Open Access Open Access  Restricted Access Subscription Access

The Functional Border Equivalent

Nina H. Compton, Garrett T. Newland

Abstract


It has been clearly established by case law that the government has the power to conduct routine warrantless border searches. The constitutionality of search and seizure at the border is not the focus of this article. For a discussion on the general law of border search, readers are directed to Compton and Wells (1988). In that earlier treatment, particular emphasis was given to the unlawful transportation of aliens and drug enforcement regarding proper time, place and manner of apprehension procedures at the actual border. The focus of this article is upon the requirements for searches which occur at places away from the actual border known as "functional border equivalents."

The term "functional border equivalent" was first coined by the Supreme Court of the United States in the decision of Almeida-Sanchez v. United States (1973). In the Almeida-Sanchez decision, the Court established two criteria and delineated two examples which describe a functional border equivalent.

The first example was that of a search of the passengers and cargo of an airplane arriving at an international airport after a non-stop flight from a foreign destination. The second example was a search at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, which the court indicated might be the functional equivalent of a border search. This paper will examine the concept of functional border equivalency pursuant to both of the examples set forth by the Almeida-Sanchez court. The article will initially examine the airport search example (herein referred to as the airport exclusion) and subsequently study the development of the judicial doctrine concerning the second example in the Fifth and Ninth Circuit Courts of Appeal.


Full Text:

PDF


©2009
All rights reserved
Print ISSN: 0886-5655
Online ISSN: 2159-1229

http://journals.uvic.ca/public/site/images/ojsadmin/abs_logo_blk_webversion_smaller_150