Third Circuit Holds that Search of a Cruise Ship Cabin at the Border Requires Reasonable Suspicion:
The Third Circuit has handed down an interesting Fourth Amendment case, United States v. Whitted, that considers "whether the Fourth Amendment requires any level of suspicion to justify a border search of a passenger cabin aboard a cruise liner arriving in the United States from a foreign port." In an opinion by Judge Rendell, the court concluded that it does: According to the Court, reasonable suspicion is required. There's very little precedent on this issue and it's a pretty interesting set of facts, so I thought I would blog about it.

  First, the facts. A cruise ship traveled from the foreign port of St. Maarten and then docked in St. Thomas, part of the United States Virgin Islands. After the ship was docked in St. Thomas, officers from the United States Customs and Border Protection boarded the boat and searched the cabins of a few suspects that the officers thought (based on their investigation) might be bringing narcotics into the United States. The officers searched the cabin when the defendant wasn't present and found a bunch of heroin stuffed into perfume bottles and a shaving cream container in a bag.

  The question in the case was whether the search of a person's cabin counts as a routine border search or a non-routine border search under the Fourth Amendment. The former requires no suspicion; the latter requires a showing of reasonable suspicion. So far, the only kinds of searches that courts have found to be non-routine searches are invasive searches of the person. For example, a body cavity search is non-routine; such a search at the border requires reasonable suspicion. All other searches, of luggage, cars, computers, etc. have all been held to be routine searches that don't require reasonable suspicon.

  In the court's majority opinion, Judge Rendell concludes that a search of a cabin is a non-routine search requiring reasonable suspicion. The reason: Searching a cabin is like searching a home, and the home has always received special Fourth Amendment protections.
[T]he search of private living quarters aboard a ship at the functional equivalent of a border is a nonroutine border search and must be supported by reasonable suspicion of criminal conduct. The cruise ship cabin is both living quarters and located at the national border. As a result, one principle underlying the caselaw on border searches--namely, that "a port of entry is not a traveler's home," United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)--runs headlong into the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic," foremost in our nation's Fourth Amendment jurisprudence, Payton v. New York, 445 U.S. 573, 601 (1980) (quoting United States v. Watson, 423 U.S. 411, 429 (1976) (Powell, J., concurring))
  On one hand, that conclusion seems pretty fishy to me; the reasoning seems at bit at sea. I think the biggest problem is that I'm not sure a cruise ship cabin becomes a passenger's "home" in a Fourth Amendment sense. If you drive across the border in a mobile home, that's not a "home" for Fourth Amendment purposes; if you take a sleeper car in a train across the U.S. Canada border, that's not your home, either. Why is a cabin different? The court says is that a cabin becomes a "residence," whereas cars aren't residences: But why? If you live in a mobile home, that is in fact your residence. But the courts treat mobile homes as cars, and cars can be not only searched but actually disassembled at the border without suspicion. Why treat cruise ship cabins one way and mobile homes another way? (The court relies on an old 9th Circuit case as precedent, but the Supreme Court has slapped down the 9th Circuit's border search cases so many times that I'm not sure those precedents have much force today.)

  On the other hand, in defense of the rule, the rule is actually pretty narrow. As soon as the cruise ship passenger packs up his bags and leaves the boat, it is clear that all of his stuff can be searched as a routine search without any suspicion. That is, the result here requires reasonable suspicion to enter and search the cabin after the boat has docked, but lets the government do whatever it wants when the defendant steps off the boat and goes through customs. I can see some justification for such a rule. The idea would be that the Fourth Amendment injury in the case of searching a cabin at the border is one of the traditional concerns with home entry: The cops breaking into your "home" when you're asleep, or otherwise in private. Maybe that's less of a concern with mobile homes because the driver will be driving when he crosses the border, not sleeping. Or hey, maybe Judge Rendell just really likes cruises.

  Anyway, it's a pretty interesting case. Oh, and kudos to Judge Chagares, who wrote a sensible concurrence: It notes that because everyone agreed that reasonable suspicion did exist, there was really no need to reach out and try to answer the difficult constitutional question. (Hat tip: Blogfather Eugene)
Don Miller (mail) (www):
It may be different for military vessels than civilian vessels, but when I was in the Navy, we were taught that while we onboard our ship in foreign waters, we weren't "in" the other country. We were still on US soil. Once we left the ship, then we had entered the other country.

I think that similar reasoning can be held for cruise ships. Especially left over from the days when they were a primary method of travel. Passengers on the cruise ship don't enter the US for border purposes until they leave the ship.

It would be more common in the past than today, but theoretically, you could take a one-way trip on a ship to travel from the US to Brazil. Along the way, the ship stops in Cuba, Haiti, and Venezuela. Since you have not interest in traveling to those countries, you stay aboard the ship. Wouldn't you be offended, and rightly so, if Customs Officers in each of those countries wanted to search your belongings and cabin for contraband?

Their logic is fuzzy, but I think they reached a defensible decision.
9.5.2008 5:53pm
J. Aldridge:
NY authorities for 130 years boarded every ship that came into its ports and searched it throughout, confiscating items prohibited. No one considered that a violation of NY's Fourth Amendment clause.
9.5.2008 5:59pm
paul lukasiak (mail):
was St Thomas the final destination for the ship/passengers in question? (i.e. were they booked to get off the ship and stay off of it?)

I find the 'mobile home' example interesting....but possibly not germaine. It may well be that a mobile home is not considered a "home" in the 4th amendment sense because it also functions autonomously as a vehicle. (are hotel rooms considered a "home?" under the 4th amendment?)
9.5.2008 6:05pm
Isn't it the responsibility of the Customs Service to determine that the proper duties have been paid on all material brought into the country and to carry out that responsibility, ask every/some entrants, "What you got in the...?"
9.5.2008 6:16pm
Don Miller (mail) (www):

Isn't it the responsibility of the Customs Service to determine that the proper duties have been paid on all material brought into the country and to carry out that responsibility, ask every/some entrants, "What you got in the...?"

True, but the question in my mind is if the person is still aboard the ship, have they entered the country.

If a ship has cargo bound for 4 or 5 countries on board, and makes no attempt to unload it, is the cargo subject to search and confiscation by customs authorities in the first country visited?

Passengers are just another form of cargo
9.5.2008 6:25pm

This is an issue I can speak about from personal experience, as i once had my cruise ship cabin searched by customs in the port of miami. Of course, there was nothing to find, so they found nothing. I have no idea why they did it. The agents woke me and my room mate out of a sound sleep, but were, at least professional about it. Strangely, they didn't even ask us any questions. The search also seemed sort of cursory - we hardly had any belongings in the room (the steward had already taken them) and they didn't search our persons.

It was very strange.
9.5.2008 6:32pm
Don Miller:

It may be different for military vessels than civilian vessels, but when I was in the Navy, we were taught that while we onboard our ship in foreign waters, we weren't "in" the other country. We were still on US soil. Once we left the ship, then we had entered the other country.

Would it make a difference that most cruise ships are flagged out of other countries? If I remember correctly, Royal Caribbean's ships are flagged out of the Bahamas...
9.5.2008 6:42pm
...seems obvious the 4th Amendment text makes no exceptions for "border searches".

Luckily we have two centuries of pragmatic judicial contortions to correct that 'oversight' {?}
9.5.2008 6:43pm
Don Miller (mail) (www):

Would it make a difference that most cruise ships are flagged out of other countries? If I remember correctly, Royal Caribbean's ships are flagged out of the Bahamas...

I think that this reinforces my point. US Custom Officers went onto Bahamian soil to search someones room.

Obviously, some people are going to say boo hiss the Judge let a drug smuggler off on a technicality, but I think it is an important point.

If the guy was a smuggler, he was going to leave the ship with the drug at some point. There is no question that Customs could have searched him and discovered the drugs, especially since they had been alerted that he indeed might be a smuggler. Why did they feel the need to go on to foreign soil to search him?
9.5.2008 6:48pm
There is a status difference between warships and non-warships.
9.5.2008 6:52pm
Maria S (mail):
Some clarification is needed in terminology I believe. A mobile home is not generally street legal. It has no license plates and is usually classified as personal property on the tax rolls. It is hauled by a third party with a special operator license under a government permit to the owner's location. It is a permanent or semi-permanent home with fixed utilities. A motor home is a vehicle with a license and under the jurisdiction of a state's DMV. It is self-contained with its own utility system. It may or may not be the owner's permanent home. It is much like a travel trailer that is self-propelled rather than towed.
9.5.2008 6:55pm
Don Miller (mail) (www):
DG is right, there is a status difference between warships and merchant ships under Maritime Law, but I am unclear where the boundaries are.

But the flagging of a merchant ship means something. The US used the US Flagging of Kuwaiti tankers in the mid-80s as an excuse to send me into the middle of the Iran-Iraq war to protect them.

It just seems to me that the person or cargo should have to make an attempt to be removed from the ship, or indicate via ticket, waybill, manifest that they intend to be leaving the ship in the United States before the US Customs Service can search them.

We would expect no difference from other countries. For example, US Couple is traveling via ship from Japan to Thailand via ship. The ship stops in China to offload some cargo. Chinese officials come aboard and search the couples room and find a case of bibles. The couple is then arrested. Would the US have a problem with that? I would hope that we would.
9.5.2008 7:06pm
For some reason, this post got linked to by's transcript of McCain's speech last night under "blogs talking about this topic"
9.5.2008 7:33pm
jccamp (mail):
I believe the general rule is that foreign flagged vessels are, in fact, considered territory of the foreign nation. Civil law enforcement officials cannot board or enforce domestic laws on a foreign flagged vessels within U S waters. There is an exception when imminent danger to someone on the vessel is apparent. The master of a foreign flagged vessel can also invite civil law enforcement officials on board.

However, both the U S Coast Guard and Customs officials can board at will to search for safety violations, contraband cargo or customs violations. I suppose any vessel restricting USCG or Customs access would be denied entry to U S waters. Foreign military vessels (and planes) are exempt, presumably because they could claim diplomatic status as representatives of the foreign government. However, I think that non-diplomatic personnel entering or leaving a foreign military vessel or plane are subject to Customs inspection.

U S Customs Service for years had a program cross-designating local and state law enforcement officers as Customs Officers, to get around these strictures.
9.5.2008 7:47pm
I don't disagree with the result but I doubt that this opinion would hold up under scrutiny. The court used a "routine v. non-routine" test to determine the level of suspicion necessary. Routine border searches (those that don't significantly invade the traveler's privacy), the court said, require no level of suspicion, but highly intrusive searches are not considered to be routine, and require reasonable suspicion. The court reached an easy conclusion that this search was highly invasive of the traveler's privacy. This made the search non-routine, and imposed a requirement of reasonable suspicion.

The only problem with this is that the Supreme Court has rejected the use of this type of analysis in border searches. ("Complex balancing tests to determine what is a 'routine' search of a vehicle, as opposed to a more 'intrusive' search of a person, have no place in border searches of vehicles." US v. Flores-Montano). Why would the court employ a method of analysis that appears to have been rejected by the Supreme Court?
9.5.2008 8:58pm
I would argue that it was not a border search at all- the border exists at the place where the ship (Bahamian territory?) and the dock (US territory) meet.

The decision implies that it would have been OK if they had a warrant for the search. In this view, it would be proper for a US court to issue a search warrant for a search in, say, New Zealand, and have it be enforceable without reference to local law.

Now, the decision does mention (in passing) searches by US law enforcement (Coast Guard) of vessels on the high seas- what are the legal requirements for such a search? Would this had provided a better framework?
9.5.2008 9:49pm
jccamp (mail):
As for the actual delineation of the "border", Customs uses what is called the "functional equivalent of the border" for exactly the reasons you describe. Suppose an airplane crosses into U S territory but doesn't land until it's 100 miles inland. The landing point is the "functional equivalent of the border" (BTW, it's actually called "FUB"). The decision references the "FUB".

No warrant is ever required for a customs law search. Notice the standard for the "non-routine" customs search is reasonable suspicion -defined in the decision, maybe a footnote - far lower than PC, as required for a search warrant.

I believe the Coast Guard can stop a U S flagged vessel where ever they may find it, including outside U S waters. I haven't a clue for USCG or Navy rules for foreign flagged vessel located in other than U S waters. I do know that the Coast guard routinely stops vessels, including non-U S vessels, in international waters when the vessels are presumed to be inbound to the U S. (part of drug interdiction).
9.5.2008 10:03pm
Fascinating. This reads a bit like a Ninth Circuit opinion that got seriously lost on the way to Pismo Beach. Although I can't necessarily say it's wrong. Just different. The tension between the lack of expectation of privacy at the border, versus the presumption of a privacy right in one's temporary quarters, is striking. Frankly, I'm surprised the legality of ship cabin searches at a point of entry wasn't settled long ago (especially where, as here, the search was initially only a K-9 sniff of luggage, which outside the cabin clearly would be a routine border search).

The next case: What about a routine search of a motor home at the border? Is it a car? Is it a temporary dwelling? Fascinating...

Professor Kerr, looks like you may have found another good Constitutional Crim Pro course final exam hypothetical!

The good news (for CBP) is that the Court found the TECS database information adequate to justify the reasonable suspicion for the nonroutine search of the defendant's cabin. The TECS information was no different in type or quantity than that used at airport or land Customs points of entry for nonroutine secondary inspections and searches every hour of every day. In the end the evidence was not suppressed.

Because the Court of Appeals found the TECS information adequate to conduct a "nonroutine" search of the cabin, I suspect this case is not going to change actual port border search practice very much. I doubt CBP has the manpower, time, or interest to do cruise ship cabin searches without a reason -- and in most instances that reason will be roughly equivalent to the reasonable suspicion the Third Circuit found here.
9.5.2008 10:19pm
Excellent points (as always), Zippypinhead.
9.5.2008 10:35pm
On one hand, that conclusion seems pretty fishy to me; the reasoning seems at bit at sea.

9.6.2008 1:12am
BeachBumBill (mail):
Assume that the Border Patrol disassembles your vehicle in a search for contraband and finds nothing. Are they responsible for reassembling it or do they just point you to your new pile of parts and say "have a nice day" ?

9.6.2008 1:22am
ed in texas (mail):
The pidgeon- hole that the court seems to be aiming for appears to be sort of a portable hotel room, i.e. it's a residence while the occupant is checked in to it. Don't forget, there's liability that could devolve on to the property owner concerning illegal activities on board. (Blue sky hypothetical... could you RICO seize a cruise ship based on smuggling by passengers?)
9.6.2008 8:42am
Ryan Waxx (mail):
Blue sky hypothetical... could you RICO seize a cruise ship based on smuggling by passengers?

In a more extreme parallel, could you disassemble the ship without suspicion?
9.6.2008 11:37am
Regarding disassembling ships, I have read several stories of pleasure craft that have been taken apart in the search for drugs, including one story where they drilled holes thru the hull in the search for hidden voids, allowing water to enter. Supposedly the customs agent provided the owner with a tube of "instant epoxy" to stuff into the hole to keep the boat from sinking. No drugs were found, and the owners were not compensated in any way for the damages.

So, even boats that are really your home are not immune from "destructive examination'.
9.6.2008 4:01pm
Bassnote (www):
Stumbled in from Google. Very intresting read. Some points that I don't think were mentioned anywhere in the thread: The ships officers had already produced their own investigation and invited the USC on board, this should have satisfied the "foreign soil" question as well as the "reasonable" search of the cabin.

The second is that the ship was docked in the USVI and the drugs could have been effectively smuggled into the "US" at that point and forwarded to the mainland with out the hassle that one sees from hte USC at the cruise terminals which, I believe, are dog searched as they come off the ship.

At any rate, the drugs were stopped. Bravo.
9.6.2008 4:52pm
jccamp (mail):

From my experience, Customs/Border Patrol has no responsibility to re-assemble anything. They may do so, but they don't have to, and more frequently, don't. If they were to intentionally damage something acting in bad faith, there may be some venue for relief. Generally, though, you cross an international border knowing anything and everything is subject to search.

And if they do not have the wherewithal to conduct a proper and complete search (i.e. disassembly) at the actual border, they can move your car/boat/whatever to a another location for a thorough search. I don't know if this movement requires something akin to the "reasonable suspicion" cited in the decision.
9.6.2008 5:21pm
benjamin g:
As Orin mentioned, the occupants of a cruise-ship cabin still have to go through customs. And I think this really is the key to helping us differentiate between a cruise ship cabin and a Winnebago.

If I'm in my cabin on a cruise ship that's docked at an American port, I haven't really entered the country, nor am I necessarily about to do so. There is a literal barrier (Customs) standing between me and my drugs here on the boat, and the American soil on which I may wish to vend them.

If I wish to drive into the US from Canada in a Winnebago I will have to take it through Customs. And therein lies the difference. I'm crossing the border and entering the United States, so (according to the courts) the Feds have a right to search me. And likewise, my home is crossing border and entering the US, so the feds have a right to search it. Think of your Winnebago as a person... you and your buddy Home, going through Customs together.
9.6.2008 8:20pm
benjamin g:
Actually, wait a minute. Why, then, was it even necessary for the judge to bring up this question of whether a cabin on a ship deserves the same protection as a home? If we assume that being on a docked cruise ship does not amount to entering the country and passing through Customs (which seems reasonable since, well, you're not passing through Customs yet), then is the Border Petrol allowed, absent probably cause, to search you in any way while you're on the cruise ship?

I mean, let's put the whole cabin issue aside for a moment. What if you were standing next to the pool, on the deck of the ship, holding a box. Is a BP agent allowed to walk up to you and force you to show him what's in that box?
9.6.2008 8:52pm
benjamin g:

I mean, let's put the whole cabin issue aside for a moment. What if you were standing next to the pool, on the deck of the ship, holding a box. Is a BP agent allowed to walk up to you and force you to show him what's in that box?

Could it be that the judge used the cabin/home question to avoid this larger issue?
9.6.2008 8:54pm