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Laptop Not a Container, Needs Warrant or Suspicion for Search

By Casey C. Sullivan, Esq. on May 18, 2015 | Last updated on March 21, 2019

A warrantless airport seizure of a man's laptop, followed by extensive searches of its contents, can't be justified as a routine border search, the District Court of D.C. ruled last week. Contrary to government arguments, a computer isn't just a container agents can pop open and look in to, as they might a suitcase or backpack.

In 2012, DHS agents seized a foreign citizen's computer as he was boarding a flight to Korea, after suspecting he was involved in illegal trading with Iran. They shipped the computer to San Diego, copied it, searched it, and burned the information onto a DVD -- all before bothering with a warrant. That's not the type of border search that's allowed, the circuit ruled, finding that the evidence from that search must be suppressed.

Uncle Kim's Arms Shipments That Never Were

Jae Shik Kim operated a company with operations in both the U.S. and Korea. Homeland Security investigators suspected Kim of involvement with a scheme to ship aircraft and missile navigation systems to Iran through Korea, in violation of the U.S. government's trade embargo. The investigation began when an undercover agent contacted a Chinese businessman about acquiring the systems. That man contacted "Uncle Kim," whose trips to America would allow him to purchase the devices. Uncle Kim wasn't hard to identify -- D.H.S. simply searched its database for his email, included in communications with the Chinese businessman.

The deal between the business man and Kim didn't work out, but that didn't prevent agents from stopping Kim at Los Angeles International Airport, right as he was to return to Korea. They seized his computer and sent it to a forensic expert who created a duplicate image of his hard drive, allowing them to search it. Kim was subsequently charged with violating the Arms Export Control Act, the International Traffic in Arms Regulation Act, and the Iran embargo.

We Had to Get a Forensic Expert to Open This Box

Kim moved to suppress the evidence, saying that the agents needed a warrant before they could search his computer. The government has plenary powers to conduct warrantless border searches, the court noted, but there are limits to that power. Both the government and the court agreed that the Ninth Circuit's Cotterman decision, which held that reasonable suspicion is needed for a warrantless Terry search, should govern. All they had was a hunch, not reasonable, particularized suspicion, the court found.

Further, the search couldn't be considered a "routine" boarder inspection that requires no warrant. While the government had argued that a computer "nothing more than a sort of container," which they could pop open the same as a suitcase, the court found the search to be so extensive and invasive, requiring the use of a forensic specialist, that it merited more scrutiny than a routine border stop.

The nature and the extent of this search were an unreasonable violation of Kim's Fourth Amendment right to privacy in his papers and effects.

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