Customs and Border Protection Search Did Not Violate 4th Amendment, 9th Circuit Rules

PASADENA, Calif. - (Mealey's) The search of a man's laptop computer by Customs and Border Protection (CBP) officials that occurred 170 miles from the border did not constitute an "extended border search" and did not violate his rights under the Fourth Amendment to the U.S. Constitution, an en banc Ninth Circuit U.S. Court of Appeals majority ruled March 8, finding that the search was justified due to a "reasonable suspicion of criminal activity" based on the man's status as a sex offender, among other factors (United States of America v. Howard Wesley Cotterman, No. 09-10139, 9th Cir.; 2013 U.S. App. LEXIS 4731).

(Opinion available. Document #24-130321-020Z.)

In so ruling, the majority held that the evidence obtained from the search that ultimately led to Howard Cotterman's conviction on child pornography charges should not be suppressed, affirming an earlier Ninth Circuit panel ruling that had overturned a trial court ruling to the contrary.

ICE Alert

On April 6, 2007, Cotterman and his wife drove into the United States from Mexico at Lukeville, Ariz. During a routine check, a CBP officer found that Immigration and Customs Enforcement (ICE) had placed an alert on Cotterman's name in connection with a 1992 conviction for child molestation and related charges. An ICE agent in Long Beach, Calif., where the alert had been placed, instructed the Lukeville agents "to be on the 'lookout' for child pornography."

The CBP officers' search centered on the Cottermans' two laptop computers and three digital cameras. Because many of the devices' files were password protected, the laptops and cameras were detained and sent to a Tucson, Ariz., computer forensic office for further inspection. There, ICE officials made "mirror images" of the laptops' hard drives and ultimately discovered 75 child pornography images on Cotterman's computer on April 8, 2007. After that, a further search uncovered approximately 378 more such images, as well as videos, images and stories also depicting child pornography.

Indictment And Ruling

While the laptops were being searched, Cotterman fled to Sydney, Australia. He was indicted in the U.S. District Court for the District of Arizona on June 27, 2007, for several counts related to child pornography and obscene material, as well as unlawful flight to avoid prosecution. Cotterman was extradited to the United States. In April 2008, he moved to suppress the evidence discovered by the laptop search.

After a hearing, Magistrate Judge Charles Pyle issued a report and recommendation urging that the motion to suppress be granted. The magistrate judge reasoned that because the search occurred two days and 170 miles from the border, it constituted "an extended border search" that "require[ed] reasonably particularized suspicion" that evidence of criminal activity would be uncovered by the search. The magistrate judge held that the ICE agents did not have such suspicions and that the search, therefore, violated Cotterman's Fourth Amendment right.

Judge Raner Collins agreed, adopting the report and recommendation on Feb. 23, 2009. He also found that the laptop search "could have been conducted at the border" and that "it took at least forty-eight hours to yield results." The government filed an interlocutory appeal to the Ninth Circuit.

Border Search Doctrine

In March 2011, a Ninth Circuit panel majority held that the CBP officers' search did not violate border search authority. The Tucson forensic office constituted such a functional equivalent of the border, the majority held, because the "sophisticated forensic equipment" necessary to conduct an "adequate inspection" was not available at the defendant's port of entry into the United States.

In finding no Fourth Amendment violation, the panel held that the "touchstone for particularized suspicion" hinges on "whether an individual would reasonably expect to be stopped and searched at a geographic point beyond the international border." Cotterman clearly did not have a normal expectation of privacy at the border, where travelers "must expect to have their privacy intruded upon," the panel concluded.

Cotterman moved for en banc rehearing, which the Ninth Circuit granted in September 2011. The rehearing was held June 19, after which the court ordered supplemental briefing. The parties submitted briefs on whether the Ninth Circuit may "affirm the district court's judgment by reversing its finding that there was no reasonable suspicion to search Mr. Cotterman's laptop, even though the government did not appeal that finding" and on whether "the district court's finding that there was no reasonable suspicion was supported by the record."

Sovereign's Interests

The en banc majority cited United States v. Ramsey (431 U.S. 606, 621 [1977]) to support "the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country." This interest at the borders creates "a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause," the majority said, although it does not create an "anything goes" atmosphere. Per United States v. Montoya de Hernandez (473 U.S. 531, 539 [1985]), the panel stated that privacy rights at the border are not abandoned but are "[b]alanced against the sovereign's interests."

As such, the majority concluded that "the legitimacy of the initial search of Cotterman's electronic devices at the border is not in doubt." The majority then agreed with the panel's application of the "functional equivalent" doctrine of Almedia-Sanchez v. United States (413 U.S. 266, 273 [1973]), holding that the Tucson office qualified as the functional equivalent of the border. Even though this forensic examination occurred a distance from the border, the panel stressed that "[i]t 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." As such, the majority held that "[a] border search of a computer is not transformed into an extended border search simply because the device is transported and examined beyond the border."

Reasonable Suspicion

In considering de Hernandez and related case law on border searches, the majority took note of the obvious differences between traditional luggage that might be subjected to such searches and modern electronic devices that "are capable of storing warehouses full of information." The majority stated that such devices "are simultaneously offices and personal diaries" that "often retain sensitive and confidential information far beyond the perceived point of erasure." Additionally, the majority noted the complexities involved in cloud computing, where a computer or other device acts as "a conduit to retrieving" even more personal information that "does not itself cross the border" but is stored on "remote servers."

Turning to the search of Cotterman's devices, the majority likened it to "a computer strip search" because such an "exhaustive forensic search of a copied laptop hard drive intrudes upon privacy and dignity interests to a far greater degree than a cursory" border search. However, the majority returned to the principle that border personnel must have a reasonable suspicion to conduct such a search, which is described as "a particularized and objective basis for suspecting the particular person stopped of criminal activity," per United States v. Cortez (449 U.S. 411, 417-18 [1981]).

Applying this standard, the majority concluded that the CBP officers had such a reasonable suspicion with Cotterman, in light of the ICE alert, Cotterman's prior conviction, his frequent travels, crossing the border from "a country known for sex tourism" and his collection of electronic equipment. Although the government contended that the password-protected status of the Cottermans' electronics also added suspicion, the majority stated its "reluctan[ce] to place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files." Such a factor needs to be considered in the "totality of the circumstances," the majority said.

Dissenting Opinions

Judge Consuelo M. Callahan filed a dissenting opinion in which she stated that "the majority's new rule requiring reasonable suspicion for any thorough search of electronic devices entering the United States flouts more than a century of Supreme Court precedent." Judge Callahan called this "unworkable and unnecessary," stating that it "will severely hamstring the government's ability to protect our borders." Judge Richard R. Clifton joined in the dissent.

Judge Milan D. Smith Jr. partly joined in the dissent but offered an additional dissent stating that the "reasonable suspicion" requirement "muddies current border search doctrine" and that "border agents will be left to divine on an ad hoc basis whether a property search is sufficiently 'comprehensive and intrusive' to require suspicion, or sufficiently 'unintrusive' to come within the traditional border search exception." Judge Smith also opined that the majority opinion was based on "exceedingly weak facts" and that it "undermines the liberties of U.S. citizens generally-not just at the border, and not just with regard to our digital data."

The government is represented by Acting U.S. Attorney Ann Birmingham Scheel, Appellate Chief Christina M. Cabanillas and Assistant U.S. Attorney Carmen F. Corbin of the U.S. Attorney's Office for the District of Arizona. William J. Kirchner and Walter Nash of the Law Offices of Nash & Kirchner represent Cotterman. All are in Tucson.

[Editor's Note: Lexis subscribers may download the document using the link above. The document(s) are also available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.]

Lexis.com subscribers can access enhanced versions of the opinions cited in this article:

United States of America v. Howard Wesley Cotterman, No. 09-10139, 9th Cir.; 2013 U.S. App. LEXIS 4731 (9th Cir., Mar. 8, 2013)

United States v. Ramsey, 431 U.S. 606 (1977)

United States v. Montoya de Hernandez, 473 U.S. 531 (1985)

Almedia-Sanchez v. United States, 413 U.S. 266 (1973)

United States v. Cortez, 449 U.S. 411 (1981)

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