When it comes to alleged computer crime at the border, assume that Customs and Border Protection Agents will search and learn exactly what is on the data storage devices of your computer.
Searches and seizures that are not based on probable cause and executed pursuant to a warrant are presumptively unreasonable under the Fourth Amendment. Nonetheless, courts have interpreted the Fourth Amendment to allow certain exceptions to this general rule and have permitted border agents to conduct routine, suspicion-less searches of travelers crossing our nations’ borders, and their belongings, without obtaining a search warrant or establishing probable cause.
However, the same standard does not apply to all border searches. Recently, the 9th Circuit Court of Appeals, which covers states on the West Coast, ruled that border agents must have reasonable suspicion of criminal activity in order to conduct full comprehensive searches of travelers’ laptops and other personal electronic devices. The court reasoned that forensic searches require heightened Fourth Amendment protection because “such a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy and dignity.”
While the Sixth Circuit Federal Court of Appeals in Cincinnati, which covers Michigan, Ohio, Kentucky and Tennessee, has not addressed whether travelers’ laptops may be examined as part of a routine, suspicion-less border search, federal District Courts in Michigan have ruled that border agents must have either reasonable suspicion or probable cause to conduct an off‐site examination of a traveler’s laptop.
For instance, in the Eastern District of Michigan, the District Court held that conducting a search of a traveler’s laptop for computer crime within 24 hours of its seizure at a location away from the border requires reasonable suspicion. But in another case, the court held that permanently seizing a traveler’s laptop at the airport and transporting it hundreds of miles away requires a showing of probable cause. Thus, the passage of time and other accompanying circumstances can transform a reasonable seizure of a traveler’s laptop into an unlawful intrusion.
In recent times, security and searches at our Nation’s borders have understandably taken on greater significance since September 11th and the Boston Marathon Bombings. Thus, if you are entering the United States, you can expect increased scrutiny when clearing customs. If you or a loved one currently faces charges or is under federal investigation as a result of a border search, it is important that you contact an experienced federal criminal defense attorney today, regardless of whether you are in Detroit, Flint, Troy, Kalamazoo, Lansing, Grand Rapids, Monroe, Ann Arbor, or any other Michigan county.