“Protecting” the U.S. Perimeter: Border Searches Under the Fourth Amendment

Lisa's leaks - 'Madness in the Magnolias'

DHS

Border Searches Under the Fourth Amendment

An immigration officer’s questioning of an individual illustrates how an encounter which “may appear” to be a seizure is in fact not. Merely questioning an individual about his identity, regardless of whether he is aware he can leave the officer or refuse to cooperate by not answering, is not a seizure.

Therefore, such questioning need not be predicated on reasonable suspicion that the individual is an alien. Nonetheless, if “the circumstances are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded,” then the encounter may be deemed a seizure. When the interview becomes a seizure, either through a formal arrest or when the circumstances are such that a reasonable person would understand he could not leave, the officer must, at a minimum, have “a reasonable suspicion, based on articulable facts…

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