Arthur T Knackerbracket has processed the following story:
US border agents must obtain a warrant, in New York at least, to search anyone's phone and other electronic device when traveling in or out of the country, another federal judge has ruled.
Judge Nina Morrison of the Eastern District of New York issued a decision [PDF] last week that Customs and Border Patrol ([CBP]) officials need a warrant to search citizens and non-citizens' electronics in all but the most exceptional of circumstances.
"It is one thing for courts to give border officials the authority to briefly detain and question air travelers and search their physical belongings," Judge Morrison opined. "But it is an entirely different matter for courts to exempt those agents from the Fourth Amendment's probable cause and warrant requirements in the vastly more intrusive context of a cellphone search."
The case in question involved the detention and questioning of naturalized US citizen Kurbonali Sultanov at New York's John F. Kennedy airport in March 2022 on suspicion he was in possession of child sexual abuse material (CSAM). After being told by CBP officers that he had no choice but to give them access to his phone, Sultanov provided his password and allowed officers to search his device.
Based on a cursory search, and comments Sultanov made to CBP, officers obtained a warrant to search two additional phones found in his possession, leading to his indictment on alleged possession of CSAM.
The judge's decision last week pertained to Sultanov's request to suppress both the contents of his phones found in the search and his comments to CBP. The former was a violation of his Fourth Amendment rights against unreasonable search and seizure, Sultanov argued, while entering his statements into evidence violated his fifth amendment right against self-incrimination.
Morrison decided that, while the government was wrong to perform its initial search of Sultanov's phone without a warrant, the evidence would be allowed to stand "because the search warrant was issued and executed in good faith."
Because Sultanov is not a native English speaker who was unable to be properly informed of his Miranda rights, Morrison decided to strike his comments from evidence.
"Warrantless searches of electronic devices at the border are an unjustified intrusion," Knight First Amendment Institute senior counsel Scott Wilkens said of the decision.
Border agents need a warrant before they can access what the Supreme Court has called 'a window onto a person's life'
"The ruling makes clear that border agents need a warrant before they can access what the Supreme Court has called 'a window onto a person's life'."
The Knight Institute, alongside the Reporters Committee for Freedom of the Press (RCFP), filed an amicus brief in support of Sultanov's objection to the initial warrantless search of his device. They argued that, specifics of the case aside, allowing warrantless searches of cellphones at the border - which the Department of Justice has long held extends 100 miles from the actual physical edge of the US - were likely to not only infringe upon fundamental rights guaranteed by the constitution, but would have a chilling effect on the ability of journalists to protect their sources.
"Letting border agents freely rifle through journalists' work product and communications whenever they cross the border would pose an intolerable risk to press freedom," RCFP lawyer Grayson Clary said in a statement. "This thorough opinion provides powerful guidance for other courts grappling with this issue, and makes clear that the Constitution would require a warrant before searching a reporter's electronic devices."
This is not the first case to challenge CBP's sweeping authority to seize and search devices at or near the US border, and it probably won't be the last one either.
[...] Wilkens told us Morrison's decision was "thorough and very well reasoned," and that he's confident it will hold up to scrutiny if the government appeals that one, too. Regardless, he believes the matter is ripe for a national decision before the US Supreme Court, aka SCOTUS.
"There is a good chance this issue will end up in the Supreme Court, because of its importance and because the circuit courts are reaching conflicting results," Wilkins said.
(Score: 3, Insightful) by Runaway1956 on Thursday August 01, @07:18PM (5 children)
Okay, we can probably agree that there are exceptional circumstances. Now, who gets to decide what is exceptional? Does Billy T. Agent decide that, or Billy's supervisor, or maybe a regional executive, or - possibly a JUDGE? We are all aware, I hope, that there are judges on call, 24/7, who can approve or disapprove of a warrant. The phone call might take 15 minutes. The "suspect" is already detained, so what does that 15 minute call cost the CBP? Nothing at all. You make the phone call, you get approved or you get shot down, then maybe you wait another 15 minutes for that approval to arrive in printed form, THEN you execute the warrant.
What seems to be exceptional, today, are cops actually doing an investigation, and finding the evidence, then finally confronting the individual with evidence in hand. Instead, cops want you to be "cooperative", and politely hand over all the evidence when they ask you to.
I was curious about the nature of the child porn. The complaint can be found here https://knightcolumbia.org/documents/t2k7eofcom [knightcolumbia.org] The dry description of the material found is pretty disgusting.
A MAN Just Won a Gold Medal for Punching a Woman in the Face
(Score: -1, Troll) by Anonymous Coward on Thursday August 01, @08:14PM
Yeah, for sure... that seems to be a thing with you.. I bet you see it everywhere! I always find that the worst pervs are those that make the loudest accusations
He who smelt it dealt it
(Score: 2, Insightful) by anubi on Thursday August 01, @08:51PM (3 children)
https://html.duckduckgo.com/html?q=give%20me%20six%20lines%20written%20and%20in%20it%20i%20will%20find%20something%20to%20hang%20him [duckduckgo.com]
This says it all.
"Prove all things; hold fast that which is good." [KJV: I Thessalonians 5:21]
(Score: 1) by khallow on Thursday August 01, @09:13PM (2 children)
(Score: 4, Informative) by Ox0000 on Thursday August 01, @11:52PM (1 child)
People interested in control are often completely uninterested in efficiency until they get to the rotating knives section of the apartment complex design.
(Score: 3, Touché) by khallow on Friday August 02, @12:33AM
(Score: 4, Insightful) by sjames on Thursday August 01, @07:51PM (4 children)
The evidence was allowed to be used because they got a warrant. But they only got the warrant because they used evidence obtained from an illegal search to get it. Surely that should have been fruit of a poisonous tree.
Of course, these things are first tried out on the least sympathetic possible defendant. Not to mention based on evidence that leaves us to just take their word for it because first you sound like a pervert if you demand to see the evidence even if you just want to verify that it's real and it's what authorities claim, and second because if it is, you'll be wishing you could un-see it.
(Score: 2) by SomeRandomGeek on Thursday August 01, @08:58PM (2 children)
This seems to be pretty standard in search warrant cases that test the boundaries. Warrants issued where the boundaries are vague are pretty much always upheld. But the boundaries are clarified, which may mean that the same warrant would be invalid next time.
The reasoning, as I understand it, is that throwing out the results of a search is a punishment for the prosecution for breaking the rules, not an entitlement of the defendant to be free from search. And when the rules are unclear, the prosecution shouldn't be punished for breaking them.
(Score: 4, Insightful) by sjames on Thursday August 01, @09:11PM (1 child)
It's not supposed to be a punishment at all, it's supposed to make things as close to what would be if the rules as clarified had been followed as they can be.
Put another way, the court has not made a new law. It has simply clarified for the confused what the law always was.
Of course, in the case of border searches, it has always been fairly clear to everyone not part of the border patrol that you need a warrant based on reasonable suspicion to do a search.
(Score: 2, Informative) by Runaway1956 on Friday August 02, @12:35AM
Government needs it's storm troopers. Border patrol has a special status, in that they can supposedly do anything they want to do anyplace within 100 miles of the border. Then the feds redefined where the border was at, by insisting that every airfield in the US was a border. Even little private airfields belonging to a single individual can be used to justify BP presence.
But, government has another cadre of storm troopers. Check your state laws, you'll almost certainly find that a game commission officer can invade your privacy without a warrant. It's unconstitutional bullshit but governments rely on the bullshit. Game wardens are often seen accompanying a drug raid, based on the assumption that the game warden has super-constitutional authority, and he doesn't need a warrant to demand entry.
https://www.outdoorlife.com/conservation/twra-warantless-searches-ruled-unconstitutional/ [outdoorlife.com]
http://www.jamesswan.com/article-game_wardens_search.html [jamesswan.com]
If border patrol and a game warden cooperate, there is NOWHERE that you might be safe from an illegal, unconstitutional search and seizure.
A MAN Just Won a Gold Medal for Punching a Woman in the Face
(Score: 4, Interesting) by https on Friday August 02, @03:01AM
Notice how you're now inside the officer's narrative, and view the defendant as "least sympathetic"?
I'm not ruling out the officers planting the CSAM themselves, just to meet quota or get off of a supervisor's "shit employee" list. Given their proven laxity in due process and correct documentation, it scans.
Ask yourself, what does it look like on paper if an officer tries to frame you for a crime you didn't commit? What forms would an officer have to fill out falsely? Where are the most likely places that the prosecuting documentation will be weakest? Which documents would you know to be falsified, even if you couldn't easily prove it to others?
I'd go with first search warrants and first arrest warrants being the most likely candidates. It's why the notion of "fruit of the poisonous tree" mentioned elsewhere in the comments is extremely important.
Offended and laughing about it.