Second Circuit Holds Border Searches and Detention of Muslim-American Conference Attendees Did Not Violate the Fourth Amendment

Although not a criminal case, Tabbaa v. Chertoff, 2007 WL 4150299 (2d Cir. November 26, 2007), decided yesterday, contains an interesting analysis (and very expansive definition) of what constitutes a "routine" search at the border.  The plaintiffs - five U.S. Citizens and practicing Muslims with no criminal records and of whom the government had no individualized suspicion - were subjected to the "kind of screening procedure normally reserved for suspected terrorists," following their return from an Islamic conference in Toronto. 

They challenged their searches and detention as violative of various laws, including the Fourth Amendment. Noting that "a suspicionless search at the border is permissible under the Fourth Amendment so long as it is considered 'routine,'" the Court went on to analyze three aspects of the searches at issue to determine if they stepped over the line.

First, the Court held that the intrusive questioning, photographing, fingerprinting and pat-down searches, even when accompanied by separation of Muslim conference attendees, were within the realm of what has been regularly held to be routine.  Although stigmatizing and inconvenient, these procedures both individually and cumulatively did not invade personal privacy in the way that a non-routine search - like a body-cavity search, strip search or involunatary x-ray - would.  Second, the Court rejected the claim that the search stopped being routine when border agents threatened to detain plaintiffs until they cooperated.  While not an issue the Court had previously decided, the Court held in Tabbaa that "border crossers cannot, by their own non-compliance, turn an otherwise routine search into a non-routine one."  Notably here, there was no evidence that any of the plaintiffs had actually refused to comply.  The Court did not address whether a threat of detention in the absence of any defiance notched the search up beyond the routine.  Finally, the Court found that the duration of the plaintiffs' detention - from four to six hours - while "certainly inconvenient," did not by itself render the searches routine. 

The Court's analysis was meticulous on a legal level, but should not escape a more practical scrutiny.  Imagine yourself in the shoes of the plaintiffs: at the border of your own country, no prior criminal history, and then suddenly shepherded to a separate building, where you are subjected to intrusive questioning, threats, fingerprinting, including forcible fingerprinting, and pat-down searches, including forcible kicking open of feet and knocking some individuals on the ground, for a period of five hours - all because you had attended a religious and cultural conference with members of your ethnic group. This is precisely the kind of state-sponsored targeting of a particular class of people that ensured recruits for the IRA in Northern Ireland for decades.  In a world where fears of terrorism are increasingly used to justify all sorts of invasions of individual rights and privacy, who will reign in policing practices that are most likely a whopping waste of money and counterproductive to boot?