In moving to dismiss an indictment last week involving the enforcement of export control laws and the trade embargo with Iran, the U.S. Department of Justice has tacitly acknowledged that the 2014 Supreme Court decision in United States v. Riley, 134 S.Ct. 2473 (2014), which took cellphones out of the warrant exception for searches incident to arrest, now applies to border searches of laptop computers. This is a major development in search-and-seizure law that shows the department’s acknowledgement that we are in a new digital age where old exceptions to the warrant requirement no longer apply. All warrantless searches of computers or other personal electronic or digital storage devices at the border should now be routinely challenged.
The U.S. Supreme Court has long held that warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the warrantless search and seizure fits within a few narrow exceptions, as in Katz v. United States, 389 U.S. 347 (1967). Two of the most common exceptions are the search incident to arrest and the border search that permits warrantless searches at the international border or its functional equivalent.
