§7:02 SUPPRESSING CRIMINAL EVIDENCE 7-2
Supp. 3d 32 (D.C. Cir. 2015), the court suppressed evidence seized from a traveler’s laptop after the owner departed the
activity and had little resemblance to a permissible routine border search. It is unclear if other courts will follow the
reasoning of Cotterman and Jae Shak Kim
a phone one month after it was seized at the border. See United States v. Kolsuz, 185 F. Supp. 3d 843 (E.D. Va. 2016).
The number of border searches has increased exponentially over the past couple of years, According to an article
in The Atlantic Monthly, the pace of searches this year is due to quadruple from 2015, see https://www.theatlantic.com/
technology/archive/2017/04/the-steady-rise-of-digital-border-searches/522723/. A bill has been introduced in Congress
to require a warrant to search electronic devices belonging to American citizens; however, chances of passing are most
likely slim. See http://www.cnn.com/2017/04/04/politics/border-searches-phones-laptops-bill/index.html.
Practice Pointer: Lawyers should use caution when crossing the border
Lawyers crossing the border should take steps to ensure not only their own privacy, but that of their
clients if they are transporting electronic devices. The Electronic Frontier Foundation published an excellent
§7:02 Extended Border Searches
Searches which occur after a border crossing, at some distance from the border, are covered under the extended
border search doctrine. These searches are considered more intrusive than border searches and require reasonable sus-
picion. The government must demonstrate both reasonable certainty that the border was recently crossed and reasonable
United States v. Guzman-Padilla, 573 F.3d
,880 (9th Cir. 2009) (citing United States v. Tilton, 534 F.2d 1363, 1366-67 (9th Cir. 1976)). In Guzman-Padilla,
border patrol agents observed an SUV in a desert area, a mile-and-a-half from the border, and followed it for ten miles
were required for safe travel by campers in the area; and it was traveling at a high rate of speed and an unwavering
trajectory, inconsistent with recreational use of the area. The court also held that the use of the CTTD was reasonable
under the circumstances and did not convert the stop into an arrest.
Courts have given the government a great deal of leeway in extended border searches. In an extreme example, the
court upheld the warrantless search of a truck six days and 300 miles from the border when agents received a tip the
truck was used for smuggling drugs and monitored it until customs agents made the stop. United States v. Martinez,
481 F.2d 214
. 1973). The extended border doctrine has been held to include the search of packages. United
States v. Sahanaja, 430 F.3d 1049 (9th Cir. 2005); United States v. Cardona, 769 F.2d 625 (9th Cir. 1985).
§7:03 Sample Fact Scenario
A border patrol agent is traveling the back-roads, just outside of El Paso, Texas, about eight miles from the U.S. –
Mexican border. He sees a white cargo van, without windows, traveling just below the speed limit. The van’s plates are
stops it to see if it is transporting illegal aliens. The agent checks the driver’s license, which is valid, and asks the driver if
tells him he is going to search it anyway because he suspects the van is carrying people who crossed the border illegally
transport illegal aliens across the border, and he knew of no reason why this van should be on the road, so he stopped it.
he pulled over contained illegal aliens, other than the fact that it was a van traveling near the border. In preparing for