988 F.3d 8
1st Cir.2021Background
- CBP (2018) and ICE (2009/2018) policies distinguish "basic" searches (manual, on-device review) and "advanced" searches (connecting external tools/forensic analysis); advanced searches require reasonable suspicion under the policies; basic searches may be conducted without suspicion.
- Both policies limit searches to data resident on the device and require devices be disconnected from the internet; policies permit brief, "reasonable" detention of devices with supervisory approval for extensions.
- Plaintiffs (10 U.S. citizens and 1 LPR) sued pre-policy and sought declaratory/injunctive relief and expungement, alleging Fourth and First Amendment violations from warrantless searches and prolonged detentions.
- The district court held both basic and advanced searches were "non-routine" (requiring reasonable suspicion), limited searches to looking for contraband on the device itself, and enjoined searches/detentions absent reasonable suspicion that the device contained contraband; it denied expungement.
- On appeal, the First Circuit reviewed summary judgment de novo and considered (1) whether warrants or probable cause are required at the border, (2) whether basic searches require reasonable suspicion, (3) the permissible scope of device searches, (4) detention-duration standards, (5) First Amendment and expungement claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether border searches of electronic devices require a warrant or probable cause | Riley requires a warrant for device searches; warrant required at border | Border-search exception applies; Riley (search-incident-to-arrest) not controlling at border | No warrant or probable cause required for border device searches |
| Whether basic (manual, on-device) searches require reasonable suspicion | Basic searches are invasive and thus "non-routine," require at least reasonable suspicion | Basic searches are routine border searches and need no reasonable suspicion | Basic searches are routine and may be performed without reasonable suspicion |
| Whether advanced/forensic searches require probable cause | Plaintiffs did not contest reasonable-suspicion requirement for advanced searches; some argued for higher protection | Government: advanced searches may proceed under border exception (policies require reasonable suspicion) | Advanced searches do not require warrant/probable cause; government may require reasonable suspicion per policy |
| Whether searches at the border must be limited to finding contraband on the device itself | Border exception limited to preventing importation of contraband; searches must target contraband itself | Border exception serves broader border-protection ends, including evidence of crimes and national-security threats | Searches may seek contraband, evidence of contraband, or evidence of border-related crimes; not limited to contraband itself |
| First Amendment/chill and expungement relief | Warrantless/suspicionless searches of expressive material chill speech; facial invalidation and expungement warranted | Policies are content-neutral, serve legitimate border interests; no facial First Amendment violation; expungement discretionary | Facial First Amendment challenge fails; expungement denial not an abuse of discretion |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (2014) (search-incident-to-arrest analysis recognizing heightened privacy in cellphones but not extending to border-search context)
- United States v. Flores-Montano, 541 U.S. 149 (2004) (government's sovereign interest at the border reduces privacy expectations)
- United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (routine vs. non-routine border searches; stronger government interest at border)
- United States v. Vergara, 884 F.3d 1309 (11th Cir. 2018) (advanced border device searches need not be supported by warrant or probable cause)
- United States v. Cano, 934 F.3d 1002 (9th Cir. 2019) (basic border device searches are routine and do not require reasonable suspicion)
- United States v. Touset, 890 F.3d 1227 (11th Cir. 2018) (basic device searches at border are routine)
- United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019) (post-Riley, forensic border searches permissible without warrant where individualized suspicion exists)
- United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018) (discussing historical deference to legislative/executive at border and treating basic computer search as routine)
- Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967) (rejecting a bright-line "mere evidence" distinction and permitting searches for evidence)
- United States v. Ramsey, 431 U.S. 606 (1977) (addressing First Amendment concerns with border searches and content neutrality)