Extended Border Search Doctrine: Suspicionless Searches of Computers and Cameras Need not be Conducted at Time and Place of Entry
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
It was a case of “first impression” for the Ninth Circuit Court of Appeals—the case of United States v. Howard Cotterman, a repeat sex offender who was arrested at a “border stop” in Lukeville, Arizona in April of 2007. Cotterman, and his wife Maureen, tried to reenter the United States from Mexico at Lukeville. Both had valid U.S. passports. As part of border reentry protocol, an inspector ran a check of the passports through Border and Custom Protection. This routine check produced a Treasury Enforcement Communication System alert on Howard Cotterman’s name—an alert which had been placed in the system by U.S. Immigration and Customs enforcement. The alert stemmed from Cotterman’s 1992 convictions in Long Beach, California for illegal sexual misconduct with a child and child sexual molestation. The ICE alert instructed border inspectors to be on the “lookout” for child pornography.
The ICE alert, as reasoned by the Ninth Circuit, was sufficient probable cause under 19 U.S.C. §§ 1433 and 1582 to direct the Cottermans to a “secondary inspection area” for a more “thorough search” of their vehicle and belongings. The Lukeville border inspection officer then called Long Beach ICE authorities who had placed the “alert” and was instructed to “search anything” that could contain child pornography. A subsequent search of the Cotterman’s vehicle revealed two laptop computers and three digital cameras. Border inspector Antonio Alvarado was given the task of inspecting the laptops while other agents searched the vehicle. Alvarado’s preliminary search did not reveal any child pornography, but his suspicions were aroused because many of Cotterman’s files were “password protected.”
These suspicions were conveyed to Craig Brisbine, an ICE supervisor in Sells, Arizona, who, along with Agent Mina Riley, went to the Lukeville “port of entry” station. During their trip to Lukeville, the two agents made a decision to detain Cotterman’s laptops for “forensic examination.” Shortly after their arrival, agents Brisbine and Riley gave the Cottermans their “Miranda rights” warnings, after which the couple were interviewed separately. Neither provided any incriminating evidence, although Cotterman did offer to help the agents with his computer—an offer rejected by the agents. Agent Riley said she rejected Cotterman’s offer because she was not trained in computers and feared (1) Cotterman could delete files without her knowing it, (2) the laptops could be “booby trapped,” and (3) there might be files she could not see even with full access to the laptops.
Later that afternoon Agents Brisbine and Riley left the Lukeville station with the laptops and one of the digital cameras. Cotterman was informed, when given the other two cameras, that the laptops and camera were being sent to Tucson for “further examination.” The Cottermans were then allowed to leave the Lukeville station. The seized laptops/camera were then turned over to John Owen, an ICE “Computer Forensic Examiner,” who used software to make copies of the laptops hard drives, including the one belonging to Maureen’s computer. Owen first examined the camera and found no evidence of wrongdoing. He released the camera to Cottermans in Tucson. The agent then turned his attention to the copies made of the laptops’ hard drives. He did not find any evidence of wrongdoing on Maureen’s laptop hard drive but his examination of Cotterman’s hard drive revealed evidence of approximately 75 images of child pornography.
Agent Owen then informed the Cottermans, who were staying in Tucson, that they could come by the ICE office and pick up Maureen’s hard drive. Owen informed Cotterman that he would need Cotterman’s assistance in accessing several of password protected files. Cotterman agreed to provide the assistance. The following morning Maureen arrived at the ICE office to pick her hard drive at which time she informed the agents that her husband could not come because he had business to take care of. Agent Brisbine then spoke with Cotterman by telephone and informed him that the agents still needed his assistance in accessing the “password protected” files. Cotterman responded by telling Brisbine that the laptops had multiple users and he would have to contact his business partners in order to obtain those passwords.
The following day the Tucson ICE office learned that Cotterman had boarded a flight to Mexico with a final destination in Sydney, Australia following his phone conversation with Agent Brisbine. The next day Agent Owen was able to bypass Cotterman’s security system protecting 23 files in which he discovered 378 images of child pornography. 360 of those images involved the same 7 to 10 year old child and many of the images depicted Cotternman sexually molesting the child. Hundreds of other files were stories and videos of children.
In June 2007 Cotterman was indicted by a federal grand jury for production of child pornography, possession of child pornography, importation of obscene material, transportation of obscene material, and unlawful flight to avoid prosecution. Following the indictment Cotterman was arrested by Australian authorities and extradited back to Arizona.
In April 2008 Cotterman filed a motion to suppress the evidence discovered on his laptop or any “fruits” derived from that evidence. A federal magistrate conducted a hearing at which testimony was provided by Agents Riley, Owen and Alvarado. Two weeks later the magistrate judge submitted a report to the U.S. District Court judge assigned to the case recommending that Cotterman’s motion be granted in its entirety. The magistrate judge reasoned that “the actual search of the laptop occurred two days after Cotterman’s entry into the United States and 170 miles from the border, so it had to have been an extended border search requiring reasonably particularized suspicion.” The magistrate judge concluded that the Tucson ICE agents did not have reasonable suspicion that the laptops contained evidence of criminal activity.
U.S. District Court Judge Raner Collins agreed. The judge made two factual findings which formed the basis of the appeal before the Ninth Circuit: “that the search of the laptop could have been conducted at the border and that it took place at least forty-eight hours to yield results.”
On appeal the Government did not contest Judge Collins’ factual finding that the ICE agents in Tucson did not have a “reasonable particularized suspicion” of criminal activity necessary to support the “extended border search doctrine.” The Government confined itself to the premise that it did not need to establish a reasonable particularized suspicion because the ICE alert on Cotterman justified both its initial search of the Cottermans’ vehicle, the seizure of the laptops, and the subsequent extended border search of those laptops in Tucson.
The Ninth Circuit began its analysis by saying there is no question about the Government’s authority to conduct border searches, nor is there room for disagreement over the “Government’s paramount interest in protecting our country from people and property it does not desire within its borders.” Against this backdrop the Ninth Circuit concluded:
“Thus, there is no legitimate question as to whether the border search doctrine justified the initial detention of Cotterman and his property. Cotterman himself concedes, albeit reluctantly, that had the Government elected to transport its personnel and specialized computer forensic equipment to the border to perform the search, the border search doctrine likewise would have applied. The sticking point is whether the inherent power of the Government to subject incoming travelers to inspection before entry also permits the Government to transport property not yet cleared for entry away from the border to complete its search. Cotterman claims it does not. We cannot agree.
“The flaw in Cotterman’s claim, and the district court’s conclusion, is that each relies on the simple physical act of moving beyond the border—a ‘comparison of absolute time and spatial differences alone’—to distinguish the border search doctrine. In light of our jurisprudence, this analysis is far too rigid and simplistic. ‘Despite its name, a border search need not take place at the actual international border … Rather, the border search doctrine applies to searches and seizures that occur hundreds or thousands of miles from the physical border.’ [F]or example, we held that the border search doctrine permitted the suspicionless search and seizure of a UPS sorting facility in Louisville, Kentucky—a location that sits much farther than 170 miles from the nearest border.
“In addition, while permitting searches at those great distances, we have declined to apply the doctrine to some searches that occur within a few miles of the border. If the border search doctrine was constrained as simply as Cotterman contends, this disparate treatment would be quite arbitrary. Our jurisprudence makes perfect sense, however, when one considers that the border search doctrine is guided—like all Fourth Amendment jurisprudence—by reason and practicality, not inflexible rules of time and space.
“The touchstone for particularized suspicion is therefore not simply the occurrence of a search or seizure at a location other than at the border; rather, it is the greater Fourth Amendment’s intrusion that occurs when an individual is detained and searched at a location beyond the border where he had a narrow expectation of privacy in the object searched.
“Time and space are only relevant to this initial inquiry to the extent that they inform us whether an individual would reasonably expect to be stopped and searched at a geographic point beyond the international border. In that regard Cotterman’s claim is quite different from each of the cases in which we required the Government to demonstrate reasonable suspicion. Unlike the defendants in those cases, Cotterman’s detention and initial search occurred at the border itself—a point at which travelers do not have a normal expectation of privacy, but rather must expect to have their privacy intruded upon.
“[Thus], this is not a case where Customs cleared an individual and his property for entry into the United States and authorities later stopped and searched that individual again after he had crossed the border. Rather, the Government made it abundantly clear to Cotterman that his computers and cameras were not cleared for entry into the United States and that it had retained custody of that property until it could fully allay its concerns that they contained contraband. As a result, he never regained his normal expectation of privacy in his computer because he could only reasonably expect that it would be searched to alleviate the self-protection concerns of the sovereign. He never breathed that deep sigh of relief that follows from realization that he had faced all the rigors of inspection and that nothing more would impede his travels.
“Having stripped away the layers of what Cotterman’s claim is not—and having distinguished all of our extended border search jurisprudence in the process—we reach the very heart of Cotterman’s claim: that travelers somehow have a constitutionally protected expectation of privacy that their property will not be removed from the border for search and, therefore, the Government must either staff every POE [port of entry] with the equipment and personnel needed to fully search all incoming property or otherwise be forced to blindly shut its eyes and hope for the best absent some particularized suspicion. We find this position untenable.”
We must depart company with this final conclusion drawn by the Ninth Circuit. We cannot accept that Cotterman’s 1992 child sex convictions established a “reasonably particularized suspicion” to seize and search his personal laptop and camera for evidence of child pornography. The 1992 convictions were not related to child pornography – they involved sexual misconduct with a minor. But more to the point: we find it difficult to accept that once his vehicle, his person, his camera, and the two laptops had been examined at the border and revealed no evidence of criminal activity, the Government somehow maintained a compelling interest to seize the laptops and camera and transport them 170 miles inland for a more thorough search absent any reasonable suspicion that they contained evidence of child pornography.
And clearly the following observations made by the Ninth Circuit demonstrate that the appeals court itself also had reservations about the Government’s action in the Cotterman case:
“Still, the line we draw stops far short of ‘anything goes’ at the border. The Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim. Rather, we continue to scrutinize searches and seizures effectuated under the longstanding border search power on a case-by-case basis to determine whether the manner of the search and seizure was so egregious as to render it unreasonable.”
We suspect that the evidence was so overwhelming and compelling against Cotterman that the Ninth Circuit could not accept the district court’s finding that all the evidence of obvious guilt should be suppressed. But we feel that constitutional protections should not be guided solely by the evidence of guilt: the quantity of the evidence should not override the quality of the constitutional protection. The guilty enjoy constitutional protections as equally as the innocent. The more our courts divert from this traditional constitutional jurisprudence, the weaker our constitution becomes. We understand the Ninth Circuit faced a hard call, but at the end of the day, the appeals court did more damage than good to the constitutional protection against unreasonable searches and seizures.