The Border Search Muddle
Fourth Amendment originalism is hard. But if Fourth Amendment originalism has an easy case, the Supreme Court has sometimes suggested, that case is the border search, an exception to the warrant requirement “as old as the Fourth Amendment itself.” Shame, then, that the intersection of that history with developments in information storage threatens to produce normatively disastrous results: a sweeping federal entitlement to examine the contents of every phone or computer (and, on some accounts, the data remotely accessible from them) that happens to enter or exit the United States, all without individualized suspicion. Some courts of appeals and many commentators have resisted that conclusion, while others, reiterating what they style the understanding of the First Congress, maintain that “searches at the border of the country ‘never require probable cause or a warrant.’” To an extent, the divide presents as a (familiar) choice-of-authority problem. Does recent Supreme Court precedent — especially Riley v. California, the pathbreaking decision that imposed a warrant requirement on cellphone searches incident to arrest — encourage a departure from what was previously constitutional tradition? Or does durable and determinate original meaning trump a subsequent change in circumstance?
This Note argues that the choice framed above, the presumption that underpins much of the argument on each side of a messy circuit split, is a false one. Part I describes the divide’s recent development, as well as the mixed signals in Court precedent that underpin it. Part II debunks the suggestion that the split is fairly framed as a conflict between original meaning and modern difficulties. On its own terms, the lawoffice history that underpins the border exception to the warrant requirement is very plausibly wrong. What’s more, evidence from the Founding era provides little direct guidance on border search or seizure of papers. If anything, the state of the doctrine is in considerable tension with the Framers’ special concern for those writings that represent citizens’ “dearest property.” Part II therefore establishes that the question falls within what some originalist theorists call “the construction zone.” Part III then concludes, briefly sketching senses in which the values motivating the turn to original meaning might still come into play in choosing between the doctrinally available approaches to the border question.
I. THE MUDDLE
A. Border Exceptionalism
The arc of the Supreme Court’s border search jurisprudence has been relatively straightforward. As early as 1886, the Court took note of the potential relevance — as far as the Fourth Amendment’s original meaning was concerned — of a customs statute passed by the First Congress, which authorized the warrantless search of ships for dutiable goods. The Court would continue over the following decades to gesture toward that statute for the proposition that border searches are different, and in 1977 squarely held that “[b]order 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.” Precedent adverts to just a few limits on that rule. First, some quantum of individualized suspicion might be required for “nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches.” Second, search techniques that involve the destruction of property, or are otherwise carried out in a “particularly offensive manner,” might be constitutionally unreasonable. Third, the First Amendment might — independently or in conjunction with the Fourth Amendment — constrain the reading of private papers at the border, if not the opening of the containers that carry them. Lower courts have run with, and potentially merged, these first two possibilities, but they have largely declined to develop the First Amendment line of inquiry.
Early opinions applying this framework to the manual search of electronic devices largely concluded that such examinations are “routine,” analogous to the opening and inspection of any other closed container. In 2013 the Ninth Circuit complicated the landscape, holding in United States v. Cotterman that a forensic search of a device is nonroutine — “essentially a computer strip search” — and that reasonable suspicion is therefore required. In an influential opinion, the federal district court in Maryland soon adopted the same standard. But there was little reason to think privacy rights had room to grow much further, and nontrivial concern that the Supreme Court, if it intervened, would cut back on the protections the lower courts had so far extended.
B. Data Exceptionalism
Then came Riley, the case synonymous with technology-driven paradigm shifts in Fourth Amendment law. Though limited by its terms to a different warrant exception — searches incident to arrest — Riley seemed to offer a blueprint for updating the scope of warrant exceptions generally. Articulating at length the extraordinary privacy interests at stake in the contents of digital devices, the Court framed the relevant question as whether the application of a warrant exception to such devices would “untether the rule from the justifications underlying [it].” It stressed, crucially, that the application of a warrant exception to digital devices was to be understood as an extension of that warrant exception’s traditional sweep, an extension whose justification would have to “rest on its own bottom.” Taking up the baton plainly offered, lower courts soon applied Riley’s reasoning to limit the reach of other traditionally warrantless searches (vehicle and probation searches, say), and a number of commentators advocate for a like realignment at the border.
Last year, the Fourth Circuit obliged, though only in part. In United States v. Kolsuz, the court rejected the argument that the border search exception was wholly inapplicable to searches that have no hope of turning up physical contraband (at least on the facts of the case, where the search could — and did — produce evidence of ongoing smuggling activities). But within the border search paradigm, the panel concluded, forensic searches should be considered nonroutine because of the Riley-ratified privacy interests they compromise. The court avoided the question whether something more than reasonable suspicion might be required by invoking the good faith exception to the exclusionary rule; it avoided, too, the question whether Riley required a change in the standard for manual searches because Kolsuz never challenged the manual search of his phone. The opinion drew a sharply critical concurrence in the judgment from Judge Wilkinson, who objected that the rule newly announced broke from “a longstanding historical practice in border searches of deferring to the legislative and executive branches.”
Judge Wilkinson’s perspective won the day just a few weeks later, albeit in a different court of appeals. In United States v. Touset, a panel of the Eleventh Circuit emphasized anew that “searches at the border of the country ‘never require probable cause or a warrant.’” For this proposition, Judge William Pryor’s opinion promptly cited the authority of the First Congress. And Riley, he asserted, was baldly inapplicable because it dealt with a different warrant exception. Applying the border framework, and noting that neither Supreme Court nor Eleventh Circuit precedent had ever required reasonable suspicion for a search of property, the panel declined to “create special protection for the property most often used to store and disseminate child pornography” (the offense at issue).48 The court thus rejected a reasonable suspicion requirement, closing by reiterating Judge Wilkinson’s reminder as to “longstanding historical practice.” In each of these respects, the decision was congruent with Judge Pryor’s previous, concise opinion in United States v. Vergara, which had rejected a probable cause requirement (without answering the reasonable suspicion question) after about one page’s discussion of the border exception’s pedigree and Riley’s irrelevance. Touset and its reasoning have been praised in these pages for their “faithful[ness] to the original understanding of the Fourth Amendment.”
C. Experiencing a Significant Gravitas Shortfall
The Fifth and Seventh Circuits have nibbled at the edge of this question, as have a handful of district courts. But safe to say Kolsuz and Touset are representative of the battle lines — on the one hand the attitude that Fourth Amendment time is measured “before . . . Riley” and “[a]fter Riley,” on the other the view that original meaning continues to trump. And each opinion is, along one key axis or another, fairly unsatisfying.
Kolsuz has a fundamentally arbitrary aspect, cast in stark relief by the failure to choose between (let alone justify the choice between) competing degrees of regulation that are equally available. This kind of reasoning inevitably strikes some judges as necessarily unjudicial, and already too endemic in Fourth Amendment decisionmaking. As Justice Gorsuch recently objected in Carpenter v. United States, these exercises “often call for a pure policy choice, many times between incommensurable goods — between the value of privacy in a particular setting and society’s interest in combating crime.” No wonder the courts have, as discussed in detail below, often looked for historical guardrails.
Even on its face, though, the turn to history only partially solves the judicial-discretion objection. Consider the dissonance produced by Touset’s refusal to take persuasive guidance from Riley, the paradigmatic example of a “signal” from the Justices to the lower courts. The Eleventh Circuit panel suggested that it couldn’t impose a more rigorous standard for phones than for ship cabins (which amount to homes, doctrinally), notwithstanding Riley’s observation that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Where Riley emphasized that cell phones are more nearly “an important feature of human anatomy” than they are “just another convenience,” the panel instructed travelers to leave them at home. And ignoring Riley’s rejection of a “pre-digital analogue” into other sources of the same information, the court concluded that to search a phone was no different than searching “a tractor-trailer loaded with boxes of documents.”
The ipse dixit that Riley “does not apply to searches at the border” is inadequate to justify these departures from the structure of its reasoning (as Judge Jill Pryor stressed in dissent in Vergara). And this, too, is a problem that sounds in norms structuring the judicial role. In a sense the point is a variation on the observation that a sudden repudiation of nonoriginalist authority “would [itself] be inconsistent with the rule of law justification for originalism” if its consequence were to undermine the coherence and consistency of the law. While Riley may not supply a unique answer to the border search question, it amounts to a bold assertion of judicial discretion — especially on the part of an inferior court — to deny that the precedent represents a source of relevant legal reasons for deciding the dispute one way as opposed to the other.
The best way to excuse each opinion, probably, is to observe that Touset reads as if the Eleventh Circuit thought applying Riley rather than the traditional rule was forbidden, in the same strong sense that the Fourth Circuit seemed to believe applying Riley was not just permissible or desirable but, as it happened, mandatory. The border search muddle is the result of this felt collision between an unstoppable force and an immovable object, two sources of legal meaning that both have strong claims to control the outcome of the question at issue, neither of which fits neatly into the other’s paradigm. Phrased that way, the problem is a sort of a cousin to the vexed role of precedent in a constitutional practice that is partly, but very far from entirely, originalist. But as the next Part will argue, the collision between these authorities is fictive. The original meaning of the Fourth Amendment does not determine the Touset outcome. Unfortunately, in a sense this point only deepens the muddle, because the original meaning does not clearly require a different one. As Part III will sketch, the sense in which historical evidence might matter in this domain is more subtle. While the instinct to center the value of fidelity in this context isn’t necessarily misplaced, neither is that value easily reduced to, or earned by, citation to the First Congress.
II. AN ORIGINAL INDETERMINACY
The precise place of originalism in Fourth Amendment law is an ambivalent one. Some scholars would, of course, defend the proposition that originalism is mandatory in every domain of constitutional law because it follows from the Constitution’s status as an enacted written text, others that some version of originalism is the best positivist account of our current constitutional practice. Alternatively, one might think original meaning matters to the interpretation of the Fourth Amendment because the Supreme Court has said so in precedential opinions. In its first significant opinion on the amendment, for instance, the Court suggested that “to ascertain the nature of the proceedings intended . . . under the terms ‘unreasonable searches and seizures,’ it is only necessary to recall the contemporary or then recent history of the controversies on the subject.” At different times, the Court has articulated the role of history in terms of the question whether a practice “was regarded as an unlawful search or seizure under the common law when the Amendment was framed,” or, alternatively, whether a particular outcome would erode “that degree of privacy against government that existed when the Fourth Amendment was adopted.” Of course, there’s visible tension between a strictly originalist approach and important Fourth Amendment paradigms — the “reasonable expectation of privacy” framework comes to mind — as well as the usual objection that Justices’ voting patterns don’t follow originalism where it leads.
Whatever the best account of history’s Fourth Amendment significance, this Note makes a weak claim for the importance of reviewing the relevant evidence: on even the thinnest views of the role of historical fact in constitutional adjudication, a litigant challenging an investigative practice should be reluctant to stand up in court and admit that original meaning is to the contrary. This Part demonstrates that the materials are more equivocal than courts typically recognize, and that the question falls squarely in an underdetermined “construction zone.”
A. An Ambiguity: What to Make of Ship Searches?
The universe of sources most relevant to the Fourth Amendment’s original meaning is, most accounts agree, manageable in scope. The list usually begins with Entick v. Carrington, Wilkes v. Wood, and the Writs of Assistance Case, “a trio of 18th century cases ‘well known to the men who wrote and ratified the Bill of Rights, [and] famous throughout the colonial population.’” The list includes, too, the drafting history of the amendment itself and its state constitutional predecessors, as well as the ratification debates associated with each. And it includes the search and seizure statutes enacted by the First Congress, chief among them the Collection Act of 1789 (the Collection Act), which Professor William Cuddihy has called “nothing less than a statutory exegesis on the Fourth Amendment.” (One can add to the catalog the content of contemporary common law, though this risks begging an important, contested question about the extent to which the Fourth Amendment’s original meaning in fact relied by reference on the common law.) If this collection sounds more than ample enough to go on, it bears emphasizing the wariness with which Fourth Amendment scholars have learned to approach it. As Cuddihy puts it: “Not only are the most obvious indices of [original] meaning few and uninformative, they often lead down blind alleys.”
Thankfully, the task of double-checking the border exception’s “impressive historical pedigree” is simplified by the fact that the Court has relied almost exclusively on the Collection Act in articulating it. That statute authorized customs officers to board and search “any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed”; a related measure passed in 1790 gave authorities power to board vessels without suspicion “for the purposes of demanding the[ir] manifests . . . and of examining and searching the said ships.” The Collection Act’s search and seizure provisions lack meaningful legislative history. Having quoted the language above, then, United States v. Ramsey announced that “[t]he historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest”: it stood for the rule that the border is categorically different where searches are concerned.
The Court’s confidence on that point is surprising. In Cuddihy’s The Fourth Amendment: Origins and Original Meaning, 602–1791, which is often described as the most thorough exegesis of the historical materials, the rationale for exempting ship searches from the warrant requirement appears as the very first example of the “[a]reas of ambiguity [that] remain even after the surviving evidence has been exhausted.” In a sense this should be obvious: even if the statute is conclusive evidence for the constitutionality of searches with several characteristics — that is, searches 1) of ships 2) at the border 3) for dutiable goods — some evidence other than the fact of the statute is necessary to clarify which of these characteristics is necessary or sufficient to establish the search’s validity. Professor Jacob Landynski, writing in 1966, criticized as “faulty” history any reliance on the statute that failed to distinguish between searches for evidence and “a hunt for goods . . . on which duty had not been paid.” Professor David Sklansky, more recently, notes that the law is “doubtful precedent for border searches not involving vessels, and for searches of vessels away from the border.” And none of Cuddihy’s possible rationales for exempting ship searches, for what it’s worth, relies on a rule of border exceptionalism.
Professor Thomas Davies, in a competing account, advances the stronger claim that the Collection Act says nothing at all about the meaning of the Fourth Amendment because ship seizures were never thought to be governed by the Fourth Amendment in the first place. Davies’s argument on this point is detailed, and this Note would struggle to do it justice. In its simplest form, though, the claim is commonsensical: “In late eighteenth-century thought, ships were neither ‘houses, papers, and effects [nor possessions]’ nor ‘places.’ They were ships.” Again, nowhere does Davies suggest the possible relevance of the border, except to list Ramsey among the cases that embrace a “generalized-reasonableness” approach “accord[ing] the modern police officer far greater authority to arrest or search than the Framers ever intended or anticipated.” The point is not that one of these possible inferences from the Collection Act is the best one, but that judicial articulations of the border exception uniformly fail to acknowledge — let alone rebut — the suggestion that there might be competing inferences.
Part of the problem, probably, is elision of the provisions of the Collection Act, which speaks only to ships and vessels, with an expanded authority passed in 1815, which applied to “any carriage or vehicle . . . [or] any person travelling on foot, or beast of burden.” Whatever the merits of attributing constitutional judgment to the First Congress, the Thirteenth Congress doesn’t have quite the same ring to it. (Awkwardly enough, the 1815 act’s statutory text is by no means limited to the border, and has had to be so constrained by judicial construction to avoid a graver apparent conflict with the Fourth Amendment.) That statutory authority, too, was distinct from the generalized authority to search individuals “coming into the United States from foreign countries,” which seems to first appear in the statute books in 1866. Collapsing all of these extensions into a single historical moment obscures just how specific the original 1789 enactment was, and the extent to which it might be amenable to interpretations other than the one that eventually took hold of it in the Court.
This may seem like nitpicking. So what if the inference from the Collection Act is nonobvious, or even second best? Except on fairly pure accounts of text’s primacy and determinacy, historical practice and precedent can play legitimate roles in originalist adjudication too, and perhaps those authorities supply the border exception with the kind of sound foundation that the First Congress failed to. But the key point, for these purposes, is that there are reasons to doubt that the determinate original meaning embedded in the Collection Act is distinctively sweeping. And that doubt only sharpens when we move to the more precise question considered in the next section: whether the Fourth Amendment’s original public meaning is clear on the question of papers at borders.
B. A Lacuna: Papers at Borders
By its terms, the Collection Act speaks only to “goods, wares and merchandise.” It says nothing about papers or their equivalent, nor, as the Fifth Circuit’s Judge Costa highlighted in a recent concurring opinion, did it authorize “obtain[ing] evidence of crimes other than the contraband itself.” Indeed, to my knowledge, there is no direct evidence of the fashion in which searches of papers at the border were handled at the Founding. None of the small clutch of originalist arguments for excluding papers from the border exception cites any, nor do the replies to them. In a recent article, Professor Maureen Brady notes a modest collection of pre-Revolutionary objections to ship seizures “that resulted in the uncovering or seizure of personal goods owned by crewmembers or intended for the crew’s use (rather than examination and seizure of items that were being imported for sale),” but acknowledges that the interpretive upshot of these complaints is ambiguous. And this silence makes a degree of sense, seeing as there would be no specific statutory authority for the search or the seizure of papers until 1863.
A bit more evidence might be inferred from the experience of international mail. As Professor Anuj Desai has documented, the modern Fourth Amendment owes a great deal to the early American solicitude for postal privacy. The significance of that solicitude for the meaning of the original Fourth Amendment is unclear, both because postal privacy was never discussed in constitutional (as opposed to statutory or regulatory) terms and because it’s unclear how familiar the Framers were with British practices of postal surveillance. Still, as discussed in some detail in Ramsey, on no account did Congress authorize the government to open international letters without a warrant prior to 1866, and the Department of the Treasury did not assert authority to do so until 1971. Indeed, mid-nineteenth-century opinions by both Attorney General Caleb Cushing and the Postmaster General seem to contemplate that opening sealed letters from abroad would be unlawful even in cases implicating customs or national security. While there is room to argue about the state (and modern relevance) of post-1866 practice, the claim that Ramsey’s extension of the border exception to international mail reflected original understanding seems much harder to credit. There is no historical pedigree associated with searches of papers, as opposed to containers capable of concealing physical contraband, at the border.
Of course, the decision to make this distinction between papers and other objects of Fourth Amendment protection requires a bit of motivation. Contemporary Fourth Amendment law gives little independent significance to “papers” as distinct from, say, “effects.” Though the Court routinely emphasizes the historical connection between the First and Fourth Amendments — between paper searches and laws against seditious libel — it has been reluctant to conclude that the risk a search will compromise expressive interests justifies imposing something more stringent than an ordinary warrant requirement. In the device-search context, lower courts have used this observation to defuse Ramsey’s suggestion that border searches might run afoul of the First Amendment absent a prohibition on reading communications. But regardless whether that conclusion is a fair reading of precedent (the point is arguable), it squares uneasily with the historical materials, which reflected a special concern for papers over other objects of the search and seizure power. Indeed, there’s considerable irony in border search advocates’ reliance on Boyd v. United States as an early recognition of the prerogative since Boyd announced, too, that “[t]he search for and seizure of stolen or forfeited goods . . . are totally different things from a search for and seizure of a man’s private books and papers.”
The originalist argument that papers ought to enjoy distinctive status is (even setting aside their separate enumeration in the constitutional text) a fairly straightforward one. Judge Kozinski and the Constitutional Accountability Center have both levied versions of it in an effort to narrow the reach of the border exception,138 relying on substantially the same conceptual beats, and the outline of the case goes as follows. First, the English opinion condemning one of the anticanonical searches that inspired the Fourth Amendment, Entick v. Carrington, discussed the evils posed by warrants to search papers, as distinct from the evil of general warrants generally. Lord Camden said there:
Papers are the owner’s goods and chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect.
There is some dispute how well known Lord Camden’s comments on paper warrants would have been; they appear in only one of two published reports of the case, and scholars disagree how widely each version circulated. But regardless, as Professors Donald Dripps and Eric Schnapper have detailed at length, contemporary debates figured Entick as having established a rule about papers above and beyond its relevance to general, or otherwise procedurally defective, warrants. Indeed, the Entick warrant was particularized by the day’s standards.
Second, nothing in the statutory or common law of the early United States contradicts the suggestion that this rule was received. As referenced above, no statutory authority to search papers existed prior to 1863. As Dripps documents, neither do the manuals written to advise justices of the peace document any common law authority to search papers. Indeed, some expressly gloss Entick as holding “[t]hat a warrant to seize and carry away papers in the case of a seditious libel was illegal and void,” without any reference to the warrant’s generality. Most telling, perhaps, is Dripps’s observation that even enforcement of the infamous Sedition Act did not seem to entail warrants for seditious papers. There was, therefore, no contrary practice standing in the way of the Boyd Court’s declaration that the original meaning of the Fourth Amendment categorically forbade searches of citizens’ private papers.
Of course, there have been challenges to the rigor of Boyd’s originalism too — though originalism it certainly purported to be. And if a person were to argue that the original meaning of the Fourth Amendment flatly forbids paper searches at borders, the level-of-generality objection could be turned right around: privacy advocates have no evidence that speaks directly to the question of papers at borders. (It might be tempting to ask whether there are examples of the application of other warrant exceptions to papers. But there appear to be no constitutional controversies involving, say, searches of papers incident to arrest in the early Republic, a fact that could be read in either interpretive direction.) Interestingly, though, no one actually argues for this rule — at least not in the context of the border search debate. Judge Kozinski left his preferred framework unstated, and the Constitutional Accountability Center seems to concede the validity of Boyd’s gradual erosion and reversal. As Professor Aziz Huq has recently observed, the Supreme Court has shown “no appetite for trying to circumscribe some domain of absolutely private papers or things that under no circumstances can be elicited by the state.” Dripps, too, concludes that “[e]ven if Boyd offers the most plausible historical reading of private papers under the Fourth Amendment, there is zero practical prospect of a return to a per se ban on seizing private papers.” From the perspective of too many institutional actors, few of whom are committed surveillance abolitionists, the original meaning is simply a bad one.
III. ADJUDICATION IN THE BORDER ZONE
What to do? A determinate originalist resolution to the border search controversy is doubly, maybe triply foreclosed. The quality of the interpretation underpinning the very existence of the border exception is contestable. The claim that the original meaning speaks directly to papers at borders seems to be descriptively false, whether advanced in support of a no-suspicion standard, reasonable suspicion, or a warrant requirement. And the claim with the strongest originalist support — that papers are categorically unsearchable, no matter the process obtained — is felt to be so practically undesirable that no one advances it.
What a determined originalist ought to do when determinate original meaning runs out is a hotly contested question, one that won’t be answered in any satisfying fashion here. But at the very least it bears observing that the instincts (and values) that drive the turn toward Fourth Amendment history hardly fall away when original meaning turns out to be less than fully determinate. There remain judges who “would like to be able to apply the law without importing nonlegal considerations and [are] searching for a method that will help [them] do it.” For a litigant challenging the federal claim to a border prerogative, it would be a mistake to think that, having “[fought] the originalmeaning question to a draw,” there is no room left to evaluate arguments in terms of greater or lesser consistency with the normative commitments often bundled with originalism. It would be a mistake to throw the historical record in the dustbin if it records distinctions that retain functional — and Burkean — appeal today. Most of all, it would be a mistake to concede that, on these facts, the only approach to delivering the suite of constitutional values originalism originally promised is deference to the political branches. As Professor Randy Kozel puts it, “not every constitutional lawyer who comes to originalism through devotion to popular sovereignty must seek to optimize that value at the expense of all others.” And a judge who does not defer is not rejecting the values of restraint and legitimacy — is not on any fair account exercising unstructured policy judgment — where precedent and history form a thick network of distinctly legal constraints.
In this respect, as Professor Stephen Sachs has recently observed, “[h]ard cases often involve, not a shortage of legal reasons, but a surplus; the cases are hard because too many legal reasons are in play at the same time.” So too at the border. Riley, Ramsey, and Boyd; the First Amendment and the Fourth; the Collection Act and the historical arc of customs searches — all of these are plausibly relevant, even if none is determinative. And so the idealized responsibility of the judge, originalist or no, is to assign weights to each that are reasoned and plausible. Grading the argument for a warrant requirement along this dimension is an exercise left to the reader. But as this Note has tried to demonstrate, the evaluation will have to be one of degree — a choice not between determinate original meaning and some bogeyman vision of unmoored normativity, but among shades of success in the usual, workaday project of “arguing in good faith about the Constitution.”