Search of Electronic Devices at the U.S. Border08 Apr 2021
Foreign nationals requesting admission to the United States and indeed, even U.S. citizens, may face additional scrutiny at the United States border. This includes the physical border itself or the functional equivalent of the border such as an international airport, port of entry, or border checkpoint.
At the Murthy Law Firm, we have heard many accounts of foreign nationals being denied admission into the U.S. based on information uncovered by U.S. Customs and Border Protection (CBP) inspectors in cell phones, laptops, or other electronic devices, that ostensibly reveal possible status violations. Many of these accounts are related to unauthorized employment; even seemingly harmless conversations in texts and eMails that mention the word “work” may be perceived by a CBP officer as an admission by a foreign national of having engaged in – or intention to engage in – unauthorized employment.
Government has Broad Authority to Conduct Searches at Borders
The Fourth Amendment of the United States Constitution prohibits unreasonable search and seizure of individuals and their property. To satisfy the Fourth Amendment’s reasonableness requirement, searches and seizures typically require a government official to obtain a warrant based on probable cause prior to conducting a search of an individual or their property. However, there is an exception to this general requirement at the U.S. border, which allows the government to search individuals at the United States border or its functional equivalent (e.g., an international airport) without the need for a warrant or probable cause of wrongdoing.
Types of Searches at the Border
There are two categories of searches that occur at the U.S. border: (1) routine searches and (2) non-routine searches. Routine searches do not require a warrant or probable cause based on the suspicion of wrongdoing. Similarly, no warrant is ordinarily required for non-routine searches at the border, either, but at least some federal courts have held that they do require a level of particularized suspicion of illegal activity.
Routine Searches Can Include Search of Electronic Devices
Routine searches generally include searches of luggage, goods entering the country, and automobiles. Manual searches of electronic items such as cell phones and computers are also included in routine searches. Additionally, a person seeking admission to the United States may be required to submit to a search of her/his/their outer clothing, which may include an examination of the contents of a purse, wallet, or pockets and a canine sniff. While this is ongoing, the individual may be subject to a brief detention.
Non-Routine Searches May Require Suspicion of Illegal Activity
Non-routine border searches are searches that go beyond a limited intrusion to the person seeking admission to the U.S. Non-routine border searches may include prolonged detentions, strip searches, body cavity searches or involuntary x-ray searches. Some federal courts have held that these types of non-routine searches require reasonable suspicion of illegal activity.
People traveling to the United States should understand that anything being brought with them into the country, including electronic devices, may be searched. Foreign nationals who encounter problems at a port of entry are encouraged to schedule a consultation with a Murthy Law Firm attorney who can review the situation and advise accordingly.
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