More Law: Refusing To Answer Questions At U.S. Passport Control
1. CBP Officers Have Acknowledged The Right of U.S. Citizens To Remain Silent. Lost in the many comments is the fact that, at the end of my silent entry into the United States, a CBP officer -- who was the oldest and seemingly most educated and experienced of the CBP officers -- said, "Just inspect his bags. He has a right to remain silent.”
Another CBP officer has admitted as much on a CBP message board. CBP employee "onemoreshot" posts:
what a delta bravo... looks like one too. It's sad he doesnt realize how much quicker he could be on his way if he just answered the question.
Also sadly, he is right. Once someone proves they are a USC, all we can do is inspect their bags/conveyance, and absent anything derogatory being found, we cant force them to answer questions. Non-USC's do it, back home you go. They did that and he was off, but he made it a lot harder than need be.
Another CBP poster in the same thread discussed the refusal to answer the question "Did you pack your bags yourself?":
In baggage, him refusing to answer whether or not he packed the bags or if everything in that bag is his could have some legal implications. Lets say you open the bag and find dope but you never got a verbal declaration that those were his bags. Be aware that something like could get your case tossed by the USA.
The questions CBP asks are not innocuous. They are designed to trick citizens into making incriminatory statements. If someone were to sneak prohibited material into your baggage, and you verbally admitted that you packed the bag, you are now in a world of hurt. If you had said nothing, you would have preserved a potential defense.
Silence is the best protection when dealing with CBP.
2. A U.S. Citizen's Fourth Amendment Rights Against Unreasonable Searches and Siezures Are Limited -- But Are Not Nullified -- At The Border. Many commenters confuse CBP's augmented border search authority with a right to interrogate. This conflation is understandable, since CBP goes out of its way to blur the distinction.
In short, the law currently says that a U.S. citizen's Fourth Amendment rights against an unreasonable search and seizure are limited at the border (or its equivalent in an airport) -- but they are not eliminated. Usually, your bags and your laptop can be searched in the airport even if the CBP officer has no suspicion of wrongdoing. The U.S. Supreme Court left open the possibility that some searches of property at the border are so intrusive as to require particularized suspicion or a warrant -- and I hope the Supremes place laptop searches into that category when they ultimately rule on this issue. But the bottom line is that the Fourth Amendment is weak at the border.
But it's not gone. The cavity searches that people love to joke about may only be conducted by CBP with reasonable and particularized suspicion that the traveller has swallowed contraband. It wouldn't be reasonable to order such a search solely because a traveller refused to answer questions, and a CBP officer who so ordered would be exposing himself and the agency to monetary liability.
The Fourth Amendment is concerned with protecting physical objects -- it refers to
"the right of the people to be secure in their persons, houses, papers, and effects" -- from nosy government eyes. If a policewoman wants to read the diary you keep in your bedroom, she is going to have to show cause and obtain a warrant from a judge.
3. Returning U.S. Citizens Retain Their Fifth Amendment Right To Silence. Some lawyerly commenters have noted that, when CBP forces a traveller to stand at its kiosks, the traveller is not under full, must-read-Miranda arrest. At many U.S. airports (depending on the federal appellate circuit in which the airport is located), this makes no difference.
Although the lower courts have issued conflicting decisions, the judicial trend is to hold that pre-arrest silence is entitled to Fifth Amendment protection. And, as a practical matter, what a returning U.S. citizen doesn't say is far less likely to boomerang than what she does say.
Here's a quick summary of the Fifth Amendment protections available to people who, like returning U.S. citizens, are subject to some form of law enforcement questioning:
We believe that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime. The Supreme Court has given the privilege against self-incrimination a broad scope, explaining that it can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used . . . . See also Hoffman v. United States ("The privilege must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer."); Hoffman ("To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."). In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendant's comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply.
Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (collecting cases ruling on both sides of the issue of use of pre-arrest silence as substantive evidence of guilt; edited for readability).
This describes CBP questioning. The returning citizen's answers could provide damaging evidence in a criminal prosecution. The entire point of the CBP interview is to obtain damaging evidence. Consequently, the Fifth Amendment right to silence applies.
4. CBP And Its Supporters Need To Stop Conflating These Two Separate Concepts. The comments are riddled with people invoking the Fourth Amendment border search exception and then making the illogical, unfounded and unlawful conclusion that a citizen must answer CBP questions.
There is no legal authority for this novel proposition. These are two different amendments which protect different dignities, and the reasoning behind the border search exception -- to enforce customs and tariff laws -- does not counsel in favor of a corresponding loosening of Fifth Amendment rights. If anything, the law enforcement nature of CBP questioning increases the need for Fifth Amendment protections.
This confusion is caused in part by CBP's propaganda. CBP loves to talk about citizens "cooperating" -- a term which means "waive your rights." CBP brochures and websites describe CBP's broad search powers and cite to statutes and regulations promulgated incident to that search authority, but none of these rules repeal -- or could repeal -- a returning citizen's constitutional right to silence. (I can't currently link to a typical CBP page, because I'm getting the "There is a problem with this website's security certificate" result.)
If a CBP supporter can cite a court decision holding that a returning U.S. citizen has no right to silence at the border, I'm happy to review and discuss the decision. But the burden of persuasion falls on the party arguing that, in a certain situation, U.S. citizens lose a constitutional right.
5. Semi-Ironic CBP Silence. In the last two weeks, I've twice asked the head of public affairs for CBP's admissibility programs for an official statement regarding the right of U.S. citizens to decline to answer CBP's questions. CBP has not provided me with a substantive response.