact an attorney. Also remember you can say no. Even in the beginning of a basic search, they may try to give you a form to sign which constitutes you giving the government written consent to search your device, download anything they want from your device. The government may say they will contact you to retrieve your phone when they are done. If you say no that will generally require DHS to go and seek a warrant to search your phone, without your consent. To obtain a warrant, the government must have a higher level of suspicion that is based on specific articulable facts, not just hunches or suspicions. At that point, they may just let you go with your phone if they don’t believe they can show probable cause of criminal activity or other potentially illegal activity to support a court giving them a warrant. 

Password Request for Electronic Devices

U.S. citizens and valid green card holders or U.S. permanent residents should not be denied entry into the United States for refusing to provide a password for the search of an electronic device. That said, you may have your device seized by the government and potentially held for weeks or months while the government searches the device and you may be detained for several hours if you do refuse to turn over a password. To be clear, at the moment, the government claims the right to search anyone’s devices at ports of entry including U.S. citizen devices. The courts have not yet weighed in on whether the government does in fact have this right. Future litigation may clarify whether or not the government can search anyone’s electronic device at points of entry.  

If you are not a U.S. citizen or visa holder, such as a visitor from another country or someone traveling with a visa, you do face potential denied entry into the United States for refusing to hand over a password to permit a basic search of your device.

Consider Traveling Data Light

If there is electronic data or written documents that you don’t want to risk being seen by others, such as confidential documents or intimate photos, consider not traveling with them and traveling data light. Use cloud storage. If the government seizes a device and conducts a forensic search, they can get deleted files, metadata and all files on the device. Be aware of this risk when traveling with electronic devices.

Secondary Screening Parameters

While searches of items and persons entering the U.S. does not require a search warrant or probable cause, customs officers and other government agents cannot send you to secondary screening based off factors such as race or religion.

If officers ask questions related to your religion, political beliefs, race, ethnic background or something else of that nature, politely decline to answer those questions. We don’t check our free speech and religion rights under the U.S. Constitution’s First Amendment at points of entry into the U.S. You can ask to speak with a supervisor if an inappropriate line of questions continues. Politely make it clear that you don’t think that line of questioning is appropriate and that you politely decline to answer those kinds of questions.

Right of Entry

U.S. Citizens have an absolute right to reenter the country. Green card holders also have a right to reenter the country. While border protection officials may detain you for brief periods for further inspection, there is currently no bright line rule of how long they may detain you at points of entry. At some point, an extended detention likely becomes an unlawful seizure in violation of the Fourth Amendment. This issue may also be clarified through future litigation.

Seizure of Person

The U.S. Supreme Court in United States v. Mendenhall, (1980) stated, quote, “We conclude that a person has been “seized” within the meaning of the Fourth Amendment, only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” If you are unsure of whether you are being seized while entering the country, (or at any time you believe you are being seized by government agents,) ask, “am I free to go?”.

If an officer tells you that you are not free to go, you can at least take note of when your seizure was initiated, so an attorney can analyze later how long you were detained and whether or not your Fourth Amendment rights may have been violated, which could potentially warrant your recovery of damages through a civil action against the government.

Fifth Amendment Right to Remain Silent

The Fifth Amendment of the U.S. Constitution states in part, quote, “No person shall be compelled in any criminal case to be a witness against himself.” This means that the government does not have the authority to make you answer questions that may elicit self-incriminating responses.  

The Fifth Amendment applies to any person that is present within the physical United States, regardless of whether they are a U.S. citizen.

You always have the right to remain silent and not answer questions. If you are a U.S. citizen or green card holder you may be detained longer before being released if you choose to remain silent. If you are not a U.S. citizen or green card holder you may be denied entry into the U.S. for refusing to answer questions.

Sixth Amendment Right to Counsel

The Sixth Amendment of the U.S. Constitution states in part, quote, “In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence.” This means that you have the right to speak with an attorney before answering any questions from the police or ICE.

The Sixth Amendment applies to any person that is present within the physical United States, regardless of whether they are a U.S. citizen.

If you start to get questions that are more accusatory, that don’t seem like regular questions for a border crossing, you should ask for an attorney before potentially providing any questions. Politely and clearly state, “I respectfully decline to answer any questions until I have spoken with an attorney.”

Generally in these situations you are not entitled to be provided with counsel such as a public defender, but you are permitted to call and hire your own lawyer.  

Denied Entry into the United States

If you are denied entry into the United States contact an American attorney and get legal advice on what your next steps may be. If you are denied entry and they did a deep dive into your phone or your social media, try to politely have a civil conversation with the officers who denied you entry to try to see what was the actual post or the reason for them denying your entry into the U.S.

You are not guaranteed to get a response but if you do, this information can assist your attorney in attempting to gain you entry into the United States. Also document your encounter.

The more information that your attorney has about what happened at the border or point of entry, the better chance there should be to attempt to fix that issue.

Contact an Attorney

Immediately contact an attorney as soon as possible if you believe your rights have been violated by a government official. If a state or local official violates your constitutional rights, you may have a claim where you could recover damages under 42 U.S.C. 1983- titled, “Civil Action for Deprivation of Rights.” If a federal official violates your constitutional rights, you may have a claim where you could recover damages, which is called a Bivens claim, under the 1973 U.S. Supreme Court precedent from case named Bivens v. Six Unknown Named Agents.

Contact Biazzo Law to schedule your consultation at alyssa@biazzolaw.com