Boarder Search Doctrine Doesn’t Save Warrantless Search of Devices - But Good Faith Does

US v Aigbekaen: Aigbekaen was under investigation for trafficking a minor for sex, specifically between Maryland, Virginia, and New York. Investigators were able to link Aigbekaen to online ads for the girl’s services as well as rental car and hotel records. While the investigation was ongoing, Aigbekaen left the country and was scheduled to return via New York. Agents asked customs officials to seize any electronic devices found on Aigbekaen when he returned. The did, seizing without warrants a laptop, phone, and iPod. Searches were performed on those devices, uncovering conversations between Aigbekaen and others regarding sex trafficking. Aigbekaen was charged with multiple sex trafficking counts and moved to suppress the information found on his devices. The district court denied the motion, holding that the under a border search analysis no warrant was required and the agents had “at least” reasonable suspicion.

A divided Fourth Circuit affirmed the district court’s denial of the motion to suppress. The court first noted that if the border search exception to the warrant requirement applied, the searches here were “sufficiently intrusive to be nonroutine and so required some level of individualized suspicion.” However, the court eventually determined that the border search exception didn’t apply at all, because the seizures and searches here were not related to the “sovereign interests underpinning the exception,” but were rather rooted in ordinary law enforcement. The Government lacked individualized suspicion of an offense that bore a nexus to those purposes. Furthermore, it was reasonable to expect investigators to obtain a warrant “before conducting an intrusive forensic search of a traveler’s digital device, solely to seek evidence of crimes with no transnational component.” However, good faith saved the searches in this case because the law at the time they were conducted was not clear.

Judge Richardson concurred in the judgment, but not the court’s reasoning, arguing that its nexus test was “in deep tension with Supreme Court precedent,” but that even under that test the Government’s actions were proper.