Recently, the United States District Court for the District of Massachusetts handed down an important decision. This issues in this case are related to the question of whether one must unlock their cellphone for the police. The relevant issue is that plaintiffs were stopped and had their smartphones searched at the border without warrant or even a reasonable suspicion of wrongdoing despite plaintiff’s objections to the search. Additionally, the government extracted and retained data in the form of a drive image, from one plaintiff’s laptop and extracted data from the SIM cards in his phone and camera, and retained it for fifty-six days, before eventually returning the data to him.

As a rule, any search without a warrant is presumptively violative of the Fourth Amendment, unless the search falls within one of the few well-established exceptions the Supreme Court has carved out.[1] These include searches incident to an arrest, objects in plain view, searches consented to by the person searched, stop & frisk (if reasonable suspicion of a crime exists), automobiles (if there is probable cause to believe the vehicle contains evidence of a crime), hot pursuit, or searches conducted at the border.

Border searches are exempt from Fourth Amendment protections because they are “grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country”[2] The government also has a legitimate interest “to ensure national security; prevent the entry of criminals, inadmissible aliens, and contraband;” and to “facilitate[] lawful trade and travel.”[3]

However, even at the border, the government ability to carry out warrantless searches is not limitless, individuals merely have a reduced privacy expectation at the international borders of the United States and the government’s “interest in preventing the entry of unwanted persons and effects is at its zenith” there.[4] Therefore, at the outset, the ability to carry out warrantless searches at the border begins with a strong presumption in favor of governmental interests.[5]

This case centers on a warrantless government search of electronic devices belonging to ten (10) United States citizens and one (1) lawful permanent resident for data – photographs, text messages, emails, or computer files.  It is indisputable that text messages, computer files, photographs or emails might reveal evidence of crimes; what is at issue is whether the state interest is strong enough, even for the relaxed standard at the border, to support a warrantless and suspicionless search U.S. citizens crossing those international borders.[6]

Congress and the courts have deliberately and specifically narrowed the scope and type of border searches conducted by customs officials.[7] “Congress has ‘broad powers to prevent smuggling and keep contraband out of the United States.[8] In other words, the government has a legitimate interest in identifying those entitled to entry to the United States and verifying they are not bringing prohibited items in which gives rise to the border search exception to the Fourth Amendment.[9]

The court took notice that a search for evidence of inadmissibility to the United States contained on the devices searched would not be relevant to returning U.S. citizens or lawful permanent residents of the United States.[10] United States citizens are entitled, by virtue of their citizenship, to entry into the United States.

Even pursuing the legitimate purpose of excluding contraband from the United States, it must be admitted that there are only so many contraband things that can be stored on a smartphone. Child pornography, classified information and counterfeit media, or evidence of other criminal or illegal conduct are all possibilities. However, mere possibility is not evidence and requiring an evidentiary showing of probable cause to search a smartphone or laptop computer would not dillute the deterrent effect of the border search exception.[11]

The standard for determining whether an exception to the Fourth Amendment requires comparing “on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”[12]

“Notwithstanding the broad scope of the government’s authority at the border, the Supreme Court has suggested that even this power to search may be bounded by limits derived from the Fourth Amendment, particularly when the search cannot be characterized as ‘routine.'”[13]

Courts have traditionally held that a search of a cell phones does not require a warrant or probable cause, but noting that “[a]t most, border searches require reasonable suspicion.”[14] Indeed, “no circuit court, before or after Riley, has required more than reasonable suspicion for a border search of cell phones or electronically-stored data.”[15]

However, in the modern world, electronic devices like smartphones and laptop computers contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails.[16] This type of material directly implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.”[17]

The Founders express intent in drafting the Fourth Amendment was to safeguard the privacy of thoughts and ideas and freedom of conscience from invasion by the government.”[18] Privacy expectations under the Fourth Amendment are those “that society is prepared to recognize as ‘reasonable.'”[19]

While not insisting on a warrant for border searches, the Alasaad court did insist on reasonable suspicion is required to justify the level of intrusion that results from a search of a person’s electronic devices which are “essentially a computer strip search.”[20]

The implications of this are far-reaching. If reasonable suspicion is required at the border, surely a much higher standard of proof is required for United States citizens inside the United States. Certainly, probable cause – which is the standard for a warrant – is required and this argues strongly for the court to recognize that searches of digital devices, including smartphones, can and ought to require a warrant.

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[1] United States v. Wurie, 728 F.3d 1, 3 (1st Cir. 2013); Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)

[2] United States v. Ramsey, 431 U.S. 606, 620, 97 S. Ct. 1972, 52 L. Ed. 2d 617 (1977).

[3] Id.

[4] United States v. Flores-Montano, 541 U.S. 149, 152, 124 S. Ct. 1582, 158 L. Ed. 2d 311 (2004).

[5] Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2019 U.S. Dist. LEXIS 195556, at *25 (D. Mass. Nov. 12, 2019)

[6] United States v. Molina-Isidoro, 884 F.3d 287, 295 (5th Cir. 2018)

[7] United States v. Touset, 890 F.3d 1227, 1232 (11th Cir. 2018)

[8] Cano, 934 F.3d at 1013 (quoting Carroll v. United States, 267 U.S. 132, 154, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925));

[9] Id.

[10] Alasaad, No. 17-cv-11730-DJC, 2019 U.S. Dist. LEXIS 195556, at *31-32; See also 8 U.S.C. § 1225

[11] Id at 32

[12] Wyoming v. Houghton, 526 U. S. 295, 300, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999); see also Riley v. California, 573 U.S. 373, 385, 134 S. Ct. 2473, 2484 (2014)

[13] United States v. Jae Shik Kim, 103 F. Supp. 3d 32, 49 (D.D.C. 2015)

[14] United States v. Vergara, 884 F.3d 1309, 1311 (11th Cir. 2018)

[15] United States v. Wanjiku, 919 F.3d 472, 485 (7th Cir. 2019)

[16] United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013)

[17] Id.

[18] United States v. Seljan, 547 F.3d 993, 1014 (9th Cir. 2008); see also New York v. P.J. Video, Inc., 475 U.S. 868, 873, 106 S. Ct. 1610, 89 L. Ed. 2d 871 (1986).

[19] Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)

[20] Cotterman, 709 F.3d at 966