This is going to get a bit long, but there are lots of legal cites to show.
All but one of these quotes & citations are taken from:
Protecting the US Perimeter: Border Searches Under the 4th Amendment
Congressional Research Service
Yule Kim, 29JUN09
Some are axiomatically thinking that one has a right to enter the country
"The only absolute and unqualified right of citizenship is to residence within the territorial boundaries of the United States; a citizen cannot be either deported or denied reentry." U.S. v. Valentine, 288 F. Supp. 957, 980 (D.P.R. 1968).
(This is the one quote & citation that is not from that paper.) They are not denying reentry. They are verifying that you are a citizen and have the unqualified right.
[thinking that] unless a governmental official already has RAS that it would be unlawful for that person to enter or that he is bringing in something illegal.
Once a search of a person’s body goes beyond a limited intrusion, a court may determine that a non-routine search has occurred. Non-routine border searches may include prolonged detentions, strip searches, body cavity searches, and some X-ray examinations. [United States v. Adekunle, 2 F.3d 559, 562 (5th Cir. 1993) et al]
To do a cavity search, they had better have RAS or be prepared to defend their actions in court.
...courts require a government official to have a "reasonable suspicion” of illegal activity to conduct a non-routine border search. [Montoya de Hernandez, 473 U.S. at 541; United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir. 2003)]
Is going through your bags a non-routine search? Do you have case law on this?
If you refuse to answer their questions (which IS your right), not only do you thwart their people-reading skills, you raise the possibility that you are a bad guy, trying to hide something from them.
"...an officer cannot construe a person’s refusal to be interviewed as sufficient cause to suspect wrongdoing."
[Delgado, 466 U.S. at 216.]
That sounds like it is from a ruling referring to LEOs interrogating suspects. In this situation, the customs and immigration officials are determining whether to bypass a routine, but full, review of you and your stuff. They are not suspecting wrongdoing."
A search triggers Fourth Amendment protections when (1) the individual personally held an expectation of privacy in the searched object or place and (2) society is willing to recognize that expectation as reasonable. [Katz, 389 U.S. at 361 (Harlan, J., concurring). See also Oliver v. United States, 466 U.S. 170, 177-78 (1984).]
In order for the expectation of privacy to be deemed reasonable, there must be some property law or social norm that signifies that the searched object or place is closed from public intrusion. [Minnesota v. Carter, 525 U.S. 83, 88 (1998).]
(Krysta's comment: So the lock on my bags means that I expect them to be closed from public intrusion!)
An individual is “seized” when, in light of all the circumstances surrounding the incident, a government official makes a person reasonably believe that he is not at liberty to leave the official’s presence. [Florida v. Bostick, 501 U.S. 429, 437 (1991) citing Michigan v. Chesternut, 486 U.S. 567, 573 (1988). See also United States v. Mendenhall, 446 U.S. 544 (1980); Brendlin v. California, 551 U.S. 249 (2007).]
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. [United States v. Rodriguez-Franco, 749 F.2d 1555, 1560 (11th Cir. 1985).]
An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away. [8 C.F.R. § 287.8(b)(1)]
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. [Delgado, 466 U.S. at 216. See also Zepeda, 753 F.2d at 730.]
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, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States.” [8 C.F.R. § 287.8(b)(2).]
Back to Krysta's comments:
So yes, we DO have a right to re-enter our own country, and no the customs people can't prevent that, or interfere by making us "cool our heels" until we give in to their illegal demands. And absent RAS, any demand past proving our citizenship (which is done by showing a passport) is illegal.
