The precedent following United States v. Flores-Montano makes clear that there is a well-established exception to the warrant requirement of the Fourth Amendment at the United States’ border. 541 U.S. 149 (2004). As stated by former Chief Justice Rehnquist, “The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” In effect, the case has confirmed the long-standing notion that U.S. persons do not have the same Fourth Amendment protections against searches and seizures conducted at the border.

In fact, border agents can conduct searches at the border without probable cause or reasonable suspicion. It is no secret that agents can search your car and your personal belongings at the border, but where is the line drawn? The Supreme Court in Flores-Montano left open the idea that certain circumstances might deem a border search unreasonable because of the particularly offensive manner in which it is carried out. However, it is still unclear as to what circumstances might fall under such an exemption.

The underlying facts of Flores-Montano dealt with the removal, dismantlement, and search of a vehicle’s fuel tank due to the belief that illicit drugs might be contained therein. Much of the case law surrounding border searches is similar to Flores-Montano in that the circumstances involve the search of a vehicle or personal belongings, all in an effort to find and seize contraband being smuggled into the country. Repeatedly, courts have held that such searches do not require a warrant and as such, there is no legal standard that must be established prior to the search.

With the technological development of electronic media, and more importantly, the ability of such devices to store large amounts of personal data and information, it begs the question: does the border search exception apply to these devices? For the few courts that have addressed this inquiry, most have decided that the search of a person’s cell phone or laptop falls within the border search exception. I’ll placate to this argument for cursory searches of electronic media at the border, but what about when the property is detained by border agents, sent to another location, and forensically searched and imaged before being returned to the owner?

There are two competing legal theories that address this issue. In United States v. Ickes, the Fourth Circuit held that the search of a defendant’s laptop computer at the border falls completely within the border search exception. 393 F.3d 501 (4th Cir. 2005). A personal laptop is considered cargo, and as such, it is subject to a border search and detainment without any requirements of probable cause or reasonable suspicion until it has been cleared for entry. Conversely, the Ninth Circuit in United States v. Cotterman goes in to great detail as to the facts of the case, specifically that the defendant’s laptop was detained, taken to a location elsewhere, and forensically searched and imaged. 709 F.3d 952 (9th Cir. 2013). The Court held that the intensive search, which is clearly more than just a cursory inspection of a laptop or cell phone at the border, requires at least reasonable suspicion.

The distinction does not lie with the type of property searched, whether it be a vehicle, fuel tank, or a closed container within the vehicle, but instead whether the search is so offensive to a person’s expectation of privacy that it calls in to question our standards of Fourth Amendment jurisprudence. Reasonable suspicion requires a particularized and objective basis for suspecting illicit activity and while not currently required for forensic searches of electronic media under the border search exception, most courts are determining it was found in each case nonetheless. Thus, it would seem that there is a growing trend that reasonable suspicion should be a requirement in these cases.

Case law addressing Fourth Amendment protections as to electronic media and storage devices is an emerging area of the law. If the past few years have been any indication, smartphones, tablets, and laptops are continuing to advance and store massive amounts of personal information that indeed warrant some type of protection. If Circuits continue to disagree as to the standard imposed on this very specific type of search, it will be left to the Supreme Court to ultimately decide the issue.

The author of this blog is Margaret S. Ververis, an attorney specializing in Federal Criminal Defense matters with the law firm of Ferrari & Associates, PC. If you have any questions please contact her at 202-440-2581 or ververis@ferrariassociatespc.com.

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