Don’t they need a warrant to search and question me?
No. Due to the federal government’s interest in safety and enforcing immigration laws, the usual Fourth Amendment protections give way at international borders, which include international terminals in airports. Although these laws are based on immigration concerns, any evidence uncovered in these searches can be used to bring criminal charges.
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Routine border searches by Customs and Border Protection (CBP) agents within 100 miles of the border can be suspicion-less. Routine searches include searches of luggage and bags, or non-intrusive body searches, such as metal detectors or pat downs.
In addition to searching travelers, CBP officers can search objects crossing the border, including cell phones and laptops, even detaining the objects for five days. However, agents must return the items unless they have probable cause to suspect they contain evidence of a crime.
Do I have the right to a lawyer?
No. There is no right to counsel during CBP administrative processing, such as primary and secondary inspection. Should criminal charges result from agent’s inspections, the right to counsel would attach.
However, should you anticipate complications at the border, you should carry an attorney’s phone number. Even if CBP agents will not allow you an attorney’s presence during the inspection, you may be allowed to seek their advice over the phone.
Do I have any rights?
Agents don’t have unlimited authority, even at the border. “Non-routine” searches require individualized reasonable suspicion, which means the CBP officer must have specific, articulable facts to support the search, not just a hunch.
According to the courts, “non-routine” searches are searches that are highly intrusive and invade the dignity and privacy interests of travelers. For example, body cavity searches are considered non-routine.
Within 100 miles of any “external boundary,” or border, CBP agents can operate immigration checkpoints. However, they cannot stop vehicles without reasonable suspicion of an immigration violation or crime. Even in the 100-mile zone, vehicles cannot be searched without a warrant or probable cause.
What about searching my electronic devices?
Although lower courts are divided on whether searches of electronic devices are routine, the Ninth Circuit has held that “forensic” searches of electronic devices that require sophisticated software are non-routine searches that require reasonable suspicion. “Manual” searches are routine, requiring no suspicion. Manual searches include opening your device and viewing your data and documents.
Although in 2014 the Supreme Court held that officers needed a warrant to search an electronic device upon arrest in Riley v. California, the case did not occur in the border context, and the CBP does not view it as applicable to border searches. Agents will likely continue to search devices without a warrant or reasonable suspicion until the Supreme Court addresses the applicability of Riley to border searches
Do I have to give agents my passwords?
The courts have not settled this question. Until it is clearly illegal, agents will likely continue to ask for passwords (and even after, will likely continue asking travelers to “voluntarily” divulge passwords).
Lower courts differ on whether disclosure of passwords is protected by the Fifth Amendment.
Because failure to provide passwords may result in detention, seizure of the device, or missing their flight, some travelers may opt to provide the password voluntarily. Foreign travelers may be denied entry to the country if they fail to provide their passwords upon request.
What if I refuse to allow agents to search my electronic devices?
As with other law enforcement officers, there are occasions where CBP agents ignore or misunderstand the limits of their authority. In other circumstances, you may simply decide to refuse to submit to a search or give agents your passwords.
If you are a U.S. citizen, agents cannot detain you indefinitely, and must eventually allow you to enter the country. However, foreign visitors can be denied entry, and lawful permanent residents may face complications regarding entry due to border agents’ discretion in their re-entry.
Before traveling, you should determine how much information you are willing to divulge to agents and what devices you are willing to let them search. This should be based on your individual circumstances, including risk tolerance, purpose of travel, citizenship status, and types of information on your device.
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Our attorneys can discuss these circumstances with you, and help you determine what is the best option for you. We can determine what—if any—potential criminal exposure you face if you permit inspection of your devices.
Call our office at (323) 746-0700 and speak to a knowledgeable Los Angeles defense attorney!