Electronic device searches at the border is a hot topic, and the Eleventh Circuit Court of Appeals has recently addressed the issue. Notably, the Court has ruled in contrast to decisions in the Fourth and Ninth Circuits, holding that a search of an electronic device at the border does not require probable cause. Nor does it, according to the Eleventh Circuit, even require reasonable suspicion for the search to be valid.

 

Caught at the Border in Georgia

In United States v. Touset, the defendant was caught in possession of child pornography as he crossed the border at customs in Atlanta’s airport in Georgia. The unlawful materials were found on his laptop computer as well as his external hard drive. The defendant accepted a plea deal from the government. He then appealed the district court’s denial of his motion to suppress the evidence that was gathered during the search at the airport. In Touset, the Court likened electronic devices to any other property brought in by a person across the border. Furthermore, the Court rationalized, if reasonable suspicion was not necessary to disassemble a car’s fuel tank to search for drugs, it not necessary to review data on electronic devices for child pornography either.

 

Eleventh Circuit Case Precedent

In its decision, the Court reasoned the circuit’s own precedent favored a finding that it was not necessary to have reasonable suspicion for a valid search. In United States v. Vergara, the Eleventh Circuit held that the search of a smartphone at the border does not necessitate a warrant, or even probable cause, even if it is involved a forensic search. In Vergara, the appellant was returning home to Florida after taking a cruise to Cozumel, Mexico. At the border, he was subjected to a luggage search which revealed three cell phones. The officer instructed Vergara to turn one on and discovered a video of two topless female minors. Department of Homeland Security investigators then took possession of all three devices for forensic analysis, which revealed two phones that held more than 100 images and videos categorized as child pornography. A grand jury later indicted Vergara.

 

Still Would Have Been a Valid Search

The Court pointed out that even if the search required reasonable suspicion, the facts in Touset would provided for it because the defendant had been on a “watch list” and would be flagged at the border for an electronic device search. This was because Touset had previously sent money three times within six months to a Western Union account associated with child pornography.

 

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