In-house counsel and import and export compliance managers may not spend much time reflecting on the importance of a recent Supreme Court decision addressing a drug seizure in Southern California. Yet when the decision reaffirms for the first time since 9/11 the basic principle that the Department of Homeland Security, through the Bureau of Customs and Border Protection (Customs), may, under the Fourth Amendment, conduct intrusive searches of property at the international border without a warrant and without probable cause or any other heightened level of suspicion, it merits consideration for both its potential impact on a company's importing and exporting operations, and for its importance for the Homeland Security era in which we now live. This article examines this decision, the Customs border search doctrine, and considers the possible relevance of this decision for those companies engaged in international trade across U.S. borders.
United States v. Manuel Flores-Montano1
The facts of this case are fairly mundane. Customs inspectors in Southern California seized more than 81 pounds of marijuana from a gas tank of a car driven by the defendant, Manuel Flores-Montano. In order to make the seizure, the inspectors transferred the vehicle from a primary to a secondary inspection station, where a Customs inspector inspected the gas tank by tapping it, and noted that it sounded solid. Customs contacted a mechanic under contract with Customs to remove the gas tank by raising the car on a lift, unscrewing bolts, loosening straps that held the tank in place, and hammering away sealant.2 After removal, an inspector opened the gas tank and found 81 pounds of marijuana. Customs conceded for purposes of the case that it had neither "probable cause" nor "reasonable suspicion" to believe that the gas tank contained contraband.
A grand jury indicted the defendant on smuggling and distribution charges. He sought, however, to suppress the marijuana on the grounds that Customs conducted the intrusive vehicle search without "reasonable suspicion."3 Relying on a Ninth Circuit Court of Appeals decision,4 which found that "reasonable suspicion" was required to disassemble a car's gas tank, the trial court suppressed the evidence. The Ninth Circuit upheld the lower court.
The Supreme Court reversed, holding that Customs did not require reasonable suspicion, or any level of suspicion for that matter. In a unanimous opinion, the Court stated that the United States has a "longstanding right . . . to protect itself by stopping and examining persons and property crossing into this country." Dismissing arguments that the Fourth Amendment requires a heightened level of suspicion to support an intrusive search of property at the border, the Court held that the removal, disassembly and inspection of a gas tank at the border did not amount to a sufficient deprivation of a property interest as to create a Fourth Amendment concern.
While not discussed in the Court's opinion, terrorism and Customs' responsibility to protect the borders in the wake of 9/11 appear to have been at the forefront of the Court's thinking. The government repeatedly argued in its brief that any curtailment of Customs' border search authority would seriously affect its ability to protect national security. The government noted, for example, that "Congress has recently reaffirmed the close link between national security and border security by placing the government's border security and immigration enforcement responsibilities in the newly established Department of Homeland Security."5 The government also argued that any reasonable suspicion requirement would simply signal to terrorists and other smugglers that carefully concealed compartments in conveyances, such as gas tanks, could be used to escape detection at U.S. borders.6
After the Court issued its decision, Customs on the same day applauded the Supreme Court's recognition of Customs' important role in the war on terror. Customs Commissioner Robert C. Bonner hailed Flores-Montano as a critical affirmation of Customs' authority to protect the United States by stating, "Now, more than ever before in our history, the need to secure our borders is basic to the safety of the United States. Terrorist weapons and terrorists have to come here to harm us, and Customs and Border Protection has the mission to stop them. The Supreme Court's strong opinion reaffirms the broad legal authority we need to accomplish our mission."
Customs Border Search Doctrine
The Supreme Court's decision builds on a long line of precedent, dating to the founding of the country, recognizing Customs' expansive authority to conduct border searches and seizures. It is well-established that the general protection against warrantless searches and seizures without probable cause under the Fourth Amendment does not extend to Customs at the border. Rather, Congress has granted Customs plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to protect national security, to enforce the tariff laws and to prevent the introduction of contraband.7 Courts have historically held, however, that Customs must demonstrate a heightened level of suspicion, i.e., reasonable suspicion, before it can conduct an intrusive search of persons or property (i.e., that which reduces the value of the property). For almost all other searches of persons or property, Customs needs little, if any, suspicion at all. The importance of the Flores-Montano decision is that the Supreme Court held that the intrusive search of certain property at the border lacks a requirement of reasonable suspicion.
Concerns For International Traders
In this new Homeland Security era, Customs and the international trading community are well aware that they function in a changed world. Customs has gained new powers in the war on terrorism, and the Supreme Court has now shown that suspicionless and intrusive searches of property are acceptable to defend our borders. Businesses operating in this environment should monitor the scope of Customs' border search powers and should also give consideration, to the extent they have not done so already, to Customs anti-terrorism initiatives, such as the Customs-Trade Partnership Against Terrorism (C-TPAT). Customs has suggested that C-TPAT members can mitigate the risk of intrusive searches at U.S. borders through reduced inspections and participation in other programs only afforded to C-TPAT participants.
In addition, businesses should be aware that intrusive border searches may result in property damage for which businesses may be responsible, even if Customs finds no contraband. The Court signaled that a certain level of property damage may be acceptable for suspicionless searches of property. Moreover, the government would likely argue that businesses should absorb any decreases in the value of property that result from intrusive border searches. While Customs has procedures to compensate owners of personal property damaged in a Customs inspection, Customs does not have any such policy for businesses and would therefore request that businesses seek compensation for any such damage through their own insurance policies.
Signal For Future Court Decisions
It would be difficult to find another area of law in which the courts have ceded as much authority to a federal agency as they have to Customs at the U.S. borders. In this post-9/11 era, Flores-Montano reaffirms this expansive scope of authority. Flores-Montano reaffirms that all border searches are directly related to homeland security and that Customs needs as much discretion as the Constitution allows to deter terrorists and smugglers from violating U.S. laws at the borders.
Flores-Montano also suggests the difficulty international traders may face in disputes that arise at the nation's borders. It is reasonable to assume that the government may use national security as a chief argument in disputes arising from border searches or seizures, either explicitly or implicitly, and rely upon the deference the courts have shown for such arguments. The Supreme Court has set a deferential standard for Customs' border searches, and individuals and businesses will be hard pressed to prove that a search or seizure has no national security dimension. Moreover, the only significant limitation left on Customs' power to conduct suspicionless searches of property appears to be if it deprives the owner of a significant interest in the value of the property. As Justice Ginsburg suggested at oral argument, as long as Customs is not "wantonly destructive," it has the authority under the Fourth Amendment to search anything in a conveyance crossing the U.S. border.8
Nevertheless, the open question after Flores-Montano is: what are the exact boundaries of a reasonable warrantless and intrusive search of property? The Court noted that "while it may be true that some searches of property are so destructive as to require a different result, this was not one of them," indicating that it might recognize that some deprivations of property interests at the border require a heightened level of suspicion, or that it could remove any suspicion requirement on other intrusive searches of property. The latter result could very well be the outcome of further jurisprudence on Customs border searches in the Homeland Security era.1 124 S. Ct. 1582 (2004).
2 By statute, Customs has virtually unlimited authority to search conveyances and persons crossing U.S. borders. Specifically, 19 U.S.C. §1581(a) provides that:
Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place without as well as within his district, and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.
3 "Reasonable suspicion" is a heightened level of suspicion - not amounting to probable cause - which courts have often required to support intrusive types of Customs searches at the border, such as drilling into containers. See United States v. Carreon, 872 F.2d 1436 (10th Cir. 1989).
4 See United States v. Molina-Tarazon, 279 F.3d 709 (9th Cir. 2002).
5 Brief for the United States at *12-3, United States v. Flores-Montano, 124 S. Ct. 1582 (2004) (No. 02-1794).
6 Id. at *17-8 ("A requirement of reasonable suspicion would remove the significant deterrent effect of suspicionless searches and could actually encourage criminals to use gas tanks as a means of smuggling contraband.")
7 See United States v. Montoya de Hernandez, 473 U.S. 531, 536 (1985). The Flores-Montano Court noted that Customs' broad investigative authority stretches to the First Congress. See, e.g., Act of Aug. 4, 1790, ch. 35, § 31, 1 Stat. 164.
8 See Transcript of Oral Arguments Before the U.S. Supreme Court at *24-5, United States v. Flores-Montano, 124 S. Ct. 1582 (2004) (No. 02-1794).
Lars-Erik A. Hjelm is a Partner and Jason A. Park is an Associate in the international trade group in the Washington, DC office of Akin Gump Strauss Hauer & Feld LLP. Mr. Hjelm focuses on Customs law and policy. He served at the U.S. Customs Service for almost 10 years and writes and speaks on Customs issues. Mr. Park focuses on international trade and policy issues.