In a decision based on a long-awaited en banc rehearing, the Ninth Circuit Court of Appeals limited the authority of law enforcement to search computers seized at border crossings. United States v. Cotterman, No. 09-10139, slip op. (9th Cir., Mar. 8, 2013). The court drew a distinction between a simple review of a computer’s files and an in-depth forensic analysis of a computer, finding that border agents must have “reasonable suspicion” in order to conduct an in-depth search without a warrant. The decision also includes an acknowledgment that computer searches, or searches of any other digital medium, differ fundamentally from searches in the physical world.
Border agents seized the defendant’s laptop computer as he and his wife were crossing the border from Mexico into the U.S. in April 2007, after receiving a computerized alert that the defendant had been convicted of child molestation fifteen years earlier. Agents conducted an initial search of his laptop and found nothing incriminating. Rather than return the computer, they shipped it to another location, about 170 miles away, where a “comprehensive forensic examination” revealed child pornography images. Slip op. at 6. This discovery occurred more than two days after the seizure of the laptop, and investigators continued using forensic software on the computer until they discovered more material after about five days. The allegedly pornographic images were found in the computer’s “unallocated space,” meaning a user had deleted them from the hard drive. Id. at 10, n. 5.
Prosecutors charged the defendant with multiple offenses, and he moved to suppress the results of the computer search. The district court granted his motion, finding that the agents lacked reasonable suspicion for the search. The government appealed the suppression order, arguing that the search was a routine border search, even though the forensic examination took place elsewhere. A panel of the Ninth Circuit reversed the trial court in 2011, holding that the government could conduct a warrantless forensic examination because the seizure occurred at the border, with a limited expectation of privacy, and the computer had “remained in the continuous custody of the government.” Id. at 11. This is known as the “extended border search” doctrine. Id. at 15.
After an en banc rehearing, the court issued an unusual ruling. It affirmed the reversal of the suppression order, but also set strict limits on future warrantless computer searches at the border. A forensic examination requires “reasonable suspicion,” the court ruled, holding that the examination’s “comprehensive and intrusive nature” was the determining factor in requiring reasonable suspicion, not the location of the search. Id. at 17. The court drew a distinction between forensic computer examinations and physical searches of luggage or other personal property, noting that the evidence discovered on the defendant’s computer had already been erased. A comparable search of a suitcase, it noted, would reveal not only its contents but also “everything it had ever carried.” Id. at 23. This sets a higher standard for reasonable suspicion for searching computers seized at the border, as compared to vehicles and other physical items.
Criminal defense attorney Michael J. Brown represents Texas defendants, fighting to ensure that the criminal justice system respects their rights and abides by the U.S. Constitution. He has worked as an FBI agent and a federal prosecutor, and has practiced criminal defense in west Texas for more than twenty years. The Texas Board of Legal Specialization has certified him as a specialist in criminal law. Contact us today online or at (432) 687-5157 to learn more about how we can assist you in your legal matter.
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