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4th A :: Border Searches Dont be a FOOL; The Law is Not DIY

Derived From: Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal InvestigationsPDF Computer Crime and Intellectual Property Section, Criminal Division, DOJ (2009) (Remember: This is a rendition of the state of the law from law enforcement and reflects their views)

Chapter 1 Searching and Seizing Computers Without a Warrant

C. Exceptions to the Warrant Requirement in Cases Involving Computers

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6. Border Searches

In order to protect the government's ability to monitor contraband and other property that may enter or exit the United States illegally, the Supreme Court has recognized a special exception to the warrant requirement for searches that occur at the border of the United States (or at the border's functional equivalent). According to the Court, routine searches at the border do not require a warrant, probable cause, or even reasonable suspicion that the search may uncover contraband or evidence. See United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). Searches that are especially intrusive, however, require at least reasonable suspicion. See id. at 541. These rules apply to people and property both entering and exiting the United States. See United States v. Oriakhi, 57 F.3d 1290, 1297 (4th Cir. 1995).

The Supreme Court's most recent border search case, United States v. Flores-Montano, 541 U.S. 149 (2004), suggests that reasonable suspicion is not required for most non-destructive border searches of property. In Flores- Montano, the Court determined that the border search of an automotive fuel tank did not require reasonable suspicion. The Court explained that "the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person-dignity and privacy interests of the person being searched-simply do not carry over to vehicles." Id. at 1585. Although there may be a lesser privacy interest in gas tanks than in other property (such as computers), the Court's analysis in Flores-Montano does not appear to be narrowly confined to gas tanks or vehicles. In response to the defendant's argument that the Fourth Amendment protects property as much as privacy, the Court emphasized the lack of physical damage to the gas tank and concluded that "[w]hile it may be true that some searches of property are so destructive as to require a different result, this was not one of them." Id. at 1587. One appellate court has noted that "[t]he Supreme Court recently made clear that reasonable suspicion is usually not required for officers to conduct non-destructive border searches of property." United States v. Camacho, 368 F.3d 1182, 1183 (9th Cir. 2004).

Since Flores-Montano, courts have upheld suspicionless border searches of computers. In United States v. Arnold, 523 F.3d 941, 946 (9th Cir. 2008), the Ninth Circuit held that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices." In so holding, the Arnold court explicitly rejected the defendant's argument, previously adopted by the district court, that searching a laptop is more "intrusive" than a typical search of property and more like searching a home because of its large storage capacity. Instead, the Arnold court found no logical distinction between a suspicionless border search of a traveler's luggage and a similar suspicionless search of a laptop. See id. at 947. See also United States v. Hampe, 2007 WL 1192365, at *4 (D. Me. Apr. 18, 2007) (rejecting the Arnold district court analysis and holding that border search of computer files did not require reasonable suspicion); United States v. Romm, 455 F.3d 990, 996-97 (9th Cir. 2006) (upholding border search of computer and suggesting, but not holding, that reasonable suspicion is not required for non-destructive property searches at the border).In United States v. Ickes, 393 F.3d 501, 506-07 (4th Cir. 2005), the Fourth Circuit also held that a search of a computer and disks within the defendant's car was permissible under the border search exception, emphasizing the breadth of the government's border search authority. The Ickes court did not address whether the search of the defendant's car, and the computer and disks it contained, was "routine." However, the court did note that, while most searches of computers at the border would likely result from reasonable suspicion, it would not "enthron[e] this notion as a matter of constitutional law." Id. at 507. See also United States v. Linarez-Delgado, 259 Fed. Appx. 506, 508 (3d Cir. 2007) ("Data storage media and electronic equipment, such as films, computer devices, and videotapes, may be inspected and viewed during a reasonable border search."). In addition, Ickes rejected the defendant's argument that border searches of computers should be limited based on computers' storage of expressive materials. Ickes, 359 F.3d at 506. See also Arnold, 523 F.3d at 948 (following Ickes and refusing to carve out a First Amendment exception to the border search doctrine).In two pre-Flores-Montano cases, district courts upheld warrantless searches of computer disks for contraband computer files, finding that the searches were "routine" and did not require reasonable suspicion. In United States v. Irving, 2003 WL 22127913, at *5 (S.D.N.Y. Sept. 15, 2003), the court noted that "any other decision effectively would allow individuals to render graphic contraband, such as child pornography, largely immune to border search." On appeal, after Flores-Montano, the Second Circuit upheld the district court's denial of Irving's motion to suppress. United States v. Irving, 452 F.3d 110 (2d Cir. 2006). However, because the Second Circuit found that the customs agents who searched Irving had reasonable suspicion, it did not consider whether reasonable suspicion was required. Id. at 124. Similarly, in United States v. Roberts, 86 F. Supp. 2d 678 (S.D. Tex. 2000), aff'd on other grounds, 274 F.3d 1007 (5th Cir. 2001), the court held that a search of the defendant's computer and floppy disks was a routine search for which no suspicion was required. See id. at 688. On appeal, the Fifth Circuit affirmed on other grounds and did not reach the issue of whether the seizure of the defendant's computer equipment could be considered routine. See Roberts, 274 F.3d at 1017.

7. Probation and Parole

Individuals on probation, parole, or supervised release enjoy a diminished expectation of privacy and may be subject to warrantless searches based on reasonable suspicion, or, potentially, without any particularized suspicion. In United States v. Knights, 534 U.S. 112, 122 (2001), the Supreme Court considered the validity of a warrantless search based on reasonable suspicion of a probationer's home where the conditions of the probation required the probationer to submit to a search at any time, with or without a warrant or reasonable cause. The Court did not rely on the "special needs" analysis of Griffin v. Wisconsin, 483 U.S. 868 (1987), a previous probation search case. Instead, the Court employed "ordinary Fourth Amendment analysis that considers all the circumstances of a search." Knights, 534 U.S. at 122. The Court noted the probationer's diminished expectation of privacy, the government's interests in preventing recidivism and reintegrating probationers into the community, and the government's concern that probationers are more likely to commit (and conceal) crime than ordinary citizens. See id. at 120-21. Balancing these factors, the Court found that the search required "no more than reasonable suspicion." Id. at 121.In Samson v. California, 547 U.S. 843, 857 (2006), the Supreme Court extended Knights, holding that the Fourth Amendment does not prohibit a suspicionless search of a parolee. As in Knights, the Court employed a "totality of the circumstances" approach and considered the parole agreement that unambiguously allowed for suspicionless searches, the government's interests in supervising parolees, and the government's interest in reducing recidivism. See Samson, 547 U.S. at 852-53. However, the Court in Samson did not make clear whether its holding extended to probationers, and the Court noted that parolees have "fewer expectations of privacy than probationers." Id. at 850; see also United States v. Herndon, 501 F.3d 683, 688 n.2 (6th Cir. 2007) (noting that Samson's application to probationers is unclear).Following Knights and Samson, the Sixth Circuit upheld a warrantless search of a probationer's computer based on reasonable suspicion that the probationer had violated his probation by using the Internet. See United States v. Herndon, 501 F.3d 683, 692 (6th Cir. 2007). Herndon, on probation for sexual exploitation of a minor, was subject to a specific condition prohibiting him from using the Internet and requiring him to allow his probation officer to search his computer at any time for Internet use. See id. at 685. After Herndon told his probation officer that he had used the Internet to search for a job, the probation officer went to Herndon's residence and searched his computer and an external hard drive, ultimately finding child pornography. While finding that the probation condition did not meet the "special need" standard of Griffin because it did not itself specifically include a reasonable suspicion requirement, the court nevertheless found the search was "reasonable" under Knights: Herndon's reasonable expectation of privacy was "dramatically reduced" by the probation condition and was outweighed by the government's interest in preventing recidivism. Id. at 689-91. The Sixth Circuit concluded that the probation officer's search was proper, as it required "no more than reasonable suspicion." Id. at 691.At least one court has upheld the warrantless search of a probationer's computer even in the absence of an explicit probation condition requiring the probationer to submit to a warrantless search. In United States v. Yuknavich, 419 F.3d 1302, 1311 (11th Cir. 2005), probationer Yuknavich had been convicted of child pornography-related charges. While his probation did not include a warrantless search provision, it did prohibit him from using the Internet, except for work purposes during work hours. During a routine home visit, Yuknavich's probation officers observed a computer connected to a modem, examined it, and discovered that Yuknavich had been downloading child pornography. The Court held that even in the absence of a provision in his probation agreement authorizing warrantless searches, Yuknavich's expectation of privacy in his computer was diminished by the condition specifically restricting his Internet access, especially in light of the crime for which he was on probation. See id. at 1310. Thus, the court followed Knights and held that the search of Yuknavich's computer required, at most, reasonable suspicion. See id. at 1311.

D. Workplace Searches

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