When Jim Tyre sent me the decision in United States v. Kim, hot off the presses, I shrugged it off. There it was, the outlier district court decision that ran contrary to every bad decision ever written about computer searches at the border. That the border is a Constitution-free zone is beyond well-established, even though courts have completely forgotten why that was the case and have usurped their authority to protect our borders to indulge in a free search just because they can.
But that’s the law It shouldn’t be, but it is.
So when DC District Court Judge Amy Jackson decided to revisit every border search decision ever and, dear judge that she is, explain why it’s all malarkey, you had to admire her pluck and dedication to reason over precedent.
That said, it was only a district court decision. Until a Circuit backed her up, a proposition that seemed pretty distant given the disruption to border search law it would cause, it wasn’t cause to break out the champagne. I’ve wasted too many bottles of champagne already on the excellent lower court ruling that was blown away by the bigger bench as if it was chastising a wayward child for not coloring within the lines.
There were some oddities in the facts of Kim. For one thing, Kim wasn’t traveling into the country, but out. The rationale that justifies a border search fits entry, especially if it occurred coming off a four-masted ship in the 18th Century, but doesn’t make nearly as much sense for someone leaving the country. There isn’t much they can take out that threatens to bring a plague upon the homeland.
And then there was the part where they allowed Kim to leave, while keeping his computer, which was sent off to be imaged, then searched. A warrant was subsequently obtained, per the 9th Circuit’s confusing Cotterman decision, but it had already been put through the wringer. All of this was well after Kim was gone, raising the question of how this related to anything more than a free criminal search that started at a border using a rubric that bore no connection to its legal justification.
Oh well. It’s a border search, and precedent was clear, if absurdly wrong. One free search, no questions asked, at the border. As Judge Edward Korman noted, if you don’t want to have your computer searched, leave it home.
But Orin Kerr, who found the decision disagreeable as against all the precedent so beloved by scholars, raised a curious phrase in his explaining why Judge Jackson was wrong: the Riley moment.
In Riley v. California, the justices of the Supreme Court learned what a cellphone is, whereupon they intoned, “oh crap,” and held that a warrant is needed to search a cellphone because it contains, or accesses, a whole world of stuff. In other words, they finally had the epiphany that computers were different.
Judge Jackson seized upon Riley to consider that border searches had been turned into shams, free criminal searches masquerading as border searches, and holding that government’s interest in protecting the homeland from departing computers was thin at best.
[T]he Court cannot help but ask itself whether the examination in this case can accurately be characterized as a border search at all. And if not, it surely cannot be justified by the concerns underlying the border search doctrine.
It is true that Kim’s laptop was seized at the border – in this case, LAX – but it was not even opened, much less searched, there. It was transported approximately 150 miles to San Diego, it was retained for a limited period of time, and eventually, the laptop was returned. Meanwhile, there was so little of note found in Kim’s luggage, and he posed so little of an ongoing threat to national security, that he was permitted to board his flight.
Well, sure, but then it was at a border, and as precedent informs, borders are magic. And the judge then notes the obvious, that this was a computer and the intrusion was huge. Using a totality of the circumstances test, she holds that Riley provides the escape valve that allows her to suppress the search of the computer, even though the physical place of seizure was a border.
Orin criticizes Judge Jackson’s use of an ad hoc totality of the circumstances test, though it’s not entirely clear that she’s promoting such a test. The first time out of the box on her Riley moment, it’s kind of necessary that the judge explain why rather than issue a categorical rule that ignored the totality of the circumstances. Much as that might have been cool, had it happened, the decision wouldn’t stand a chance of surviving without full explanation.
On the other hand, Orin writes about his telling criminal defense lawyers to go for it:
In a recent talk, I spoke about how defense attorneys should press judges to find “Riley moments” — situations in which a court concludes that the old rules don’t apply because computer searches are fundamentally different from physical searches. While defense attorneys should be making those arguments, I don’t think Judge Jackson’s “Riley moment” in the Kim case was ultimately a success. Maybe border searches require a Riley moment in some way. Maybe a new test is needed by which the government’s search in this case was unconstitutional. But if a new test is needed, I don’t think that a case-by-case inquiry based on the kind of factors considered in Kim is the right way to go.
As Judge Jackson suppressed, it was indeed a success. Quite a success, in fact, though to lawprofs the success may lie more in the doctrine than the outcome. They don’t see representing clients the same way as we do.
But that said, I think Orin missed the bigger picture, that Kim represented a huge break from a couple hundred years of really bad precedent, that left borders a Constitution-free search zone untethered from the original rationale, and which can’t be rationally applied to the computer age. Sure, it defies historic black letter law, but only because that law sucked big time and had long since become an empty rubric for a forgotten rationale.
Will the Kim decision survive? Have you met our courts lately? And yet, every journey begins with a single step, and Judge Jackson chose the right path to take a stroll.