Forensic Border Searches After Carpenter Require Probable Cause and a Warrant

Authors

Christopher I. Pryby, University of Michigan Law School

Abstract

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split over what suspicion the government needs to conduct “forensic” searches that copy data for later inspection. This Note argues that the recent Supreme Court decision in Carpenter v. United States recognized a new balance of privacy rights at the border. Starting in United States v. Jones and continuing through Riley v. California and Carpenter, the Court has developed a theory of data privacy aimed at forestalling the government’s creation of a high-tech panopticon. This new theory, in the context of electronic searches at the border, requires that the balance of government and individual interests be struck in favor of the individual. Probable cause and a warrant, not merely reasonable suspicion, are necessary for a forensic search.

Recommended Citation

Christopher I. Pryby, Forensic Border Searches After Carpenter Require Probable Cause and a Warrant, 118 Mich. L. Rev. 507 (2019).
Available at: https://repository.law.umich.edu/mlr/vol118/iss3/5