As the judge in Kim notes, another question is what is it that the officer must suspect? Because a warrantless search is an exception to the Fourth Amendment, which otherwise demands a judge to issue a search warrant upon a showing of probable cause, the officer must suspect an imminent or ongoing crime. Otherwise, they should visit a judge, show their probable cause and obtain a valid search warrant.
In the Kim case, the problem was there was no reasonable suspicion; because the DHS officer believed that was not necessary in a “border search” and that he could just seize the laptop and search it with no “specific and articulable facts.”
While the “totality of the circumstances” standard allows a virtual everything-but-the-kitchen-sink analysis, the judge here finds it a stretch to allow the government to justify the search based on reasonable suspicion of any ongoing crime.
The one man with whom the suspect had been in contact, was under arrest and not capable of conspiring with Kim to commit any crime. The search of his luggage at the airport produced no contraband that would give rise a reasonable suspicion that he was engaged in criminal activity and that evidence of that activity would be on the laptop.
In addition, the DHS agent had planned the search long before he arrived at the airport, further deflating any claims of immediacy.
The best the government could do was to argue that the man was often a traveler, which would only narrow the potential suspects down to anyone passing through the airport. The court noted that the laptop search was “nothing more than a fishing expedition to discover what Kim might have been up to.”
The court excluded the evidence gathered from the search of the computer because it was neither a “routine” border search, nor a search triggered by reasonable suspicion of immediate criminal behavior.
Source: uscourts.com, “UNITED STATES OF AMERICA v. JAE SHIK KIM, KARHAM ENG,” Crim. Action No. 13-0100 (ABJ), May 8, 2015