United States v. Cotterman
709 F.3d 952 (2013)
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Rule of Law:
The Fourth Amendment's border search exception does not permit suspicionless, comprehensive forensic examinations of electronic devices. Law enforcement must have reasonable suspicion of criminal activity to conduct such an intrusive search, though a cursory, manual search of a device does not require any suspicion.
Facts:
- Howard Cotterman and his wife were driving from Mexico into the U.S. at the Lukeville, Arizona Port of Entry.
- A border agent's check of the Treasury Enforcement Communication System (TECS) flagged Cotterman due to a 1992 conviction for child molestation and indicated he was potentially involved in child sex tourism.
- In secondary inspection, agents searched the couple's vehicle and retrieved two laptops and three digital cameras.
- An agent conducted a cursory manual inspection of the devices, finding what appeared to be personal photos but also encountering password-protected files he could not open.
- Although Cotterman offered to help access the computer, agents declined out of concern he might delete files.
- Agents allowed the Cottermans to leave but retained their laptops and one digital camera.
- An agent transported the devices nearly 170 miles to an Immigration and Customs Enforcement (ICE) office in Tucson.
- A forensic examiner copied the laptops' hard drives and, using specialized software over several days, discovered images of child pornography in the computer's unallocated space (deleted files) and later within password-protected files.
Procedural Posture:
- A federal grand jury indicted Howard Cotterman for child pornography offenses.
- In the U.S. District Court for the District of Arizona, Cotterman filed a motion to suppress the evidence found on his laptop.
- A magistrate judge issued a Report and Recommendation to grant the motion, concluding the forensic examination was an 'extended border search' requiring reasonable suspicion that was not met.
- The district court judge adopted the magistrate's report and granted Cotterman's motion to suppress the evidence.
- The U.S. Government, as appellant, filed an interlocutory appeal of the suppression order to the U.S. Court of Appeals for the Ninth Circuit, with Cotterman as the appellee.
- A three-judge panel of the Ninth Circuit reversed the district court, holding that reasonable suspicion was not required for the search.
- The Ninth Circuit subsequently voted to rehear the case en banc.
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Issue:
Does the Fourth Amendment require government agents to have reasonable suspicion before conducting a comprehensive forensic examination of an electronic device at the border?
Opinions:
Majority - Judge McKeown
Yes. A comprehensive forensic examination of an electronic device at the border requires reasonable suspicion under the Fourth Amendment. Although routine, cursory border searches of property do not require suspicion, the reasonableness analysis must account for the unique nature of modern electronic devices, which contain vast amounts of highly personal information equivalent to a person's 'papers.' An exhaustive forensic examination—akin to a 'computer strip search'—is a significant intrusion on privacy that goes beyond a routine search. This balance between government interests and individual privacy requires a modest standard of reasonable suspicion. The court found that such suspicion existed here, based on the totality of the circumstances: Cotterman's prior conviction for child molestation, the TECS alert targeting him for potential child sex tourism, his frequent international travel, the parameters of 'Operation Angel Watch,' and the discovery of password-protected files on his laptop.
Dissenting - Judge M. Smith
No. The Fourth Amendment does not require reasonable suspicion for a forensic search of electronic devices at the border. Supreme Court precedent establishes that searches of property at the border are reasonable simply because they occur there, with narrow exceptions for highly intrusive searches of a person or destructive searches of property, neither of which applies here. The majority's holding creates an unworkable standard for border agents, fabricates a circuit split, and undermines national security by weakening the deterrent effect of suspicionless searches. The search should have been analyzed under the 'extended border search' doctrine, which already requires reasonable suspicion. Furthermore, even if reasonable suspicion were the correct standard, the facts in this case—a 15-year-old conviction and travel to a popular destination—are too weak to meet that threshold.
Concurring-in-part-and-dissenting-in-part - Judge Callahan
No. A forensic examination of an electronic device at the border does not require reasonable suspicion. The majority's creation of a new rule for electronic devices contravenes more than a century of Supreme Court precedent holding that suspicionless searches of property at the border are per se reasonable. Distinguishing between types of property searches creates complex balancing tests that the Supreme Court has rejected. However, I concur in the judgment because, assuming the majority's new rule applies, the agents did possess the requisite reasonable suspicion to conduct the search in this case. Therefore, the district court's suppression order should be reversed.
Analysis:
This decision significantly curtails the previously broad, almost unfettered power of the government to conduct suspicionless searches of property at the U.S. border. By differentiating between a cursory manual review and a deep forensic examination of electronic devices, the court established a new category of 'non-routine' property searches that require reasonable suspicion. This holding creates a circuit split on the issue and forces border agents to make a legal determination about the intrusiveness of their search methods, potentially complicating border enforcement and paving the way for future litigation over evolving technologies. The case highlights the tension between traditional Fourth Amendment doctrines and the vast privacy implications of modern digital storage.
