The Search and Detention of Foreign Business Executives When Entering the United States

11 September 2008 Publication
Author(s): Pamela L. Johnston David W. Simon

Legal News Alert: White Collar Defense

U.S. law enforcement agencies have become increasingly aggressive in investigating and charging non-U.S. companies and their executives with violations of U.S. criminal law. Areas of high risk include potential violations of the anti-corruption laws (the U.S. Foreign Corrupt Practices Act), the fraud statutes (mail and wire fraud), competition law (U.S. antitrust law), Internet gaming laws (the Wire Act), and the money laundering statutes.

In connection with these criminal investigations of this nature, U.S. law enforcement agencies have expansive powers to detain and search persons at the airport who enter the United States on business or pleasure. Executives traveling to the United States should therefore be aware of and prepare for the risk of detention and search at an airport if their company is under investigation in the United States.

Two senior executives of British defense contractor BAE Systems (BAE) were recently detained at U.S. airports and searched by U.S. law enforcement officials in connection with an investigation into possible bribery violations of the Foreign Corrupt Practices Act (FCPA). In recent years, U.S. law enforcement officials have increasingly used border searches of foreign business executives entering the United States to obtain evidence in criminal investigations. In addition to the BAE incident, a senior UBS (a large Swiss bank) executive also was recently detained at the U.S. border and questioned in connection with a U.S. tax-evasion investigation — an incident that provoked UBS to warn all of its private bankers not to travel to the United States.

Such border detentions and searches of an individual’s papers and computer raise a number of legal and practical questions that affect non-U.S. business executives who travel to the United States. It is important to understand the expansive scope of the powers of U.S. law enforcement authorities when they seek to detain and search persons entering the United States at airports, and how to conduct oneself if confronted with this situation.

U.S. Officials Have Expansive Powers to Perform Border Searches When Persons Are Entering the United States
In the context of a search or seizure of an individual attempting to enter the United States, U.S. law enforcement officials have expansive powers. U.S. courts have long recognized the right of U.S. law enforcement officials to search persons or property entering the country.1 Accordingly, law enforcement has far greater search and seizure powers at the border (commonly occurs at the airport when passing through the immigration and customs checkpoints) than it normally would possess outside of the “border” context.

If U.S. law enforcement officials have a heightened level of suspicion to believe that a traveler possesses contraband or is involved in a criminal enterprise, they have broad power to detain the individual and perform searches on the individual and his property without a warrant.2 U.S. courts have held that border searches generally fall into two categories — “routine” and “non-routine.”3 A routine border search is a search that does not pose a serious invasion of privacy or offend the average traveler.4 For example, a “routine” border search may consist of limited searches for contraband or weapons through a pat-down, the removal of outer garments such as jackets, hats, or shoes, the emptying of pockets, wallets, or purses or the use of a drug sniffing dog.5 As a general rule, “routine” border searches are deemed reasonable simply by virtue of the fact that they occur at the border. Nothing extra or special is needed to be subjected to a “routine” search at an airport when entering the United States.

A U.S. court recently addressed the issue of whether a search of a laptop (or other electronic device) constituted a “routine” search of property thus requiring no individualized suspicion.6 The court ruled that electronic information (on a laptop, Blackberry etc.) is a “routine” search; thus, individuals attempting to enter the United States may need to be prepared to have any electronic materials (including laptops, CDs, MP3 players, cellular phones, and digital cameras) searched, without any requirement of reasonable suspicion that the persons entering the country did anything wrong.  This court decision is consistent with a recently disclosed U.S. Department of Homeland Security policy under which federal agents may take a traveler’s computer or other electronic device to an off-site location for an unspecified period of time without any individualized suspicion of wrongdoing.7

What Precautions Should a Foreign Business Executive Consider When Traveling to the United States?
As an initial matter, it is important to recognize when you may be at risk. In most cases, a company will be well-aware that it is subject to a U.S. criminal investigation long before a border search would occur. If an investigation has begun, special precautions can be undertaken before making a visit to the United States.

Even if a company is not aware that it is the subject of an investigation, it may be prudent to take precautions if the company operates in an industry that has been the subject of law enforcement activity — perhaps a cartel investigation in the EU or in North America, or a broader investigation into an export agent’s payments to government officials. Under such circumstances, consider the following:

  • Is it prudent to travel to the United States at all? Depending on the circumstances, it may be wise to post-pone or cancel trips to the United States while the risk is high.
  • If you travel to the United States, understand that whatever you bring to the United States is subject to search. Special consideration should be given to whether it is appropriate to bring devices that store large amounts of business data like laptops and Blackberry devices.
  • If a company is the subject of a U.S. criminal investigation and especially if the relationship between the company and U.S. law enforcement is strained or difficult, company employees should be advised of the scope of U.S. law enforcement’s search and seizure authority and should be counseled on how to handle themselves in the event of an airport detention.
  • As was the case in the BAE matter, routine border detentions and searches are typically quite short in duration. It is possible, however, for detentions to last longer. In some cases, border detentions have led to the arrest of the persons detained. In other cases, U.S. law enforcement can use “material witness warrants” to hold an individual longer in the United States. UBS’s Martin Liechti was held in the United States for four months on such a “material witness” warrant.

Basic guidelines for dealing with a border search include the following:

  • While you may volunteer to speak with or be interviewed by U.S. law enforcement officials, you are under no legal obligation to do so, and you have the right to consult counsel before deciding whether to speak to the agents.
  • Consider bringing the name and telephone number of U.S. counsel in advance of a trip to the United States. If you are questioned by a U.S. law enforcement official, ask to speak to counsel first. While the law enforcement official may or may not abide by this request, it is always a good idea to ask and it may be possible for the company’s lawyers to participate by telephone.Be polite, courteous, and cooperative. Any obstreperous behavior can only create problems for you and for the company. Ask the U.S. law enforcement official conducting the search for a business card and photo identification as well as an explanation of the nature, scope, and reason for the detention and search (although do not be surprised if the agent provides little information). If you do talk, tell the truth. Providing false statements to U.S. law enforcement officials constitutes a separate and independent crime under U.S. law, and there have been a number of recent business crime prosecutions in which an executive is not prosecuted for the underlying conduct, but rather for a false statement given in response to questioning by a government official. After the detention and search, memorialize the details of the incident (length of detention, persons present, searches conducted, materials seized, questions asked and, if applicable, answers provided, etc.) in a privileged communication to counsel.

When packing your bags for a trip to the United States, it is just as important to be aware of critical information necessary to manage the risk of a border search as it is to pack your toothbrush. It is prudent to be prepared and to assess and manage risk to protect yourself and your company.

Legal News Alert is part of our ongoing commitment to providing up-to-the minute information about pressing concerns or industry issues affecting our clients and our colleagues.

Please contact the following attorneys for additional information:

David W. Simon
Milwaukee, Wisconsin

Pamela L. Johnston
Los Angeles, California

1 United States v. Ickes, 393 F.3d 501, 504 (4th Cir. 2005).

2 Devenpeck v. Alford, 543 U.S. 146 (2004).

3 A more intrusive “non-routine” search is generally considered to be lawful if it is supported by reasonable suspicion, United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985), i.e., if law enforcement has facts or can make reasonable inferences that a person is, or is about to be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968).

4 United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993).

5 See, e.g., United States v. Beras, 183 F.3d 22, 24 (1st Cir. 1999) (holding that a pat-down of an international traveler’s legs was not intrusive enough to qualify as non-routine); United States v. Sandler, 644 F.2d 1163, 1169 (5th Cir. 1981) (removal of outer garments); United States v. Kelly, 302 F.3d 291, 294-95 (5th Cir. 2002) (sniff by a dog of a person at the border upheld as a routine border search).

6 United States v. Arnold, 454 F. Supp. 2d 999 (C.D. Cal. 2006); rev'd, No. 06-50581, 2008 WL 1776525 (9th Cir. Apr. 21, 2008).

7 See U.S. Customs and Border Protection: Policy Regarding Border Search of Information: