Case o' The Week: Greater than the Sum of Its Parts -- Valdes-Vega and Arvizu "Totality" Analysis for Fourth Searches

Zero plus zero = ?

A: Reasonable suspicion for a stop.

United States v. Valdes-Vega, 2013 WL 67688095 (9th Cir. Dec. 24, 2013) (en banc), decision available here.

Players: Decision by Judge Gould, dissents by Judges Pregerson and Reinhardt (both) joined by Judge Thomas.

Facts: Seventy miles north of the Mexican border, near Temecula, California, agents saw Valdes-Vega driving faster than the flow of traffic, and change lanes without signaling. Id. at *1. Valdes-Vega slowed to seventy as he went through the checkpoint. Id. He didn’t make eye contact with the border patrol officer, and the agent noticed the truck had Baja plates, was older, and clean. Id. The agent turned on his lights, and thought that Valdes-Vega took longer than normal to stop. Id. A consent search produced eight kilos of cocaine. Id. 
  The district court denied a suppression motion, and a three-judge panel reversed. See blog post here. 

  The case went en banc.

Issue(s): “We must decide whether border patrol agents permissibly stopped a vehicle on a highway linked to the border . . .  . The United States Supreme Court has held that a roving border patrol can stop a vehicle for a brief investigatory stop based on an articulable reasonable suspicion of criminal activity. We must here decide whether border patrol officers' stated reasons for stopping a vehicle were sufficient to permit the stop without offending the Fourth Amendment's prohibition on unreasonable seizures. ” Id. at *1.

Held: “We hold that the facts and inferences articulated by the border patrol agents established reasonable suspicion that criminal activity was afoot, justifying the stop. We affirm the district court's denial of the motion to suppress the evidence of cocaine found as a result of the stop.” Id.

Of Note: The fight in this decision is the scope of Arvizu: a Supreme Court decision that allows a combination of innocent facts to – in their totality – rise to reasonable suspicion for a search. Id. at *3. Judge Gould writes that this Supreme Court precedent overrules previous Ninth authority holding that some facts are not per se probative, or per se minimally probative. Id. at *3. This amorphous “totality of circumstances” approach is then “filtered through the lens of the agents’ training and experience.” Id. 

  Isn’t this “zero plus zero equals more than zero?” – a bunch of innocent facts, crammed together, somehow creating cause for a stop? Yep: “Even innocent, noncriminal acts can foster reasonable suspicion in the total context.” Id. at *4.

How to Use: “Let’s cut to the chase.” Id. at *5 (Pregerson, J., dissenting). In a brief but potent dissent, Judge Pregerson lists the facts supporting the search here – facts that describe thousands of Southern California drivers every day. Those facts, explain the Judge, “did not create a reasonable suspicion that criminal activity was ‘afoot.’” Id. Judge Reinhardt agrees, and explains in his dissent that not all innocent facts are equal under Arvizu. Id. at *6 (Reinhardt, J., dissenting). The dissenters don’t carry the day here, id. at *4 & n.2, but Judge Reinhardt’s careful distinction of the Arvizu “innocent” facts is the analysis we’ll have to adopt in future “totality” fights.

                                               

For Further Reading: In an interesting article last year, a legal reporter analyzed the potential impact of the Obama appointees on the Ninth Circuit. See Howard Mintz, President Barak Obama has heavily influenced federal courts in Bay Area, available here.   The article describes the Obama appointees as, “moderates.” Id. Note that in the Valdes-Vega en banc decision, all three of the Obama jurists on the en banc court -- Judges Christen, Watford, and Hurtwitz – joined Judge Gould’s majority decision. 

   Is the Ninth really a “liberal” court, and if it is, will it remain so? For a thoughtful New York Times piece discussing the perceptions – and realities – of the nation’s largest appellate court, see John Schwartz, ‘Liberal’ Reputation Precedes Ninth Circuit Court, available here.  

Image of Temecula border partrol sigh from http://murrieta.patch.com/groups/police-and-fire/p/border-patrol-arrest-30000-illegal-aliens-at-local-checkpoints

Steven Kalar, Federal Public Defender N.D. Cal . Website at www.ndcalfpd.org



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Case o' The Week: Appreciate the Inch, Would Have Preferred the Mile -- Cotterman, the Fourth Amendment, and Computer Forensic Searches

“It was essentially a computer strip search.” United States v. Cotterman, 2013 WL 856292, *9 (9th Cir. Mar. 8, 2013) (en banc), decision available here.

Hon. Margaret McKeown

  In six years, the Ninth has gone from (we argue, incorrectly) comparing a laptop to a briefcase, to (correctly) recognizing that a full forensic EnCase analysis of a hard drive raises enormous privacy ramifications and squarely implicates the Fourth Amendment.

  Cotterman is a complex and important decision: it lays the foundation for future Fourth Amendment challenges based on the unique nature of digital devices and the intrusiveness of digital forensic searches. But, as dissenting Judge Milan Smith warns, this defense victory comes with some real defense costs as well.

 

Players: Important en banc decision by Judge McKeown. Dissents by Judges Callahan and M. Smith.

Facts: Howard Cotterman had 15-year old sex priors. Id. He was stopped at the Mexican border and computers and cameras were seized. Id. Inspection of the computers revealed no porn, but did disclose password-protected files. Id. The devices were taken roughly 170 miles into the US, where forensic examination ultimately revealed child porn and evidence of molestation. Id. at *2. The district court held that the “extended border search” was. Id. at *3. The evidence was suppressed. Id. A divided panel of the Ninth reversed, concluding “reasonable suspicion” was not needed for an extended border search. Id. ; see also blog here  

   The case went en banc.

Issue(s): “This watershed case implicates both the scope of the narrow border search exception to the Fourth Amendment’s warrant requirement and privacy rights in commonly used electronic devices. The question we confront is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. More specifically, we consider the reasonableness of a computer search that began as a cursory review at the border but transformed into a forensic examination of Cotterman's hard drive.” Id. at *1 (quotations and citation omitted). “The difficult question we confront is the reasonableness, without a warrant, of the forensic examination that comprehensively analyzed the hard drive of the computer.” Id. at *5.

Held: “We are now presented with a case directly implicating substantial personal privacy interests.” Id. at *7.“”We rest our analysis on the reasonableness of the search, paying particular heed to the nature of the electronic devices and the attendant expectation of privacy.” Id. Mindful of the heavy burden on law enforcement to protect our borders juxtaposed with individual privacy interests in data on portable digital devices, we conclude that, under the circumstances here, reasonable suspicion was required for the forensic examination of Cotterman's laptop. Because border agents had such a reasonable suspicion, we reverse the district court's order granting Cotterman's motion to suppress the evidence of child pornography obtained from his laptop.” Id. at *5. 

   “It is the comprehensive and intrusive nature of a forensic examination – not the location of the examination – that is the key triggering the requirement of reasonable suspicion here.” Id. at *6.

Hon. Judge Milan Smith

Of Note: With these new rules for forensic searches, why didn’t Cotterman win? Dissenting Judge M. Smith asks the same question, in a compelling challenge to the Court’s reasonable suspicion finding. Id. at *31. He particularly questions the majority’s resurrection of a reasonable suspicion argument strategically waived by the government. Id. at *29. Judge Smith is also critical of the “floating border” created by the majority, that permits lowered border-search requirements to envelop an object taken hundreds of miles away. Id.  

   Judge Smith throws some needed cold water on our ebullience about new Fourth Amendment rules for technology: this win came at the cost of a loss on extended border searches, bad precedent on government appellate waiver, and an erosion of the meaning of the “reasonable suspicion” test.      

How to Use: “The point is technology matters.” Id. at *9. On its surface, Cotterman clarifies border searches. In reality, however, this is a seminal recognition of the privacy expectations arising from lives now deeply intertwined with technology. A computer is not like a briefcase (see Giberson blog here), and Judge McKeown carefully and correctly explains why. Id. at *8-*9. Start with Cotterman for any Fourth challenge involving technology: it will be the foundation for many a future attack. Id. at *9.

                                               

For Further Reading: It’s tragic: on Gideon’s fiftieth anniversary, Defender’s offices are being disproportionally decimated by sequestration. For a sobering report on the cuts inflicted on one respected office, see article here.

Image of the Hon. Judge Margaret McKeown from http://upload.wikimedia.org/wikipedia/commons/4/44/M-Margaret-McKeown-2009-US-Courts.jpg
Image of the Hon. Judge Milan Smith from http://lls.edu/media/loyolalawschool/about/practicallearning/MilanSmith.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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