Federal Corner: A Nonroutine Border Search + A Leon Good Faith Issue = An Interesting Case


In United States v. Leon1, the Supreme Court held that the Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.  (emphasis added)

On November 21, 2019, a panel of the United States Court of Appeals for the Fourth Circuit held that (1) the forensic searches of an airplane passenger’s laptop computer, cell phone, and digital media player, after he arrived at international airport, had to be regarded as “nonroutine;” (2) warrantless forensic searches of an airplane passenger’s electronic devices was not justified under the “border search” exception to warrant requirement; (3) subsequent warrant-backed searches of electronic devices did not constitute an “independent source” that cured any taint from prior warrantless, forensic searches; (4) but evidence did not have to be suppressed, given the agents’ “good faith” reliance on existing precedent.  United States v. Aigbekaen.2

A search of WestLaw’s ALLFED database reflects 5,215 cases in which a district or appellate court has cited Leon.3  In many of these, Leon’s good faith exception permitted an appellate court to affirm a conviction.  There are, though, other Leon cases where there is no issue as to a warrant.  Aigbekaen is one of those cases.

Judge Motz’ opinion reads, in part, as follows:

The Facts of the Case

In April of 2015, a minor alerted law enforcement officers that Raymond Idemudia Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states. As part of the investigation that followed, when Aigbekaen returned to the United States from traveling abroad, the Government seized his MacBook Pro laptop, iPhone, and iPod at the airport and conducted warrantless forensic searches of the data on all three devices. …

The Indictment and the Motion to Suppress

… a grand jury indicted Greene4 and Aigbekaen on six counts, all of which related to interstate sex trafficking of L. and transportation of her for the purpose of prostitution.

Prior to trial, Aigbekaen moved to suppress various pieces of evidence, including (as relevant here) any evidence recovered from the May 2015 warrantless forensic searches.

Aigbekaen’s Argument on the Motion to Suppress and the Government’s Response

Aigbekaen argued that the May 2015 forensic searches were unconstitutional because they were conducted without warrants and did not fall within the border search exception to the warrant requirement. Aigbekaen maintained that ‘there has to be a point at which the nature of the government investigation is so separated and so divorced from anything related to the border’ that the exception becomes inapplicable. He explained that the Government’s ‘general interest in enforcing domestic criminal laws’ does not constitute an interest justifying ‘border searches.’ The Government responded that, at the time of the forensic searches, it had reasonable suspicion both that Aigbekaen had trafficked L. for sex domestically and that he ‘might be bringing contraband in the form of child pornography into the country,’ citing for the latter argument only an ‘allegation from the manager of the hotel where the victim was recovered.’

The District Court’s Holding; the Jury’s Verdict; and, Notice of Appeal

At the close of the suppression hearing, the district court dismissed the Government’s child pornography argument as ‘a lot weaker’ but held that under ‘the traditional border search analysis,’ ‘the circumstances of where the property was and where the person was when the search occurred’ ‘trumped’ any need to justify the specific search. As a result, the court found that no warrants were required for the May 2015 searches. The court further reasoned that if any individualized suspicion was needed to justify the ‘intrusive’ forensic searches of Aigbekaen’s devices, the Government met this standard because HSI had ‘at least’ reasonable suspicion, if not probable cause, that the warrantless searches would reveal evidence of domestic sex trafficking.

The court thus denied the suppression motion, and Aigbekaen proceeded to trial. After considering testimony from over twenty witnesses, a jury found Aigbekaen guilty on all six counts. Aigbekaen timely noted this appeal.

Aigbekaen’s Argument on Appeal

Aigbekaen’s principal argument on appeal is that the May 2015 warrantless forensic searches of his laptop, iPhone, and iPod violated the Fourth Amendment. Although the Government contends (and we ultimately agree) that the good-faith exception to the exclusionary rule requires affirmance in any event, ‘when a Fourth Amendment case presents a novel question of law whose resolution is necessary to guide future action by law enforcement officers and magistrates, there is sufficient reason for a court to decide the violation issue before turning to the good-faith question.’ United States v. Bosyk, 933 F.3d 319, 332 n.10 (4th Cir. 2019) (alterations in original) (quoting Illinois v. Gates, 462 U.S. 213, 264, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (White, J., concurring)).

The Standard of Review

We review the district court’s legal conclusions de novo and its factual findings for clear error, considering the record evidence in the light most favorable to the Government. Kolsuz, 890 F.3d at 141–42. Because the Government conducted the challenged searches without warrants, it bears the burden of proving, by a preponderance of the evidence, that an exception to the warrant requirement applies. United States v. Davis, 690 F.3d 226, 262 (4th Cir. 2012).

The Fourth Amendment

The Fourth Amendment requires that governmental searches and seizures be reasonable. In most cases, this requires a warrant based on probable cause. … ‘In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’ … (emphasis added)

The Border Search Exception

One such exception applies at our nation’s borders, where the Supreme Court has long recognized the federal Government’s substantial sovereign interests in ‘protecting … territorial integrity’ and national security, … blocking ‘the entry of unwanted persons and effects,’ … ‘regulating the collection of duties,’… and ‘preventing the introduction of contraband,’… These Government concerns are ‘at their zenith’ at the border, whereas an individual’s ‘expectation of privacy is less at the border than it is in the interior.’ … Thus, ‘at a border’ or its ‘functional equivalent, like an international airport … government agents may conduct routine searches and seizures of persons and property without a warrant or any individualized suspicion.’ Kolsuz, 890 F.3d at 137 (internal quotation marks omitted). 

Nonroutine Border Searches

Although this ‘border search’ exception to the warrant requirement is broad, it is not boundless. Even when the exception applies, the Supreme Court has explained that certain ‘highly intrusive searches’ may qualify as ‘ “nonroutine” ’ and so require some level of individualized suspicion. Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582 (quoting Montoya de Hernandez, 473 U.S. at 541 n.4, 105 S.Ct. 3304).

Warrantless Searches Not Related to Sovereign Interests

… neither the Supreme Court nor this court has ever authorized a warrantless border search unrelated to the sovereign interests underpinning the exception, let alone nonroutine, intrusive searches like those at issue here. … This restriction makes particularly good sense as applied to intrusive, nonroutine forensic searches of modern digital devices, which store vast quantities of uniquely sensitive and intimate personal information, id. at 145 (citing Riley, 573 U.S. at 393–97, 134 S.Ct. 2473), yet cannot contain many forms of contraband, like drugs or firearms, the detection of which constitutes ‘the strongest historic rationale for the border-search exception,’ United States v. Molina-Isidoro, 884 F.3d 287, 295 (5th Cir. 2018) (Costa, J., concurring).

to conduct such an intrusive and nonroutine search under the border search exception (that is, without a warrant), the Government must have individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband. See also United States v. Ramsey, 431 U.S. 606, 620, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) … (emphasis added)

The Court’s Conclusion

Applying these principles to the facts at hand, we can only conclude that the warrantless forensic searches of Aigbekaen’s devices in May of 2015 lacked the requisite nexus to the recognized historic rationales justifying the border search exception. Of course, when Aigbekaen landed at the airport with his MacBook Pro, iPhone, and iPod in tow, HSI agents had not only reasonable suspicion but probable cause to suspect that he had previously committed grave domestic crimes. But these suspicions were entirely unmoored from the Government’s sovereign interests in protecting national security, collecting or regulating duties, blocking Aigbekaen’s own entry, or excluding contraband. Thus, holding the border search exception applicable here, based simply on the Government’s knowledge of domestic crimes, would ‘untether’ that exception from its well-established justifications. Riley, 573 U.S. at 386, 134 S.Ct. 2473. (emphasis added in the opinion)

The Court Rejects the Government’s Argument

… the Government asserts that Aigbekaen’s crime ‘clearly was one that is the proper subject of a border search, because sex trafficking is a crime “commonly involving cross-border movements.” ’ Supp. Response Br. at 13 (quoting United States v. Caballero, 178 F. Supp. 3d 1008, 1017 n.7 (S.D. Cal. 2016)). Of course, the general character of a crime may be relevant to an officer’s reasonable suspicion that it involves a transnational component. But inherent in the notion of individualized suspicion is some evidentiary basis for what a specific crime does involve in the individual case at hand, not just what it ‘commonly involves’ as a general matter. Here, the Government has offered no reasonable basis to suspect that Aigbekaen’s domestic crimes had any such transnational component. (emphasis added in the opinion)

The Court Rejects the District Court’s Conclusion

We also must reject the district court’s conclusion that a nonroutine, intrusive search’s physical and temporal proximity to an international border ‘trumps everything’ under the Fourth Amendment. To be sure, the Supreme Court has stated that routine border searches ‘are reasonable simply by virtue of the fact that they occur at the border.’ Ramsey, 431 U.S. at 616, 97 S.Ct. 1972. But in the context of ‘highly intrusive’ nonroutine border searches, … the Court has explicitly struck a ‘balance between the interests of the Government and the privacy right of the individual,’ Montoya de Hernandez, 473 U.S. at 540, 105 S.Ct. 3304; see also Riley, 573 U.S. at 385, 134 S.Ct. 2473 (instructing courts to evaluate any exception to the warrant requirement by weighing individual privacy interests against ‘legitimate governmental interests’ (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999))). Consistent with this balancing, we clarified in Kolsuz that a nonroutine search’s location is not dispositive of whether the border search exception applies; rather, it is the search’s relation to the Government’s sovereign interests that is paramount. 890 F.3d at 142–43.

Border Searches Unrelated to Sovereign Authority

… it would be patently unreasonable to permit highly intrusive forensic Government searches of travelers’ digital devices, without warrants, on bases unrelated to the United States’s sovereign authority over its borders. To be clear, we do not question the import of the Government’s general interest in combatting crime. But we cannot agree that this interest categorically eclipses individuals’ privacy interests in the vast troves of data contained on their digital devices when the suspected offenses have little or nothing to do with the border.

… where a search at the border is so intrusive as to require some level of individualized suspicion, the object of that suspicion must bear some nexus to the purposes of the border search exception in order for the exception to apply. Because no such nexus existed here, the warrantless, nonroutine forensic searches violated the Fourth Amendment.

Because the Government lacked sufficient individualized suspicion of criminal activity with any nexus to the sovereign interests underlying the border search exception, its warrantless forensic searches of Aigbekaen’s devices violated the Fourth Amendment.

The Good Faith Exception Saves the Day for the Government

The Government next contends that the good-faith exception to the exclusionary rule bars suppression of any evidence tainted by any constitutional defect in the May 2015 searches. Aigbekaen counters that the lack of a nexus renders the good-faith exception inapplicable. On this point, we must agree with the Government.

The evidentiary fruits of Fourth Amendment violations are generally inadmissible at trial. See Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). But the fruits of ‘a search conducted in reasonable reliance on binding precedent are not subject to the exclusionary rule,’ as that rule is designed ‘to deter future Fourth Amendment violations.’  …

In this case, the HSI agents who searched Aigbekaen’s devices in May of 2015 reasonably relied on an ‘established and uniform body of precedent allowing warrantless border searches of digital devices.’ … Although it has long been understood that the scope of a warrant exception should be tailored to the purposes underlying that exception, no court had yet applied that principle to require a warrant ‘for any border search, no matter how nonroutine or invasive.’ … Molina-Isidoro, 884 F.3d at 294 (Costa, J., concurring) (noting that ‘no reported federal decision has required a warrant for any border search’). Only in 2018 did this court recognize that ‘a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception’ and so require a warrant. Kolsuz, 890 F.3d at 143. And only today have we applied that principle to hold unconstitutional such an attenuated, warrantless, nonroutine forensic search at the border. (emphasis added)

Tellingly, Aigbekaen offers almost no argument against application of the good-faith exception, save for a question-begging allegation that the Government ‘attempted to exploit an exception to the Fourth Amendment warrant requirement.’ He may well be correct that even prior to Kolsuz, ‘the better practice’ would have been for the Government to get a warrant in the first place. But good faith does not mandate best practices. Given the uniform body of precedent that permitted warrantless searches at the border in May of 2015, we cannot help but conclude that the good-faith exception applies here. (emphasis added)


For the foregoing reasons, the judgment of the district court is AFFIRMED.

My Thoughts

  • Although Aigbekaen was decided more than a year ago, it just popped up in WestLaw’s Topical Highlights – Criminal Justice.  Even though this is not a new case, it is a good read.
  • When Leon was decided, it appeared that it would be applicable only to those cases in which law enforcement officers had obtained a search warrant.  Not so.
  • Aigbekaen was convicted in the United States District Court for the District of Maryland.  Chief Judge James K. Bredar presided over his trial.  As Aigbekaen illustrates, search issues are often challenging — even for chief judges.


  1. 104 S.Ct. 3404 (1984) Opinion by Justice White; concurring opinion by Justice Blackmun; dissenting opinion by Justice Brennan, joined by Justice Marshall; and, dissenting opinion by Justice Stevens.
  2. 943 F.3d 713 (4th Cir. 2019) Panel:  Circuit Judges Motz, Wynn and Richardson.  (Opinion by Motz; Richardson filed opinion concurring in judgment.)
  3. Query: “United States v. Leon”&”good faith exception”
  4. Identified as a co-defendant.
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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