• Judge Sets Limits on Some Invasive Border Searches

    May 27, 2015

    Tags: , ,
    Posted in: Democracy, Post-Constitution America

    fourth amendment

    Only a scant 14 years after 9/11 opened the door to unprecedented government violations of the rights of American citizens, what has come to be known as the Post-Constitutional Era, there are small signs that our somnolent courts are slowly rousing.

    Slowly.



    The Case of Jae Shik Kim

    A federal judge determined the search of a traveler’s laptop without a warrant as he was leaving the country was unreasonable, in a ruling that could help derail the government’s long-held search criteria for international travelers.

    In the case, the U.S. District Court of the District of Columbia allowed defendant Jae Shik Kim to suppress key evidence the government found after searching his laptop at Los Angeles International Airport. The Department of Homeland Security suspected Kim of illegally selling aircraft parts to Iran and seized his computer before allowing him to board a flight home to Korea in December 2012. The government cloned Kim’s hard drive, shipped it off to a forensic lab, and searched it, uncovering a series of alleged “incriminating emails” that formed the basis for the government’s case against Kim.

    The court concluded the government not only conducted an unreasonable search, but further violated the Fourth Amendment by shipping the computer to a second location where they continued the extensive search.

    The judge wrote:

    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 [at the forensics lab]. 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 Constitutional Borderline

    Begin at America’s borders. Most people believe they are in the United States as soon as they step off an international flight, or as long as they are waiting for their outbound flight, as Mr. Kim was in the case above, and are thus fully covered by the Bill of Rights.

    Wrong. And the irony that a person can be separated from his Constitutional rights by a border marked by a pane of glass is not to be missed.

    The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state.

    Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering or leaving the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.

    Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

    The same process works in reverse; at some point as you depart the U.S., the government believes you are “outside” and thus lack any Constitutional protections. That’s what happened to Mr. Kim.

    What once were modest exceptions in Constitutional America morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.

    Back to the Kim Case

    Hanni Fakhory, for Electronic Frontier Foundation, said the opinion in the Kim case wasn’t binding like an Appellate or Supreme Court decision that requires other courts have to follow suit. “But it’s persuasive because it adds to the growing body of case law that says digital devices are different,” he said.

    That means the next time the government searches someone’s phone, tablet or laptop on suspicion of criminal activity, a defense attorney can use the case as an example of an invalid forensic search, a deeply invasive search that reveals old emails, call records and other information that can’t be obtained just browsing through one’s device. It is a start.

    BONUS: The Supreme Court ruled last year in Riley v. California that law enforcement cannot search a cell phone during an arrest without a warrant.




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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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  • Recent Comments

    • John Poole said...

      1

      I have a uniquely customized Mossberg BullPup ready to powder some dry wall as a first warning round to intruders or governmental agents in the stairwell leading up to our second floor bedrooms. They will not make to the second floor alive.

      05/27/15 6:51 PM | Comment Link

    • Helen Marshall said...

      2

      And then we have several hours-long searches of people’s bodies, anal and vaginal probes, forced enemas, etc etc..and in the case of the UMC in El Paso, when the victim refused to give consent to these searches she was billed for thousands by the hospital.

      05/27/15 7:45 PM | Comment Link

    • RICH BAUER said...

      3

      05/29/15 5:45 PM | Comment Link

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