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Border Patrol Agents May Freely Search Electronic Devices within 100 Miles of Border

Posted by John Rogers | Feb 22, 2021

A U.S. Appeals Court issued an opinion this week allowing border patrol agents to freely search electronic devices for anyone within a 100 miles from the U.S. border. The scope of the search, the court noted, is in depth and without limitation(s). Moreover, the court constitutionally permits border patrol agents to copy data and search the device(s) without the benefit of a search warrant or probable cause.

The Fourth Amendment to the U.S. Constitution guarantees the right against unreasonable searches and seizures. The U.S. Supreme Court has previously held that government searches into someone's cellular device requires a search warrant or consent from its owner. This case deviates from the long stand rule claiming that electronic searches “do not involve an invasive search of a person,” Justice Sandra Lynch wrote for the United States Court of Appeals for the First Circuit. Namely, Lynch noted, that the government has a higher interest in security at our borders, saying it is “at its zenith.”

Prior law allows limited exceptions to border searches versus government searches occurring well within the United States. Appellate courts have issued conflicting opinions about whether searching electronic devices falls within the border search exception. Its purpose is to allow border patrol agents to locate contraband and unauthorized entrants, but also applies to federal agents working within 100 miles from a U.S. border – an area that covers most metropolitan areas.

The case arose from a NASA scientist who was detained and pressured to unlock a secure government-issued cellular device. The scientist filed a lawsuit against the government where the ACLU joined.

This case presents an obvious problem for those working as attorneys where the attorney-client privilege is a sacred form confidentiality. A lawyer, for instance, would be subject to the search of their electronic devices at entry ports in the United States. This would include airports and border stops. If any attorney-client information is within those electronic devices, this could be seen has a breach of the confidentiality in the event the government seeks to search the devices. Accordingly, this present a serious concern for anyone working in a field where there is mandatory confidentiality – e.g., therapist, doctors, etc.

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John Rogers

*State Bar Board Certified Specialist in Criminal Law *Top 40 Under 40 by the National Trial Lawyers Association *Selected “Rising Star” by Super Lawyers Magazine *Federal Criminal Defense Representation Nationwide *Personalized Attention & 24/7 Accessibility

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