Van Beek lives in Stratford, Ontario but owns a vacation house in Savannah, Georgia. She insists that the strip search was unnecessary and highly intrusive if not “deviant.” She was then photographed and sent back to Canada.
U.S. Customs and Border Protection has simply said that strip searches are entirely discretionary for the officers if they believe someone is hiding something on their body. One would expect a bit more in terms of a standard or guideline for such an extreme measure, such as an articulated basis and supervisory approval. I also fail to see why, if they found nothing, they insisted that she return to Canada.
The problem for Van Beek is that courts have gradually left the border as an area of almost unchecked executive authority — giving the government wide discretion under the Fourth Amendment. The Court has created a border exception to the Fourth Amendment and has turned back given modest efforts to reign in unchecked authority by border officers. This includes stops and searches that would highly questionable by police just a short distance inside the country. United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (“travelers may be stopped [and searched] at . . . the border without individualized suspicion even if the stop [or search] is based largely on ethnicity[.]”) The Court has even refused to apply minimal standards requiring routine procedures. See United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (“Complex balancing tests to determine what is a “routine” search of a vehicle, as opposed to a more “intrusive” search of a person, have no place in border searches of [property].” Given these cases, it will be hard to establish a tort in this case despite what appears legitimate grounds for objection. The result is a disturbing area of a unchecked authority where citizens and visitors are left with little recourse in the face of abuse.
Source: CBC
Jonathan Turley