No suspicion needed to conduct forensic search of an electronic device at the border

Touset appealed his conviction for three counts of receiving child pornography, transporting and shipping child pornography and possessing a computer and computer storage devise contain child pornography.  He was arrested after his arrival on an international flight at the Atlanta Georgia airport, when a Customs and Border Protection agent inspected his luggage and found two iPhones, a camera two laptops, two external hard drives, and two tablets. The agent manually inspected the iPhones and the camera, found no child pornography and returned those devises to Touset.

But the agency detained the remaining electronic devices. A forensic search revealed child pornography on the two laptops and the two external drives. With that information agents obtained and executed a search warrant for Touset’s home in Marietta Georgia which turned up evidence showing Touset purchased thousands of images of child pornography, having sent more than $55,000 to the Philippines for pornographic pictures, videos, and webcam sessions. In some webcam sessions he instructed prepubescent girls to display and manipulate their genitals. He also created an excel spreadsheet that documented the names ages and birthdates of those young girls as well as his notes about them.

Prior to Touset’s entry into the United States he had been the subject of investigation for his activity which suggested he was involved with child pornography. Based on information gathered by officers of the Department of Homeland Security he was flagged by the Department of Homeland security. The information included evidence of small payments through Western Union to an entity in the Philippines, a country known for child exploitation, and that entity used an email address that had previously received or sent child pornography.

Touset filed motions to suppress the evidence obtained from hit electronic devices at the border as well as the fruits of those searches to include the evidence seized from his home. The trial court rejected the motion claiming there was reasonable suspicion to detain and search the electronic devices.

His challenge of the search and seizure of his electronic devices to the court of appeals met with no success. The court found that the Fourth Amendment does not require any suspicion for forensic searches of electronic devices at the border. The court of appeals saw no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property. The Fourth Amendment only requires reasonable suspicion at the border for highly intrusive searches of a person body. Its precedent does not require suspicion for intrusive searches of any property at the border.

The second argument raised by his criminal defense attorney in this child pornography conviction was that the government lacked reasonable suspicion for the search because the three separate payments to the Western Union account was stale information. The court of appeals rejected this argument finding the government had a particularized and objective basis for suspecting that Touset possessed child pornography on his electronic devices because the low money transfers were associated with a Philippine phone number that was associated with an email account that had contained child pornography. Together with other information about Philippines as a source country for child pornography, the evidence of Touset traveling with electronic devices provided adequate reasonable suspicion for a forensic search of his devices.