7th Circuit Punts On Border Smartphone Searches; Says Riley Decision Doesn't Affect Anything

The "border search" exception again trumps the Constitution. The Seventh Circuit Court of Appeals has determined [PDF] that the Supreme Court's Riley decision that implemented a warrant requirement for phone searches does not apply at our hypersensitive border areas. In this case, the border area affected is [squints at ruling] Chicago's O'Hare Airport.

Anyway, CBP and DHS investigators had their eyes on a man returning from a suspicious trip to the Philippines. Suspecting the man was engaged in sex tourism, he was stopped by CBP officers upon his return. Lots of things didn't add up so the CBP asked for permission to search his phone. The officers made it clear this request was simply them being polite. They were going to search his devices anyway.

After completing this check of [Donald] Wanjiku's bags, [Officer] Toler turned his attention to the cell phone. The phone was password-protected, and Toler began by asking Wanjiku to unlock the phone. Wanjiku initially resisted but relented when Toler told him that everything was searchable at the border and that the phone would be seized, unlocked by a "lab," and examined whether or not Wanjiku unlocked it.

A cursory examination uncovered a couple of photos that may or may not have been child porn. (The officer said he couldn't determine the subject's age and the district court found this testimony credible.) A hard drive the suspect had in his bag was subjected to a "forensic preview" that only scanned allocated space for files, rather than mirror the drive in its entirety. A similar preview was performed on the man's Samsung phone. In both cases, child pornography was discovered by agents. Further searches were performed the next day.

The defendant challenged the evidence, pointing out that the Supreme Court's Riley decision requires the use of warrants for phone searches. The government argued that it needed nothing at all to perform invasive searches of travelers' devices. The court says neither of these polar opposites are correct. It also says it really doesn't care who's right, who's wrong, or where the line should be drawn in relation to border searches and the Riley decision.

The primary positions staked out by the parties could not be more starkly contrasted. The defendant argues that nothing less than a warrant authorizes a search of electronic devices at the border. The government asserts that it may conduct these searches without any particularized suspicion at all. In the end, though, we need not adopt either of these positions, and indeed may avoid entirely the thorny issue of the appropriate level of suspicion required. Instead, we affirm the district court's denial of the motion to suppress because these agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border.

Love to watch courts avoid thorny issues affecting the privacy of millions of travelers.

The appeals court says the Supreme Court only requires reasonable suspicion for border searches. This apparently still stands despite the extra protections extended to electronic devices by the Riley decision. The appeals court cites a 1985 Supreme Court decision in defense of its unwillingness to examine the issues raised in the year of our lord two-thousand nineteen. As the Seventh Circuit sees it, the government's interest in securing the borders will always be able to undermine Fourth Amendment protections -- even when this interest encompasses things that don't actually threaten the nation's security.

The final position the court takes -- at least in this case -- is that nothing more than reasonable suspicion is needed to perform any search at the border. And that's even if the "border" is an international airport, rather than a point of entry actually located on a border. It relies on the inaction of several other appeals courts to come to this conclusion, ensuring the zero-privacy status quo will live on for at least a few more years, falling well behind the advance of portable technology.