Constitutionality of Search and Seizure of Electronic Devices at the Boarder, without a Warrant - Research Paper Example

The Constitutionality of Search and Seizure of Electronic Devices at the Boarder, without a Warrant. Specifically, relating the Current Federal Judges Ruling in New York. Author’s Name Institutional Affiliation Abstract Thousands of people have been searched in persons and their personal effects at the borders of the United States, Regardless of whether they are residents or foreigners they have had to undergo this custom and immigration practice at the airport entries, borders on land and waterways entry points to the interior of U.S. Unlike border entry points to other countries, this has been the norm of United States at the border. A good number of individuals and their electronic devices have been detained since the practice began and accused in courts based on hard evidence found to violate the U.S law. An example is United States v Howard Cotterman case. This document focuses on the fourth amendment and how it is interpreted at the federal courts. The decisions held at the higher courts give more weight to warrantless searches of electronic devices at the border with or without reasonable basis over privacy and rights of individuals. It is hence in conflict with the fourth amendments on the basis of ensuring national security. Keywords: Fourth Amendments, Privacy, Individual Rights, Cases, Decisions, Warrantless Search and Seizure, Reasonable Suspicion, Reasonable Time, Electronic Devices, Border, Law, Supreme Court, Ninth Circuit Courts, Introduction U.S.A and many other governments have made huge progress to ensure their national security and public safety. Since the 9/11 incident in U.S and subsequent terrorist attacks in the western countries, least to mention the developing and emerging countries, especially those targeting the U.S embassies, the war on terror and countries’ interest to protect their domestic security has intensified. Insecurity and terrorist attacks have led to massive destruction across the globe; U.S.A herself is a victim of these invasions that led to massive deaths of innocent people and loss of millions of dollars investments. As the technology increases, people have becomes more knowledgeable. It has brought benefits to the society, but its strengths and wide use has also been exploited by criminals to execute attacks and violence against other parties. It is no longer just a measure to search for explosive devices and harmful gadgets within the nation, but stretches further to search for information and data that could be used to further crimes within U.S.A. Initially, it was a war of drugs that seem to have begun this trend of warrantless searches, with the aim of preventing widespread use and illegal smuggling of drugs into US soil. Then there came the video surveillance along the streets, highways, and into the private and public buildings. However, since the terrorist attacks on the public transit system that occurred in London and the likes of Spain and Madrid before 2006, caused the leaders in several states to rethink their strategy in protecting the U.S society: part of reinforcing on the security measures and procedures included the possible random searches on suspicions, on the travelers who used the established vulnerable transit systems (cars, trains, buses) (TCRP, 2005). A large number of police forces, local and federal on the border patrol took new responsibilities to search through the transit system and people’s personal belongings to what came to be regarded as a security measure. It began with few states through the municipal authorities but has spread across the United States. The New York City and Washington D.C were the first two states to initiates such warrantless inspections on private and public properties as a counterterrorism measure (Alphran, n.d.). It became the norm of the nation through the police force to conduct even searches on the electronic devices users travel with into the United States. The laptops and cell phones among other electronic gadgets that store and data and information, have since been subject to custom officials’ search and seizure at the border checkpoints. This activity has raised concerns with the society, but the practice has been upheld in most cases, which clashes with the U.S citizens and travelers’ interest. Clear statement of the constitutional issue The search and seizure of electronic devices at the U.S borders has been a debatable issue in the public domain regarding individuals’ rights and privacy. However, the electronic gadgets have in the past been used as instruments of crimes; and due to their ability, criminals or unconscious travelers’ devices could be disguised or holding information relevant to security concerns. The fourth amendment of the U.S constitution on search and seizure declares that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the per-sons or things to be seized” (n.d, p. 1199). He law clearly intended to protect its citizen’s rights on privacy issues and against the insecurity they would face from the law enforcements. However, government/ national interests on security takes the center stage in this issue and the individuals’ privacy and interest are outweighed. The successive cases on this issue have led to courts creating room for exceptional cases during the interpretation, with more inclinations to support the administrative searches. Breaking down the statement reveals different perception previously held, than those applied today. Search and seizure have existed in USA since long ago and Border searches require examination of the persons and their property entering into U.S. Just like luggage, laptops and other electronic devices are owned properties liable to inspection. In terms of the law, search is addressed as violation of reasonable expectation of an individual’s privacy by the government. Typically, the original aspect of it requires that the law enforcement acquire search warrants on the property of the suspect for probable cause, interpreted by the courts to have a reasonable basis that acts of crime exist. The issue touches on the security of citizens’ rights and liberties as required by the United States constitution. The rights and freedoms originates from the constitution, but the same makes exclusion for the administrative search teams and police on checkpoints/ border vicinity to conduct their security measures on the people and their property. Federal statute relating to immigration law It is now the norm of administrative officers to conduct search practices on foreigners or U.S citizens entering into the nation, regardless of one’s belief or what they hold dear from where they come from. It is a concern to the society of whether their actions are legally supported or whether it is an implied duty for security reasons. Unfortunately, the border search is authorized and an exception of the requirement of the issue of a warrant for a search. It was adopted by the U.S criminal law as an exemption of the 14th amendment clause of the constitution to ensure travelers across the border receive quality examination against any harm or potential for harm in the U.S. The federal immigration law has been the central player enabled by the congress to control the entry of aliens and movement of residents across the border. First, under the section 287 of Immigration and Nationality Act (INA), immigration offices are given authority to question, search even their personal effects and detain persons either at the border or at the interior without a warrant (Kim, 2009, p. 3). Students may argue to what extent are these powers granted and from whom? The congress has been given powers by the United States’ constitution to control commerce across the U.S border. The federal government exercises control over foreign affairs in U.S and under Article 1, section 8 and clause 3, the congress has been given powers to not only control commerce between interstates but also with foreign nations (Forte, n.d.). This sovereignty is line to stop smuggling activities of smuggling or entry of any illegal objects. The center issue while considering both the terms ‘probable cause’ in fourth amendment and the congressional powers in economic issues sets in a tradeoff and the degree of what is reasonable. The border search exception is permissible based on congressional powers for any individuals and their effects using the international border. The federal code makes it clear only to specific officials the powers are vested. According to INA in 8 U.S.C part 1357 (c), the federal law states that “[a]ny officer or employee of the Service . . . shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search” (Adams, n.d., p. 356). However with the evolution of Department of Homeland Security (DHS), what INA regards as immigration officers has been replaced by a specification of government agents. In 8 sections 287.5 of C.F.R, the immigration enforcement and border patrol agents, immigration inspectors, deportation agents among others are given powers to conduct searches. People are expected to comply with the border law submitting their possessions for search and approval for the admission into the United States. Using the power vested by the congress, immigration officials’ authority to routinely search on travelers’ effects extends to any electronic devices they carry with them. For example, an alien business woman entering in U.S has her handbag, packages and any sort of merchandise including her, searched. What difference does it make for a businessman carrying two suitcases, one with clothes and the other with a laptop? Is one a language while the other is not? The law requires for persons and their personal effects, hence ant item one carries across the international borders is subject to search, where evidence of insecurity exists may be detained and same case applies where individuals resists search of their items. No personal effect is exempted. The officers in charge of border search can conduct the activities at a specific distance from the international border. Border patrols can stop automobiles and travelling vessels within the vicinity of the border patrol either on land or seaways to search and seize if need be to prevent illegal entry of any aliens or articles. The immigration law mentions of reasonable distance from which warrantless searches could occur. According to 8 U.S.C section 1357 (a) (3), the law gives immigration officers powers to board and conduct search for aliens vessels provided its within the territorial waters of U.S and on rails, roads or on air for railcars, vehicles and aircrafts; where its specifies 25 miles as a reasonable distance from the external boundaries of the U.S.A. This provides the patrol officers across the border to have sufficient inspection and enforce security even from a distance into the U.S and eliminate cases of illegitimacy that may have slipped away by luck. According to 8 C.F.R 287.1 (a) (2), reasonable distance may be fixed by district directors but upon consideration of the topography, population and transportation factors among others relevant information; otherwise it applies to hundred air miles from the U.S external boundary. Contrary to the exemption society may require, the law does not place any specific limitations on the officials’ powers to make warrantless interrogations, searches and detention of the aliens and their electronic devices or personal effects. Custom laws and regulation The custom agents have also been mandated by through the custom laws, without warrant or existence of some or any suspicion to conduct investigations on vessels arriving into the United States. The regulation in 8 U.S.C 1467 states that upon entry of a vessel into the U. S territory “the appropriate customs officer for such port or place of arrival may under such regulations as….. authorized to enforce, cause inspection, examination, and search to be made of the persons, baggage, and merchandise discharged or unladen from such vessel, whether or not any or all such persons, baggage, or merchandise has previously been inspected, examined, or searched by officers of the customs” The custom and border protection (CBP) officials play a critical role here to ensure the entrants and material crossing into U.S complies with the customs of the U.S and national border security. The searches are CBP long standing practice where “officers may examine documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives, and other electronic or digital storage devices” for purposes of ensuring domestic safety (2008, p. 1). It is their policy to ensure they respect protect the rights of individuals while executing their search function, which requires protection of privacy conducting of searches or seizure of the properties based on reasonable factors. They have developed their policy to guide their border search of information, though it does not restrict the CBP’s power to carry out other lawful searches on the electronic possessions of individuals. Reviewing on the procedure they set out to follow, an authorized officer is approved to examine the electronic devices, review and analyze the information realized at the border based on the requirement of the policy, and the require the presence of the supervisor and the owner of the electronic device among other alternatives (C.B.P directives, 2009, p. 3). Upon detaining of the electronic device where an issue of concern arises, meticulous inspections could occur and may take reasonable time even if it means offsite the border search location. Conflicting decisions at courts in different states over border search for electronic devices All the states at the geographical position next to the borders in USA are affected by the border searches in one way or the other. Thousands of people using different transit systems into the U.S have had to go through the process before entering. Several cases for individuals who felt violated and dissatisfied by the conduct have forwarded their complaints to relevant authorities and numerous lawsuits have ended with government or law enforcement support at border. A number of cases have been decided in the district courts have been reversed at the higher courts in the States. Referring to Stellin, the federal courts of appeal on the higher rank have brought more impact on issues through its stands and decisions they make than the District courts; states (like Oregon, Hawaii, Arizona, California and Alaska among others) covered by the Ninth Circuit apply their decisions (2013). The fourth amendment is what most states courts rely on, but upon entry of issues in border search, the courts consider it reasonable in the context of the amendment. United States v. Cotterman The case has been selected to review the courts decisions and their arising differences in reference to technological devices and portable information assessment at the border. The case involved the United States as the plaintiff and defendant Howard Cotterman over an incident that initiated at the border search. The case has been assessed in three courts since it began from the district court of Arizona, the ninth circuit court and finally the supreme court of United States before it was finally settled. According Civil, Howard and his wife were driving back home into the United States in 2007, from Mexico through Lukeville into Arizona when border agents in their normal duty conducted inspection of the persons and their personal effects (2013). Howard had his laptop with him but during search, TECS (Treasury Enforcement Communication System) an investigative tool enabled by the DHS confirmed some earlier allegations of Howard on issues to do with sexual offences. For the border security reasons, it raised a concern which required the custom and immigration agents to come in. Though Howards and his wife were cleared and left, their computer was detained for thorough forensic investigations. Looking through into Howard’s past, he had been accused on several counts including child molestation, lewd conducts on a minor and potential for involvement in minor’s sex tourism, which all related to issues of child pornography and exploitation. The forensic tests revealed hundreds of images of child pornography on the password protected files from Howard’s computer, least the evidence of stories and videos supporting the allegation of pornographic depictions of minors (Civil 2013). When the case was brought before the District court of Arizona, the defendant was charged with several offenses addressing child pornography based on the hard evidence gathered from the forensic search. However, Howard moved to suppress the evidence, where the magistrate ruled in favor of Howard’s motion, arguing that forensic examination required reasonable suspicion, which on the case’s facts of existing password protected files in defendant’s laptops and revelation of sexual offences by TECS did not alone in the context support reasonable suspicion of criminality (United States v. Cotterman, 2013). The court conclusion was the evidence gathered was based on the extended border search, which required reasonable suspicion to support it. The factor of reasonable suspicion was challenged in the circuit courts upon the government appeal of the previous decision. The federal law in its statutes requires no suspicions for search and seizure at the border. It is a normal routine. The main facts established right from the District court trials was that the government had actually reasonable suspicion in Cotteman’s search and seizure of his electronic devices. It was then for the court of appeal to determine whether law enforcement had granted authority to forensically examine the electronic devices in the custody of the government, based on search without reasonable suspicions (United States v. Cotterman, 2013). The panel investigating into the issue in court concluded that no level of suspicion was required for officers to search, and upon rehearing by the whole panel of judges, the government was found to have acted in reasonable suspicion for Cotterman’s case. The same query addressed here apply to the Abidor v Napolitano on the confiscation of electronic devices, some held for long periods, interfering with personal life, people’s work and confidentiality in communicating their work and source of information/data for the press workers. The ruling by the federal judge in New York was in line with the federal law and federal Ninth circuit courts that require no probable cause to search and seize. This was in consideration to the earlier allegations of sex offence and implied that he could face trials for the charges based on the approved evidence obtained from the forensic investigations. Furthermore, based on the federal policy, the authorized investigating officer could search the detained cameras and laptops from Cotterman either onsite or offsite for reasonable time. Forensic investigation of his computers was one way that brought into play the requirement and existence of reasonable suspicion. The two courts demonstrate conflicting decisions, which continue to impede progress in border protection and protection of individuals’ privacy, especially when it comes to their essence of digital life. The society, law enforcement agencies and judicial officers need a clear direction of the overriding legislatures for these two issues. It was expected that the two parties would file their complaints once again with highest supreme court, which would provide clear indication in future enforcement and development of the law. Earlier case of United States v Montoya De Hernandez The case here focused on rights and detention of a drug smuggler across the United States. Montoya was smuggling drugs into Los Angeles when the custom officials detained he at LA international airport only to confirm the existence of drugs after rectal examinations were conducted on her (United States v Montoya Hernandez, 1985). The district court charges her with federal narcotic offences based on the evidence of Cocaine, but the court of appeal reversed the court decision reefing to Fourth Amendment. Contrary to the modern court of appeal decisions, the ninth circuit held that the defendants 4th amendment’s rights were violated and was subjected to unreasonable search and detention. When the case was appealed to the Supreme Court, it held that “the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal; here, the facts, and their rational inferences, known to the customs officials clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler” (United States v Montoya De Hernandez, 1985). She had made frequent trips to the United States, made no reservation and had noticeable suspicious configuration of her body, especially at the abdomen before even proving further after the search procedures. Supreme Court reversed previous ruling and indicated the custom agents had reasonable suspicion for Montoya involvement in smuggling. First of all, the drug smuggling in her alimentary canal could not be detected with short time, and the fact that she choose to smuggle the drugs through the body method determined the detention period she took to confirm their presence (U.S v Montoya, 1985). Over time, the Supreme Court of the United States has supported that routine searches on individual and their effects (inclusive electronic devices and information) at the nation’s entrance do not require a warrant not a reasonable suspicion. According to Lippman, the Supreme Court even went ahead to justify detention of individuals at the U.S entry points past the normal routine customs’ search and inspections (2011, p. 254). It is of its nature that the application of reasonable searches and seizure at the border search, qualitatively vary in consideration to the national security over the protection in the forth amendment. Proposed solutions and social policy implication. There is a need to address the reasonable time clearly in detaining of electronic devices. The law clearly defines what is the reasonable distance from which border search can be conducted, but fails to identify the timing period for detainment and though investigation of the Gadgets. There is lacking clear timeframe for this, which causes dissatisfaction with the society or the individuals in possession of the devices. For example, in the case of David House v Napolitano, David’s laptop was confiscated and detained for 48 days, before it was mailed to him upon immediate request; this returning period was contrary to the specified period of within one week as indicated by the federal agents who had taken custody of them (Casper J, 2012, p.7). There is great reluctance to return the detained devices to the owners within the shortest reasonable period. These devices are their tools of work and most determine most content held determine what direction they take next in work. In fact, without them is equal to work postponement. And the further the delay would result to further loss on the owner’s part. Some searches take hours or less than a week depending on the magnitude of the investigation. It is advisable for the ICE and the CBP to set policies enabled by the congress on an upper limit of period to be taken for thorough search like forensic investigation rather than just stating reasonable time. In this case, if search on seized electronic device at the border or point of entry into the U.S would take say 3 days, another 3weeks and other two months, while the maximum set is 40 days, the law/ court would have to bear the consequences or answer, specifically in cases where no threat or alien articles were found. As part of the law of the land, and considering it has been interpreted and embraced by the Supreme Court above all other courts to consider the interest of national security, the law makers need to push for a concrete time frame for these seizures and searches. Roles of inspecting agencies and owners in dealing with data and information in electronic device Some devices host a lot of information and probably lasting from a long period which the owners cannot even accurately remember. Recalling House’s case once again, ICE returned the confiscated electronic devices but never disclosed on search information as requested. According to Casper, the federal agency failed to mention “whether any information derived from those devices had been copied, what agencies or individuals were given copies that were made, or whether any such copies had been destroyed” (2012, p.7). The CBP and ICE policies require that upon completion of search records be destroyed. However, it would serve right to indicate the copied files and especially to whom, least destruction though it’s even a necessity, for the sake of tracing any leakage of confidential information regarding the persons and authorities concerned. Owners can also be able to confirm the compliance of their original data and look through for any manipulations. The past experiences of the court hearings and final decisions prove that electronic devices are not an exception to border inspections. Hence, the travelers have a role to play on their part ensuring that data and information they hold in their electronic gadgets are secure from unlawful engagements and most of all secure from future loss in case. It is their best interest to have data and information backups in case of damage or untraceable manipulations. The reason is limit the time they have to raise costly complaints while they can recover their date and information within a short method. Revision of law to define the level of reasonable suspicion Due to the conflicting decisions made at the courts, there is a concern as to whether individuals have rights as they enter into the United States within the airports, borders and extensive distance into the land and seaways subject to border patrol. Technology has not come to erode the personal privacy and rights in relation to the law, but the law can be revised to address both parties’(individuals rights and liberty and federal interest of national security) concerned amicably. This would minimize the chances of district courts and higher authority courts (like courts of appeal) from having differing decisions. If the stand is no need of reasonable suspicion or a probable cause and warrants, it should then be applied across all federal courts as clearly specified in the U.S Supreme Court decision or U.S legislature. Failure to which the existing law and courts decisions would continue to raise issues on reasonable suspicion, the level is required to conduct search and seizure and extended border search Most cases have been ruled based on suspicionless searches at the border. However, during Cotterman’s case when the panel in the ninth circuit reviewed the case, though his border inspection was taken to be part of the routine border search, the court raised concern when it again held the fact that in some circumstances, border search could require reasonable suspicion (a particularized basis) (“EDNY,” 2013). What then are these circumstances and how can they be defined to be subject to reasonable suspicions? Under this circumstances, the department of Homeland security would have to amend the CBP and ICE policies to explicitly require reasonable suspicions of potential crimes and threats to United States, specifically before comprehensive searches like forensic investigation on seized electronic devices (“Suspicionless border” 2011, p.2). The new policies and revised law would eliminate the accusations of federal government on violation of privacy and individuals rights as stipulated in the fourth Amendment. Conclusion Until now, the Supreme Court directive on border searches enforce that no reasonable suspicion and warrant is necessary to inspect on people belongings (inclusive of electronics like cameras, laptop computers, hard drives and mobile phones among others) when entering into U.S. Though the lower courts may conflict in their decisions, the Supreme Court decision is exceed all the lower courts authority and rulings and the reasons for border security are given priority over individuals privacy rights for the sake of the nation’s and people safety. Currently, its either people carry the items knowing they are subject to inspections just like their languages and merchandises, or they assess them in the interior of the country. Reference List Adams, J. (n.d.). Rights at the United States Border. BYU Journal of Public Law, 19: 353-371. Retrieved from http://www.law2.byu.edu/jpl/papers/v19n2_Jon_Adams.pdf Alphran. D. M. (n.d.). Changing Tides: A Lesser Expectation of Privacy in a Post 9-11World. Retrieved from www. http://works.bepress.com/.../viewcontent.cgi? CBP Directive. (2009, August 20). Border Search of Electronic Devices Containing Information. Retrieved from http://www.cbp.gov/linkhandler/cgov/travel/admissibility/elec_mbsa.ctt/elec_mbsa.pdf CBP. (2008, July 16). U.S Custom and Border protection: Policy Regarding Border Search of Information. Retrieved from http://www.cbp.gov/linkhandler/cgov/travel/admissibility/search_authority.ctt/search_authority.pdf Civil, C. (2013, March 20). U.S. v. Cotterman: Ninth Circuit Holds Reasonable Suspicion Required for Forensic Laptop Search at the Border. Retrieved from http://btlj.org/2013/03/20/u-s-v-cotterman-ninth-circuit-holds-reasonable-suspicion-required-for-forensic-laptop-search-at-the-border/ E.D.N.Y.: Suspicion less Border Searches of Laptop Computers and Other Electronic Devices are Reasonable. (2013, December 31) Retrieved from http://fourthamendment.com/blog/index.php?blog=1&p=10118&more=1&c=1&tb=1&pb=1 Forte, D.F. (n.d.). Congress Economic Powers. Retrieved from http://www.heritage.org/constitution/content/pdf/lesson-5.pdf Fourth Amendments: Search and Seizure. (n.d.). Retrieved from http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-5.pdf Kim, Y. (2009, June 29). Protecting the U.S perimeter. Border Searches Under the Fourth Amendment. Retrieved from http://www.fas.org/sgp/crs/homesec/RL31826.pdf Lippman, M. (ed). (2011). Criminal procedure. California: Sage Publications. Stellin, S. (2013, December 31). District Judge Upholds Government Right to Search Electronics at the Border. Retrieved from http://www.nytimes.com/2014/01/01/business/judge-upholds-us-right-to-search-devices-at-border.html?_r=0 Suspicion less Border Searches of Electronic Devices: Legal and Privacy Concern with the Department of Homeland Security. (2011, May 18). Retrieved from http://www.constitutionproject.org/pdf/Border_Search_of_Electronic_Devices_0518_2011.pdf TCRP. (2005, October). Legal Research Digest 22. Retrieved from http://onlinepubs.trb.org/onlinepubs/tcrp/tcrp_lrd_22.pdf United States of America v Howard Wesley Cotterman. 709 F.3d 952, 960 (9th Cir. 2013) United States v Montoya De Hernandez. 473 U.S 531. (1985). Read More