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Another Circuit, a Different Border Search Doctrine for Electronics

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By William Peacock, Esq. on September 04, 2013 3:55 PM

Theodore Stewart was entering the United States from Japan, when he ran into Customs and Border Protections (CBP) agents at the Detroit Metropolitan Airport. His "standoffish" and "confrontational" responses to their routine inquiries let them to believe that something was amiss, and led to a search of his belongings and computers.

One of his laptops, the Twinhead, required a foreign power adapter and could not be searched. The other, a Sony, was searched and about a dozen images, which appeared to be child pornography, were found. Both laptops were kept for further inspection, while Stewart was sent on his way.

Both laptops were searched at Immigrations and Customs Enforcement's (ICE) main office in Downtown Detroit -- about twenty minutes from the airport, within 24 hours of Stewart's arrival. Additional images were found, leading to a search warrant and eventual prosecution.

Speedy Trial Mishap

During that prosecution, a computer error pushed back the date of Stewart's trial. This resulted in what appeared to be a looming Speedy Trial Act (18 U.S.C. § 3161) violation. Stewart filed a motion regarding the violation on the last day before the violation would have occurred.

The trial court, in accordance with its interpretation of then-fuzzy law, admitted the computer mistake and dismissed the case without prejudice on speedy trial grounds. Unfortunately for Stewart, after he was re-indicted, and his case decided, the Supreme Court clarified the law, and held that any pretrial motion "irrespective of whether it actually causes, or is expected to cause, delay in starting a trial" triggers § 3161(h)(1)(D) and tolls the Speedy Trial clock.

Yep. By pointing out a Speedy Trial Violation one day early, he tolled the violation and allowed himself to be prosecuted.

Border, Extended Border, and Reasonable Suspicion

The border search doctrine is quite broad. Upon arriving at the border (international flight arrivals count), the government can dig through your belongings as a matter of national security.

In recent times, this practice has drawn increased scrutiny, especially when those searches involve electronics and off-premises searches. Simply put, your laptop or phone now contains more information about your life then any suitcase ever could.

Too bad, says the Sixth Circuit. Stewart tried to argue that removal of his laptop from the airport constituted an "extended" border search, a doctrine recognized by seven circuits, and recognized once by the Sixth Circuit in an unpublished opinion.

These extended border searches take place after a person has cleared customs, cleared the border, and has reestablished a reasonable expectation of privacy in their belongings. Stewart hadn't cleared customs, and according to the court,

"A routine border search of a laptop computer is not transformed into an 'extended border search' simply because it is transported twenty miles beyond the border and examined within twenty-four hours of the initial seizure."

The court then points out that the only difference between the search of the Sony laptop (which Stewart concedes was legal) and that of the Twinhead was a missing power cord and about twenty-four hours' time. Such a minor difference doesn't implicate an extended border search doctrine. 

Curiously enough, though the court cites the Ninth Circuit multiple times, it makes no mention of the Circuit's Cotterman decision from earlier this year, when that court, citing the realities of modern technology, created an exception to the border search doctrine exception by requiring reasonable suspicion of illegal activity before a laptop or other electronic device could be searched at the border.

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