David House, DHS, and the Fourth Amendment Border Search Exception

As a supplement to yesterday’s post about David House and the controversy over the treatment of Fourth Amendment rights at the border, here’s a little summary of how constitutional law addresses electronic devices and the warrant requirement at U.S. borders.

The Supreme Court has held that border searches are not subject to warrant provisions of the Fourth Amendment and are “reasonable” within the meaning of that amendment “simply by virtue of the fact that they occur at the border.”  U.S. v. Cotterman, 709 F.3d 952, 960 (9th Cir. 2013) (quoting U.S. v. Ramsey, 431 U.S. 606, 616 (1977)).  This exception has been termed the “Border Search Exception” to the Fourth Amendment.

The broad contours of the scope of searches at our international borders are rooted in ‘the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.’ Id.

In other words, the government’s interest in thwarting illegal activities at the border is often found to outweigh an individual’s privacy interests.

But, what about searches or seizures of electronic devices?

Laptop computers, iPads and the like are simultaneously offices and personal diaries.  They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails.  This type of material implicates the Fourth Amendment’s specific guarantee of people’s right to be secure in their ‘papers.’ Cotterman, 709 F.3d at 964.

The Supreme Court has placed some limits on the Border Search Exception holding that certain types of searches may require at least a reasonable suspicion of criminal activity.  “Highly intrusive” searches at a border, for example, require “some level of suspicion,” and searches that are “so destructive,” “particularly offensive,” or overly intrusive require particularized suspicion.  Id. at 963 (citing at U.S. v. Flores-Montano, 541 U.S. 149, 152 (2004)).

However, “the Supreme Court [has not yet] addressed whether a border search of electronic devices that store personal information constitutes a non-routine ‘highly intrusive search’ which would require some level of suspicion.” House v. Napolitano et al., No. 1:11-cv-10852, WL 1038816 at *10 (D. Mass., Mar. 28, 2012).

To complicate things even further, we are now seeing searches of electronic devices that go beyond the scope of cursory viewing of documents, photographs, and other files stored on the device’s hard drive. “Forensic investigations” of electronic devices are being conducted, which could include, for example, unlocking password-protected files, restoring deleted material, or retrieving images viewed on websites.

Should these more intrusive forensic border searches be subjected to the same Fourth Amendment exception, such that they will be deemed reasonable simply by virtue of the fact that they occur at an international border?

The Ninth Circuit recently addressed this issue in U.S. v. Cotterman, where Howard Wesley Cotterman, who was convicted of child molestation fifteen years prior, was stopped at the U.S.-Mexico border on his way home from vacation with his wife.  Cotterman, 709 F.3d at 957.  After receiving an alert by the Treasury Enforcement Communication System (TECS) that Cotterman was a sex offender and was potentially involved in child sex tourism, the border officials seized Cotterman’s laptop.  Id.

An initial search of the computer yielded no incriminating evidence; however, after the computer was shipped to an off-site location and forensically examined, images of child pornography were discovered. Id.

In determining the proper scope of the Border Search Exception and its application to forensic investigations of electronic devices, the Ninth Circuit in that case made clear that the exception does not abandon all rights to individual privacy. Id. at 960.  Rather, the exception balances individual privacy rights “against the sovereign’s interests.”  Id.

With all this in mind, the Ninth Circuit held that forensic examinations of electronic devices, regardless of the geographic location of such a search, require a “reasonable suspicion” of illegal activity to be permissible under the Fourth Amendment.  Id. at 962-69.  Applying the “reasonable suspicion” standard, the Ninth Circuit found the forensic investigation of Cotterman’s laptop was proper as border patrol agents were operating under a reasonable suspicion of Cotterman’s involvement in child sex tourism.  Id. at 957.

How does this all play into House’s lawsuit against DHS? House similarly charged the government with illegally searching his electronic devices at the border without the requisite level of suspicion, which, he alleged, was required based on the “highly intrusive” and “particularly offensive” nature of the search.  House, WL 1038816 at *6.   But, citing Flores-Montano, the Court (a District Court within the First Circuit) stated that the search and seizure of House’s electronic devices were not so intrusive as to require particularized suspicion.  Id. at *7.


[S]uch a search of a laptop computer or other electronic devices does not involve the same ‘dignity and privacy interests’ as the ‘highly intrusive searches of the person’ found to require some level of suspicion such as strip searches or body cavity searches. . . . The search of a laptop computer at the border is not vastly distinct from ‘suspicionless border searches of travelers’ luggage that the Supreme Court [has] allowed. Id.

(It should be noted that, before House was settled, the Court denied the government’s motion to dismiss the Fourth Amendment claims on the issue of whether the duration of the seizure was “reasonably related in scope to the circumstances which justified it initially.” Id. at *9.)

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

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Christopher w. FolkChristopher W. Folk

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