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How much expectation to privacy do you have at the border?

On Behalf of | May 15, 2015 | Criminal Defense

People enter into Florida by air travel through several international airports. Your belongings can be subject to inspection when you go through customs, but the intrusiveness of those inspections need to be tempered by the Fourth Amendment to the U.S. Constitution, which protects you from unreasonable searches and seizures.

Or do they? Can government officials carve out an exception to water down your Fourth Amendment rights when you enter the United States? Are your Fourth Amendment rights lessened in this situation?

The position of the federal government is that you do not receive the same protection from unreasonable searches and seizures at least when you are entering the country, based on the government’s interest in preventing people from bringing in illegal materials like drugs or child pornography. But while protecting against illicit importation may sound reasonable, the argument that the Fourth Amendment does not apply at all at the border may go too far.

In a recent incident, the federal government ran afoul of privacy right concerns when it seized a laptop computer owned by a South Korean national whom the government suspected of attempting to transfer sensitive technology to Iran. A federal district court judge ruled that the search in question went too far to be considered a routine inspection, and excluded the computer as evidence in the government’s case against the man.

The essence of the judge’s opinion was that the government cannot treat a personal computer being brought into the country the same way that it would a closed container in a car for purposes of making a search without a warrant. Such a search is impermissible when there are not sufficient grounds to suspect that its possessor is engaged in an ongoing or imminent criminal act. Furthermore, transporting the computer to another location 150 miles away in order to copy its hard drive was also beyond the definition of a “routine” inspection.

The otherwise legitimate interest of the government in combatting crime or protecting national security is not absolute, even in places such as border crossings where the government may argue that Fourth Amendment rights are attenuated or even non-existent. It is one role of  criminal defense attorneys to ensure that their clients’ constitutional rights to privacy in their persons and belongings are respected to the maximum extent possible, no matter where they are or where they are going.

Source: News9.com, “Court: Border search of businessman’s laptop ‘unreasonable'”, Anne Flaherty, May 9, 2015