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)