Border Searches for Investigatory Purposes: Implementing a Border Nexus Standard

Border searches are a commonly used exception to the Fourth Amendment’s probable cause and warrant requirements. Using a border search, the government can conduct searches of individuals without any kind of individualized suspicion. Border searches pose a concerning risk to privacy when they are used as a tool for criminal investigations. The Supreme Court has never ruled on searches used in this way, but lower courts are addressing the technique and reaching conflicting decisions. Courts need to take an approach that will protect the privacy interests of individuals while allowing the government to advance its interests in protecting its borders and fighting crime. Courts should adopt a border nexus standard: to be considered a border search, and therefore excepted from probable cause and warrant requirements, the search at a border must have a tie to the historic rationales of border searches or be investigating a transnational crime.