Border searches of laptops

Introduction
A recently developing area in the law of search and seizure is whether, at the border, the Fourth Amendment permits warrantless searches of the content of laptop computers and other electronic storage devices. The federal courts that have addressed this issue have universally held that the border search exception to the Fourth Amendment applies to these searches, making warrantless searches permissible. These courts, however, have declined to clarify the degree of suspicion needed to initiate a search and satisfy the Fourth Amendment.

The Fourth Amendment mandates that a search or seizure conducted by a government agent must be reasonable, and that probable cause1 must support any judicially granted warrant.2 Generally, the requirement that searches and seizures be “reasonable” has been construed to mean that there is a presumptive warrant requirement for searches conducted by the government.3 Nonetheless, the Supreme Court has recognized several exceptions to this presumptive warrant requirement, one of which is the border search exception.4

Border Search Exception
The border search exception to the Fourth Amendment allows government officials to conduct searches at the border without warrant or probable cause.5 Though Congress and the federal courts long appeared to have implicitly assumed the existence of a border search exception,6 it was not formally recognized until the Supreme Court decided Ramsey v. United States.7 In that case, the Supreme Court approved the search of several suspicious envelopes, later found to contain heroin, conducted by a customs official pursuant to search powers authorized by statute.8 The Court determined that the customs official had “reasonable cause to suspect”9 when searching the envelopes.10 This standard, while less stringent than probable cause, was sufficient to justify a border search.11 The border search exception has subsequently been expanded to not only persons, objects, and mail entering the United States by crossing past a physical border, but also to individuals and objects departing from the United States12 and to places deemed the “functional equivalent” of a border, such as an international airport.13

As the border search exception was further developed in case law, the lower federal courts have recognized two different categories of border searches: routine and non-routine. This distinction is based on language in United States v. Montoya de Hernandez, where the Supreme Court applied the border search exception to the overnight detention of a woman suspected of smuggling drugs in her alimentary canal and held that the custom officials’ “reasonable suspicion” that the suspect was smuggling drugs sufficiently supported the detention.14 Although this case focused on a “non-routine” detention of a traveler at the border, lower federal courts, seizing upon this language distinguishing between the search at issue and “routine” searches,15 have expanded the border search exception by concluding that a customs official may conduct “routine” searches of persons or effects without any reason for suspicion at all.16 The Supreme Court further developed this doctrine in United States v. Flores-Montano where the disassembly and examination of an automobile gasoline tank was determined to be a routine vehicle search and therefore did not require reasonable suspicion.17 The Court concluded that the gasoline tank search was no more intrusive than a routine vehicle search because there was no heightened expectation of privacy surrounding the contents of a gasoline tank even when the search involved a time-consuming disassembly of the vehicle.18 Flores-Montano illustrates that extensive, time-consuming, and potentially destructive searches of objects and effects can be considered “routine” and can be conducted without any necessary ground for suspicion.

On the other hand, non-routine searches, which involve a high degree of intrusion, such as strip searches, require “reasonable suspicion,” which is some particularized and objective basis for suspecting wrongdoing.19 However, the precise degree of intrusion a search must subject on a person or his effects in order to rise to the level of the non-routine has still been left undefined in the case law.20 Typically, courts have designated the requisite amount of cause needed to justify the search, on a case-by-case basis.21 Nonetheless, the holding in Flores-Montano indicates that, unlike a search of a person’s body, intrusiveness may not be a dispositive factor when determining whether the search of a vehicle or personal effects is non-routine.22

Judicial Developments on Laptop Searches
With the advent of portable computing, it is now common practice for travelers to store their data on laptop computers, compact discs, and other electronic storage devices and to travel with them across the American border. Commensurate with this, customs officials have been searching and seizing such devices with greater frequency. The issue that federal courts have been confronting recently is whether the border search exception applies to electronic storage devices and, if it does, whether a laptop border search is routine or non-routine, and if found to be non-routine, what degree of suspicion or cause is needed to justify the search to satisfy the Fourth Amendment.

The U.S. Supreme Court has yet to address this issue. Most lower federal courts, however, have concluded that searches of laptops, computer disks, and other electronic storage devices fall under the border search exception, which means neither a warrant nor probable cause is necessary to support the search.23 Nonetheless, these courts have been reticent about determining what degree of cause or suspicion justifies laptop border searches; rather, these courts typically leave the question unanswered and merely find the search before them supported by reasonable suspicion.24 Even when the courts conclude that the laptop searches were routine, they have found reasonable suspicion supporting the search.25 The one exception to this trend is United States v. Arnold, a federal district court case explicitly holding that reasonable suspicion is required to support a search of laptops and other electronic storage devices.26