Martin & Kent, L.L.C. Martin & Kent, L.L.C.

attorneys

A border search should involve a border (continued)

The government maintained that seizing of the laptop in the jetway, imaging the hard drive and then subjecting that hard drive, looking for evidence of its owner selling of technology to Iran, was not subject to Fourth Amendment prohibitions against unreasonable searches because this was a routine "border search," akin to searching a piece of luggage for contraband.

While the seizure occurred at the "border," as the man boarded a plane for Korea, it is hard to reconcile the nature of the search as being routine border search. The court noted that the border extends to include the "functional border," such as those at international airports, but goes on to explain that here, the laptop was not even opened at the airport, and was transported 150 miles away to be imaged and was then returned to the owner.

By imaging the hard drive, DHS created an identical copy of the hard drive, which they could then subject to exhaustive, specialized searches that went far beyond merely visually scanning the file directories and email folders for obvious evidence of criminal activity, which made it less "routine" than merely glancing at the contents of suitcase.

While search was not as exhaustive as a "forensic" search, as it didn't examine "unallocated" space on the drive, looking for deleted files, it recovered thousands of files, documents and jpegs.

An additional problem was the DHS agent had planned the search before the man even arrived in the U.S., so the circumstance that would typically trigger the reasonable suspicion that would justify a search without a warrant did not apply.

Yet, the government argued that the agent had reasonable suspicion based on conduct from four years earlier, combined with speculation that he could be conspiring with others to commit a new crime.

Next time, we look at reasonable suspicion.

Source: uscourts.com, "UNITED STATES OF AMERICA v. JAE SHIK KIM, KARHAM ENG," Crim. Action No. 13-0100 (ABJ), May 8, 2015

No Comments

Leave a comment
Comment Information