4 ms·

I strongly suspect that CBP's "strong suspicion" is equivalent to a HN poster's "whim." I'm not insulting either party, however when anything similar to this de

I strongly suspect that CBP's "strong suspicion" is equivalent to a HN poster's "whim." I'm not insulting either party, however when anything similar to this debate plays out, parties talk past each other on this sort of disagreement.

maximilianroos 8y ago
Reasonable suspicion is a legal standard that requires articulable facts, not a whim. Courts regularly hold that officers didn't obtain it. For more: https://en.wikipedia.org/wiki/Reasonable_suspicion https://en.wikipedia.org/wiki/Reasonable_suspicion
- everdrive 8y ago
  I agree -- and apologies, I might not have made my point very well. A different way to phrase it might be: The officers and the suspects disagree about what a reasonable suspicion might entail. Given the incentives, I don't think this is surprising. I'll admit, my point in no way addresses yours -- how often are officers adhering the the specific legal standard?
  - maximilianroos 8y ago
    For sure, I agree I'm really not sure how often officers violate the standard; it wouldn't shock me if it were frequent But when they do, courts will suppress the evidence, and anything that's obtained from knowledge gained in that search ("fruit of the poisoned tree"). I trust that mechanism. And think it's likely better held in the US than literally any other country (v open to evidence to the contrary though)
    - dragonwriter 8y ago
      > But when they do, courts will suppress the evidence Not if the violation was done in “good faith”: https://www.law.cornell.edu/wex/good_faith_exception_to_exclusionary_rule https://www.law.cornell.edu/wex/good_faith_exception_to_excl...
      - maximilianroos 8y ago
        Yes, thanks for the reference
Zak 8y ago
"Reasonable suspicion" is a legal term. In this context, a CBP officer would need to have evidence that would lead a reasonable person to believe the item to be searched is illegal to bring into the country, or contains something that is illegal to bring into the country. A hunch is not sufficient; it requires objective evidence. Reasonable suspicion is not required for every search at a border crossing, and the Federal circuit courts are split on whether it is required for a forensic examination of a mobile phone at a border crossing. The 9th circuit has jurisdiction in this case, and has ruled that it is required.
- mamon 8y ago
  Exept borders (and anything within 100 miles from it) are basically a zone where US Constitution does not apply. You can be detained and sent to Guantanamo for made up "terrirst threat" and there's no really a legal recourse.
- jandrese 8y ago
  That only applies if the case goes to trial though. Border guards frequently assume that they have near unlimited power regardless of what the law says.
  - Zak 8y ago
    The fundamental problem is that there are rarely consequences for border guards exceeding or misusing their power. The incentives support them trying to exceed legal limits on their authority.
- maximilianroos 8y ago
  > Federal circuit courts are split on whether it is required for a forensic examination of a mobile phone at a border crossing Did Cotterman 2013 clear this up? How does are circuit courts split yet the 9th assumed jurisdiction?
  - Zak 8y ago
    The 9th circuit has jurisdiction in this case because it happened in California. US v. Cotterman is the relevant case, and the 4th circuit made a similar ruling in US v. Kolsuz, but the 11th circuit held differently in US v. Touset. So in some parts of the US, reasonable suspicion is required. In some parts, it isn't. In some parts, there is no binding precedent on the issue. It's likely that the supreme court will hear a case on the issue eventually.

maximilianroos 8y ago

Reasonable suspicion is a legal standard that requires articulable facts, not a whim. Courts regularly hold that officers didn't obtain it. For more: https://en.wikipedia.org/wiki/Reasonable_suspicion https://en.wikipedia.org/wiki/Reasonable_suspicion

everdrive 8y ago
I agree -- and apologies, I might not have made my point very well. A different way to phrase it might be: The officers and the suspects disagree about what a reasonable suspicion might entail. Given the incentives, I don't think this is surprising. I'll admit, my point in no way addresses yours -- how often are officers adhering the the specific legal standard?
- maximilianroos 8y ago
  For sure, I agree I'm really not sure how often officers violate the standard; it wouldn't shock me if it were frequent But when they do, courts will suppress the evidence, and anything that's obtained from knowledge gained in that search ("fruit of the poisoned tree"). I trust that mechanism. And think it's likely better held in the US than literally any other country (v open to evidence to the contrary though)
  - dragonwriter 8y ago
    > But when they do, courts will suppress the evidence Not if the violation was done in “good faith”: https://www.law.cornell.edu/wex/good_faith_exception_to_exclusionary_rule https://www.law.cornell.edu/wex/good_faith_exception_to_excl...
    - maximilianroos 8y ago
      Yes, thanks for the reference

Zak 8y ago

"Reasonable suspicion" is a legal term. In this context, a CBP officer would need to have evidence that would lead a reasonable person to believe the item to be searched is illegal to bring into the country, or contains something that is illegal to bring into the country. A hunch is not sufficient; it requires objective evidence. Reasonable suspicion is not required for every search at a border crossing, and the Federal circuit courts are split on whether it is required for a forensic examination of a mobile phone at a border crossing. The 9th circuit has jurisdiction in this case, and has ruled that it is required.

mamon 8y ago
Exept borders (and anything within 100 miles from it) are basically a zone where US Constitution does not apply. You can be detained and sent to Guantanamo for made up "terrirst threat" and there's no really a legal recourse.
jandrese 8y ago
That only applies if the case goes to trial though. Border guards frequently assume that they have near unlimited power regardless of what the law says.
- Zak 8y ago
  The fundamental problem is that there are rarely consequences for border guards exceeding or misusing their power. The incentives support them trying to exceed legal limits on their authority.
maximilianroos 8y ago
> Federal circuit courts are split on whether it is required for a forensic examination of a mobile phone at a border crossing Did Cotterman 2013 clear this up? How does are circuit courts split yet the 9th assumed jurisdiction?
- Zak 8y ago
  The 9th circuit has jurisdiction in this case because it happened in California. US v. Cotterman is the relevant case, and the 4th circuit made a similar ruling in US v. Kolsuz, but the 11th circuit held differently in US v. Touset. So in some parts of the US, reasonable suspicion is required. In some parts, it isn't. In some parts, there is no binding precedent on the issue. It's likely that the supreme court will hear a case on the issue eventually.