The Border Search Doctrine in the Digital Age: Implications of Riley V. California on Border Law Enforcement's Authority for Warrantless Searches of Electronic Devices

I. INTRODUCTION 71II. GENERAL PARAMETERS OF THE BORDER SEARCH EXCEPTION ..75A. Routine vs. Non-routine Searches 75B. Search Need Not Be Border 79III. BORDER SERVICES OF ELECTRONIC DEVICES 81A. The Fifth Circuit 's Approach in Roberts 82B. The Fourth Circuit 's Approach in Ickes 83C. The Ninth Circuit 's Approach in Arnold and Cotterman ..84IV. FOURTH AMENDMENT ENTERS DIGITAL AGE IN RILEY 89V. THE BORDER SEARCH EXCEPTION AFTER RILEY 92A. United States v. Saboonchi 93B. Approaches by Other Courts 96VI. CONSIDERING THE EXCEPTION AS A WARRANT LOOPHOLE.......99VII. CONCLUSION 103I. INTRODUCTIONA day trip across the Canadian border to tour Niagara Falls turned out to have criminal consequences for Ali Saboonchi, a dual citizen of the United States and Iran.* 1 Upon returning to the U.S. near Buffalo, N.Y., Saboonchi and his wife were stopped by U.S. Customs and Border Protection agents, who interrogated Mr. Saboonchi alone in a locked room and seized two cell phones and a USB flash drive that the Saboonchis had on them.2 Agents eventually allowed the Saboonchis to reenter the United States but gave them a Detention Notice and Custody Receipt for Detained Property in exchange for their electronic devices,3 using one of the limited, specific exceptions to the Fourth Amendment's requirement for a warrant or probable cause.4Stemming from the government's desire to limit the introduction of illegal items into the country through its international ports, the border search exception has been recognized since the Fourth Amendment's adoption.5 In plain terms, the Fourth Amendment requires all searches and seizures of persons and property to be reasonable,6 but border searches are considered simply by virtue of the fact that they occur the border.7 Although a tenet of Fourth Amendment doctrine is that an officer needs reasonable suspicion to detain an individual,8 border searches of persons or property can occur even in the absence of reasonable suspicion because the government's interest in prohibiting the illegal entry of persons and property is at its zenith the international border.9 And while the Supreme Court has held that the involuntary detention of a domestic airport passenger requires some showing of probable cause under the Fourth Amendment,10 it has found no issue with long, uncomfortable, indeed, humiliating detentions in the context of international travel.* 11 Instead, the Court has allowed these non-routine border searches-such as prolonged detentions, strip searches, body cavity searches, and X-ray searches-to proceed simply on a showing of reasonable suspicion.12Backed by an impressive historical pedigree behind the nation's authority to perform these kinds of searches and seizures the border,13 the border search exception is firmly rooted as a means for the federal government to secure its borders by inspecting travelers and their property as they enter and leave the country.14 But courts are more frequently being called on to delineate contemporary contours of the border search exception-an exception that draws its historical precedence from an Act passed by the First Congress, the same congress that crafted the Fourth Amendment and the rest of the Bill of Rights.15 Legal activity around the border search exception has been driven, in part, by an expansion of government power both and near the border.16 The federal government has beefed up border security, doubling the size of the Border Patrol and dispatching more Immigration and Customs Enforcement agents to the U. …

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