The Border Search Exception to the Warrant Requirement

You are sitting in O’Hare airport or in a Starbucks in Tucson, Arizona skyping with a friend when an ICE agent approaches you, asks you to produce evidence of your legal presence, and demands that you hand over your laptop and cell phone and give him the passcodes. You refuse. Can he detain you or confiscate your devices? Maybe.

The Supreme Court has long recognized that the “border search exception to the warrant requirement” allows the government to conduct search and seizure in proximity to the international border without reasonable suspicion. United States v. Martinez-Fuerte, 428 U.S. 561-61 (1976). This allows the government to conduct warrantless searches of laptop computers and cell phones at the border without reasonable suspicion of illegal content. United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008). Albeit, an agent must have “reasonable suspicion” (but still not a probable cause warrant) to conduct an extensive forensic search of a laptop. United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013).

The border search exception applies well beyond geographic borders. It applies anywhere within a zone extending 100 miles from such borders and from all ports of entry. See 8 CFR § 287.1 (a). About 2/3 of the US population lives within this zone. Thus, without reasonable suspicion, ICE agents can stop you throughout much of the USA and inquire as to your immigration status. If they do, you would be subject to immediate deportation, without getting the opportunity to go before a judge, unless you can establish your legal presence in the country. See M. Shear & R. Nixon, “New Trump deportation Rules Allow Far More Expulsions,” New York Times (Feb. 21, 2017) (available online at https://www.nytimes.com/2017/02/21/us/politics/dhs-immigration-trump.html).

Arguably, if you were overheard conversing in Spanish or a foreign language unintelligible to the agent (Arabic?) and aggressively objected to the agent’s demands, the agent could determine reasonable suspicion and, on that basis, could confiscate your devices and conduct an extensive forensic search. If you did not have identification establishing legal presence, the agent could detain you until you can provide such proof. Happy travels.