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Border agents need “reasonable suspicion” to search electronic devices

Likeville, AZ

Border agents can’t conduct forensic searches of electronic devices like laptop computers, cell phones and camera memory sticks without a reasonable idea that criminal activity has occurred, said a federal appeals court on March 8.

The Ninth Circuit Court of Appeals, struck down on March 8 an earlier district court’s ruling in the case of Howard Cotterman, by not excluding searches of electronic gear, but by raising the standard for initiating them.

The case has a long history with sordid details, beginning in April, 2007, when Cotterman and his wife returned from a vacation in Mexico, arriving at the Lukeville, AZ, port of entry. When a border agent ran Cotterman's name through the Treasury Enforcement Communication System (“TECS”) it indicated Cotterman was a sex offender convicted in 1992 on child molestation charges.  The database also indicated he could also be involved in child sex tourism.

Howard and his wife were sent to secondary inspection by border agents, leaving their car and their possessions.  Because of the TEC Alert, prior child-related conviction, frequent travels, crossing from a country known for sex tourism, a collection of electronic equipment, plus guiding parameters of an anti-child sex trafficking program, the agents believed the couple were involved in “some type of child pornography.” They took two laptop computers and three digital cameras from the car for examination.

The laptops and camera were sent almost 200 miles away to an Immigration and Customs Enforcement office in Tucson, AZ, for forensic examination. Eventually, after extensive examination by forensic computer programs and other techniques that cracked password-protected files, the devices yielded hundreds of images of child pornography. Cotterman was indicted. He moved to suppress the evidence because he said it was unlawfully obtained. The Ninth Circuit Court of Appeals heard an appeal from the U.S. government in 2011 that it could take electronic devices to another location “without reasonable suspicion.” In 2012, it decided to rehear the case.

On March 8, the court gave Cotterman a muddy victory, ruling that searches of electronic equipment at the border are reasonable under the Fourth Amendment, but “reasonable suspicion” is needed to do it, essentially raising the bar that would trigger such a search.

“International travelers certainly expect that their property will be searched at the border,” said the ruling. “What they do not expect is that, absent some particularized suspicion, agents will mine every last piece of data on their devices or deprive them of their most personal property for days (or perhaps weeks or even months, depending on how long the search takes)…” it said. “Such a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy and dignity.  We therefore hold that the forensic examination of Cotterman’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment.”


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