Warrantless Smartphone Forensic Search at Border OK, 11th Cir. Rules

By George Khoury, Esq. on March 19, 2018 | Last updated on March 21, 2019

The Eleventh Circuit Court of Appeals recently ruled that the search of a smartphone at the border does not require a warrant, or even probable cause, even if we're talking about a forensic search.

The underlying criminal case involved the conviction of a man for possession of child pornography. Law enforcement discovered illegal videos and images as a result of searching his phone at the U.S. border crossing area at a port in Florida. The border agent initially saw a few videos he believed depicted minors in sex acts, and then had a DHS agent take over from there.

Border Search Line

As the appellate court made clear, in U.S. v. Vergara, border agents do not need a warrant, nor do they even need probable cause, in order to search a smartphone at the border. Reasonable suspicion may still be required, but that standard is particularly low, particularly at a border crossing, where individuals are presumed to have very little expectation of privacy.

In Vergara's case, not only was his device searched by the border agent, after the initial discovery of some questionable videos, the devices was detained for further review via a forensic search.

The majority's opinion seems to suggest, or perhaps explicitly state, that law enforcement does not even need probable cause to escalate a cursory device search at the border into a forensic search. The dissent, authored by Justice Jill Pryor, explains that the majority's holding creates confusion for law enforcement nationally, as well as disregards the intrusiveness of a forensic smartphone search. The dissent attempts to make clear that smartphones and other similar electronic devices have capabilities that make them perhaps the most private item a person owns.

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