Imagine taking a weekend road trip to Mexico with a group of friends. Your vehicle is one of about sixty-two million that have crossed the United States-Mexican border. When attempting to enter back into the United States, you are stopped by Border Patrol Agents and asked to hand over all electronic devices. Your smartphones and laptops are subjected to a forensic examination. All personal and sensitive information, in which you believed would remain private, has been viewed without probable cause. Not only can this forensic search view all data held within the device, but it can also retain all deleted information once stored on the device. United States v. Cotterman, 709 F.3d 952, 965 (9th Cir. 2013) (en banc). Should a border search incorporate electronic searches for all individuals entering the United States or should invasive searches like this be prohibited following the holding in Riley v. California that a warrant must be obtained before searching an electronic device?
The United States Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” U.S. Const. amend. IV. This Amendment protects people, not places from being unreasonably searched and seized. Katz v. United States, 389 U.S. 347 (1967). For an individual to be protected they must exhibit a subjective expectation of privacy and that expectation must be one that an objective society is prepared to be recognized as reasonable. Id. When evaluating the Fourth Amendment we see that if there is a warrant, the search or seizure will be deemed reasonable and not violate the individual’s constitutional rights.
There are exceptions to the warrant requirement that allow law enforcement to search individuals, such as special need searches. It has been held that an individual traveling in a vehicle on public thoroughfares has no reasonable expectation of privacy in their movements. United States v. Knotts, 460 U.S. 276, 281 (1983). Searches at international borders are included, like cars, as an exception due to a large government interest at stake, a large degree in which the searches at the border can advance the government’s interest and that the interference outweighs individual privacy. “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” United States v. Flores-Montano, 541 U.S. 149, 152 (2004).
Special need searches such as border searches are viewed as suspicion-less searches because the main goal is not to further a law enforcement objective but to protect national security. The border searches allow vehicles, persons, and all effects to be searched before entering or exiting the border. The Fourth Circuit held that “the border search doctrine is justified by the longstanding right of the sovereign to protect itself. Particularly in today’s world, national security interests may require uncovering terrorist communications, which are inherently “expressive.”” United States v. Ickes, 393 F.3d 501, 506 (4th Cir. 2005). To not follow this logic “would create a sanctuary at the border for all expressive material-even for terrorist plans. This would undermine the compelling reasons that lie at the very heart of the border search doctrine.” Id. However, the Court has chosen to ignore the decision in Ickes. In United States v. Cotterman, the Ninth Circuit held that while there must be no probable cause to search persons crossing the border, there must now be reasonable suspicion that criminal activity is afoot before electronic storage devices may be searched. Cotterman, 709 F.3d 952. By moving from suspicion-less searches of electronic devices at the border to reasonable suspicion searches of electronic devices, it puts a more administrative function to the border searches. Border Patrol Agents will be hesitant to search the stored information, which could lead to a terrorist plot being looked over due to fear that the court will not back the agent’s opinion. Even in the dissent of Cotterman Judge Fletcher stated, “Requiring border patrol agents to determine that reasonable suspicion exists prior to performing a basic forensic examination of a laptop or other electronic devices discourages such searches, leaving our borders open to electronically savvy terrorists and criminals who may hereafter carry their equipment and data across our borders with little fear of detection.” Cotterman, 709 F.3d at 981.
It would seem more opportunistic for Border Patrol Agents to follow the First Circuit’s list of factors in determining if a search would be deemed overly intrusive:
(i) whether the search results in the exposure of intimate body parts or requires the suspect to disrobe;
(ii) whether physical contact between Customs officials and the suspect occurs during the search; (iii) whether force is used to effect the search;
(iv) whether the type of search exposes the suspect to pain or danger;
(v) the overall manner in which the search is conducted; and
(vi) whether the suspect’s reasonable expectations of privacy, if any, are abrogated by the search.
United States v. Braks, 842 F.2d 509, 512 (1st Cir. 1988).
While all prior precedent provided described border searches and decisions made by District Courts, the Supreme Court has recently held that law enforcement must obtain a warrant before searching the electronic data from an individual’s smartphone. Riley v. California, 134 S. Ct. 2473 (2014). This is due to the sensitive nature of the information and the vast amount of information that is able to be stored. Id. Riley held that “the storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information … that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible… third, the data on a phone can date back to the purchase of the phone, or even earlier.” Id. at 2489. However, Riley has left open whether this applies to other types of searches. Id. at 2498. “Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.” Id. While the courts have held that border searches fall into the special needs category of the Fourth Amendment warrant exceptions, we still may not know where the Supreme Court stands on the intimate and sensitive information that electronic devices hold and whether a warrant will be necessary before a search may be conducted.