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Are Searches of computers and cell phones are the Border without a warrant permissible under the Fourth Amendment

The United States Supreme Court may review a case called United States v. Williams that deal with the issue of what is the scope of a permissible search at the border:  Can the search include personal computers and cell phones under the Fourth Amendment?

The Supreme Court has the opportunity to review a case concerning the Fourth Amendment rights travelers have when entering the country with their personal electronics.  The circuits are split multiple ways regarding this issue of warrantless searches of personal electronics at the border.  Some courts allow the search of electronic devices at the border under any circumstances, while other courts hold these searches to a higher standard.  In the case of United States v. Williams, the Tenth Circuit declined to rule on whether searches of personal electronic devices at the border must be subject to reasonable suspicion.  United States v. Williams, 942 F.3d 1187, 1190 (10th Cir. 2019).  But reasonable suspicion is sufficient to justify a warrantless border search of personal electronic devices, and that is the point at issue in this case.

What happened in the Williams Case? 

Williams, an American citizen, arrived in Denver on a one-way flight from Paris in November of 2015.  His passport was flagged as he was going through customs due to his extensive criminal history.  Williams had felony convictions in the United States for trespass and unlawful use of a financial instrument.  Williams then escaped from American prison and fled to Germany in 2007.  He was subsequently deported from Germany in 2011 and was banned from the country that same year.  However, this did not stop Williams from returning to Germany in 2015.  Although his ban extended throughout the Schengen Area, he blatantly ignored this condition and visited Belgium, France, Iceland, and the Netherlands.

Williams was questioned by the border agents and was dishonest with them about where he had traveled.  The agents knew Williams had been to Germany, but he never disclosed this. While in Germany, Williams was arrested for brandishing weapons.  In addition to the weapons arrest, Williams was in three countries linked to various terrorist attacks and was flying in from Paris, the site of a horrific terror attack two weeks prior.  Further, Williams lied about his home address, giving one to border agents, and writing a different address on his customs declaration form.  Williams’s criminal history, dishonestly, and the recent terror attacks were deemed reasonable enough for the border agents to search his things, including his laptop and cell phone.  In searching his personal electronics without a warrant, the border agents found a collection of child pornography.

 Was the search of Williams’s laptop constitutional under the Fourth Amendment?

 The Tenth Circuit justified this search under the standard of “reasonable suspicion.”  The court clarified that reasonable suspicion must consider the “totality of the circumstances.” Williams, 942 F.3d at 1190.  Here, Williams did have a significant criminal history; he was a felon and a fugitive who was dishonest to border patrol.  However, there was nothing in his luggage that was illegal or even suspicious.  This did not stop border agents from warrantlessly searching his electronics.  The agents found nothing on William’s phone, but eventually found child pornography on his laptop.

The Supreme Court should grant certiorari and hear this case to resolve the circuit split.  The circuits are fragmented in four different ways regarding this matter.  The Tenth Circuit held that reasonable suspicion of general criminal activity is sufficient to search personal electronics.  Williams, 942 F.3d at 1190.  However,  the Fourth Circuit ruled that the standard to search is a belief that one poses a threat tied to the government’s interests at the border.  United States v. Aigbekaen, 943 F.3d 713, 720–23 (4th Cir. 2019).  The Ninth Circuit has held that there must be reasonable suspicion that the specific device contains digital contraband.  United States v. Cano, 934 F.3d 1002, 1007, 1020 (9th Cir. 2019).  And down in the Eleventh Circuit, no suspicion is required at all.  United States v. Touset, 890 F.3d 1227, 1229, 1233–34 (11th Cir. 2018).  The rights of U.S. citizens flying to the United States from a different country are all dependent on the arbitrary factor of location.  Had Williams booked a flight to nearby Arizona, California, or Nevada, his electronics would have not been subject to search.  But because Williams landed in Denver, he is serving a seven year prison sentence.

What is the general legality of warrantless searches at the border?

The border search exception is an exception to the Fourth Amendment’s general rule that a warrant be obtained for a search. United States v. Ramsey, 431 U.S. 606, 621 (1977).  Routine searches at the border are to be expected upon entering the country.  United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985).  But with the advancement of technology, there is a legal gray area when it comes to electronics.  Nowadays laptops and cellphones contain nearly every detail of a person’s life.  This amount of information is a level that is drastically different from items that have been traditionally subject to search under the Fourth Amendment.

To Read the Filing in the Williams Case you can find them on the Scotus Blog.

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