Searching for the Fourth Amendment at the Border: The Border Search Exception and Digital Devices

Abstract

The Fourth Amendment allows for searches and seizures at international borders without suspicion of criminal activity. This is known as the “border search exception” to the Fourth Amendment’s warrant requirement. The power of the government to execute warrantless searches at the nation’s borders dates back to the First Congress. Border searches were initially premised on the idea that law enforcement needed to be able to prevent illegal aliens and contraband from entering the country. Recently, however, the border search exception has been applied to the search of travelers' digital media. The jurisprudence thus far suggests that customs officers may search any digital media without any individualized suspicion. Some courts have held that “forensic” searches of digital media require reasonable suspicion, but maintain that manual searches require no level of suspicion. The Supreme Court has not addressed the standard of suspicion necessary for a border search exception to the warrant requirement if the search applies to the content of digital media. In 2014, the Court held in Riley v. California that the search incident to arrest exception to the warrant requirement does not apply to the digital content stored on cell phones. In Riley, the Court determined that digital searches are categorically different from physical searches. This note argues that the Supreme Court’s reasoning in Riley should be applied to searches of digital media at the border. Warrantless searches of digital media at the border should be considered a violation of the Fourth Amendment, and there should be a new framework applied to seizing and searching digital media at borders. This note argues that Customs and Border Protection (“CBP”) should be able to seize a digital device based on reasonable suspicion and secure the device so that information may not be wiped from the hard drive. However, with the exception of exigent circumstances, a CBP agent should not be able to search the content stored on a traveler’s digital device until a probable cause warrant is obtained. A warrantless data search should be considered objectively unreasonable under the Fourth Amendment. This note further examines how two federal cases since Riley -- United States v. Saboonchi and United States v. Kim -- demonstrate that the United States government has recently gone to great lengths to avoid digital border search cases from reaching Courts of Appeals.