In Riley v. California,¹ the U.S. Supreme Court adjusted the direction of Fourth Amendment law with respect to searches of digital devices seized incident to arrest by requiring that in most cases police obtain search warrants based upon the probable cause standard. In doing so, the court acknowledged the intrusiveness of searches involving today's digital media given their capacity to store encyclopedia size chunks of the intimate moments in a person's life. Riley raises—and this article addresses—the issue of what impact, if any, does it have on the historical border search exception to the warrant requirement under the Fourth Amendment.

At one time, the loyal four-legged sentinel with his or her law enforcement handler stood guard at most major international airports in this country, their main mission being to stop the flow of dangerous drugs into the United States. The realities of the post 9/11 era increased the mission to include searching for weapons of mass destruction (WMDs), and other dangerous forms of contraband, including weapons, counterfeit drugs, and other items that could be secreted within digital devices. Given that various forms of contraband may be hidden in digital devices, and the ubiquitous nature of such digital devices, searches of these devices now play a greater role in border interdiction methodology. Consequently, border search issues with respect to digital media have more frequently been the subject of judicial scrutiny.

Search Warrant Exception. With respect to the narrow exemptions from the warrant requirement, in writing for the majority in Riley,² Chief Justice John Roberts opined that absent more precise guidelines from the founding era, the court would apply a balance of interests test. He stated: “We generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” In dealing with the facts in Riley, which involved a search of a cell phone incident to arrest, the court noted that the privacy interests retained by an individual after arrest are significantly diminished by the fact of the arrest itself, but contrasted the privacy interest involved in cell phones that place a vast quantity of personal information literally in the hands of individuals, and acknowledged that the ubiquitous form of communication in the 21st century—the mobile cellular phone—unlike the wallet or purse of yesteryear, is capable of storing a digital encyclopedia of storage capacity including data detailing intimate moments in an individual's life.³