North Carolina doesn’t have a land border with Mexico or Canada, so most people don’t think of us as a border state. But we are. We have a maritime border and several international airports that courts have deemed the functional equivalent of a border. Fourth Amendment protections are greatly reduced at the border, and United States Customs and Border Protection (CBP), the federal agency responsible for securing the border, reports that in 2023 it conducted border searches of electronic devices belonging to 41,467 travelers. This post considers when law enforcement officers may search an international traveler’s electronic devices.
First principles. The Fourth Amendment requires that searches be reasonable. The Supreme Court has stated that “[w]arrantless searches are presumptively unreasonable,” subject to “a few limited exceptions.” United States v. Karo, 468 U.S. 705 (1984).
The border search doctrine. One of those exceptions is the border search doctrine, which allows routine searches at the border without a warrant or any level of individualized suspicion. The Supreme Court has stated that the government’s interest in “preventing the entry of unwanted persons and effects” renders most border searches reasonable “simply by virtue of the fact that they occur at the border.” United States v. Flores-Montano, 541 U.S. 149 (2004) (internal quotation marks and citation omitted). So Customs and Border Protection officers are free to look through your suitcases when you return from an overseas trip just in case you’re bringing back prohibited cultural antiquities or farm-fresh fruits – no probable cause or reasonable suspicion required.
“Non-routine” border searches. Even at the border, though, certain types of searches require justification. In United States v. Montoya de Hernandez, 473 U.S. 531 (1985), the Supreme Court ruled that detaining a suspected alimentary canal smuggler (a person who swallows a balloon containing narcotics, crosses the border, and then excretes the ballon once in the United States) for 16 hours and requiring her to defecate in a wastebasket was more intrusive than a “routine” border search and required reasonable suspicion.
Searching electronic devices: routine or non-routine? There has been a great deal of litigation over CBP’s searches of travelers’ electronic devices. A critical issue in those cases has been whether such searches should be considered routine (no individualized suspicion required) or non-routine (requiring reasonable suspicion).
Every federal circuit court to have considered the issue has held that a manual search of a traveler’s device is a routine search that does not require individualized suspicion. See United States v. Mendez, 103 F.4th 1303 (7th Cir. 2024) (noting that manual searches are typically brief and agreeing with “the consensus among circuits” that such searches are routine and need no individualized suspicion); United States v. Castillo, 70 F.4th 894 (5th Cir. 2023) (“[E]very circuit to have addressed the issue has agreed that no individualized suspicion is required for the government to undertake a manual border search of a cell phone.”). However, some federal district court judges disagree, and the issue is not completely settled. See, e.g., United States v. Sultanov, __ F.Supp.3d __, 2024 WL 3520443 (E.D.N.Y. July 24, 2024) (noting that manual searches of digital devices may be conducted by multiple agents over a long period of time and may be deeply intrusive, and concluding that they should be treated as non-routine).
Forensic searches are a different matter. The Fourth Circuit has held that these searches are, by their nature, more intrusive than manual searches. It has deemed them non-routine and therefore has required reasonable suspicion. See United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018) (holding that “a forensic border search of a phone must be treated as nonroutine, permissible only on a showing of individualized suspicion”). See also United States v. Cano, 934 F.3d 1002 (9th Cir. 2019) (similar holding). But see United States v. Touset, 890 F.3d 1227 (11th Cir. 2018) (stating that the court sees “no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property” and therefore ruling that “the Fourth Amendment does not require any suspicion [even] for forensic searches of electronic devices at the border”).
Must the purpose of the search be related to the border? The Fourth Circuit has adopted a requirement that there must be a nexus between a border search and the purposes that animate the border exception, such as protecting national security or preventing the importation of contraband. In Kolsuz, supra, the court stated that “the scope of a warrant exception should be defined by its justifications” and noted that “even a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception.” It subsequently found such attenuation in United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019). The court ruled that a forensic search of an international traveler’s laptop and phone could not be justified by the border search doctrine because the search focused on evidence of purely domestic sex trafficking offenses that “lacked the requisite nexus to the recognized historic rationales justifying the border search exception.”
The Ninth Circuit has gone even further in limiting the scope of searches conducted under the border search doctrine. After reviewing Supreme Court precedent on the justifications for the doctrine, the Ninth Circuit held that border searches must be limited to efforts to locate digital contraband, such as child pornography. Searches for mere “evidence that would aid in prosecuting past and preventing future border-related crimes,” like transnational drug trafficking, are not permitted under that court’s interpretation of the border search doctrine. See United States v. Cano, 934 F.3d 1002 (9th Cir. 2019).
Other circuits have declined to impose a nexus requirement on border searches. For example, in United States v. Levy, 803 F.3d 120 (2d Cir. 2015), the court stated that CBP officers “have the authority to search and review a traveler’s documents and other items at the border when they reasonably suspect that the traveler is engaged in criminal activity, even if the crime falls outside the primary scope of their official duties,” that is, even if the activity is “unrelated to contraband, customs duties, immigration, or terrorism.” Cf. United States v. Xiang, 67 F.4th 895 (8th Cir. 2023) (stating that Levy expresses the “more sensib[le]” position compared to Kolsuz and Cano).
If a border nexus is required, it may prove difficult for courts to administer. In Aigbekaen, the Fourth Circuit was able to find a lack of a border nexus because the search in question was a forensic search. Under circuit precedent, such a search requires reasonable suspicion, yet there was no reasonable suspicion of a border-related offense in that case. But suppose that the search had been a manual one for which no reasonable suspicion was required. Then how would the court know whether the search had a sufficient nexus to the border? The lack of reasonable suspicion for a border-related offense would not be conclusive, because reasonable suspicion would not be required. Nor could a court properly inquire into the searching officer’s subjective motivations and intentions. Those are irrelevant to Fourth Amendment analysis, as it is officers’ “objectively justifiable behavior” that counts. Whren v. United States, 517 U.S. 806 (1996). Perhaps the proper inquiry would concern whether the search was conducted in a manner calculated to reveal evidence of border-related offenses, but I am skeptical that courts are well-positioned to make such a determination.
CBP policy. CBP has a policy on border searches of digital devices, which it describes as containing “strict guidelines, above and beyond prevailing legal requirements” for such searches. The policy distinguishes between “basic” and “advanced” searches. Basic searches are, in essence, manual searches. Advanced searches are, in essence, forensic searches. Advanced searches may be conducted only with supervisory approval and “reasonable suspicion of activity in violation of the laws enforced or administered by CBP, or in which there is a national security concern.” Although the Fourth Amendment law in this area is inconsistent and evolving, the policy strikes me as generally in line with many courts’ thinking about what kinds of border searches are allowed under which circumstances. I don’t know much about how CBP officers in the field are implementing the policy.
Passwords. If CBP desires to search a traveler’s digital device, but the traveler doesn’t want it searched, the traveler may refuse to unlock the device. CBP’s website takes the position that travelers must unlock their devices because “travelers are obligated to present their electronic devices and the information resident on the device in a condition that allows for the examination of the device and its contents.” The website doesn’t cite any legal authority supporting that conclusion and I am not sure it is correct, although the question may implicate provisions of customs law with which I am not familiar. Under the criminal law, the mere fact that officers are allowed to conduct a search does not necessarily entitle them to assistance from the person whose property they intend to search. I wrote about a somewhat similar issue – whether a resident of a premises must unlock the door to allow officers to execute a search warrant – in this previous post. Compelling a person to provide a passcode may also implicate potential self-incrimination issues as I discussed in this prior post.
This may be more a theoretical issue than a practical one. CBP’s website goes on to say that “[i]f the electronic device cannot be inspected because it is protected by a passcode or encryption or other security mechanism, that device may be subject to exclusion, detention, seizure, or other appropriate action or disposition.” CBP officers may, in effect, offer travelers a choice: unlock the device on the spot or have it seized and subjected to a forensic analysis. Lower courts presented with this scenario have generally ruled that a traveler’s decision to unlock a device under these circumstances is sufficiently voluntary that the Fifth Amendment’s guarantee against compulsory self-incrimination is not implicated. See, e.g., United States v. Gavino, 2024 WL 85072 (E.D.N.Y. Jan. 7, 2024) (defendant’s decision to unlock his phone was voluntary even though a CBP officer told him that if he did not unlock it, the officer would “send the defendant’s phone to a lab, which could take several months”).
Not everyone at an airport is at the border. Although an international airport is the functional equivalent of a border, and although the border search doctrine can sometimes apply to individuals near a border even if they have not crossed it, not everyone at the Raleigh-Durham or Charlotte airports is at the border and subject to having their electronic devices searched. The few courts to have considered the matter directly have ruled that domestic airline passengers are not subject to border searches. See, e.g., State v. Codner, 696 So.2d 806 (Fla. Ct. App. 1997) (“[W]e believe it necessary to emphasize that a search at an airport per se does not always implicate the border search exception. For example, if the person is about to board or deplane a domestic flight, the border search exception is inapplicable.”) Nor, under the Fourth Circuit’s approach, would there likely be a border nexus supporting a search of a domestic traveler.