The border search exception is a criminal law doctrine in the U.S. that allows searches and seizures at international borders and functional equivalents, such as airports etc., without a warrant or a probate cause to prevent smuggling and entry of prohibited activities. It is considered an exception to the 4th Amendment. Actually, it is an exception to the requirement of a warrant rather to the Amendment itself.

The searches at international borders are overall regarded as reasonable, as they secure the governmental interest of thwarting illegal activities. However, if the search is more invasive as the routine, it violates the privacy rights of the person and therefore not legal anymore.

Recently, due to the fact that one carries so many digital devices, like laptops and smart phones, the searches have expanded and increased also in this aspect. Challenging the border search exception the U.S. inspectors can use their skills to search individuals coming to the U.S. “byte by byte of the digital records“, known as a forensic search. With this forensic search the inspectors can even look at unallocated spaces in the computer for documents or materials that have already been deleted by the owner.

In the last couple of years, thousands of electronic devices have been confiscated and searched at the border. In some cases they did not return the devices for several days or even weeks. This clearly subverted against Amendment constitutional protections in respect of unreasonable searches and seizures. The border search exception was allowed by courts as a tool to battle drugs, terrorism and child pornography.

On January 13th, 2014 the U.S. Supreme Court had to decide about the limitations on these inspections based on the appeal to the US vs. Cottermann case. The Supreme Court upheld the ruling of the appellate court that searches of electronic devices on borders are covered by the border search exception. However, as an exception to the border search exception for forensic searches of a device reasonable suspicion of criminal activities is required.

Please note, even though the Supreme Court has repeatedly confirmed that the border search exception only applies to international borders, federal laws allowed some federal agents to undertake these suspicionless searches or seizures within a 100 mile range to the border line.

Best regards
und viele Grüße aus Charlotte
Reinhard von Hennigs
www.bridgehouse.law