Introduction Edit

A recently developing area in the law of search and seizure is whether, at the border, the Fourth Amendment permits warrantless searches of the content of laptop computers and other electronic storage devices. The federal courts that have addressed this issue have universally held that the border search exception to the Fourth Amendment applies to these searches, making warrantless searches permissible. These courts, however, have declined to clarify the degree of suspicion needed to initiate a search and satisfy the Fourth Amendment.

The Fourth Amendment mandates that a search or seizure conducted by a government agent must be reasonable, and that probable cause must support any judicially granted warrant. Generally, the requirement that searches and seizures be "reasonable" has been construed to mean that there is a presumptive warrant requirement for searches conducted by the government.[1] Nonetheless, the U.S. Supreme Court has recognized several exceptions to this presumptive warrant requirement, one of which is the border search exception.

Border search exception Edit

The border search exception to the Fourth Amendment allows government officials to conduct searches at the border without warrant or probable cause.[2] Though Congress and the federal courts long appeared to have implicitly assumed the existence of a border search exception,[3] it was not formally recognized until the Supreme Court decided Ramsey v. United States.[4] In that case, the Supreme Court approved the search of several suspicious envelopes, later found to contain heroin, conducted by a customs official pursuant to search powers authorized by statute.[5] The Court determined that the customs official had "reasonable cause to suspect"[6] when searching the envelopes.[7] This standard, while less stringent than probable cause, was sufficient to justify a border search.[8] The border search exception has subsequently been expanded to not only persons, objects, and mail entering the United States by crossing past a physical border, but also to individuals and objects departing from the United States[9] and to places deemed the "functional equivalent" of a border, such as an international airport.[10]

As the border search exception was further developed in case law, the lower federal courts have recognized two different categories of border searches: routine and non-routine. This distinction is based on language in United States v. Montoya de Hernandez, where the Supreme Court applied the border search exception to the overnight detention of a woman suspected of smuggling drugs in her alimentary canal and held that the custom officials' "reasonable suspicion" that the suspect was smuggling drugs sufficiently supported the detention.[11] Although this case focused on a "non-routine" detention of a traveler at the border, lower federal courts, seizing upon this language distinguishing between the search at issue and "routine" searches,[12] have expanded the border search exception by concluding that a customs official may conduct "routine" searches of persons or effects without any reason for suspicion at all.[13] The Supreme Court further developed this doctrine in United States v. Flores-Montano,[14] where the disassembly and examination of an automobile gasoline tank was determined to be a routine vehicle search and therefore did not require reasonable suspicion. The Court concluded that the gasoline tank search was no more intrusive than a routine vehicle search because there was no heightened expectation of privacy surrounding the contents of a gasoline tank even when the search involved a time-consuming disassembly of the vehicle.[15] Flores-Montano illustrates that extensive, time-consuming, and potentially destructive searches of objects and effects can be considered “routine” and can be conducted without any necessary ground for suspicion.

On the other hand, non-routine border searches, which involve a high degree of intrusion, such as strip searches, require "reasonable suspicion," which is some particularized and objective basis for suspecting wrongdoing.[16] However, the precise degree of intrusion a search must subject on a person or his effects in order to rise to the level of the non-routine has still been left undefined in the case law.[17] Typically, courts have designated the requisite amount of cause needed to justify the search, on a case-by-case basis.[18] Nonetheless, the holding in Flores-Montano indicates that, unlike a search of a person’s body, intrusiveness may not be a dispositive factor when determining whether the search of a vehicle or personal effects is non-routine.[19]

Judicial developments on laptop searches Edit

With the advent of portable computing, it is now common practice for travelers to store their data on laptop computers, compact discs, and other electronic storage devices and to travel with them across the American border. Commensurate with this, customs officials have been searching and seizing such devices with greater frequency. The issue that federal courts have been confronting recently is whether the border search exception applies to electronic storage devices and, if it does, whether a laptop border search is routine or non-routine, and if found to be non-routine, what degree of suspicion or cause is needed to justify the search to satisfy the Fourth Amendment.

The U.S. Supreme Court has yet to address this issue. Most lower federal courts, however, have concluded that searches of laptops, computer disks, and other electronic storage devices fall under the border search exception, which means neither a warrant nor probable cause is necessary to support the search.[20] Nonetheless, these courts have been reticent about determining what degree of cause or suspicion justifies laptop border searches; rather, these courts typically leave the question unanswered and merely find the search before them supported by reasonable suspicion.[21] Even when the courts conclude that the laptop searches were routine, they have found reasonable suspicion supporting the search.[22] The one exception to this trend is United States v. Arnold,[23] a federal district court case explicitly holding that reasonable suspicion is required to support a search of laptops and other electronic storage devices.

References Edit

  1. Katz v. United States, 389 U.S. 347, 357 (1967) (full-text) ("[S]earches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.").
  2. United States v. Ramsey, 431 U.S. 606, 619 (1977) (full-text).
  3. See Act of July 31, 1789, ch. 5 §§23-24, 1 Stat. 29, 43 (authorizing custom officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed. . ."); Carroll v. United States, 267 U.S. 132, 153-54 (1925) (full-text) ("Travellers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in."). Accord Almeida-Sanchez v. United States, 413 U.S. 266 (1973) (full-text); United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973) (full-text); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1971)(full-text); Boyd v. United States, 116 U.S. 616 (1886) (full-text).
  4. 431 U.S. at 619.
  5. Id. at 622.
  6. "Reasonable cause to suspect" appears to be equivalent to "reasonable suspicion," which is simply a particularized and objective basis for suspecting the particular person of wrongdoing. See Terry v. Ohio, 392 U.S. 1 (1978) (full-text).
  7. 431 U.S. at 614.
  8. Id. at 619 ("This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless 'reasonable' has a history as old as the Fourth Amendment itself.").
  9. See United States v. Berisha, 925 F.2d 791 (5th Cir. 1991) (full-text) (extending the border search exception to routine outbound searches); United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976) (full-text), cert. denied, 436 U.S. 917 (1978); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991) (full-text); United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982) (full-text); United States v. Ajlouny, 629 F.2d 830, 834 (2d Cir. 1980) (full-text).
  10. See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973) (full-text); United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991) (full-text); United States v. Gaviria, 805 F.2d 1108, 1112 (2d Cir. 1986) (full-text). In the context of international airports, the border search exception only applies to searches of persons and effects on international flights while the administrative search exception is used to justify searches of persons and effects on domestic flights. See United States v. Davis, 482 F.2d 893 (9th Cir. 1973) (full-text).
  11. 473 U.S. 531, 541 (1985) (full-text) ("We hold that the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.").
  12. Id. at 538 ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause.").
  13. See United States v. Ezeiruaku, 936 F.2d 136 (3d Cir. 1991) (full-text); Berisha, 925 F.2d 791. See also United States v. Chaplinksi, 579 F.2d 373 (5th Cir. 1978) (full-text); United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974) (full-text); United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974) (full-text); United States v. King, 485 F.2d 353 (10th Cir. 1973) (full-text).
  14. 541 U.S. 149, 154 (2004) (full-text).
  15. Id. ("It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile’s passenger compartment").
  16. See Montoya de Hernandez, 473 U.S. at 541 citing Terry, 392 U.S. at 21 ("And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.").
  17. See id. at 541 n.4.
  18. Id. (requiring "reasonable suspicions" for the detention of a traveler at the border, beyond the scope of a routine customs search and inspection). See also Henderson v. United States, 390 F.2d 805 (9th Cir. 1967) (full-text) (holding that strip searches may be conducted only upon a real suspicion); United States v. Adekunle, 980 F.2d 985 (5th Cir. 1992) (full-text), on reh’g, 2 F.3d 559 (5th Cir. 1993) (full-text) (requiring reasonable suspicion to justify a strip search); United States v. Asbury, 586 F.2d 973, 975-76 (2d Cir. 1978) (full-text) (requiring reasonable suspicion for strip searches); Rivas v. United States, 368 F.2d 703 (9th Cir. 1966) (full-text) (requiring a clear indication of the possession of narcotics to justify an alimentary canal search).
  19. Flores-Montano, 541 U.S. at 152.
  20. See, e.g., United States v. Ickes, 393 F.3d 501, 505 (4th Cir. 2005) (full-text); United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006) (full-text); United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006) (full-text) ("An airport is considered the functional equivalent of a border and thus a search there may fit within the border search exception"); United States v. Furukawa, 2006 U.S. Dist. LEXIS 83767 (D. Minn. Nov. 16, 2006); United States v. Hampe, 2007 U.S. Dist. LEXIS 29218 (D. Me. Apr. 18, 2007).
  21. See, e.g., Irving, 452 F.3d at 124 ("Because these searches were supported by reasonable suspicion, we need not determine whether they were routine or non-routine."); Furukawa, at *1-2 ("[T]he court need not determine whether a border search of a laptop is 'routine' for purposes of the Fourth Amendment because, regardless, the magistrate judge correctly found the customs official had a reasonable suspicion in this case.").
  22. Ickes, 393 F.3d at 507 (noting that the computer search did not begin until the customs agents found marijuana paraphernalia and child pornography which raised a reasonable suspicion); Hampe, at *4-5 (holding that even though the laptop search did not implicate any of the serious concerns that would characterize a search as non-routine, the peculiar facts of the case gave rise to reasonable suspicions).
  23. 454 F.Supp.2d 999, 1000-01 (C.D. Cal. 2006) (full-text).

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