The decision is United States v. Cotterman, __ F.3d __ (9th Cir. 2013), and the case summary is below:
The en banc court reversed the district court’s order suppressing evidence of child pornography obtained from a forensic examination of the defendant’s laptop, which was seized by agents at the U.S.-Mexico border in response to an alert based in part on a prior conviction for child molestation.
The en banc court explained that a border search of a computer is not transformed into an “extended border search” requiring particularized suspicion simply because the deviceis transported and examined beyond the border. The en banc court wrote that the fact that the forensic examination occurred 170 miles away from the border did not heighten theinterference with the defendant’s privacy, and the extended border search doctrine does not apply, in this case in which the defendant’s computer never cleared customs and the defendant never regained possession.
The en banc court held that the forensic examination of the defendant’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment. The en banc court wrote that it is the comprehensive and intrusive nature of forensic examination– not the location of the examination – that is the key factor triggering the requirement of reasonable suspicion here. The en banc court wrote that the uniquely sensitive nature of data on electronic devices, which often retain information far beyond the perceived point of erasure, carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.
The en banc court held that the border agents had reasonable suspicion to conduct an initial search at the border (which turned up no incriminating material) and the forensicexamination. The en banc court wrote that the defendant’s Treasury Enforcement Communication System 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 aimed at combating child sex tourism, taken collectively, gave rise to reasonable suspicion of criminal activity.
The en banc court wrote that password protection of files, which is ubiquitous among many law-abiding citizens, will not in isolation give rise to reasonable suspicion, but thatpassword protection may be considered in the totality of the circumstances where, as here, there are other indicia of criminal activity. The en banc court wrote that the existenceof password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of the defendant’s computer. The en banc court concluded that the examination of the defendant’s electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment.
Concurring in part, dissenting in part, and concurring in the judgment, Judge Callahan (with whom Judge Clifton joined and with whom Judge M. Smith joined as to all but Part II.A) wrote that the majority’s new rule requiring reasonable suspicion for any thorough search of electronic devices entering the United States flouts more than a centuryof Supreme Court precedent, isunworkable and unnecessary, and will severely hamstring the government’s ability to protect our borders.
Judge M. Smith (with whom Judges Clifton and Callahan joined with respect to Part I) dissented. Judge Smith wrote that the majority’s decision to create a reasonable suspicionrequirement for some property searches at the border so muddies current border search doctrine 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 wrote that the majority’s determination that reasonable suspicion exists under the exceedingly weak facts of this case undermines the liberties of U.S. citizens generally – not just at the border, and not just with regard to our digital data – but on every street corner, in everyvehicle, and wherever else we rely on the doctrine of reasonable suspicion to safeguard our legitimate privacy interests.