A defendant’s sex trafficking convictions were upheld even though the Fourth Circuit said Nov. 21 that Homeland Security’s warrantless search of his electronic devices violated the Fourth Amendment.
The appeals court rejected the government’s argument that the search fell under an exception for border searches, but said the evidence was allowed because of Homeland Security’s good faith reliance on precedent allowing it to conduct the search.
Homeland Security Investigations had evidence that Raymond Aigbekaen was sex trafficking a 16-year-old girl in New York, Maryland, and Virginia. Although Aigbekaen was out of the country when the evidence was developed, the Homeland Security investigative division asked U.S. Customs and Border Protection officers to seize his electronic media devices when he returned.
After the devices were seized, HSI conducted a warrantless forensic search on them. A forensic search unlocks password-protected files, restores deleted material, and retrieves images viewed on websites.
Aigbekaen was convicted on six sex trafficking counts, but he argued evidence from the forensic search violated his Fourth Amendment rights. The government said the search was valid under the border exception to the Fourth Amendment, which allows “routine” searches at the border.
But the government must have individualized suspicion of an offense that bears some nexus to the exception’s purposes of protecting national security, collecting duties, blocking entry of unwanted persons, or disrupting efforts to export or import contraband, the opinion by Judge Judge Diana Gribbon Motz said.
The government’s general evidence in domestic law enforcement, which was at issue here, doesn’t create a sufficient nexus under these traditional rationales, it said.
But that rule hadn’t been adopted in 2015 when Aigbekaen’s devices were searched, it said. HSI was then operating under an established body of caselaw allowing warrantless border searches of digital devices, so the good faith exception to the exclusionary rule applied, it said.
Judge James A. Wynn Jr. joined the opinion.
Judge Julius N. Richardson concurred in the judgment, but argued the nexus test is at odds with U.S. Supreme Court precedent, and, even if it did apply, it was satisfied here.
Brennan McKenna & Lawlor Chtd. represented Aigbekaen. The U.S. Attorney’s Office represented the government,.
The case is United States v. Aigbekaen, 4th Cir., No. 17-4109, 11/21/19.