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).
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
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
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."
The en banc majority cited United States v.
Ramsey (431 U.S.
606, 621 ) 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
), 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 ),
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
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 ).
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.
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.
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,
United States v. Ramsey, 431 U.S. 606 (1977)
United States v. Montoya de Hernandez, 473
Almedia-Sanchez v. United States, 413
U.S. 266 (1973)
United States v. Cortez, 449 U.S. 411 (1981)
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