Federal Court: Warrant Required for Border Device Searches

[00:00:00]welcome once again to Leo's law here's Steve lato both Steven with the ph and B demon sent me this story and it's reported in a variety of places but this is interesting because we talked before about the rights you have against searches and seizures inside the United States but the question always is what happens at the borders and courts have on occasion said well the border is a different situation because if you're coming into the country before you're inside the country you might might not have the same rights you'd have once you're inside because the government has this compelling interest to protect what comes into the country and so some law enforcement authorities have used that as an excuse to say oh hand me your phone let me go through your phone and unlock it please uh or go through your laptop and so on and just on a fishing Expedition and so interestingly a federal court has now just said no that's not how that works so this is from the night first Amendment Institute at Columbia University KN ni G HT the KN First Amendment Institute federal courts says warrant required for device searches at the border a federal court has ruled that the government must obtain a warrant based on probable cause the for searching Travelers electronic devices at the border I'm only chuckling at the based on probable cause because that's what everybody's been saying is don't they need uh I don't know some kind of reason or maybe a warrant the court says yeah you need both you need both the ruling came in a case in which a criminal defendant moved to suppress evidence obtained from a search of his cell phone when he came into the us at John F Kennedy Airport in New York in October of 23 the KN First Amendment Institute at Colombia and the reporters committee for freedom of the press filed the meekest brief in the case arguing that warrantless searches of Travelers phones violate the first amendment's protection of the freedom of the press speech and Association as well as the fourth M protection against unreasonable searches and seizures and the judge relied heavily on the amus brief in issuing her ruling now some people say but Steve how would you know that how would you know what the court based its opinion on well quite often uh you submit a brief to the court and you cite a bunch of cases and the opposition files a brief of the court and cites a bunch of cases and you find out that in the final opinion the court cites a bunch of the cases that you cited and occasionally I've seen where they actually borrowed language or even said things such as as appellant notes and then they quote it so here as the court recognizes warrantless searches of electronic devices at the border are an unjustified intrusion into Travelers private Expressions personal associations and journalistic Endeavors activities of first and fourth amendments were designed to protect says senior council at the night First Amendment Institute the ruling makes clear that border agents need a warrant before they can access what the Supreme Court has called a window into a person's life and you know think about what's on your phone these days you know in the old days they could look at your phone and go oh oh you've got numbers stored in here gee whose numbers are these now they can literally get your phone and go okay where were you the last three days and your phone will nark you out also you know what have you been taking pictures of what have you been downloading what what sites have you been surfing you know using your phone the Court held at the warrantless search of this man's cell phone at JFK violated the Fourth Amendment But ultimately did denied his motion suppressed because the court concluded that the government acted in good faith but again keep in mind that going forward they're now on notice that they need to have a warrant and probable cause the court also held that border searches of electronic devices burdened core First Amendment rights including freedom of speech religion Association and the press in reaching that conclusion the court relied on records obtained by the Knight Institute through a foil lawsuit which describes Travelers experiences with electronic device surges at the border Court also explained that these searches chill Communications between reporters and their sources again pointing to the amikas brief filed by the night Institute and the reporters committee which detailed the experiences of numerous journalists who when entering the US were flagged for inspection and were required to surrender their electronic devices for warrantless searches as the court recognized letting border agents freely rifle through journalist's work product and Communications whenever they cross the border would pose an intolerable risk to press Freedom said the staff attorney at the reporter's committee for freedom of the press this thorough opinion it's like 70 Pages uh this thorough opinion provides powerful guidance for other courts grappling with this issue and makes clear the Constitution would require a warrant before searching reporters electronic devices lawyers in the case uh came from the night First Amendment Institute and also from the reporters committee for freedom of the press so this is from a federal court obviously this is not yet controlling case law Across the Nation the question is whether the government will appeal this or not because if they appeal this it could go up and then if that gets appealed it could go up even further but this has been a concern and I you know I've been doing this show now basically for 10 years right and um I've had this channel for about 10 years I remember very early on some of the topics I did that got responses and one of the things that happened was I remember discussing a story about somebody who' filed a lawsuit because crossing the border back into the us as a US citizen they had their stuff searched and at the time the court said well again this heightened security issue in these days we have got to know you know make sure people aren't you know bringing stuff in but this court saying we need probable cause and a warrant you can't just go on a fishing Expedition with everybody and I read several different versions of this story reason.com did a great article on it also and in that article they address the fact that this often is simply a fishing Expedition meaning that they have nothing they zero they literally don't have any reason to suspect this person over that person but for whatever reason they pick this person let's go through your stuff give me your phone give me your you know laptop give me give me all your stuff and unlock it for me or we're not going to let you in the country and we're going to detain you because you're here so you know you're kind of over a barrel and this court says no you can't do that and you know I've mentioned before uh I live in Detroit or near Detroit I've lived near here uh near Detroit for my entire life for the most part and Canada is literally just across the Detroit River from Detroit and so when we were little I'm talking about little kids you could go into Canada and they simply ask you at the border where are you coming from us where are you a citizen of us okay what's your purpose of your visit visiting and he let wave you in they wouldn't even ask for ID they just wave you in and coming back to the US exact same thing where are you from US citizen us what are you doing in Canada visiting how long are you there one day okay and they'd wave you through nothing nothing now that of course all went out the way uh window at 9911 I I understand that by the way I have no problem with that so then it got to be to cross the border into Canada you needed identification so a driver's license would do it just you know they ask to see a driver show them a driver's license but there is something about once you're outside of the US and don't get me wrong I love Canada but I know great people and robots who've come from Canada Canada is a different country so as you're approaching the Border back into the US in the heightened state of security right now you always have this thing in the back of your mind that what if they don't let me back in what if they decide to detain me for a while and I've been coming back where I was in a hurry to get someplace and I remember years ago I was doing a radio show in Flint and I was in Canada and I had to cross the border and get to Flint in time to do my radio show and I remember having a situation I'm like what if they delay me I I this is beyond my control and you know so funniest thing of all is I I did a a a radio gig in New York uh State a couple years ago and um I drove to Geneva New York and I cut through Canada to get there because it's the shortest distance from Detroit and on the way back I'm crossing the border back into the US and the guy goes uh where are you from and I I hand him my ID and I'm said us you know citizen the guy goes what are you doing in Canada and said I was crossing through I was crossing through from uh from New York guys what are you doing in New York and I go I was a guest disc jockey a radio station he go what format I go classic rock and he goes cool once in a while they'll throw questions at you just to see if you're making sense because if I paused and said uh I I I I don't I don't know the station had no had no format okay pull over we got to talk to you a little bit longer so again I'll admit I've never been searched at the border but I've gone through customs many times and you're always wondering what would happen if they decided to single you out and here the judge says certain things they can do at the border but if they want to bust into your cell phone or your electronic device laptop or whatever it may be they need a warrant and probable cause to do it so there you go so again Stephen be demon thank you for sending it this is from the Knight First Amendment Institute at Columbia University K GD federal court says warrant required for device searches at the border questions your comments put them below let's talk to you later bye-bye thank you for watching lato law I have not lost my mind I have it backed up on tape somewhere