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

attorneys

A border search should involve a border

The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches, i.e. the police randomly kicking in doors and rifling through the contents of homes and businesses. In order to search a person's home, car, briefcase or other possession, such as a laptop, the police need to obtain a search warrant, issued by a judge after a showing of probable cause of some crime.

However, there are exceptions. For instance, if a criminal suspect runs from a jewelry store and darts into a home, the police would not need a warrant to follow. This exception is known as "hot pursuit" or "exigent circumstances." It applies when there is a risk to public safety or when a suspect was followed and potentially could destroy evidence, such as flushing drugs down a toilet.

Few people are ever subject to a search for these reasons, but there is a much larger exception to the Fourth Amendment that millions of people are exposed to every day.

When you enter the U.S., the search that ensues is permissible because of an exception to the Fourth Amendment that is centered in national security.

The federal government is empowered to conduct these searches to protect the nation from such undesirable items as drugs, child pornography or endangered species from entering the country. The Justice Department maintains because the Fourth Amendment does not apply to border searches, there is no such thing as an unreasonable search at the border.

Except, perhaps, when it is not a border search at all.

A Korean man who was traveling from the U.S. to Korea had his laptop seized and the hard drive copied by the Department of Homeland Security (DHS), which suspected the man of selling technology to Iran.

But the court found that imaging his hard drive as he left the county was far from a border search and far from reasonable.

(Continued)

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

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