…but, according to the US Supreme Court, the Constitution permits the warrantless, indict-less, Grand Jury-less killing of US citizens by pilotless drone.  (The Court has not actually ruled directly on the matter of Chief Executive-ordered assassinations, but has denied certiorari to, i.e., refused to hear, a case objecting to a killing). 

That is some Constitution we’ve got there.

A convicted child molester attempting to return to the US at the Mexican border was detained.  Border Patrol agents ran his name through a database and found he was a convicted child molester, so confiscated two laptop computers and a camera they found in his car, and sent them to a forensics lab for searching.  They found what they were looking for–images of children in pornographic situations–and charged him with child pornography.  He objected that they had no “reasonable suspicion” to search him, and they hadn’t a warrant, so the evidence should be excluded.  The trial court agreed.  The Ninth Circuit initially overturned the trial court, but then re-heard the case en banc, and agreed with the trial court’s initial ruling:  There was no reasonable suspicion of wrongdoing by the mere possession of a laptops and cameras, so the evidence should be inadmissible. 

Writing in the Wall Street Journal, Roy Altman, an Assistant US Attorney for Miami bemoaned the ruling as an exception to the generally agreed principle that anything crossing the border is subject to warrantless search:

In the 127 years since the Supreme Court first recognized the border-search exception, it has required a showing of reasonable suspicion for a border search in only one case. In United States v. Montoya de Hernandez , decided in 1985, the court held that, even at the border, U.S. agents must have reasonable suspicion of criminal activity before they may detain a person for 24 hours and conduct an invasive cavity search—an understandable standard.

But the justices have consistently refused to extend the Montoya de Hernandez exception to cases involving border searches of mere personal property. During the past 127 years, therefore, federal courts have upheld warrantless, suspicionless border searches of, among other things, a person’s car, gas tank, wallet and any containers (including anything that might be found in those containers).

In its recent Cotterman decision, the Ninth Circuit conceded that the Supreme Court had never applied the Montoya de Hernandez exception to personal property, but the judges decided anyway to extend the exception to border searches of a particular kind of property: laptop computers. They justified this departure from Supreme Court precedent on the grounds that, because computers can store large amounts of personal information, people who cross the border with computers should enjoy an enhanced expectation of privacy in the contents of those computers—though not in the contents of their cars, suitcases or any other pieces of personal property.

Is this simply a matter of a hard case making bad law?  Perhaps.  Nobody wants child molesters to get away with what they do.  And people should generally have no expectation of privacy when crossing a border.  But child molesting is hardly a national security issue, and the defendant was a US citizen returning to the US.   The Court is perhaps saying that the Fourth Amendment right to be free of unreasonable searches and seizures is not forfeited simply because a citizen leaves the country.   Would that the same were true for the Fifth and Fourteenth Amendment right to not suffer the deprivation of life, liberty and property without due process of law. 

Yep, that’s some Constitution we got.

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