CA6: Turning around because of a wrong turn toward Canada doesn’t bar a border search coming back

Plaintiff made a wrong turn heading to summer camp and ended up on a bridge to Canada. He was allowed to turn around without leaving the country, but he could only get into a lane with motorists coming from Canada in line at Customs. He was searched at U.S. Customs and a misdemeanor quantity of marijuana was found, for which he pled to in state court getting youthful offender treatment. The search at the border was valid, and the fact he was given a card by the toll booth operator that he didn’t cross the border isn’t binding on CBP officers. The fact he didn’t cross into Canada doesn’t prohibit his search at U.S. Customs. D.E. v. John Doe I, 2016 U.S. App. LEXIS 15670 (6th Cir. Aug. 25, 2016):

That D.E. did not cross the border is irrelevant, as officers may conduct suspicionless searches on outbound persons and effects, which have not yet crossed the border, see United States v. Boumelhem, 339 F.3d 414, 420-23 (6th Cir. 2003). That D.E. subjectively did not intend to cross the border is also irrelevant. There is no reliable way for the CBP officers to tell the difference between a motorist who has just crossed the border or who intends to cross the border and a “turnaround motorist” who is at the border area by mistake. It would be dangerous (and quite stupid) for CBP officers to assume that every traveler who claims to be there by mistake—or who possesses an easily fabricated laminated card—is telling the truth, especially considering that D.E.’s vehicle was in the same lane as motorists arriving from Canada. CBP officers are not infallible lie detectors capable of correctly determining the subjective intent of travelers at the border. Instead, because the “Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” Flores-Montano, 541 U.S. at 152, officers may conduct suspicionless searches of vehicles at the border (or at its functional equivalent, Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973)) without regard to the reasons why motorists are at the border.

D.E.’s arguments to the contrary are without merit. His reliance on United States v. Ortiz, 422 U.S. 891 (1975), is misplaced. Ortiz, which held that officers may not search vehicles at traffic checkpoints removed from the border or its functional equivalent without consent or probable cause, id. at 896-97, does not constrain officers’ ability to search vehicles that are, in fact, at the border or its functional equivalent. Additionally, D.E.’s claim that the purpose of the search was illegal misses the mark, as officers need no specific purpose or suspicion to search a vehicle at the border, see Flores-Montano, 541 U.S. at 152-53. Instead, “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616 (1977). Nor was CBP’s detention of D.E. unlawful. D.E.’s detention for roughly one hour was reasonable, given that “delays of one to two hours at international borders are to be expected,” Flores-Montano, 541 U.S. at 155 n.3, and that the detention was for the sole purpose of waiting for local law enforcement to take custody of D.E. after marijuana and drug paraphernalia had been discovered. Furthermore, the fact that marijuana can be legally possessed in Michigan in some circumstances—which were not the circumstances under which D.E. possessed it—has no bearing on whether the CBP officers could conduct a suspicionless canine sniff on a vehicle stopped at the border. A canine sniff is not a constitutionally cognizable infringement under the Fourth Amendment when conducted during a lawful traffic stop, see Illinois v. Caballes, 543 U.S. 405, 409-10 (2005), and, even if it were, as explained above, both the stop and the search of D.E.’s vehicle were lawful under the border-search exception. Finally, contrary to D.E.’s arguments, the CBP officers had statutory authority to conduct a suspicionless border search on his vehicle pursuant to 19 U.S.C. § 1581(a), which grants general authorization for border searches of vehicles, see Boumelhem, 339 F.3d at 419-20.