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1 1 (March 17, 2021)

handle is hein.crs/govecrs0001 and id is 1 raw text is: Congressional ______ * Research Service informing the legislafive debate since 1914____________________ Do Warrantless Searches of Electronic Devices at the Border Violate the Fourth Amendment? Updated March 17, 2021 The Fourth Amendment commands that searches and seizures be reasonable, and generally requires the government to secure a warrant based on probable cause before arresting or searching an individual. But the Supreme Court has long recognized that the government may conduct routine inspections and searches of individuals entering at the U.S. border without a warrant or any individualized suspicion of criminal activity. In recent decades, some federal courts have applied the border search exception to allow relatively limited, manual searches at the border of electronic devices such as computers and cell phones. Courts, however, have disagreed over whether more intrusive, forensic examinations of such devices require heightened suspicion of criminal activity. Recently in Alasaad v. Mayorkas, the U.S. Court of Appeals for the First Circuit overturned a federal district court's ruling that any non-cursory border search of an electronic device-whether conducted manually or forensically-requires reasonable suspicion that the device contains contraband. This Legal Sidebar examines the application of the Fourth Amendment's border search exception to searches of electronic devices and the Alasaad litigation concerning the reach of the government's border search authority. A more extensive analysis of the Fourth Amendment's application at the border is available in a CRS Report. The Fourth Amendment and the Border Search Exception Under the Fourth Amendment the government generally must obtain a warrant based on probable cause before arresting or searching an individual. To show probable cause, the government must present facts evidencing a reasonable belief that an individual has likely committed a criminal offense. The Fourth Amendment may also limit certain governmental searches and seizures conducted in noncriminal, civil proceedings (e.g., building inspections, involuntary civil commitment). The Supreme Court, however, has held that the government may engage in a warrantless arrest or search in certain circumstances. For example, in the criminal context, the government may bypass the warrant requirement if an arrest occurs in public and is based on probable cause, or if a search is incident to a lawful arrest. Additionally, warrantless searches and seizures of limited duration and intrusiveness, such as a stop and frisk, may be permitted if there is reasonable suspicion of criminal activity. This standard, lower than the probable cause threshold for an arrest, requires specific, articulable facts-rather than a mere hunch-that reasonably warrant suspicion of criminal activity. And in the civil immigration context, several courts Congressional Research Service https://crsreports.congress.gov LSB10387 CRS Legal Sidebar Prepared for Members and Committees of Congress

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