Immigration Law

Border Exit Laptop Search Tossed: USA v. Kim

"The government points to its plenary authority to conduct warrantless searches at the border. It posits that a laptop computer is simply a “container” that was examined pursuant to this authority, and it submits that the government’s unfettered right to search cargo at the border to protect the homeland is the beginning and end of the matter.

But to apply those principles under the facts of this case would mean that the border search doctrine has no borders. The search of the laptop began well after Kim had already departed, and it was conducted approximately 150 miles away from the airport. The government engaged in an extensive examination of the entire contents of Kim’s hard drive after it had already been secured, and it accorded itself unlimited time to do so. There was little or no reason to suspect that criminal activity was afoot at the time Kim was about to cross the border, and there was little about this search – neither its location nor its scope and duration – that resembled a routine search at the border. The fundamental inquiry required under the Fourth Amendment is whether the invasion of the defendant’s right to privacy in his papers and effects was reasonable under the totality of the circumstances, and the Court finds that it was not.

... After considering all of the facts and authorities set forth above, then, the Court finds, under the totality of the unique circumstances of this case, that the imaging and search of the entire contents of Kim’s laptop, aided by specialized forensic software, for a period of unlimited duration and an examination of unlimited scope, for the purpose of gathering evidence in a pre-existing investigation, was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim’s privacy and so disconnected from not only the considerations underlying the breadth of the government’s authority to search at the border, but also the border itself, that it was unreasonable. Therefore, the motion to suppress the evidence seized as a result of that search, which includes the materials listed in Attachment B-1 to the warrant affidavit, will be granted." - USA v. Kim, May 8, 2015.

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