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Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations. Congress has broad powers to prevent smuggling and to prevent prohibited articles from entry, under its plenary authority to lay and collect Taxes, Duties, Imposts and Excises, U.S. Const. art. I, § 8, cl. 1, to regulate Commerce with foreign Nations, U.S. Const. art. I, § 8, cl. 3, and to establish a uniform Rule of Naturalization, U.S. Const. art. I, § 8, cl. 4. And because child pornography is unprotected by the First Amendment, Congress may declare it contraband and prohibit its importation. Ordinarily, searches at the border are reasonable without suspicion simply by virtue of the fact that they occur at the border. It is reasonable to conduct without suspicion routine searches of the persons and effects of entrants at our borders. And we have similarly explained that, at the border, routine pat-down searches or frisks and searches of a traveler's luggage, incoming international mail, and vehicles are all reasonable without any level of suspicion. A traveler's right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during a search.
After a series of investigations by private organizations and the government suggested that defendant Karl Touset was involved with child pornography, border agents forensically searched his electronic devices after he arrived at the Atlanta airport on an international flight. A grand jury indicted defendant on three counts: knowingly receiving child pornography, 18 U.S.C. § 2252(a)(2) & (b)(1); knowingly transporting and shipping child pornography, 18 U.S.C. § 2252(a)(1) & (b)(1); and knowingly possessing a computer and computer-storage device containing child pornography, 18 U.S.C. § 2252(a)(4)(B) & (b)(2). Defendant filed motions to suppress the evidence obtained from his electronic devices at the border, as well as the fruit of those searches. The district court denied defendant’s motion. Defendant then pleaded guilty to knowingly transporting child pornography, but reserved his right to appeal the denial of his motion to suppress. The government dismissed the other two counts. The district court sentenced defendant to 120 months of imprisonment and supervision for life.
Did the Fourth Amendment require reasonable suspicion for a forensic search of an electronic device at the border?
The court affirmed the judgment, holding that defendant was not entitled to suppression of the child pornography uncovered in warrantless search of his cell phone by border agents because U.S. Const. amend. IV did not require a warrant or probable cause for a forensic search of a cell phone at the border. Nonetheless, the court held that the forensic searches of defendant's electronic devices were supported by reasonable suspicion due to the history of suspicious payments to an account associated with child pornography, which was not stale information, and to the number of devices defendant was carrying.