Bradley, 2011 WL 2565480, at *23-24 (11th Cir. June 29, 2011); United States v. Simpson, 2011 WL
721912, at *4-5 (N.D. Tex. Mar. 2, 2011) (rejecting a claim that the size of a data seizure, over 200
terabytes from a server farm, made the warrant lacking in particularity). To date, no other courts outside of
the Western District of Washington have chosen to follow this decision.
While the implications of this holding in the Western District of Washington continue to be
reviewed, certain relief may be available to prosecutors that confront CDT III issues in domestic terrorism
cases under 18 U.S.C. § 2331. In most cases, a case may be prosecuted in one district but require the
application for a Rule 41 warrant in order to obtain evidence in another district. If that other district is an
adherent to CDT III, recent amendments to Rule 41 may be of assistance. Normally a Rule 41 warrant
must be sought in the district in which the evidence is located. However, under Rule 41(b)(3), warrants for
evidence relating to domestic or international terrorism can be sought before any magistrate judge.
III. Border searches of electronic devices
As populations become increasingly mobile and as digital devices capable of storing massive
amounts of data become more ubiquitous, it is only natural to wonder how courts will address warrantless
searches of digital devices at the border. While persons may be used to customs personnel having the
authority to search luggage and other personal possessions at the border, see generally 8 U.S.C. § 1225
(2011); 19 U.S.C. §§ 482, 1581 (2010), certain groups are seeking to create greater privacy rights for
digital devices at the border. While it may seem incongruous that a person would have greater privacy at
the border in their thumb drive than in their dainty under things in their hand-held luggage, that is the
position that has been asserted and prosecutors should be prepared to address warrantless searches of any
digital device at the border.
First, some context is necessary. According to the Department of Homeland Security, between
October 2008 and June 2010, 590 million entrances took place at the borders of the United States.
Defendant’s Memorandum of Law in Support of Motion to Dismiss at 16, Abidor v. Napolitano, No. 10
CV 4059 (E.D.N.Y. Jan. 28, 2011); see also United States v. Abbouchi, 502 F.3d 850, 855 (9th Cir. 2007)
(recognizing that the government’s search authority also extends to exit searches at the border). Of this
number, 6,500 persons had their electric devices searched at the border; that is one person in every 90,000
travelers. Reply in Support of Motion to Dismiss at 2, Abidor v. Napolitano, No. 10 CV 4059 (E.D.N.Y.
Mar. 30, 2011). The “search” may have ranged from asking the person to turn on his device and having
customs personnel examine the “My Pictures” folder in the Windows directory to a full forensic review.
Of the 6,500 border searches that were conducted during this time period, 220 digital devices were actually
seized; that is one seizure for every 2.6 million travelers. Defendant’s Memorandum of Law in Support of
Motion to Dismiss at 16, Abidor v. Napolitano, No. 10 CV 4059 (E.D.N.Y. Jan. 28, 2011).
For the most part, courts recognize that suspicionless and warrantless searches of any digital
device at the border are both reasonable and constitutional. See, e.g., United States v. Flores-Montano, 541
U.S. 149, 155-56 (2004). Warrantless searches at the border based on the “reasonable suspicion” standard
have usually been limited to searches of body cavities. See, e.g., United States v. Braks, 842 F.2d 509, 512
(1st Cir. 1988). Border searches may also be based on warrants with probable cause. These traditional rules
regarding searches of objects have also been applied to searches of digital media at the border. See
United States v. Arnold, 523 F.3d 941, 944-48 (9th Cir. 2008); United States v. Linarez-Delgado, 259 F.
App’x 506, 507-08 (3d Cir. 2007); United States v. Ickes, 393 F.3d 501, 503-06 (4th Cir. 2005).
The recent case of United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011), provides a graphic
example of some of the problems with searching digital media at the border. The defendant and his wife
sought to enter the United States at a small border crossing in Lukeville, Arizona. (Lukeville, Arizona is
probably a lovely desert oasis, but, according to the 2000 Census, it has a population of thirty-five hearty
74 UNITED STATES ATTORNEYS’ BULLETIN NOVEMBER 2011