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11th Circuit: No Suspicion Needed to Search Computers at Border

September 26, 2018

In United States v. Touset, the Eleventh Circuit Court of Appeals held that federal agents do not need reasonable suspicion in order to conduct a forensic search of a traveler's electronic devices at the border.

After receiving tips from Yahoo, the Department of Homeland Security (DHS) began investigating the defendant for involvement in the receipt, possession and distribution of child pornography. DHS believed that the defendant was traveling abroad and would eventually be returning to the U.S. This led to DHS placing a “look-out” on the defendant which would trigger a search of his luggage and electronic devices when he returned to the country.

When the defendant was passing through customs, agents detained two laptops and external hard drives for forensic analysis. Searches of the devices revealed child pornography. The defendant was arrested and charged with federal child pornography offenses.

In pretrial motions, the defendant argued that the search of his devices was unlawful in that the agents lacked reasonable suspicion to believe that he was in possession of child pornography. The district court found that the agents did have reasonable suspicion and denied the defendant’s motion to suppress the evidence. Based on that ruling, the defendant entered a guilty plea while preserving his right to appeal.

On appeal, the Circuit Court held that federal agents do not need any suspicion whatsoever to conduct searches of electronic devices at the border. The Court reasoned that the country has a strong interest in preventing contraband from entering its borders. The Court stated that electronic devices are no different than luggage or personal items that have always been routinely searched at the border.

The Court was unpersuaded by recent Fourth and Ninth Circuit decisions which held that the Fourth Amendment requires reasonable suspicion in order to justify searches of personal electronic devices. With the current circuit split, this is an issue that may likely get addressed by the U.S. Supreme Court in the near future. Just a few years ago, the Supreme Court held in Riley v. California that warrantless searches of cell phones was unconstitutional due to the fact that “cell phones…hold for many Americans ‘the privacies of life.’”

With all of the private data and communications that are stored on our electronic devices, the Supreme Court may not agree with the Eleventh Circuit that these devices are no different than our luggage when crossing the border. While we expect searches of our luggage to occur, most of us do not expect when crossing the border to have to turn over our cell phones to federal agents for examination.

To hold that the agents need no suspicion whatsoever to conduct such a search doesn’t seem consistent with the Supreme Court’s view that we maintain a strong expectation of privacy in our personal electronic devices.

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