Order Code RL34404
Border Searches of Laptops
and Other Electronic Storage Devices
March 5, 2008
Yule Kim
Legislative Attorney
American Law Division
Border Searches of Laptops
and Other Electronic Storage Devices
Summary
The Fourth Amendment generally requires a warrant to support most searches
and seizures conducted by the government. Federal courts have long recognized that
there are many exceptions to this general presumption, one of which is the border
search exception. The border search exception permits government officials, in most
“routine” circumstances, to conduct searches with no suspicion of wrongdoing
whatsoever. On the other hand, in some “non-routine” and particularly invasive
situations, customs officials are required to have “reasonable suspicion” in order to
conduct a search.
Several federal courts have recently applied the border search exception to
situations in which customs officials conducted searches of laptops and other
electronic storage devices at the border. Though the federal courts have universally
held that the border search exception applies to laptop searches conducted at the
border, the degree of cause required to support the search has not been established.
Though some federal appellate courts do not appear to require any degree of
suspicion to justify a search, one federal district court stated categorically that all
laptop searches conducted at the border require at least reasonable suspicion of
wrongdoing.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Border Search Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Judicial Developments On Laptop Searches . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Ickes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Romm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Arnold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Possible Future Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Border Searches of Laptops
and Other Electronic Storage Devices
Introduction
A recently developing area in the law of search and seizure is whether, at the
border, the Fourth Amendment permits warrantless searches of the content of laptop
computers and other electronic storage devices. The federal courts that have
addressed this issue have universally held that the border search exception to the
Fourth Amendment applies to these searches, making warrantless searches
permissible. These courts, however, have declined to clarify the degree of suspicion
needed to initiate a search and satisfy the Fourth Amendment.
The Fourth Amendment mandates that a search or seizure conducted by a
government agent must be reasonable, and that probable cause1 must support any
judicially granted warrant.2 Generally, the requirement that searches and seizures be
“reasonable” has been construed to mean that there is a presumptive warrant
requirement for searches conducted by the government.3 Nonetheless, the Supreme
Court has recognized several exceptions to this presumptive warrant requirement,
one of which is the border search exception.4
Border Search Exception
The border search exception to the Fourth Amendment allows government
officials to conduct searches at the border without warrant or probable cause.5
Though Congress and the federal courts long appeared to have implicitly assumed the
1 The Supreme Court has interpreted probable cause to mean “a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 238 (1983). See also Ornelas v. United States, 517 U.S. 690, 696 (1996).
2 U.S. Const., Amend. IV.
3 Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the
judicial process without prior approval by judge or magistrate are per se unreasonable under
the Fourth Amendment — subject only to a few specifically established and well delineated
exceptions.”).
4 For a more expansive treatment of the border search exception to the Fourth Amendment,
see CRS Report RL31826, Protecting the U.S. Perimeter: “Border Searches” Under the
Fourth Amendment, by Yule Kim.
5 United States v. Ramsey, 431 U.S. 606, 619 (1977).
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existence of a border search exception,6 it was not formally recognized until the
Supreme Court decided Ramsey v. United States.7 In that case, the Supreme Court
approved the search of several suspicious envelopes, later found to contain heroin,
conducted by a customs official pursuant to search powers authorized by statute.8 The
Court determined that the customs official had “reasonable cause to suspect”9 when
searching the envelopes.10 This standard, while less stringent than probable cause,
was sufficient to justify a border search.11 The border search exception has
subsequently been expanded to not only persons, objects, and mail entering the
United States by crossing past a physical border, but also to individuals and objects
departing from the United States12 and to places deemed the “functional equivalent”
of a border, such as an international airport.13
As the border search exception was further developed in case law, the lower
federal courts have recognized two different categories of border searches: routine
and non-routine. This distinction is based on language in United States v. Montoya
de Hernandez, where the Supreme Court applied the border search exception to the
overnight detention of a woman suspected of smuggling drugs in her alimentary canal
6 See Act of July 31, 1789, ch. 5 §§23-24, 1 Stat. 29, 43 (authorizing custom officials “full
power and authority” to enter and search “any ship or vessel, in which they shall have reason
to suspect any goods, wares or merchandise subject to duty shall be concealed...”); Carroll
v. United States, 267 U.S. 132, 153-154 (1925) (“Travellers may be so stopped in crossing
an international boundary because of national self-protection reasonably requiring one
entering the country to identify himself as entitled to come in, and his belongings as effects
which may be lawfully brought in.”). Accord Almeida-Sanchez v. United States, 413 U.S.
266 (1973); United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973);
United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1971); Boyd v. United
States, 116 U.S. 616 (1886).
7 431 U.S. at 619.
8 Id. at 622.
9 “Reasonable cause to suspect” appears to be equivalent to “reasonable suspicion,” which
is simply a particularized and objective basis for suspecting the particular person of
wrongdoing. See Terry v. Ohio, 392 U.S. 1 (1978).
10 431 U.S. at 614.
11 Id. at 619 (“This longstanding recognition that searches at our borders without probable
cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth
Amendment itself.”).
12 See United States v. Berisha, 925 F.2d 791 (5th Cir. 1991) (extending the border search
exception to routine outbound searches); United States v. Stanley, 545 F.2d 661, 667 (9th
Cir. 1976), cert. denied, 436 U.S. 917 (1978); United States v. Ezeiruaku, 936 F.2d 136, 143
(3d Cir. 1991); United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982); United States
v. Ajlouny, 629 F.2d 830, 834 (2d Cir. 1980).
13 See Almeida-Sanchez v. United States, 413 U.S. 266, 272-273 (1973); United States v.
Hill, 939 F.2d 934, 936 (11th Cir. 1991); United States v. Gaviria, 805 F.2d 1108, 1112 (2d
Cir. 1986). In the context of international airports, the border search exception only applies
to searches of persons and effects on international flights while the administrative search
exception is used to justify searches of persons and effects on domestic flights. See United
States v. Davis, 482 F.2d 893 (9th Cir. 1973).
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and held that the custom officials’ “reasonable suspicion” that the suspect was
smuggling drugs sufficiently supported the detention.14 Although this case focused
on a “non-routine” detention of a traveler at the border, lower federal courts, seizing
upon this language distinguishing between the search at issue and “routine”
searches,15 have expanded the border search exception by concluding that a customs
official may conduct “routine” searches of persons or effects without any reason for
suspicion at all.16 The Supreme Court further developed this doctrine in United States
v. Flores-Montano where the disassembly and examination of an automobile gasoline
tank was determined to be a routine vehicle search and therefore did not require
reasonable suspicion.17 The Court concluded that the gasoline tank search was no
more intrusive than a routine vehicle search because there was no heightened
expectation of privacy surrounding the contents of a gasoline tank even when the
search involved a time-consuming disassembly of the vehicle.18 Flores-Montano
illustrates that extensive, time-consuming, and potentially destructive searches of
objects and effects can be considered “routine” and can be conducted without any
necessary ground for suspicion.
On the other hand, non-routine searches, which involve a high degree of
intrusion, such as strip searches, require “reasonable suspicion,” which is some
particularized and objective basis for suspecting wrongdoing.19 However, the precise
degree of intrusion a search must subject on a person or his effects in order to rise to
the level of the non-routine has still been left undefined in the case law.20 Typically,
courts have designated the requisite amount of cause needed to justify the search, on
a case-by-case basis.21 Nonetheless, the holding in Flores-Montano indicates that,
14 473 U.S. 531, 541 (1985) (“We hold that the detention of a traveler at the border, beyond
the scope of a routine customs search and inspection, is justified at its inception if customs
agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that
the traveler is smuggling contraband in her alimentary canal.”).
15 Id. at 538 (“Routine searches of the persons and effects of entrants are not subject to any
requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may
be opened without a warrant on less than probable cause.”).
16 See United States v. Ezeiruaku, 936 F.2d 136 (3d Cir. 1991); Berisha. 925 F.2d 791. See
also United States v. Chaplinksi, 579 F.2d 373 (5th Cir. 1978); United States v. Lincoln, 494
F.2d 833 (9th Cir. 1974); United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974); United
States v. King, 483 F.2d 353 (10th Cir. 1973).
17 541 U.S. 149, 154 (2004).
18 Id. (“It is difficult to imagine how the search of a gas tank, which should be solely a
repository for fuel, could be more of an invasion of privacy than the search of the
automobile’s passenger compartment”).
19 See Montoya de Hernandez, 473 U.S. at 541 citing Terry, 392 U.S. at 21 (“And in
justifying the particular intrusion the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.”).
20 See id. at 541 n. 4.
21 Id. (requiring “reasonable suspicions” for the detention of a traveler at the border, beyond
the scope of a routine customs search and inspection). See also Henderson v. United States,
(continued...)
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unlike a search of a person’s body, intrusiveness may not be a dispositive factor when
determining whether the search of a vehicle or personal effects is non-routine.22
Judicial Developments On Laptop Searches
With the advent of portable computing, it is now common practice for travelers
to store their data on laptop computers, compact discs, and other electronic storage
devices and to travel with them across the American border. Commensurate with this,
customs officials have been searching and seizing such devices with greater
frequency. The issue that federal courts have been confronting recently is whether the
border search exception applies to electronic storage devices and, if it does, whether
a laptop border search is routine or non-routine, and if found to be non-routine, what
degree of suspicion or cause is needed to justify the search to satisfy the Fourth
Amendment.
The Supreme Court has yet to address this issue. Most lower federal courts,
however, have concluded that searches of laptops, computer disks, and other
electronic storage devices fall under the border search exception, which means
neither a warrant nor probable cause is necessary to support the search.23
Nonetheless, these courts have been reticent about determining what degree of cause
or suspicion justifies laptop border searches; rather, these courts typically leave the
question unanswered and merely find the search before them supported by reasonable
suspicion.24 Even when the courts conclude that the laptop searches were routine,
they have found reasonable suspicion supporting the search.25 The one exception to
21 (...continued)
390 F.2d 805 (9th Cir. 1967) (holding that strip searches may be conducted only upon a real
suspicion); United States v. Adekunle, 980 F.2d 985 (5th Cir. 1992), on reh’g, 2 F.3d 559
(5th Cir. 1993) (requiring reasonable suspicion to justify a strip search); United States v.
Asbury, 586 F.2d 973, 975-976 (2d Cir. 1978) (requiring reasonable suspicion for strip
searches); Rivas v. United States, 368 F.2d 703 (9th Cir. 1966) (requiring a clear indication
of the possession of narcotics to justify an alimentary canal search).
22 Flores-Montano, 541 U.S. at 152.
23 See, e.g., United States v. Ickes, 393 F.3d 501, 505 (4th Cir. 2005); United States v.
Romm, 455 F.3d 990, 997 (9th Cir. 2006); United States v. Irving, 452 F.3d 110, 123 (2d
Cir. 2006) (“An airport is considered the functional equivalent of a border and thus a search
there may fit within the border search exception”); United States v. Furukawa, No. 06-145,
slip op. (D. Minn., November 16, 2006), 2006 U.S. Dist. LEXIS 83767; United States v.
Hampe, No. 07-3-B-W, slip op. (D. Me., April 18, 2007), 2007 U.S. Dist. LEXIS 29218.
24 See, e.g., Irving, 452 F.3d at 124 (“Because these searches were supported by reasonable
suspicion, we need not determine whether they were routine or non-routine.”); Furukawa,
supra at *1-2 (“[T]he court need not determine whether a border search of a laptop is
‘routine’ for purposes of the Fourth Amendment because, regardless, the magistrate judge
correctly found the customs official had a reasonable suspicion in this case.”).
25 Ickes, 393 F.3d at 507 (noting that the computer search did not begin until the customs
agents found marijuana paraphernalia and child pornography which raised a reasonable
suspicion); Hampe, supra at *4-5 (holding that even though the laptop search did not
implicate any of the serious concerns that would characterize a search as non-routine, the
(continued...)
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this trend is United States v. Arnold, a federal district court case explicitly holding
that reasonable suspicion is required to support a search of laptops and other
electronic storage devices.26 Because laptop border search cases require fact-intensive
analysis, a closer look at the facts of Ickes, Romm, and Arnold and the approaches the
courts used in those cases is warranted to fully understand this issue.
United States v. Ickes. One of the first federal appellate cases to discuss the
border search of laptops is United States v. Ickes.27 In this case, a customs official
searched the defendant’s van near the Canadian border after discovering during a
routine search a videotape that focused excessively on a young ballboy during a
tennis match.28 After a more thorough search, they discovered marijuana
paraphernalia, a photo album containing child pornography, a computer, and several
computer disks.29 Customs officials examined the contents of the computer and disks,
all of which contained additional child pornography.30 The defendant would later file
a motion, which was denied by the trial court, seeking to suppress the contents of the
computer and disks on both First and Fourth Amendment grounds.31
The Fourth Circuit held that the search of the defendant’s computer and disks
did not violate either the First or Fourth Amendment. The court first noted that the
border search exception applied in this case.32 Furthermore, the court rejected the
defendant’s contention that the First Amendment bars the border search exception
from being applied to “expressive” materials, stating that it would “create a sanctuary
for all expressive materials — including terrorist plans” and that a First Amendment
exception would cause an excessive amount of administrative difficulties for those
who would have to enforce it.33 The court concluded by indicating that, even though
searches of computers and disks fall under the border search exception, “[a]s a
practical matter, computer searches are most likely to occur where — as here — the
traveler’s conduct or the presence of other items in his possession suggest the need
to search further,” indicating that such searches will typically only occur if supported
by reasonable suspicion.34
25 (...continued)
peculiar facts of the case gave rise to reasonable suspicions).
26 454 F. Supp. 2d 999, 1000-1001 (C.D. Cal. 2006).
27 393 F.3d 501 (4th Cir. 2005).
28 Id. at 502.
29 Id. at 503.
30 Id.
31 Id.
32 Id. at 505.
33 Id. at 506.
34 Id. at 507.
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United States v. Romm. The Ninth Circuit has also addressed this issue in
United States v. Romm.35 The defendant had arrived at an airport in British Columbia
when his laptop was searched after the Canadian customs agent discovered the
defendant had a criminal history.36 After discovering child pornography sites in the
laptop’s “internet history,” the defendant was denied entry into Canada and flown to
a Seattle airport.37 After the Canadian authorities informed Immigration and Customs
Enforcement (ICE) of the contents of the defendant’s laptop, ICE detained the
defendant when he arrived in Seattle, who then agreed to allow ICE agents to
examine his laptop.38 ICE agents used a forensic analysis which recovered deleted
child pornography from the laptop. Before trial, the trial court denied defendant’s
motion to suppress the evidence obtained from his laptop.39
The Ninth Circuit held that the forensic analysis used by the ICE agents fell
under the border search exception.40 First, the court noted that airport terminals were
“the functional equivalents” of a border, allowing customs agents to conduct routine
border searches of deplaning passengers.41 The court then proceeded to classify the
search of the defendant’s laptop as “routine.”42 However, the court did so only after
declining on procedural grounds to consider the defendant’s contention that the
search’s intrusion upon his First Amendment interests qualified it as non-routine.43
United States v. Arnold. United States v. Arnold, a district court case arising
from the Ninth Circuit, differs from both Ickes and Romm by explicitly holding that
reasonable suspicion must support a laptop border search. Here, the defendant was
returning from the Philippines when a custom agent chose him for secondary
questioning after he had gone through the customs checkpoint.44 The customs agent
ordered the defendant to “turn on the computer so she could see if it was
functioning.”45 While the defendant’s luggage was being inspected, another customs
agent searched the laptop’s contents and found pictures of nude adult women.46 The
defendant was then detained for several hours while special agents from ICE
35 455 F.3d 990 (9th Cir. 2006).
36 Id. at 994.
37 Id.
38 Id.
39 Id.
40 Id. at 997.
41 Id. at 996.
42 Id. at 997.
43 Id. (declining to consider the issue because arguments not raised by a party in its opening
briefs are deemed waived).
44 454 F. Supp. 2d at 1001.
45 Id.
46 Id.
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conducted a more extensive search of the laptop and discovered material they
believed to be child pornography.47
The court first noted that non-routine searches are intrusions that implicate
dignity and privacy interests.48 The court concluded that since “opening and viewing
confidential computer files implicate dignity and privacy interests,” the search was
non-routine and could be conducted only if justified by reasonable suspicions.49 After
examining the circumstances surrounding the search, the court found that the customs
agent had no justification for turning on the laptop, and thus granted the defendant’s
motion to suppress the evidence procured from the laptop.50
Though Arnold is the first case to formally characterize a laptop border search
as non-routine, it did so only after finding a complete absence of cause to support the
search.51 Therefore, Arnold is distinguishable from Romm because the challenge to
the laptop search in Romm was not properly raised.52 Given the facts in Arnold, there
was nothing found during the search of the defendant’s luggage to raise the requisite
amount of reasonable suspicion to justify searching the defendant’s laptop.53
Possible Future Developments. Currently, Arnold is on appeal before the
Ninth Circuit. If the Ninth Circuit affirms the lower court’s ruling, this could create
a circuit split with the Fourth Circuit irrespective of the fact that the Fourth Circuit
in Ickes did not formally characterize laptop searches as routine and found reasonable
suspicion to support the search.54 Yet, there is an important difference between Ickes
and Arnold: Ickes does not affirmatively require reasonable suspicion to support
laptop searches, and so the door could be left open for random, suspicionless
searches of electronic storage devices. Arnold would foreclose that possibility.
Conclusion
It is difficult to forecast whether federal courts will conclude that laptop border
searches require reasonable suspicion. At first glance, one can argue that there is a
higher expectation of privacy surrounding the contents of laptops than the interior of
a vehicle. Even when a vehicle search involves an onerous and time consuming
inspection of a gasoline tank, the expectation of privacy surrounding the vehicle and
its contents does not appear to be as high as the contents of a laptop, which often
contains private or otherwise privileged information. On the other hand, laptop
searches are not as intrusive as a strip search or body cavity search, where the
47 Id.
48 Id. at 1002. See also United States v. Flores-Montano, 541 U.S. 149, 152 (2004).
49 Id. at 1003.
50 Id. at 1007.
51 Id.
52 455 F.3d at 997.
53 454 F. Supp. 2d at 1007.
54 393 F.3d at 507.
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expectation of privacy is so high, and the search so invasive, that both clearly fall
within the realm of non-routine.55
Another consideration to take into account is the likelihood of illegal materials
being smuggled into the United States through laptops and electronic storage devices.
As stated in Ramsey, “[t]he border search exception is grounded in the recognized
right of the sovereign to control...who and what may enter the country.”56 Laptops
can present a problem to the national interest in controlling what enters the country
because the vast and compact storage capacity of laptops can be used to smuggle
illegal materials. In light of this, routine searches of laptops at the border may be
justified because of the strong government interest in preventing the dissemination
of child pornography and other forms of “obscene” material that are oftentimes
contained in laptops.57 Another justification may be to facilitate searches of laptops
owned by suspected terrorists which may contain information related to a planned
terrorist attack.58 On the other hand, if customs officials can conduct laptop border
searches without the need for reasonable suspicion, they may attempt to conduct
targeted searches based on unconstitutional justifications. If a customs official could
conduct a search without providing cause, it would be difficult to deter ethnic
profiling because the official would not need to explain why he conducted the search.
These concerns illustrate why resolving the issues surrounding laptop border searches
will involve striking a careful balance between national security and individual civil
rights.
Ultimately, the issue will turn on whether the federal courts will consider the
privacy interest implicated in personal information to be higher than the privacy
interest surrounding normal personal effects. Considering the absence of a clear test
to distinguish routine searches from non-routine searches, it is difficult to predict
how the federal circuits will classify laptop searches. The reluctance of the lower
courts to decide this issue arguably can be attributed to the lack of formal guidance
available in distinguishing between the two classes of searches. Laptop searches may
provide the Supreme Court a suitable vehicle in which to delineate the specific
controlling factors that determine whether a search should be classified as either
routine or non-routine.
55 Chase, 503 F.2d 571 (strip searches require reasonable suspicion); Montoya de
Hernandez, 473 U.S. 531 (alimentary canal search justified by reasonable suspicion).
56 Ramsey, 431 U.S. at 611.
57 See New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography does not
enjoy First Amendment protections because the government has a compelling state interest
in preventing the sexual abuse of children and that the distribution of child pornography is
intrinsically related to that state interest).
58 See Ickes, 393 F.3d at 506.