Can Border Agents Search Your Phone Without a Warrant?

The Fourth Amendment to the Constitution normally requires the police to obtain a search warrant before conducting a search of your person or property without your consent. As with many constitutional protections, however, there are a number of judicially recognized exceptions. One of them is for searches that occur at the borders of the United States.

Basically, the Supreme Court has long held that border searches are “not subject to the probable cause and warrant requirements of the Fourth Amendment.” There are still some safeguards, but they are quite limited. A border search must be authorized by a specific federal statute, and the scope of the search must still be considered “reasonable” under the Fourth Amendment.

Florida Magistrate Denies Motion to Suppress Evidence in Child Pornography Case

Unfortunately, when it comes to searches of your property–such as your smartphone–just about any search is considered “reasonable” in Florida. A recent decision from a court in Tampa, United States v. Falzone, is a case in point. This case involved a Department of Homeland Security (DHS) investigation into a child pornography distribution scheme originating in South Africa. A DHS agent posed as a South African national to communicate with users of an online messaging service that catered to people interested in exchanging images of child pornography.

The agent observed a specific user by the name of “Joshua” and traced his phone number to the defendant in this case. At the time, the defendant had left the United States on an international cruise. Upon his arrival back at Port Canaveral, agents seized the defendant’s phone and took it to a DHS field office to conduct a forensic search two days later. The search revealed several images and videos of child pornography.

A federal grand jury subsequently indicted the defendant for receipt and possession of child pornography. Before a federal magistrate judge, the defendant filed a motion to suppress the evidence gathered from his phone. The magistrate, and later the district court judge overseeing the case, denied the motion.

As the magistrate explained, a border search of a person’s property does not even require “reasonable suspicion” of a crime. (A search of a person, such as a strip search, would require reasonable suspicion.) The government has a legal right to search any property entering the United States. In this case, as the phone never cleared customs, it had yet to “enter” the country, so the border search was perfectly legal, even though DHS waited two days to conduct its forensic search in a location other than the actual border crossing.

Contact AsiliA Law Firm Today

As our phones become more essential to our daily lives, there is a substantial risk that the contents of these devices may be used as evidence against us in a criminal trial. An experienced Miami sex crimes defense attorney can advise you of your rights in this area and advocate for your interests in court. Call AsiliA Law Firm today at 786-420-3014 or contact us online to schedule an initial consultation.

Source:

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