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.

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

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?

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)

> 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_excl...

Yes, thanks for the reference

"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.

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.

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.

> 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?

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.

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.

Laws and precedent are one thing, but "law enforcement" behavior is another. You might indeed get your stuff back, but they can make it unreasonably difficult, expensive (in legal fees), or time consuming if they want.

Yes. The courts will suppress any evidence that's not gathered legally, but aside from that, officers' qualified immunity protects them from all but the most obvious infringements

Does refusing to unlock your devices trigger a reasonable suspicion?

(In Cotterman, it sounds like the Ninth Circuit said reasonable suspicion was required, but also decided on its own - despite it not being argued by the government - that an alert from a CBP database about Cotterman's previous conviction justified a search. Which seems reasonable to me, as a layperson, I thin.)

Officers need articulable facts for reasonable suspicion. Not consenting to a search is explicitly not grounds for reasonable suspicion here or in any other context

>Cotterman's previous conviction justified a search

...and there you have it: He's done something wrong in the past, so - of course - he must be doing something bad now - forever and always!

They can still take it, illegally, and then you have to spend thousands and weeks (and have to stay in the US for those weeks) suing them to get it back.

Or else? They get some slap of the wrist?

I don't think that will discourage them to call any whim "reasonable suspicion".