Does state law factor into border searches?

Federal law generally controls border-search issues, but state law can sometimes determine whether stops and searches are valid.

Immigration and border protection issues are generally regulated by federal law. But state law sometimes factors in. And while state constitutions and laws can’t provide less protection for our privacy than the U.S. Constitution guarantees, they can provide more. So, state laws protecting citizens against unreasonable searches and seizures sometimes clash with federal border and checkpoint search laws. When a case is in state court and federal and state law conflict, courts have to balance the interests of both the federal government and the state.

(For a breadth of information on this topic, see Search and Seizure at and Around the U.S. Border.)

Bordering Laws

In one case involving the intersection of federal and state law, a woman was stopped in her van at a routine international border checkpoint in New Mexico. Once stopped, U.S. Customs and Border Protection officials directed her to pull into a secondary checkpoint for additional inspection even though they didn’t have reasonable suspicion that she had broken a law. As permitted by federal law, during this prolonged detention, the officials used drug-sniffing dogs and found marijuana in the vehicle. State prosecutors then charged the woman with drug offenses in New Mexico state court.

New Mexico’s constitution, like some other state constitutions, provides greater protection for its citizens against prolonged detentions than the U.S. Constitution’s Fourth Amendment. At issue was whether to apply New Mexico or federal law. The New Mexico Supreme Court balanced the federal interest in protecting U.S. borders against New Mexico’s interest in privacy rights. So while the court considered state law, it decided that the federal interests outweighed the woman’s privacy rights at a border crossing. The Court ruled that the prolonged detention was a permissible part of a routine border search. As a result, the state prosecutor was permitted to use the marijuana found during the search as evidence in the drug prosecution. (State v. Sanchez, No. 34,516 (N.M. May 28, 2015).)

Talk to an Expert

If you’ve been arrested in relation to a border search, make sure to consult a lawyer with experience in your jurisdiction. A knowledgeable lawyer will be able to explain which law applies to your case—and how it applies to your situation.

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