Thursday, August 12, 2010

Border Search Doctrine Applies As Long as International Border Has Been Crossed, Regardless of Where Travel Originated

United States v. Pickett, 598 F.3d 231 (5th Cir. 2010) (per curiam) (Clement, Prado, Elrod) [I haven't included a hyperlink to the opinion because it doesn't appear to available on the opinions page at the Fifth Circuit's website.]

Now here's an interesting case.

Recall our old friend (or nemesis) the border search doctrine. Routine searches at the border are per se reasonable, and do not require any level of objectively reasonable suspicion, much less a warrant. That's because of the sovereign's inherent authority to protect its "territorial integrity," as the Supreme Court put it in United States v. Flores-Montano. But exactly when does it apply? That's the question raised by Pickett.

Pickett worked "at an oil and gas production site thirty miles off the coast of Louisiana in international waters." ICE agents got wind that he had recently subscribed to child pornography websites. He returned to Venice, Louisana several months later, sailing through international waters on the way. ICE agents were there to meet him. "The agents relied on the border search exception to view the contents of Pickett's thumb drives, portable hard drives, and laptop memory card[, . . . ] which revealed several images of child pornography." Pickett later waived his Miranda rights and admitted to downloading the porn. "[T]he agents [then] obtained a warrant for a more intrusive search and eventually found several hundred illegal images and videos."

Pickett moved to suppress all the porn and his statements as fruits of a warrantless search. He argued that the border search doctrine did not apply, "on the theory that his voyage to shore involved 'no border crossing,' because it allegedly originated from a 'federal enclave.'" Pickett argued that the production site he at which he was working "was a 'federal enclave' under the Outer Continental Shelf Lands Act ('OCSLA'), which extends adjacent state law as adopted federal law to the 'subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon.'" The district judge denied the motion without reaching the OCSLA argument, concluding that Pickett's travel across the border from international waters was sufficient to trigger the border search doctrine.

The court of appeals affirmed, but divided on the reasoning. The majority held that Pickett's argument was foreclosed by the court's decision in United States v. Stone, 659 F.2d 569 (5th Cir. 1981). "In Stone, we held that the 'critical fact' we must look to in determining whether the border search exception applies is 'whether or not a border crossing has occurred,'—not the point of origin of the defendant's journey." Stone itself involved a plane that "was intercepted flying low from international airspace toward Florida," before landing at Orlando International Airport. Stone rejected the defendant's argument that the border search doctrine did not apply to the subsequent search because the Government failed to show that the plane "'left foreign land.'"

Pickett tried to distinguish Stone on the ground that ICE agents knew where he was coming from. Doesn't matter: "Stone holds that defendant's point of origin is irrelevant to the constitutionality of a border search so long as a border crossing has occurred." The same holds true even if the trip originated domestically.

And even if the production site was a federal enclave by virtue of the OCSLA (an issue the majority doesn't resolve), the border search doctrine still applies because Pickett crossed international waters on the way. Pickett cited authority from the Eleventh Circuit—United States v. Garcia, 672 F.2d 1349 (1982)—suggesting that the doctrine would not apply to an airplane flying over international waters between two domestic points (because of the low likelihood of picking up contraband during the flight). Not the same, says the majority, "because it is not difficult to imagine picking up contraband while crossing open waters."

Judge Clement concurred in the judgment only. She would not have reached the Fourth Amendment question because, in her view, the production site was not an "OCSLA situs" and was in international waters. Moreover, the Fourth Amendment question
is an issue of first impression in this circuit and is not an easy one. Two circuits have considered a similar question and have concluded that the point of origin does matter in determining whether there has been a border crossing for purposes of the drug importation statute. [cites] The per curiam opinion's holding is not only unnecessary, but creates a circuit split. The defendant's argument on appeal rests on the assertion that CM15 is an OCSLA situs. That assertion is untenable. The doctrine of constitutional avoidance suggests that we should decide the case on the well-traversed ground of our OCSLA precedents, and leave the difficult constitutional question for another day when it is squarely before us.

Yes, Pickett has filed a cert petition.



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