The Elephant in the Room: What is a 'Nonroutine' Border Search, Anyway? Digital Device Searches Post-Riley
38 Pages Posted: 12 Apr 2017 Last revised: 20 Apr 2017
Date Written: April 10, 2017
Since the Supreme Court handed down Riley v. California in 2014, we have been assured that if we are pulled over for speeding, the officer may not search our cell phone without a warrant. Another potential privacy peril, however, continues to loom: the international border. While the wide latitude circuit courts have given government agents to conduct border searches has had a wrinkle since the 2013 decision United States v. Cotterman, which deemed a forensic probe into the defendant's laptop "essentially a computer strip search," courts and scholars have been struggling with the issue of how Riley might impact border laptop searches or, more importantly, border searches of digital devices generally. This Article proposes an approach that takes the "elephant" of defining routine and nonroutine searches out of the room, and rethinks the applicability in the digital era of notions of entering, versus exiting, the United States, as well as imminent, versus ongoing, crime, in the quest to maintain balance between law enforcement interests and individual privacy rights.
Keywords: border search, laptop, digital device, digital devices, electronic device, electronic devices, cell phone, particularized suspicion, reasonable suspicion, United States v. Cotterman, Riley v. California, Cotterman, Riley, forensic, non-routine search, non-routine searches, nonroutine search, nonrout
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