FOURTH AMENDMENT - BORDER SEARCH EXCEPTION -FIRST CIRCUIT UPHOLDS WARRANTLESS, SUSPICIONLESS SEARCHES OF ELECTRONIC DEVICES AT THE BORDER.

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Date: Mar. 2022
From: Harvard Law Review(Vol. 135, Issue 5)
Publisher: Harvard Law Review Association
Document Type: Case note
Length: 4,136 words
Lexile Measure: 2030L

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FOURTH AMENDMENT--BORDER SEARCH EXCEPTION--FIRST CIRCUIT UPHOLDS WARRANTLESS, SUSPICIONLESS SEARCHES OF ELECTRONIC DEVICES AT THE BORDER.--Alasaad v. Mayorkas, 988 F.3d 8 (1st Cir. 2021).

Electronic-device searches at the border (1) have increased sharply in recent years. (2) Such searches require neither a warrant nor probable cause due to the long-recognized exemption of routine border searches from the Fourth Amendment's traditional requirements. (3) The Supreme court has not yet considered the application of the border search exception to electronic devices, (4) and lower courts have split over the level of suspicion required for certain device searches. (5) Recently, in Alasaad v. Mayorkas, (6) the First Circuit upheld the constitutionality of performing "basic" (7) device searches at the border without suspicion and created another circuit split by broadening the scope of the border search exception beyond the interdiction of contraband. (8) In doing so, the court not only missed an opportunity to recognize that "basic" device searches should be considered nonroutine, but also overstated the governmental interests in the border search context, resulting in an interpretation of the Fourth Amendment that threatens individuals' privacy interests at the border.

In July 2017, U.S. citizens Ghassan and Nadia Alasaad were driving home from a vacation in Canada when U.S. Customs and Border Protection (CBP) pulled them aside at a border checkpoint. (9) Officers detained the Alasaad family for six hours. (10) They manually searched Mr. Alasaad's unlocked phone and ordered Ms. Alasaad to provide the password to her locked phone. (11) Ms. Alasaad objected--relenting only after an officer said her phone would be confiscated otherwise. (12) When Mr. Alasaad asked why they were being detained and searched, a supervisor responded that "he had simply felt like ordering a secondary inspection." (13) Later faced with the choice of departing without their phones or waiting several more hours with their daughter, who was ill, the Alasaads chose to leave. (14) Their phones were returned fifteen days later with some media files missing. (15)

Border searches are primarily the responsibility of CBP and U.S. Immigration and Customs Enforcement (ICE). (16) Both CBP and ICE distinguish between "basic" and "advanced" searches of electronic devices: the latter involve the use of external equipment, while the former cover all other searches. (17) Under the agencies' policies, neither type of search requires a warrant: "advanced" searches require reasonable suspicion, and "basic" searches do not require any showing of cause. (18)

The Alasaads and nine other travelers (19) filed suit in the U.S. District Court for the District of Massachusetts, challenging the constitutionality of their searches and CBP's and ICE's search policies on Fourth Amendment and First Amendment grounds. (20) Judge Casper denied the government's motion for summary judgment, holding that the agencies' policies violated the Fourth Amendment to the extent that the searches did not require reasonable suspicion of contraband. (21) She acknowledged that the long-standing border search exception recognizes that the government's "interest in preventing the entry of unwanted persons and effects is at its zenith" at the border, (22) based...

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Gale Document Number: GALE|A697327421