When the Fourth Amendment first became effective more than two centuries ago, “searches” generally involved physically rifling through a person’s possessions in their home, or checking for contraband or evidence on their actual person. Since then, technological changes have required courts to review new methods of conducting searches of people and their property, and courts have had to consider new situations in which law enforcement may conduct a search without a warrant. The past decade or two have brought significant changes to the way people exchange and retain information. Whereas police might once have searched for letters or other written materials, they now search for emails. The extent to which police can search the contents of electronic devices without a warrant remains a subject of dispute. A recently filed lawsuit challenges the applicability of the border search exception to warrantless searches of mobile phones and laptop computers at airports, which could have an impact on Texas criminal cases. Alasaad, et al. v. Duke, et al., No. 1:17-cv-11730, complaint (D. Mass., Sep. 13, 2017).
The “border search exception” allows law enforcement to search persons and property entering U.S. territory without a warrant for certain purposes, particularly customs and immigration enforcement. For most searches that go beyond a simple inquiry into a person’s citizenship or immigration status, or a cursory inspection for contraband, law enforcement officials must be able to show probable cause. See United States v. Montoya De Hernandez, 473 U.S. 531 (1985); United States v. Flores-Montano, 541 U.S. 149 (2004). The border search exception only applies at or near an international border, or at an international airport or seaport. See Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. Ortiz, 422 U.S. 891 (1975).
Electronic searches differ from physical searches in numerous ways, particularly in the way that electronic devices can provide access to far more information than a person could physically carry. A hard drive on a laptop, for example, can hold far more information than a person could carry in a briefcase. A laptop or smartphone with access to cloud storage could allow a person to access anything the device’s owner has stored across a wide array of computers and servers, potentially giving a law enforcement official access to a substantial portion of that person’s entire life. This was a significant part of the Supreme Court’s ruling prohibiting warrantless searches of cellphones incident to an arrest. Riley v. California, 573 U.S. __ (2014).