Forensic Border Searches After Carpenter Require Probable Cause and a Warrant

Christopher I. Pryby*

Under the border search doctrine, courts have upheld the federal government’s practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split over what suspicion the government needs to conduct “forensic” searches that copy data for later inspection. This Note argues that the recent Supreme Court decision in Carpenter v. United States recognized a new balance of privacy rights at the border. Starting in United States v. Jones and continuing through Riley v. California and Carpenter, the Court has developed a theory of data privacy aimed at forestalling the government’s creation of a high-tech panopticon. This new theory, in the context of electronic searches at the border, requires that the balance of government and individual interests be struck in favor of the individual. Probable cause and a warrant, not merely reasonable suspicion, are necessary for a forensic search.

*J.D. Candidate, May 2020, University of Michigan Law School. I would like to thank Professor Evan Caminker for his insights on Carpenter and his thoughtful feedback on this Note. I am grateful to Professors Barbara McQuade and Eve Brensike Primus for discussions about the impact of Riley and Carpenter on the border search doctrine. I also thank Shaughn Casey, Kellie Majcher, James Williams, Matthew Williams, and Daniel Winston-Ruiz for en- lightening conversations, not to mention all the attendees of Michigan Law’s Student Research Roundtable for their helpful questions and comments.

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