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).
Riley established that the “search incident to arrest” exception does not apply to cellphones. The question posed by the plaintiffs in Alasaad is whether the border search exception allows warrantless searches of electronic devices. Two of the plaintiffs allege that customs agents searched their phones without warrants while they were in “secondary inspection” areas at Texas airports. One plaintiff claims that a customs officer seized his phone, which was the property of his employer, at Houston Intercontinental Airport and “coerced [him] into disclosing [the] password.” Alasaad, complaint at 21. The complaint notes that “[t]he secondary inspection setting is inherently coercive,” id., and alleges that the official claimed the legal authority to seize the phone without a warrant. The lawsuit alleges Fourth Amendment violations and seeks declaratory and injunctive relief.
These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.
Michael J. Brown, a board-certified criminal defense attorney, has represented people in West Texas facing state and federal charges for over 20 years. To schedule a confidential consultation with a skilled and experienced criminal justice advocate, contact us today online or at (432) 687-5157.
More Blog Posts:
Appellate Courts Split on Question of Cell Phone Tracking Technology and the Fourth Amendment, Texas Criminal Lawyer Blog, February 26, 2016
FBI Use of Unmanned Drones for Aerial Surveillance Raises Fourth Amendment Concerns, Texas Criminal Lawyer Blog, September 9, 2015
Police Need a Warrant to Search Cell Phones During an Arrest, Supreme Court Rules, Texas Criminal Lawyer Blog, July 28, 2014