D.D.C.: Exit border search of computer without reasonable suspicion was unreasonable

Defendant is a Korean businessman who regularly flew between Korea and California. The government suspected that shipments back to China for his business were routed to Iran, so they seized his laptop as he was leaving in 2012 to search it. The court finds this exit border search was unreasonable because it completely lacked reasonable suspicion, based on four year old information and because Kim was long gone by the time it occurred. United States v. Kim, 2015 U.S. Dist. LEXIS 60276 (D.D.C. May 8, 2015) (see Treatise §§ 35.19 & 35.26):

The government points to its plenary authority to conduct warrantless searches at the border. It posits that a laptop computer is simply a “container” that was examined pursuant to this authority, and it submits that the government’s unfettered right to search cargo at the border to protect the homeland is the beginning and end of the matter.

But to apply those principles under the facts of this case would mean that the border search doctrine has no borders. The search of the laptop began well after Kim had already departed, and it was conducted approximately 150 miles away from the airport. The government engaged in an extensive examination of the entire contents of Kim’s hard drive after it had already been secured, and it accorded itself unlimited time to do so. There was little or no reason to suspect that criminal activity was afoot at the time Kim was about to cross the border, and there was little about this search — neither its location nor its scope and duration — that resembled a routine search at the border. The fundamental inquiry required under the Fourth Amendment is whether the invasion of the defendant’s right to privacy in his papers and effects was reasonable under the totality of the circumstances, and the Court finds that it was not.

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