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East Hartford criminal defense lawyer for illegal searchesMany of the laws in the United States were written hundreds of years ago, when the most advanced forms of technology available were bifocal eyeglasses and steamboats. In today’s world, where everything is at your fingertips in the form of a handheld device, the application of these laws can become tricky. In recent years, people have argued that their Fourth Amendment rights have been overstepped at U.S. border checkpoints. Millions of people travel in and out of the United States on a daily basis, and they may be subject to electronic device searches, whether they are U.S. citizens or not. The question is, are these searches legal?

Civil Liberties Advocates Argue for More Privacy

In recent years, U.S. Customs and Border Patrol (CBP) agents have been searching more and more electronic devices at U.S. borders. In 2015, there were an estimated 8,500 searches conducted on electronic devices at the border. In 2018, there were 33,000 searches conducted, which is a three-fold increase. Many civil liberties advocates, most notably the American Civil Liberties Union (ACLU), have argued that these searches are often done for no apparent reason and violate the Fourth Amendment protections against unreasonable searches and seizures.

Federal Judge Rules in Favor of Privacy Advocates

In 2017, a lawsuit was filed against CBP by 11 people (10 of whom are U.S. citizens and one who is a lawful permanent resident) alleging that their electronic devices were taken by CBP, and their personal data was searched for no apparent reason. Recently, a federal judge in Boston ruled that CBP agents cannot take travelers’ electronic devices and conduct suspicionless searches. The U.S. has long asserted that it does not need to issue warrants to search devices at the border, but this judge has concluded that CBP agents must have reasonable suspicion and be able to point to specific facts to justify the search before a search is conducted.

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Connecticut criminal defense attorney for digital evidenceThe Fourth Amendment to the U.S. Constitution states that all citizens have the right to be free from unreasonable searches and seizures by the government without a warrant. This provides protection against unfair tactics by prosecutors when a person is facing criminal charges. However, in the 21st century, the increased use of digital media has resulted in a slew of complexities in criminal cases. The Fourth Amendment was written to protect the privacy of American citizens, but what happens when your private digital files are no longer private to only you? In some cases, the “private search doctrine” may apply.

What Is the Private Search Doctrine?

Using the private search doctrine, once a private party (who is not involved with the government) has already done an initial search, the government can repeat that search without infringing upon the property owner’s individual Fourth Amendment rights. Basically, the private search doctrine allows the government to perform a search that is not technically a search in the Constitutional sense.

A Recent North Carolina Case Sparks Controversy

In 2014, a North Carolina woman was looking for a photograph on her boyfriend’s USB thumb drive. While she was clicking through folders and subfolders on the drive, she came across a partially-nude photo of her nine-year-old granddaughter. Upset, she stopped her search and informed her daughter of the photo. The pair took the thumb drive to the police station, where a detective began to look through the folders to find the photo the woman was referring to. While the detective was looking, he saw other photos that he thought might be child pornography. Once he found the photo of the woman’s granddaughter, he stopped his search and obtained a warrant to search the thumb drive for photos of child pornography.

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