On January 9, 2023, the United States Court of Appeals for the First Circuit issued an opinion in United States v. Qin that affirmed Qin’s federal convictions for conspiracy to commit export violations, visa fraud, making false statements to federal agents, money laundering, and smuggling. (United States v. Qin, No. 21-1832 (1st Cir. 2023).) The circuit court rejected Qin’s arguments on appeal that the border search of his laptop and cellular device violated the Fourth Amendment and that the search was outside of the scope of a border search.
Background to the Case
Shuren Qin, a Chinese national who lives in Massachusetts for part of the year and Qingdao, China, for part of the year, was interviewed by Customs and Border Patrol (CBP) agents about his export activities after returning to the United States from China. (Qin at 2–3.) Qin is president of the Qingdao-based company, LinkOcean Technologies, Ltd., which imports and resells marine technology from the United States, Canada, and Europe to China. (Qin at 2.) Acting under the direction of other agencies that had been investigating Qin’s export activities for approximately seven months, the CBP agents seized Qin’s laptop and phone, which he indicated he used for business. (Qin at 2–3.) According to one CBP agent, when interviewed about his export activities, Qin claimed that he “only” exported items “attached to buoys.” (Qin at 3.)
Qin’s confiscated phone and laptop contained information that was primarily in Mandarin, and the Boston agents needed to wait for another agent to arrive from New York to translate. (Qin at 3.) The New York agent found emails that provided evidence that Qin illegally exported hydrophones to a Chinese university with military ties. (Qin at 4.) Agents completed the search of the devices after 60 days, but did not return the laptop for another 11 days and the phone for another 153 days, while agents applied for and obtained a search warrant. (Qin at 4.) Qin was indicted on the basis of evidence found during the 60-day warrantless search of his devices. (Qin at 4.) He moved to suppress the fruits of the warrantless search, but the district court denied the motion, holding that it was a “non-routine border search” and agents had reasonable suspicion that the devices may have evidence of “export violations” at the time of the search. (Qin at 4–5.)
Border Searches and the Fourth Amendment
Qin’s first argument on appeal was that the border search violated the Fourth Amendment because the CBP agents did not have reasonable suspicion that his devices would contain evidence of his ongoing effort to violate U.S. export laws. (Qin at 7–8.)
Federal agents from a number of agencies were investigating Qin’s export activities in China and had compiled evidence that he was violating export laws before CBP agents interviewed him at the airport. (Qin at 8.) The investigators found evidence that Qin had expressed interest in establishing a front company based in the United States to purchase autonomous underwater vehicles (AUVs) without a U.S. export license and unlawfully exported the unlicensed AUVs to China. (Qin at 8.) They also found evidence that Qin had made attempts to conceal the end users of the export products in China and expressed an interest in exporting sonobuoys, defense articles used in anti-submarine warfare, to China. (Qin at 9–10.) Sonobuoys are on the U.S. Munitions List and cannot be exported to China under the U.S. arms embargo against China. (Qin at 10.)
Although other agencies had investigated Qin and uncovered evidence that he may have been violating export laws, Qin argued that the agents who searched his devices lacked reasonable suspicion to conduct the search because they could not have reasonably believed that he had lied to CPB agents at the airport. Qin claimed that he was not fluent in English and said that he told CBP agents that things that “attach to buoys” were “the types of things” that he exported, rather than the “only” things. (Qin at 12.) However, the record showed that Qin spoke “excellent” English and the CBP agents’ reports of Qin’s interview responses were reliable. Therefore, the district court “did not clearly err” in finding that the agents had reasonably believed that Qin had lied about the types of products he exported. (Qin at 12.)
Qin also argued that the agents who searched his devices lacked reasonable suspicion because they knew of his past honesty and lawfulness in some of his export activities. However, this did not negate the agents’ reasonable suspicion based on the other evidence that Qin was engaged in illegal activities. (Qin at 15–16.)
Consequently, the court rejected Qin’s arguments because the evidence gathered by other agencies before the search and Qin’s response to the interview questions created reasonable suspicion that evidence of unlawful export activities was contained on the electronic devices. (Qin at 17.)
Length and Scope of Border Searches
Qin’s second argument was that the search of his devices was not a “border search” due to the length and scope of the search. (Qin at 17–18.) If the search was not a border search, the agents would have needed a warrant and probable cause to search Qin’s electronic devices. (Qin at 17.)
In support of the argument that the search was too long to constitute a border search, Qin cited Homeland Security Investigations (HSI) policy. The policy recognized 30 days as presumptively reasonable for a border search, but permitted 60-day searches when extensions beyond 30 days “are merited by the fact specific challenges that the search being conducted poses.” (Qin at 19.) The evidence showed that the 60-day search was justified in this case, because the agents needed to wait for Qin to provide passwords and for a Mandarin-speaking agent to translate much of the devices’ content. (Qin at 20.)
Qin also cited cases where courts considered searches that were shorter in duration than the 60-day search of his devices to demonstrate that the search was unreasonable. (See United States v. Molina-Gomez, 781 F.3d 13, 21 (1st Cir. 2015) (a 22-day search of a laptop “seem[ed] lengthy,” but was “not unreasonable”) and United States v. Kim, 103 F. Supp. 3d 32, 57–58 (D.D.C. 2015) (a 14-day search was not a border search due to its length and scope).) The court rejected Qin’s argument that earlier case law had indicated that a 60-day search was too long to be a border search, because the Supreme Court has “consistently rejected hard-and-fast time limits” and “common sense and ordinary human experience must govern over rigid criteria.” (See United States v. Montoya de Hernandez, 473 U.S. 531, 543 (1985).) The court held that the 60-day search of Qin’s devices “did not in and of itself render it so disconnected from the purpose of the border search exception that it falls outside the scope of that exception, given the District Court’s findings that the length of the search was justified by the amount of data that the electronic devices contained, as well as the language barriers and encrypted files that impeded access to the data.” (Qin at 19.)
Qin claimed the scope of the search was too broad because agents conducted “a general exploratory search in the hope that evidence of a crime might be found” when they used keyword searches to look for business records, financial documents, and technical documents and schematics (quoting Go-Bart Importing Co. v. United States, 282 U.S. 344, 356–58 (1931).) However, the court stated that the records, documents, and schematics could contain “contraband, evidence of such contraband, or … evidence of activity in violation of the laws enforced by CBP or ICE,” which may be searched for during a border search. (Alasaad v. Mayorkas, 988 F.3d. 8, 21 (1st Cir. 2021).) Qin also claimed that the agents conducting the laptop search looked “broadly for evidence of past and future crime,” instead of for “ongoing or imminent” criminal conduct, because they continued to search for evidence after seeing that the last email on the laptop was from May 2017. (Qin at 21–22.) However, the court said that the record showed that the laptop contained evidence created after May 2017, there was nothing to indicate that agents were not searching for later evidence, and the agents could have reasonably believed that the old emails were relevant to the search for ongoing conduct because they could shed light on future actions. (Qin at 22.)
An evaluation of the facts of the case led the court to conclude that the duration and scope of the search were reasonable and to reject Qin’s claim that the search of his devices was not a border search. (Qin at 22.)
Prepared by Sarah Friedman, Law Library Presidential Management Fellow, under the supervision of Elizabeth Osborne, Chief, Public Services Division
Law Library of Congress, February 6, 2023
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