Crime in the Suites: An Analyis of Current Issues in White Collar Defense
Posts Tagged ‘Ifrah Law’
Aug 19
2015

Government Dismisses Its Case After Warrantless Airport Laptop Search

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The government has voluntarily dismissed its case against Jae Shik Kim, the South Korean businessman for whom Ifrah Law obtained a motion to suppress in federal court.  In 2012, Mr. Kim was stopped by federal agents as he tried to board a plane to South Korea from LAX.  The government seized his laptop and copied his hard drive based on suspicion that he had engaged in illegal activity years earlier.  The government indicted Mr. Kim based on evidence it found on the laptop relating to past transactions.

Everyone who has been through a security checkpoint at an airport knows that the government has wide latitude to conduct certain warrantless searches at the border without any suspicion of illegal conduct.  However, the U.S. District Court for the District of Columbia concurred with Ifrah Law’s argument that the government’s latitude is wide, but it is not unbounded.   In order to conduct a non-routine search of electronics at the border–including copying a hard drive for the government to conduct a later search unbounded in time and scope—the government must have reasonable suspicion that the owner is presently engaged or will imminently engage in illegal activity.  An ongoing investigation of suspected past criminal activity is not a sufficient basis on which to perform such a search.  To use a border search for that purpose is an illegal attempt to circumvent the warrant requirements imposed by the Fourth Amendment to obtain evidence in an ongoing investigation, and any evidence obtained in that manner cannot be used to convict the defendant.

The government understood that when the court suppressed the evidence obtained from Mr. Kim’s laptop, it did not have a case on which it could obtain a conviction.  Shortly after the court granted Ifrah Law’s motion to suppress, the government filed an interlocutory appeal of the court’s order.  The government hoped that the Court of Appeals would reverse the order and allow the government to present evidence obtained from the laptop in order to secure a conviction.

This week, the government reversed course.  The government not only dropped its appeal on the suppression issue, but moved to dismiss the indictment entirely, resulting in an event all too rare in the criminal justice system—a dismissal of all charges against the defendant.   The government’s action implicitly acknowledges restrictions on its authority to conduct non-routine searches at the border when there is no suspicion of present criminal activity.  It is a big win not only for our client, but for the ongoing effort to preserve our right to privacy.

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About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, health care, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen and George Calhoun, counsels Jeff Hamlin and Drew Barnholtz, and associates Rachel Hirsch, Nicole Kardell, Steven Eichorn, David Yellin, and Jessica Feil. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

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