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Border Searches:

posted Nov 15, 2013, 9:40 AM by Resty Manapat   [ updated Feb 4, 2014, 10:58 AM ]

United States v. Cotterman (9th Cir. Mar. 8, 2013) 709 F.3rd 952

Rule: Seizing a computer from a person entering the United States from Mexico and subjecting it to a comprehensive forensic analysis over five days requires the agents to have a reasonable suspicion in order to be lawful.

Facts: Defendant and his wife attempted to cross the United States border from Mexico at Lukeville, Arizona. At the primary inspection, the Treasury Enforcement Communication System ("TECS") returned a hit for defendant, indicating that he was a sex offender and was potentially involved in child sex tourism. TECS is an investigative tool of the Department of Homeland Security that keeps track of individuals entering and exiting the country, noting as well whether they are suspected of being involved in crimes.

Based upon information obtained from the contact person listed in the TECS entry, along with the defendant’s criminal history (a 1992 conviction for two counts of the use of a minor in sexual conduct, two counts of lewd and lascivious conduct upon a child, and three counts of child molestation), it was believed that defendant might be involved “in some type of child pornography.” Two laptop computers and three digital cameras were seized from defendant’s car. An initial inspection of the computers and cameras revealed what appeared to be family and other personal photos, along with several password-protected files, but nothing incriminating.

Border agents had various discussions with supervisors at the Immigration and Customs Enforcement (ICE) office in Sells, Arizona, the ICE Pacific Field Intelligence Unit, and the ICE office in Tucson. It was learned that the alert on defendant was a part of “Operation Angel Watch,” which was aimed at combating child sex tourism by identifying registered sex offenders in California, particularly those who were known to travel frequently outside the United States.

ICE agents from Sells traveled to Lukeville and interviewed the defendant and his wife. Defendant and his wife were allowed to leave, but his laptops and a digital camera were detained, later being sent to Tucson, some 170 miles away, for a forensic examination.

Eventually, hundreds of images of child pornography, many showing defendant molesting a specific 7-to-10-year-old girl over a two to three year period. The first of these images weren’t found until five days after the computers were originally seized. Eventually, hundreds of pornographic images, stories, and videos depicting children were found. Defendant was indicted in federal court for a “host” of child pornography offenses.

He filed a motion to suppress, arguing that the evidence gathered from his laptop computer was the fruit of an unlawful seizure. Adopting the findings of a magistrate judge, the federal district court judge granted defendant’s motion, ruling that although the search of defendant’s computer qualified as an “extended border search,” it was not supported by sufficient reasonable suspicion of criminal activity and was therefore illegal. The Government appealed. A split three-judge panel of the Ninth Circuit Court of Appeal reversed, the majority finding that a reasonable suspicion was not required for such an extended border search. However, a rehearing was granted, the ultimate decision to be made by an eleven-justice en banc panel.

Held: The en banc 11-justice panel of the Ninth Circuit Court of Appeal reversed the trial court’s dismissal in a split 8-to-3 decision. The government argued on appeal that the forensic examination was part of a routine border search not requiring any suspicion, and alternatively, that reasonable suspicion did in fact exist. The Court first determined that in balancing the Government’s interest in protecting its borders from the importation of contraband, including child pornography, with every citizen’s Fourth Amendment protects against unreasonable searches and seizures, the search of defendant’s laptop in this case required a reasonable suspicion to believe that it contained child pornography.

While simply looking through a person’s personal computer upon crossing the border requires no suspicion, a full five-day comprehensive forensic analysis of the computer’s hard drive is considerably more intrusive. Looking at the totality of the circumstances, and remembering that “reasonableness” is the “touchstone” of any Fourth Amendment analysis, the Court considered a number of factors in determining that reasonable suspicion was required in this case.

The factors the court considered included the amount of personal information such a computer may potentially contain along with the fact that agents conducted a comprehensive five-day analysis of the computer’s hard drive, delving into things not visible through a cursory look the computer’s obvious files. Interestingly enough, the Court held that it was irrelevant that the computer was transported some 170 miles away before it was searched, noting that the location of the search had no effect on the defendant’s rights. Also, the fact that the search took five days was important only as to the issue of the degree of intrusiveness involved, particularly in that ultimately defendant never did get his computer back. “It is the comprehensive and intrusive nature of a forensic examination—not the location of the examination—that is the key factor triggering the requirement of reasonable suspicion here.”

In this case, defendant’s prior history alone did not constitute a reasonable suspicion. However, the TECS alert, prior child-related conviction, frequent travels crossing from a country known for sex tourism, and collection of electronic equipment, plus the parameters of the Operation Angel Watch program, taken collectively, that gave rise to reasonable suspicion of criminal activity. When combined with the other circumstances, the fact that an agent encountered at least one password protected file on the laptop, contributed to the basis for finding a reasonable suspicion, thus justifying the more extensive forensic examination.

Therefore, the five-day comprehensive forensic examination of defendant’s laptop computer, under the circumstance of this case, was lawful.

Note: The Court further pointed out that this search did not fall into either the “extended border search” (such as with the various immigration check points typically found some miles north of the border on major north-south thoroughfares [e.g., Interstate 5 or 15]) or the “functional equivalent of a border” (e.g., international airports and other ports of entry) categories. Neither of these types of locations requires any suspicion to conduct routine searches for illegal immigrants and contraband. This case was a simple border search case despite the taking of defendant’s computers 170 miles away to Tucson for analysis. Some cases have classified border search cases as “routine” (requiring no suspicion) and “non-routine” (requiring a reasonable suspicion) searches. When agents dismantle cars, x-ray suspects, cut open luggage, or conduct extended detentions of a suspect, the search becomes “non-routine” and requires reasonable suspicion to be lawful. Looking at defendant’s cameras and laptops, as in this case, at the border, not taking a lot of time to do so, was very routine. But then by taking them away for days and subjecting them to a “comprehensive computer analysis,” it becomes a lot more intrusive and very “non-routine,” requiring a reasonable suspicion to be lawful. Looking at it this way, in my opinion, makes the outcome obvious. But three justices dissented, so not everyone agrees. And where you draw the line between the two types of searches—routine vs. non-routine—can still be an issue in any particular case.