The U.S. Supreme Court recently denied ceriorari in a case where the petitioner asked the Court to step in and decide what standard law enforcement must meet when seeking to search and individual’s electronic devices at the border.
Generally, searching through someone’s property without a warrant requires probable cause. That rule does not apply at the border, however, where the government’s interests in border security are so high that the law allows border agents to conduct “routine searches” of people and property crossing into the country without probable cause. However, as technology has evolved and as our electronic devices contain more private information, there has been an emerging debate over whether law enforcement agents, even those at the border, can search through all of your property and devices when you cross the border.
In a recent Law360 article, Alexander Lawrence and Sara Stearns engage in a helpful tutorial discussing the difference between “routine searches,” including pat-downs, and “nonroutine border searches,” such as the forensic search of someone’s electronic devices, and whether agents have to at least have “reasonable suspicion” that someone is engaged in illegal activity before engaging in more invasive searches.
Lawrence and Stearn note that circuits are split on this issue, with some courts holding that border agents can engage in forensic searches without probable cause or any suspicion (11th Circuit) and others holding that there must be reasonable suspicion that an individual’s device contains contraband (9th Circuit), will reveal evidence of a crime (4th Circuit), or if any illegal activity is suspected (10th Circuit). The other circuits have not weighed in yet.
Click here to read the full article on Law360.