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Suspicionless Electronics Border Search Okay in Eleventh Circuit

By George Khoury, Esq. on July 30, 2018 | Last updated on March 21, 2019

No one likes or wants to be searched at any border. But in these times of hypersensitive border security, with nearly every traveler carrying minimally one or more pieces of high powered technology (seriously, even your first iPhone could do a lot), the issue of electronics border searches is a hot one.

Finding that a search of an electronic device at the border does not require probable cause, nor even reasonable suspicion, the Eleventh Circuit Court of Appeals has broken with the Fourth and Ninth Circuits. In United States v. Touset, the defendant was found to be in possession of child pornography on his laptop computer and external hard drive as he crossed the border at customs in the airport in Atlanta, GA. After accepting a plea, the defendant appealed the district court's denial of a motion to suppress the evidence gathered during the border search.

New Tech, Same Times

As the Eleventh Circuit explained, the circuit's own precedent favored finding that reasonable suspicion is not necessary. It equated an electronic device to any other piece of property that a person would bring across the border. It further reasoned that if reasonable suspicion wasn't even needed to disassemble a vehicle's fuel tank to search for drugs, it stands to reason that reviewing data on electronic devices for child pornography would not either.

Curiously though, the court noted that even if such a search would require reasonable suspicion, the facts of the case the court decided would provide, minimally, the grounds for that reasonable suspicion. Apparently, Touset had made it onto a "look-out" list so that he would be flagged at the border for an electronic device search. In short, he made that list because, over a year prior to the search, he had sent money to a Western Union account associated with child pornography three times within six months.

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