Law School Case Brief
United States v. Cotterman - 709 F.3d 952 (9th Cir. 2013)
Reasonable suspicion is defined as a particularized and objective basis for suspecting the particular person stopped of criminal activity. This assessment is to be made in light of the totality of the circumstances. Even when factors considered in isolation from each other are susceptible to an innocent explanation, they may collectively amount to a reasonable suspicion. An appellate court reviews reasonable suspicion determinations de novo, reviewing findings of historical fact for clear error and giving due weight to inferences drawn from those facts by resident judges and local law enforcement officers.
Agents seized defendant Howard Cotterman's laptop at the U.S.-Mexico border in response to a Treasury Enforcement Communication System ("TECS") alert based in part on a fifteen-year-old conviction for child molestation. The initial search at the border turned up no incriminating material. Only after Cotterman's laptop was shipped almost 170 miles away and subjected to a comprehensive forensic examination were images of child pornography discovered. A grand jury indicted Cotterman for a host of offenses related to child pornography. A trial in federal district court, Cotterman filed a motion to suppress the evidence gathered from his laptop and the fruits of that evidence. The matter was referred to magistrate judge who filed a report and recommendation finding that the forensic examination was an "extended border search" that required reasonable suspicion. He found that the TECS hit and the existence of password-protected files on Cotterman's laptop were suspicious, but concluded that those facts did not suffice to give rise to reasonable suspicion of criminal activity. The district judge adopted the report and recommendation and granted Cotterman's motion to suppress. The United States appealed.
Did reasonable suspicion of criminal activity exist to justify the warrantless forensic search of Cotterman's laptop?
The appellate court ruled that Cotterman's 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, gave rise to reasonable suspicion of criminal activity. When combined with the other circumstances, such as the fact that an agent encountered at least one password protected file on the laptop, reasonable suspicion to conduct a forensic examination existed. An alert regarding possession of child pornography justified obtaining additional resources to properly determine whether illegal files were present.
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