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You Are Here: Articles Monday, March 16, 2015

by Tim Baldwin

Some are decrying, as another supposed step to tyranny, a recent federal court ruling, Abidor v. Napolitano. This Court ruled that Customs did not need cause or suspicion to search and seize Abidor’s electronic devices (cell phone, laptop) when Abidor had travelled by train from Montreal to New York and arrived at America’s Customs and Border check point. (Abidor’s father tells the story here.) In short, Abidor tried to claim a First Amendment limitation on border patrol’s authority to search cell phones and laptops at the border, but the Abidor Court did not buy these arguments.

To be cetain, Abidor did not contest that the government had the right to conduct routine searches without cause or suspicion at the border. Rather, Abidor claimed that searching cell phones and laptops are not routine, thus requiring at least reasonable suspicion to search; and that by not requiring suspicion to search cell phones and laptops, it will stifle free speech.

While legal scholars may disagree on nuances of the Court’s reasoning, it is a far cry from tyranny or “constitution free zone.” Before and after the United States Constitution and Fourth Amendment, it has been universally recognized that nations have the right and duty to know who is entering the nation and what they are bringing into the country. The Abidor Court rightly stated the general rule,

The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border[1]…Any person or thing coming into the United States is subject to search by that fact alone, whether or not there be any suspicion of illegality directed to the particular person or thing to be searched.

Federal courts have determined that, even without suspicion, routine searches and seizures of these people and their belongings are “reasonable” within the Fourth Amendment’s meaning.[2] Federal courts have also held that a “border search” was not limited to the pure border but also to its “functional equivalent,”[3] like airports, flight lands or departs, vessel docks, territorial waters, and postal and custom sorts, as well as vehicles that enter those areas.

Of notable importance to Originalists, the Abidor Court observed that the same Congress that drafted the Fourth Amendment “granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country’” (See, United States v. Flores-Montano, 541 U.S. 149, 153 (2004)).

This law has gone virtually uncontested by Americans since 1787. Again, Abidor did not challenge this well-settled law; he only attempted to establish that Customs could not search information within his cell phones and laptops without cause or suspicion because it could have personal or confidential information on them (i.e. violation of the First Amendment). Another federal court already ruled on this issue in United States v. Ickes, 393 F.3d 501 (2005).

The Court in United States v. Ickes held that there is no First Amendment exception to the border search doctrine for expressive materials. Just as border patrol can search and seize items inside of containers, etc., the Court can look at electronic papers located inside electronic containers (i.e. cell phone, computers, etc.). The Court based its finding in part on the demands of protecting the nation from terrorist threats that may cross the American border in expressive materials. Ickes stated,

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.”

The Ickes’ Court noted that preventing border patrol from accessing electronic information "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."

On the Ickes’ rationale, the Abidor Court stated in response to the First Amendment limitation on the nation’s ability to search electronic items inside of electronic containers before entering the country,

“It is difficult to understand how a threshold requirement of reasonable suspicion significantly alleviates the alleged harm [that the Plaintiff has to mitigate the chances of having his phone and computer searched at the border]” because “reasonable suspicion leaves ample room for agents to draw on their expertise and experience to pick up on the subtle cures that criminal activity may be afoot.” (Brackets added.)

In short, the Court found the Plaintiff’s First Amendment limitation to the nation’s border patrol power unpersuasive, stating,

Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to ‘guarantee’ confidentiality.

In other words, since the reasonable suspicion standard is so low as to permit just about any search as long as the officer can articulate why he wanted to search, requiring that standard in searching cell phones and laptops at the border will not somehow unleash First Amendment expression.

In addition to pure border searches, officers must also secure portions of land beyond the border. The nature of properly patrolling the border has forced federal courts to develop what is known as “extended border search” and “border vicinity search.” Regarding the most common search types of extended border searches, namely, (1) permanent checkpoints, (2) temporary checkpoints and (3) roving patrols; federal courts have limited border officers to require certain kinds of suspicion or cause,[4] unlike routine border searches that do not require cause or suspicion like Abidor.

 [Extended border search law] allows government agents to conduct searches for contraband or illegal aliens away from the border or its functional equivalent without either a warrant or probable cause. Under this doctrine, customs officers can stop and search a person or vehicle they know has recently crossed the border when, under the totality of the circumstances, including the time that has elapsed since the border crossing, the distance from the border, and the extent of surveillance since the border crossing, there is a “reasonable certainty” that any contraband they might find during the search was there at the time of the border crossing. (1-3 Criminal Constitutional Law § 3.08.)

Clearly, the federal courts have not created “constitution free zones.” They have developed what are “reasonable searches and seizures” given the nation’s self-defense interest in knowing who is coming into the country, why they are here and what they are bringing. To Ickes and Abidor, being able to search closed containers included electronic containers. No, the Founders could not have envisioned electronic “containers,” but they also knew that what is “reasonable” changes depending on the facts.

When it comes to preventing terrorists and criminals from entering the nation to execute their malicious designs, it is a difficult stretch to claim that the government can search physical items but not electronic items given how electronics have revolutionized the way people live and act today. But perhaps the United States Supreme Court will make the distinction and require some kind of suspicion to search electronic devices; but as the Ickes and Abidor courts note, the suspicion standard is low anyway, and overly-zealous government critics will surely find a way to decry that standard as well.

 

[1] See, “This ‘border  search’ exception to the warrant and probable cause requirements of the  Fourth Amendment stems from the right of the sovereign to control who and what may enter the country.” 1-3 Criminal Constitutional Law § 3.08.

[2] United States v. Flores-Montano, 541 U.S. 149, 152, 124 S. Ct. 1582, 1585, 158 L. Ed. 2d 311 (2004); United States v. Montoya de Hernandez, 473 U.S. 531, 537-38, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985); United States v. Ramsey, 431 U.S. 606, 616-19, 97 S. Ct. 1972, 52 L. Ed. 2d 617 (1977). See also Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973); United States v. 12 200-Ft. Reels 8 mm.  Film, 413 U.S. 123, 125-26, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973); United States v. Thirty-seven Photographs, 402 U.S. 363, 376, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971);  Carroll v. United States, 267 U.S. 132, 154, 45 S. Ct. 280, 69 L. Ed. 543 (1925);  Boyd v. United States, 116 U.S. 616, 623, 6 S. Ct. 524, 29 L. Ed. 746 (1886);  United States v. Santiago, 837 F.2d 1545, 1548-49 (11th Cir. 1988) (holding that despite airline passengers’ passing through pre-clearance customs facility before departing for United States from Nassau, Bahamas, search by customs agents following airplane’s arrival at domestic terminal at Atlanta airport constituted “border search” at functional equivalent of border).

[3] Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973). See also United States v. Ramsey, 431 U.S. 606, 622, 97 S. Ct. 1972, 52 L. Ed. 2d 617 (1977).

[4] For a discussion, see 1-3 Criminal Constitutional Law § 3.08.

Comments:

Jason
# Jason
Thursday, October 9, 2014 12:32 PM
This is quite despicable. Kim Seo Joon
Richard152
# Richard152
Tuesday, December 9, 2014 12:43 PM
Technology gadgets should definitely be checked as well. You are right times have changed and in the same manner laws should also be altered accordingly. By Aone essays - custom writing
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