First Circuit: Warrant or Reasonable Suspicion Not Needed for Basic Border Searches of Electronic Devices
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
Plaintiffs, ten U.S. citizens and one lawful permanent resident, brought suit against the Secretary of the U.S. Department of Homeland Security (DHS) Kirstjen Nielsen, Acting Commissioner of the U.S. Customs and Border Protection (CBP) Kevin McAleenan, and Acting Director of U.S. Immigration and Customs Enforcement (ICE) Thomas Homan, alleging that certain CBP and ICE policies and practices violated their Fourth Amendment rights.
The CBP policy is Directive No. 3340-049A, Border Search of Electronic Devices (2018). The CBP policy “provide[s] guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in … mobile phones … and any other communication, electronic, or digital devices … to ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce and administer.” The policy allows officers to “detain electronic devices … for a brief, reasonable period of time to perform a thorough border search.” The policy does not address CBP’s authority to search electronic devices with a warrant, consent, or in response to exigent circumstances.
Under CBP’s policy, an “advanced search” is “any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.” A “basic search” is any non-advanced search and may be performed “with or without suspicion.” For both searches, the CBP policy only allows officers to search “information that is resident upon the device,” and devices must be disconnected from the internet before the search.
The ICE policy is Directive No. 7-6.1, Border Searches of Electronic Devices (2009), as superseded in part by Immigration and Customs Enforcement Broadcast: Legal Update – Border Search of Electronic Devices (2018), together referred to as “ICE policy.” The ICE policy governs ICE’s searches of electronic devices at the border “to ensure compliance with customs, immigration, and other laws enforced by ICE.” The policy allows for suspicionless basic searches, but states that ICE agents “should no longer perform advanced border searches of electronic devices without reasonable suspicion.” The policy also allows agents to detain electronic devices for a “reasonable time given the facts and circumstances of the particular search.”
Each of the Plaintiffs claimed that CBP or ICE officers searched his or her electronic devices on more than one occasion. They filed suit in district court on September 13, 2017, before the effective date of the challenged policies, and alleged that CBP and ICE violated their Fourth and First Amendments by performing various types of searches of electronic devices without warrants, and violated their Fourth Amendments rights also by retaining their electronic devices for extended periods of time absent probable cause. The Plaintiffs sought declaratory and injunctive relief, including expungement of “all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices.”
Both parties filed cross-motions for summary judgment, and the district court granted in part and denied in part the Plaintiffs’ motion. The district court denied outright the government’s motion. With respect to the Fourth Amendment claims, the district court held that the basic and advanced searches are “non-routine” searches, and both required reasonable suspicion. Thus, the court found that the basic search component of the policies violated the Fourth Amendment.
As to the scope of the basic and advanced searches, the court found two different constitutional violations. First, it found that the border search exception is premised on the government’s interest in stopping contraband in the devices themselves, and because these policies did not restrict agents to searches for contraband in the devices, they were unconstitutional. Second, the court found that the ICE and CBP officers could only detain the devices based on reasonable suspicion for a “reasonable period that allows for an investigatory search for contraband.”
The district court granted declaratory relief, but declined to grant broad injunctive relief, only enjoining the government from searching or detaining any of the Plaintiffs’ electronic devices absent reasonable suspicion of contraband, and from detaining their devices for longer than a reasonable period. The district court also declined Plaintiffs’ request for expungement. The Plaintiffs and government cross-appealed the decision to the U.S. Court of Appeals for the First Circuit.
The court of appeals first reviewed the Plaintiff’s Fourth Amendment claims, particularly their argument that all electronic device searches at the border require a warrant, or alternatively, reasonable suspicion that the device contains contraband.
The court noted that in the absence of a warrant, a search is reasonable only if it falls within a specific exception, and one such exception is the border search exception. The court stated that the expectation of privacy is “less at the border than in the interior.” The Plaintiffs relied on Riley v. California to contend that the border search warrant exception does not encompass the search of electronic devices. The court disagreed with the Plaintiffs’ reading of Riley, stating that Riley did not create or suggest a categorical rule to the effect that the government must always secure a warrant before accessing the contents of an electronic device.
In Riley, the Supreme Court simply held the search incident to arrest exception to the warrant requirement did not extent to searches of cellphones. The court of appeals stated that this holding does not apply to border searches, which is entirely separate from the search incident to arrest in Riley. Moreover, the court stated that every circuit that has addressed Riley’s application to border searches has agreed that Riley does not mandate a warrant requirement for border searches of electronic devices. Ultimately, the court agreed with its sister circuits and held that a warrant is not required for a border search of electronic devices.
The court next explained that under its precedent, officers may perform “routine” searches at the border without reasonable suspicion, and only certain “non-routine” searches must be grounded on reasonable suspicion. It then stated that determining whether a border search is routine or non-routine depends on an assessment of the facts of the case.
Here, the Plaintiffs argued that because electronic devices contain sensitive personal information, basic border searches of electronic devices are non-routine searches that require at least reasonable suspicion. The court stated that these privacy concerns are “tempered” by the fact that the searches at issue are occurring at the border, where the government has significant interest in preventing the entry of unwanted persons and effects.
The court admitted that “[e]lectronic device searches do not fit neatly into other categories of property searches.” Yet, it found that basic border searches of electronic devices do not involve an intrusive search of a person. The court noted, and agreed with, the holdings of the Ninth and Eleventh circuits that basic border searches are routine searches and need not be supported by reasonable suspicion.
The court of appeals next considered the Plaintiffs’ argument that border searches of electronic devices be limited to searches for contraband. The court stated that the Supreme Court has “repeatedly” held that routine searches “are reasonable simply by virtue of the fact that they occur at the border,” and the government’s interest in preventing crime at its borders yields that a search for evidence of either contraband or a cross-border crime furthers the purpose of the border search warrant exception.
As for advanced searches, the court stated that the border search exception serves to bar entry to those who bring anything harmful into the country, not just contraband. In doing so, the court of appeals disagreed with the Ninth Circuit, which has held that the border search exception is restricted in scope to searches for contraband. The court of appeals held that advanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or evidence of activity in violation of the laws enforced or administered by CBP or ICE. Still, the court of appeals noted that Congress better suited to identify the harms that threaten the country at the border.
The court of appeals also weighed the Plaintiffs’ argument that the CBP and ICE policies violate the Fourth Amendment because they do not impose an effective limit on duration of electronic device detention. The court described the nature of the Plaintiff’s argument “unclear” and “abstract,” stating that the policies clearly permit detention for only a “reasonable period,” which is the constitutional test. To the extent the Plaintiffs were arguing that hard time limits be set, the court said the Supreme Court has already rejected this proposition.
In addition to these arguments, the court also found that the Plaintiffs’ First Amendment argument, that warrantless or suspicionless border searches would impermissibly chill speech, failed.
The court of appeals remanded the case for the entry of a revised judgment consistent with its opinion.
Read the full case: Alasaad v. Mayorkas
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