BajaNomad - Court Rules California Border Crosser's Computer Is Not Searchable

Court Rules California Border Crosser's Computer Is Not Searchable

JoeJustJoe - 5-12-2015 at 07:53 AM

Court Rules California Border Crosser's Computer Is Not Searchable

Fourth Amendment Protection Applies at the Border in Western States

UNITED STATES.- The U.S. District Court has ruled that the search of a traveling businessman's laptop at the California border by the government was unreasonable, a violation of his privacy, and therefore unconstitutional. Judge Amy Berman Jackson's ruling was a rebuke of the Obama administrations treatment of laptops as containers that can be searched without a warrant and without time limits to protect national security as opposed to personal effects and papers which are protected by the Fourth Amendment against unreasonable search and seizure.

The federal government argued that South Korean businessman Jae Shik Kim was conspiring to sell aircraft technology to Iran, and seized his computer at the California border in order to gather evidence to prove the suspicion of arms control violations. The current administration has maintained that people crossing into the U.S. are not protected by the Fourth Amendment against unreasonable search and seizure and has a policy of allowing intrusive searches to prevent drugs, child pornography, and other illegal imports from entering the country.

In 2013, the Department of Homeland Security issued a Civil Rights/Civil Liberties Impact Assessment on border searches of electronic devices where it stated that the "overall authority to conduct border searches without suspicion or warrant is clear and long-standing, and courts have not treated searches of electronic devices any differently than searches of other objects." The assessment stated that "imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful" and would not produce any related civil rights benefits.

- See more at: http://www.sandiegored.com/noticias/63434/Court-Rules-Califo...

2002maniac - 5-12-2015 at 08:06 AM

Great news!

AKgringo - 5-12-2015 at 08:13 AM

How about a Vulcan mind probe to find out what they are thinking, is that still OK?

wessongroup - 5-12-2015 at 12:18 PM

Does anyone know what this "individual" was ... and his background .. or is that NOT important :biggrin:

What IF ... an individual is using this method to import "kiddie porn" ... does one get a pass on that too ... based on the 4th

and btw ... no big surprise the 9th U.S. Circuit Court of Appeals, would rule in this manner .. and would imagine the final word hasn't been written on this "issue" by the Judicial Branch of our Government

[Edited on 5-12-2015 by wessongroup]

JoeJustJoe - 5-12-2015 at 12:30 PM

From the article: The federal government argued that South Korean businessman Jae Shik Kim was conspiring to sell aircraft technology to Iran, and seized his computer at the California border in order to gather evidence to prove the suspicion of arms control violations.

_____________________________

He was not smuggling kiddie porn.

chuckie - 5-12-2015 at 12:49 PM

If they want to inspect your computer, they will....

JoeJustJoe - 5-12-2015 at 01:08 PM

Quote: Originally posted by chuckie

If they want to inspect your computer, they will....

Well if they do, they better have probable cause, at least in the 9th states and the US/Mexico border in California.

The courts are putting the US Government on notice that computers, and cell phones are different, and just can't be searched randomly at a traffic stop or at the border. The Supreme Court ruled last year, that the police cannot search a cell phone without a warrant, even during an arrest.

chuckie - 5-12-2015 at 01:10 PM

Right.....

What is your major malfunction?

Howard - 5-12-2015 at 01:37 PM

I am trying to enjoy postings here and your cartoons do not add anything to this thread other than annoy me/us.

I/we do not care who you are chasing down.

Please refrain from this and take it elsewhere.

Thank you.

Whale-ista - 5-12-2015 at 01:49 PM

Without probable cause, evidence of a crime discovered during a search that is later determined to be illegal can be excluded from criminal procedings.

So- this puts LEOs on notice: first, make up a probable cause- THEN search the _________ (name that device)

wessongroup - 5-12-2015 at 02:08 PM

Quote: Originally posted by JoeJustJoe

From the article: The federal government argued that South Korean businessman Jae Shik Kim was conspiring to sell aircraft technology to Iran, and seized his computer at the California border in order to gather evidence to prove the suspicion of arms control violations.

_____________________________

He was not smuggling kiddie porn.

Are "both" Legal to do ? :biggrin:

"The federal government argued that South Korean businessman Jae Shik Kim was conspiring to sell aircraft technology to Iran, and seized his computer at the California border in order to gather evidence to prove the suspicion of arms control violations. The current administration has maintained that people crossing into the U.S. are not protected by the Fourth Amendment against unreasonable search and seizure and has a policy of allowing intrusive searches to prevent drugs, child pornography, and other illegal imports from entering the country."

Was there probable cause. in this case ... would be the question to be answered IMHO

Or is this about NOT having probable cause ?

I understand the current position of this Administration on the issue and given current Global state of flux ... to error on the side of Public Safety would seem to be "prudent" .... not an individuals right to transport illegal material and/or materials via a computer ....

Kinda like finding "drugs" coming across the same border at the same location or shipments of ______ illegally into the USA ?

If there is "probable cause" I don't have a problem with it

But, I've had a number of disagreements with the 9th's rulings perviously ... Not a big surprise as stated

[Edited on 5-12-2015 by wessongroup]

chuckie - 5-12-2015 at 02:35 PM

And? How have your "disagreements" worked out for you? Did they apologize for violating a constitutional right? Hold your breath.....

Bob and Susan - 5-12-2015 at 02:48 PM

you take it in the "back"...you check it
if there's "bad stuff"
you bring it back out and get the warrant
there are no rules...you make them up as you need them
it's been that way forever

[Edited on 5-12-2015 by Bob and Susan]

JoeJustJoe - 5-12-2015 at 03:11 PM

Quote: Originally posted by wessongroup

Quote: Originally posted by JoeJustJoe

Are "both" Legal to do ? :biggrin:

A Federal judge would disagree with you:

A federal judge determined the search of a traveler’s laptop without a warrant as he was leaving the country was unreasonable, in a ruling that could derail the government’s long-held search criteria for international travelers.

It also appears there was also no probably cause when they seized his laptop, kept it, copied everything, and then went on a fishing expedition while looking at all the guys emails. Since the Supreme Court, ruled favorable in the case of cell phone searches, there is no reason to expect they will overturn this ruling.
----------------

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.

I'm quoting from this blog:

http://thinkprogress.org/justice/2015/05/11/3657248/judge-se...

[Edited on 5-12-2015 by JoeJustJoe]

JoeJustJoe - 5-12-2015 at 03:24 PM

Quote: Originally posted by chuckie

And? How have your "disagreements" worked out for you? Did they apologize for violating a constitutional right? Hold your breath.....

Custom agent, or regular police can do what they want. But if they conduct a deeply invasive search on your computer, without good probably cause, with is different than reasonable suspicion, which cops abuse all the time.

The only thing you need to do now is keep your mouth shut, and hire a defense attorney, who will get back your computers, and get the US Government off your back.

Hanni Fakhory, senior staff attorney for Electronic Frontier Foundation in San Francisco, said the opinion wasn’t “binding” like an Appellate or Supreme Court decision that requires other courts have to follow suit. “But it’s persuasive because it adds to the growing body of case law that says digital devices are different,” he said.

That means the next time the government searches someone’s phone, tablet or laptop on suspicion of criminal activity, a defense attorney can use the case as an example of an invalid forensic search, a deeply invasive search that reveals old emails, call records and other information that can’t be obtained just browsing through one’s device.

http://thinkprogress.org/justice/2015/05/11/3657248/judge-se...

chuckie - 5-12-2015 at 03:34 PM

AND? Who pays for that defense attorney? You? Get realistic....

sancho - 5-12-2015 at 03:37 PM

Curious, has this ever been an issue with anyone here? That is the confiscation, browsing of a personal computer? Just by crossing
back, don't you give up your rights the search of your vehicle,
person? I don't believe CBP needs a warrant or probable cause
for that

bajabuddha - 5-12-2015 at 03:42 PM

This is all azz/u/ming the border boys play by the rules. There's also rules about not shooting someone unless you have to; that ain't working out well for the shoot-ees lately.

wessongroup - 5-12-2015 at 03:59 PM

Never effected me directly ... just didn't agree with their "interoperation" of the Law ... That's still allowed, isn't it ?

Being anonymous does have its draw backs …. HUH …. Pete

btw "one swallow does not a summer make”

look it up :biggrin:

JoeJustJoe - 5-12-2015 at 04:06 PM

Quote: Originally posted by chuckie

AND? Who pays for that defense attorney? You? Get realistic....

Sure, you're damn right if it happened to me.

Where have you been, the real estate market has rebounded. There is equity in the homes, including my home.

There is also the public defenders, if you get charged with a crime, and even public defenders knows how to file motions to dismiss.

You can file "Pro Per" which I have before, but I don't recommend it for something like this.

In San Diego, and other cities they are legal advocates that will help you for free or low cost, depending on your income level.

The only reason why I bring up this topic is not to have people defend themselves in court, but rather to let you know your legal rights at the border.

The Customs agents might ask to search your laptops, and now you have a right to tell them no, and previous to this court ruling, the customs agents searched laptops the same way they searched suitcases, and at times they kept them for days, weeks or longer, in order to make a thorough search, when they didn't have probably cause.

ELINVESTIG8R - 5-12-2015 at 04:17 PM

Just Say NO ?

MrBillM - 5-13-2015 at 06:19 PM

Well, I don't KNOW.

Once (and only once) many years ago, I managed to irritate a CBP officer WHO.......................

Sent me to Secondary, called for a replacement and followed me there. At which point, he and two others emptied EVERYTHING from my truck, took me inside and sat me in a waiting area while they (supposedly) ran a criminal check on me (including, they said, Interpol) and then escorted me back to the Secondary area where I was allowed to repack my goods and go on my way.

Two Hours +.

Point Taken.

I have NEVER given them ANY Lip since.

Of course, other than (once in awhile) a "Bit" more alcohol than allowed and (a few times) some Totuava Fillets, I haven't had anything to hide, including anything on my computers.

Going South was always another matter.

As I said once to a CBP agent, "ALL of my hidden stuff is in the other direction".

wessongroup - 5-13-2015 at 07:05 PM

Suppose one could consider that a form of "probable cause"

And LE acting without probable cause, would be a very inefficient means of enforcement of Law and/or regulations which exist

Bill"s example, could serve .. as a less than effective use of "time" while enforcing the Law and regulations, at the border

And it all comes down to "Reasonable" or "Unreasonable"

Would imagine Pete would think there was and/or is "reasonable" cause to STOP Bill ... for any number of reasons :lol:

"Unreasonable" would be ... stoping everyone, with a computer ... "reasonable" would stopping an individual and/or individuals who have an "open investigation" file with Agency or give rise to probable cause by the individual LE agent and/or agents, based on education, training, OJT, and experience learned in the "field"

Never crossed back with anything which would impede a smooth crossing .. north

Everything stayed in Baja .. hopefully

Just my 2 cents

[Edited on 5-14-2015 by wessongroup]

JoeJustJoe - 5-13-2015 at 09:37 PM

Listening to you Wesson you would be on the side of the US Customs instead of the poor woman who who treated like a convicted criminal or worse.
_________________________________________

Civil Rights Groups Push To Change Legality Of Border Body Cavity Drug Searches
A U.S. citizen has accused Customs and Border Patrol officers of sexual assault after she endured a six-hour anal and vaginal cavity search.

U.S. Customs and Border Protection officers violating Americans’ Fourth Amendment rights as part of a last ditch effort to win a battle in the failed war on drugs?

It’s a question that many civil-and immigration-rights activists have begun to ask after a citizen came forward saying she was forced to have a six-hour anal and vaginal cavity search by CBP officers who were convinced she was smuggling drugs across the U.S.-Mexico border even though she wasn’t.

The 54-year-old woman — whose name has not been released since she identifies as a victim of sexual assault — filed a lawsuit with the help of the American Civil Liberties Union last week against the agents and doctors who searched her genitals without her consent and charged her more than $5,000 for the exams.

According to the lawsuit, the woman has visited a family friend whom she considers and refers to as “uncle” at least once a month since he was deported to Mexico. But last December when she was attempting to cross the Bridge of the Americas from Ciudad Juarez, Mexico into the U.S., she was pulled aside for an additional “random” inspection.

read the rest here: ( warning graphic and the reason why I didn't post more of the article)

http://www.mintpressnews.com/civil-rights-groups-push-change...

motoged - 5-13-2015 at 09:46 PM

Please take your crap off this thread....and stay in Off Topic with your cartoons and threats. :fire:

Quote: Originally posted by ELINVESTIG8R

monoloco - 5-13-2015 at 10:04 PM

Quote: Originally posted by MrBillM

Well, I don't KNOW.

Once (and only once) many years ago, I managed to irritate a CBP officer WHO.......................

Sent me to Secondary, called for a replacement and followed me there. At which point, he and two others emptied EVERYTHING from my truck, took me inside and sat me in a waiting area while they (supposedly) ran a criminal check on me (including, they said, Interpol) and then escorted me back to the Secondary area where I was allowed to repack my goods and go on my way.

Two Hours +.

Point Taken.

I have NEVER given them ANY Lip since.

Of course, other than (once in awhile) a "Bit" more alcohol than allowed and (a few times) some Totuava Fillets, I haven't had anything to hide, including anything on my computers.

Going South was always another matter.

As I said once to a CBP agent, "ALL of my hidden stuff is in the other direction".

You are very lucky you didn't get caught smuggling totuava, you could have received a very hefty fine and jail time.

wessongroup - 5-13-2015 at 10:13 PM

How would you arrived at that Pete ... only shows your prejudice as it relates to LE

Was every women taken out of line and given the same search

And the cost's should NOT be borne by the "individual" rather the "Agency" involved IMHO

Not something I would enjoy and sounds a bit extreme, however, I really don't know all the facts of the case

Do ya have a link to the Agency ... for their position on this "stop and search"

One thing I will agree on from the article

"win a battle in the failed war on drugs"

Think I've seen more than a few "bust's" where women were in fact "smuggling" drugs .. using their bodies .. men too

Not something new, happens all the time in "lock up" and crossing the border ... they even smuggle "cell phones" "money" ... I'm sure there are other items, but, for now, that is enough

Back to "Reasonable" vs "Unreasonable" and "Probable Cause" ... just my 2 cents

[Edited on 5-14-2015 by wessongroup]

Exeption

durrelllrobert - 5-14-2015 at 09:34 AM

That ruling DOES NOT APPLY to the NSA who can record and search all cell phone / email records. Who do you think turned the CBP onto stopping this Korean business man?

wessongroup - 5-14-2015 at 11:31 AM

Oh... good to know .. there ARE "exceptions"

Once again ... no absolutes ... which is good ... even in enforcement

A topic which Pete has a great deal of difficulty with ....

That would be LE and "absolutes" :biggrin:

Hey Pete having any success on Hydrogen :lol:

[Edited on 5-14-2015 by wessongroup]

Shady Fish Days

MrBillM - 5-14-2015 at 07:37 PM

When traveling with Totuava, as luck would have it..................

I took the advice of a neighbor in Baja who said "ALWAYS Fillet out the Steaks completely and, if questioned say that it was (as far as you knew) 'Sea Bass' bought off of a vendor".

THAT would have been my story and I would have stuck to it.

BUT, the question never came up.

In later years, when it was more likely to arise, we simply made sure that we ate it ALL South of the Border.

Yum.

I DO miss that fish.