Most of us have seen some television rendition of a border search-multiple lines of cars lined up to cross the border, border patrol agents and drug-sniffing dogs strewn about, and the nervous traveler as he or she approaches the checkpoint. The driver tries to hide their nervousness as the border patrol agent inspects the driver’s vehicle, analyzes the driver’s body language, and questions the driver’s reason for traveling. While travelers expect and understand this search as routine, would a search of the contents of the traveler’s cell phone also be routine?
Border Search Exception
The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures of a citizen’s person or their property. As a general rule, warrantless searches or seizures are presumptively unreasonable. But like most rules of law, numerous exceptions to the rule exist. Among the exceptions is a recognized “border search exception,” which lessens the number of suspicion officers need to search a person or their property at the United States border.
As with any Fourth Amendment question, the critical inquiry is if the search is “reasonable.” With good reason, the Supreme Court has recognized that our cell phones store “vast quantities of personal information,” so much so that Courts typically require more suspicion of criminal activity than usual to review the contents of our most cherished devices.
Reasonable suspicion or none at all?
But federal courts are currently quarreling with how the “border search exception” applies to cell phones. Federal courts have handed down varying decisions. Some courts require that officers have “reasonable suspicion” to conduct a forensic search of a cell phone at the border. “Reasonable suspicion” is a lower standard than “probable cause” and requires an officer to be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion. Other courts have ruled that border patrol agents need no suspicion at all to search the contents of a travelers phone.
While the law on this issue is not yet settled, if the search of you or a loved one’s phone led border patrol agents to discover evidence that resulted in criminal charges, there may be arguments to be made to have that evidence excluded. The attorneys at Marcilliat & Mills PLLC are always up to date on changes in the law and are prepared to help you protect your rights. You can contact us online or at (877) 204-5365 for a free consultation.