Searching Laptops without Probable Cause – What You Should Know!

By: Gerri L. Elder

Laptop computers are an increasingly common item in the possession of almost anyone who travels, even a defense attorney. Given that almost everyone has a laptop now, and they are so lightweight and easy to carry, airport screeners and customs officials are very accustomed to seeing them every day. However, the question arises, do screeners, police and customs officials have the right to search laptop hard drives without probable cause?

The U.S. government says yes. They claim to have the right to inspect any laptop that enters the country, even if the laptop itself or the owner are not suspected of anything. Just as suitcases are able to be inspected, the government reserves the right to inspect computer hard drives.

The issue has been brought to court, and one federal appeals court has already agreed with the government and said that the search of laptop hard drives is not unreasonable or invasive and is completely legal. However, at least one federal court judge disagrees with the notion that computer hard drives are the same as suitcases, and subject to searches without probable cause.

Michael T. Arnold flew from the Philippines to California a couple of years ago and carried his laptop with him on the flight. At the Los Angeles International Airport, a customs official inspected his laptop and decided to have a look at what was on the hard drive. Child pornography was found inside a pictures folder on the computer, and Arnold was arrested.

In 2006, Judge Dean D. Pregerson of the Federal District Court in Los Angeles decided that electronic storage devices such as the hard drive of Arnold’s laptop serve as an extension of the users own memory. He therefore decided to suppress the evidence against Arnold, and said that the government should not be allowed to inspect computer hard drives without probable cause.

Judge Pregerson said that computer hard drives can contain diaries, letters, medical information, financial records, trade secrets, attorney-client materials and information about reporters’ confidential sources and story leads. According to Pregerson, it is invasive and a violation of privacy to inspect a hard drive without suspicion of a crime.

There was an appeal of Pregerson’s decision, and the three judges who heard arguments in the case seemed to disagree and may overturn his decision. They were inclined to believe that a computer hard drive is just a container, and like a suitcase, is not entitled to any special protection from searches by customs officials.

In a previous case heard by the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia, the court decided that customs officials had the right to search laptop hard drives without probable cause. The conviction of a man who crossed the Canadian border with a computer that contained child pornography was upheld.

So, in the cases that have been heard so far on this issue, the courts seem to find that the search of a computer hard drive is not invasive or intrusive, and can be conducted without reasonable suspicion or probable cause. The law requires reasonable suspicion when a search is invasive, but without a finding that the search of a computer hard drive is invasive being upheld, the government will continue to search laptop hard drives, with or without any suspicion of a crime.