Wednesday, March 30, 2011

U.S. vs. Cotterman, No. 09-10139 (3-30-11)(Tallman with Rawlinson; dissent by B. Fletcher). This is a troubling Fourth Amendment/border search opinion. The defendant was stopped entering the U.S. at a tiny point of entry. He was on a watch list for a prior sex offense. The Customs officer gave a careful look at the vehicle, and spotted two laptops and digital cameras. The agent opened the laptop of the defendant (the other belonged to his wife), but did not see anything wrong. However, many files were password protected. The computer was seized, and taken almost 200 miles away (170 to be exact) to Tucson, to be forensically examined. After two days, the passwords were breached and child porn was discovered. The district court suppressed, finding that such a search away from the border, over time, and in seizing the property, cannot be justified by the border search doctrine. The 9th disagreed. The 9th explains the need for vigilance on the border, and the need for protection. The border need not be exactly on the border. The POE here, Lukeville, was not equipped with computer forensics, and it is impractical to have such labs at every point of entry. The 9th stated that the defendant's property had never been cleared into the country; it was still functionally "at the border." Moreover, taking it some distance in such circumstances need not require reasonable suspicion (both sides agreed that none existed here). The moving of the property, and the time, was a continuation of the border search. the wait was not onerous, and falls within expectations. The government does not have carte blanche; courts will examine such delays on a case-by-case basis. As for defendant's argument that reasonable suspicion was needed, the 9th writes that neither was there a bodily search, nor was any property destroyed (two circumstances that the Supremes indicated required reasonable suspicion. The 9th paused as to whether this fit a third category, a "particularly offensive manner," because of the delay. The time and seizure of property, for two days, was not, in the 9th's eyes, highly offensive. In sum, the 9th holds that relocation of property for a continued border search does not require reasonable suspicion. Reasonableness of the search will be on a case-by-case basis. Dissenting, B. Fletcher laments the demise of the Fourth Amendment. To the dissent, the sticking point is not so much the relocation of the property but the seizure of it, and depriving of the person of his property, for no reason whatsoever. There must, the dissent writes, be some particularized suspicion of a crime when there is no indication in the property, or on the computer, that something is amiss. To permit a search of a computer is to invade privacy, and there was no reason to here except for the government's own general concerns.


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