“Routine” border search
On July 24, 2006, in the case of U.S. v. Romm, the Ninth Circuit upheld the admission of evidence obtained through the search of the contents of a laptop computer. Romm’s computer was searched at a US port of entry after he was denied entry in Canada as he attempted to enter Canada from the US. The Ninth Circuit found that the search of the computer was a valid as a “routine border search.” The court wrote:
“We assume for the sake of argument that a person who, like Romm, is detained abroad has no opportunity to obtain foreign contraband. Even so, the border search doctrine is not limited to those cases where the searching officers have reason to suspect the entrant may be carrying foreign contraband. Instead, ‘searches made at the border…are reasonable simply by virtue of the fact that they occur at the border.’ Thus, the routine border search of Romm’s laptop was reasonable, regardless whether Romm obtained foreign contraband in Canada or was under ‘official restraint.'”
The language gives a good sense of the broad powers that inhere to government officials during border searches.
The focus of the news analysis has been upon the very intrusive, electronic nature of the search. Declan McCullough writes for CNET that the “[t]hree-judge panel unanimously says that border police may conduct random searches of laptops without search warrants or probable cause. These searches can include seizing the laptop and subjecting it to extensive forensic analysis.” The CNET analysis can be found here:
http://www.nytimes.com/cnet/CNET_2100-1030_3-6098939.html
It is worth noting, however, that it was not until the Ninth Circuit appeal that Romm raised the argument that the search of the contents of his laptop was too intrusive to qualify as a routine border search. The Ninth Circuit expressly declined to decide that issue. It is possible that, had the issue been properly raised in the lower courts, the Ninth Circuit may have been more reluctant to sanction such intrusive searches. Then again, courts are notoriously reluctant to limit the scope of border searches. The full decision is here:
-jmc