Border Safety and the Requirement of Reasonable Suspicion to Search Cruise Ship Cabins

Bryan v. United States, No. 17-1519, 2019 U.S. App. LEXIS 1711 (U.S. App. 3^rd Cir. Jan. 18, 2019).

By: Kelicia D. Raya

In this opinion delivered by Circuit Judge Roth, the U.S. Third Circuit Court of Appeals affirmed the granting of summary judgment issued by the District Court in favor of defendants, concluding that the officers are entitled to qualified immunity. Plaintiffs Carlyle Bryan, Julie Beberman, and Charles Francis brought suit against defendant officers, alleging their Fourth Amendment rights had been violated when their cabins aboard the Adventure of the Seas ship was searched under the suspicion of drug smuggling. Plaintiffs also asserted tort claims against the United States government under the Federal Tort Claims Act.Plaintiffs cruised on the Adventure of the Seas ship from August 31 to September 7, 2008. They sailed from San Juan, Puerto, and several other foreign ports before returning to San Juan. Prior to boarding the ship, travelers are required to pass through a CBP checkpoint. CBP officers inspecting Bryan noticed that he appeared “disoriented and nervous” and that it took him some time to state his employment, and decided to make a notation in the Treasury Enforcement Communications System (TECS) database to that effect.  Around September 1, CBP officer Ogg stationed in San Juan compared the names on the passenger manifests against the names on reports logged onto TECS. Both Bryan’s and Francis’s names yielded multiple matches related to drug smuggling. On September 5, CBP officer Ogg created “lookout” entries for both Bryan and Francis which was based primarily on the TECS reports. A “lookout” report is an entry that alerts CBP officers to specific passengers and recommends certain steps to take when they are encountered.[1] The aforementioned lookout entries noted the plaintiff’s connection to drug smuggling and the recommendation that their cabins be inspected before their return to San Juan. The following day CBP officers in St. Thomas searched the plaintiff’s cabins however the search did not yield any contraband.The Third Circuit began its de novo review by discussing the protection afforded by the Fourth Amendment against unreasonable searches and seizures. The court then held that searches at the border are presumed reasonable because of the border’s role in protecting territorial sovereignty as well as the need to curb the influx of drugs. Here, the search of the plaintiffs occurred at the border and thus it’s presumed to have been reasonable. Nevertheless, plaintiffs stress that this search was not reasonable because it was a search of a cruise ship cabin.In response to the plaintiff’s argument, the majority reasoned that both CBP officer Ogg and the CBP officers who conducted the search were entitled to qualified immunity. The court stated, “In considering whether a government official is entitled to qualified immunity, a court can determine whether a constitutional right was violated or in the alternative, whether that right was clearly established.”[2] In the case at hand, under the circumstances confronted by CBP officer Ogg, he did not violate clearly established law by entering lookout entries for the plaintiffs as the precedent controlling this case was issued in this court’s decision in Whitted,[3] which was decided the day before officer Ogg entered the lookouts. The majority further concluded that the same situation applies to the CBP officers in St. Thomas who conducted the search, reasoning that the Whitted standard was not yet established law. Because the Whitted standard was not yet established law, the court held the officers were entitled to qualified immunity.As for the tort claims against the United States, Circuit Judge Roth simply stated that plaintiffs’ claims fail because of the FTCA’s discretionary function exception.[1] Bryan v. United States, No. 17-1519, 2019 U.S. App. LEXIS 1711 at *5  (U.S. App. 3^rd Cir. Jan. 18, 2019).[2] Id. at *10[3] United States v. Whitted, 541 F.3d 480 (3^rd Cir. 2008).