A Border Search Doctrine Without Borders? A Court Pushes Back Against Searches of Laptops and Cellphones

by Alston & Bird

Last year, the Supreme Court in Riley v. California (134 S. Ct. 2473 (2014)) recognized the unique characteristics of laptops and cellphones and held that police generally may not search the cellphone of an individual who has been arrested. However, federal law enforcement still routinely searches laptops and cellphones of international passengers at the border. Arguing that these devices are “containers” that may be searched at the border without any suspicion, Customs and Border Patrol on average searched the devices of 15 passengers per day between 2010 and 2013. While some courts find these searches constitutional, on May 8, 2015, in United States v. Kim (No. 13-0100, 2015 WL 2148070 (D.D.C. May 8, 2015)), one district court in the D.C. Circuit pushed back against this trend and suppressed evidence received from a laptop seized at the border.

The facts of this case are becoming more common (a similar search was addressed by a district court in the D.C. Circuit just five months earlier). An undercover investigation led Department of Homeland Security agents to believe that Jae Shik Kim was involved with previous shipments of controlled goods to Iran in violation of U.S. export controls. DHS flagged Kim’s name in the agency’s travel database and seized his laptop as he was boarding his flight from Los Angeles to South Korea. The next day, the laptop was sent to San Diego for a “border search of the laptop.” After an exhaustive search of the hard drive, DHS found incriminating emails. Kim argued the search violated the Fourth Amendment and moved to suppress the evidence.

The government argued that no suspicion was necessary to seize Kim’s hard drive since the search was a reasonable border search and, even if suspicion were required, the required suspicion was present. Attempting to avoid the issue of whether reasonable suspicion was required, the court first addressed whether DHS had reasonable suspicion. If it had reasonable suspicion, then the search would be lawful whether or not suspicion was required. Since the government had no objective manifestation Kim was engaging in criminal activity at the time of the search and only suspected Kim of past crimes, DHS did not have reasonable suspicion to search the computer.

The court then addressed whether the search was a “routine” border search that was not subject to any reasonable suspicion requirement. Following the Riley decision, the court weighed the national security concerns that underlie the enforcement of export control regulations against the degree of privacy invaded. The breadth of information contained in electronic devices caused the search to be “qualitatively and quantitatively different from a routine border examination.” Because the search was not routine and DHS agents did not have the required reasonable suspicion to seize Kim’s computer, the court suppressed evidence received from the hard drive.

Even though the court’s case-by-case inquiry did not provide much clarity for law enforcement, the decision creates some clear rules that may signal a shift towards greater scrutiny of similar searches at the border. For instance, the court questioned whether a computer shipped to another facility could be a “border search.” This imposes a practical limitation on border searches—they must actually be conducted at the border. Border searches must also be based on a suspicion of an ongoing crime at the time of the border crossing and should not be a fishing expedition for other past crimes. More importantly, the decision extended Riley’s recognition that laptops and cellphones are not merely “containers” for searches at the border. In Riley, the Supreme Court advocated for clear guidance for law enforcement, so if the government appeals the Kim decision, we may see the issue before the Supreme Court.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Alston & Bird | Attorney Advertising

Written by:

Alston & Bird

Alston & Bird on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.