Privacy at the Border: Applying the Border Search Exception to Digital Searches at the United States Border.

• Author: Nowell, Laura

Table of Contents I. Introduction 87 II. Background 88 A. The Single Purpose Container Exception 89 B. The Exigent Circumstances Exception 90 C. The Search Incident to Lawful Arrest Exception 90 D. The Border Search Exception 91 E. Differences Between Forensic and Manual Digital Searches 93 III. The Supreme Court Standard Set in Riley v. California: Digital Searches in Incident to Lawful Arrest 94 IV. Why Riley v. California Should Not be Applied to Digital Border Searches Broadly 96 A. The Ninth and Fourth Circuit Test for Digital Searches at the Border: Manual v. Forensic Digital Searches 96 B. The District Court for the District of Columbia's Application of Riley v. California to Border Search Cases 98 V. The Border Search Exception Should be Applied to Both Physical and Digital Searches at the United States Border 99 A. Applying the Original Intent of the Border Search Exception v. the Original Intent of the Search Incident to Lawful Arrest 100 B. The Exigent Circumstances Exception as an Alternative Justification for Warrantless Digital Searches at the Border 101 C. Case Study: Alasaad v. Duke 102 VI. Conclusion 104 I. INTRODUCTION

In 2016 alone, eighty million people traveled outbound across the United States (1) and seventy-five million people traveled inbound through the United States. (2) As millions of people cross the United States border each year and the relevance of electronic devices for continuous everyday use increases, digital searches at the border become increasingly common. According to United States Customs and Border Protection ("CBP"), CBP Agents searched electronic devices belonging to 14,993 individuals entering or exiting through the United States border out of 189.6 million individuals traveling through the United States in 2017. (3) With the significant increase in the number of digital searches at the border, the need to determine the standard of suspicion required for conducting digital searches by Border Patrol and Transportation Security Administration officers at the border has also exponentially increased. With cases like Alasaad v. Duke in the District of Massachusetts being brought at the district court level against the Department of Homeland Security with the claim of Fourth Amendment violations for the search and seizure of electronic devices at the border without probable cause or a warrant, the discussion at hand in this Note remains at the forefront of current constitutional issues not yet decided by the Supreme Court. (4)

This Note addresses whether the border search exception to the Fourth Amendment should apply to both physical and digital searches at the border. First, Part II will provide a brief general background on the Fourth Amendment's balance between government protection and individual privacy rights and will discuss several exceptions to the Fourth Amendment. Part III will then discuss the standard for a digital search set by the Supreme Court in Riley v. California and will analyze why the Court set a different standard for digital searches than for searches of physical evidence in searches incident to lawful arrest. (5) Part IV will analyze why Riley is not applicable to border searches. Part V will discuss why the border search exception should be applied to both physical and digital searches at the United States border and proposes that the Supreme Court should adopt the Ninth and Fourth Circuit standard, which holds that an examination of the difference between forensic and manual digital searches at the border should be utilized as the factor to determine whether a digital search constitutes an especially intrusive search. Part VI will conclude that by examining manual versus forensic digital searches, the Court will maintain the balance, which the Court first established in Montoya de Hernandez, between the government interest to provide national security, control of the borders, and the individual privacy interest. (6)

2. BACKGROUND

   The Fourth Amendment provides the fundamental right to security and privacy from intrusion by the government by protecting an individual's security in their person and their belongings through prohibiting unreasonable searches and seizures. (7) Two separate clauses comprise the Fourth Amendment: the reasonableness clause and the warrant clause. (8) While the reasonableness clause requires that a search and seizure be reasonable, the warrant clause requires probable cause in order for a warrant to be granted. (9) The warrant must meet the particularity requirement by being supported with a particularized description of "the place to be searched" and the "people or things to be seized." (10)

   Although a warrant is required to search a person or their property, the Supreme Court has upheld several exceptions that allow for a warrantless search and seizure under the Fourth Amendment. (11) The Court has established exceptions to the Fourth Amendment right because the Court has consistently held that the interest of the government must be balanced with the protection of an individual's privacy. (12) The Supreme Court established the Fourth Amendment balancing test known as the special needs doctrine in Terry v. Ohio and held that "a search is Constitutional where the government's interest in preventing crime outweighs the individual's interest in privacy." (13) The special needs doctrine is an exception to the Fourth Amendment, where the Court gives the government interest a "boost" in overcoming the interest of individual privacy rights in the balancing test. (14) In 2009, the Supreme Court continued to emphasize the importance of balancing these two interests by holding in United States v. Villamonte-Marquez that the search must be judged by "balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." (15)

   1. The Single Purpose Container Exception

      The single purpose container exception, which allows a warrantless search of an item because the container's use is clear prior to search, is a key exception to the warrant requirement that falls within the larger category of the plain view exception. (16) Under the plain view exception, if the contents of the container are in plain view and known prior to search, there is a lowered expectation of privacy. (17) The warrantless search of the container is permissible if the container is so "distinctive that its contents are a foregone conclusion," and the contents are therefore considered to be in plain view. (18) A circuit split exists regarding how the determination of the single purpose container should be made. (19) While the Ninth and Tenth Circuits have consistently held that an objective viewpoint should be applied, the Fourth and Seventh Circuits have held that a subjective viewpoint should be applied. (20)

      The Ninth and Tenth Circuits hold that the "objective viewpoint of a reasonable person" should be utilized to determine if the item subject to search constitutes a single purpose container. (21) In United States v. Miller, the Ninth Circuit held that neither the circumstances of the discovery of the evidence nor the expertise of the officer who discovered the evidence should be utilized to determine if the item constitutes a single purpose container. (22) In Miller, the Ninth Circuit held that the DEA agents, who conducted a warrantless search of a bag that was not transparent and lacked a distinctive shape and odor, conducted a search in violation of the defendant's Fourth Amendment right because the container was not so "distinctive that its contents" of a controlled substance were not a "foregone conclusion." (23) The Tenth Circuit, in United States v. Bonitz, declined to expand the single-purpose container exception to include "qualities independent of the container surrounding the search," because the court feared that extending the exception to these circumstances "would permit officers to conduct a 'warrantless search of any container found in the vicinity of a suspicious item.'" (24) However, the Fourth Circuit held that the officer's subjective viewpoint should be utilized, and the officer should account for the container's surrounding circumstances. (25) The Fourth Circuit in United States v. Williams held that the subjective viewpoint should be applied because "the circumstances under which an officer finds the container may add to the apparent nature of its contents." (26)

   2. The Exigent Circumstances Exception

      In addition, there is an exigent circumstance exception to the Fourth Amendment, which allows a warrantless search and seizure to be conducted when both a time pressure exists and the evidence is at risk of being lost or destroyed. (27) In Riley v. California, the Supreme Court held that "police cannot search information on an arrestee's cell phone without a warrant, unless exigent circumstances exist at the time of the arrest" and that the "exigency must 'make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.'" (28) According to the Court, "exigency is both situational and environmentally influenced" based on "reasonableness, present needs, and existing facts." (29) The Supreme Court defined the standard required for exigent circumstances in Brigham City v. Stuart as requiring the officer to possess an objectively reasonable basis to believe that "someone was seriously injured or imminently threatened with such injury." (30)

   3. The Search Incident to Lawful Arrest Exception

      The search incident to lawful arrest creates a balancing test between the "reasonableness of a warrantless search, with the basic rule that 'searches 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.'" (31) The Supreme Court established the search incident to...