Saturday, April 02, 2011

Case o' The Week: Betty Balks at Broad "Border" Bromide, 4th Amendment and Border Searches

Does it make sense to permit a broad "border" search, two days and two hundred miles away from the actual point-of-entry?

Judge Betty Fletcher (Left) doesn't think so either. United States v. Cotterman,__ F.3d __, 2011 WL 1137302 (9th Cir. March, 30, 2011) (Fletcher, Betty J., dissenting), decision available here.

Decision by Judge Tallman, dissent by Judge B. Fletcher.

Facts: Cotterman, a registered child-sex offender, crossed from Mexico into Arizona and tripped an ICE alert. Id. at *1. A search of his car revealed cameras and computers; many of the files within were password protected. Id. at *2. Cotterman clammed up, and the agents took the computers 170 miles north to Tucson. Id. After two days of examination the agents discovered child porn in the unallocated space of a laptop. Id. at *3.

Cotterman, who had been released, decided that it was an opportune time for an Australian vacation - he fled, was arrested, and was extradited. Id. at *3. Meanwhile, agents cracked the passwords and found hundreds of images of child pornography, many of which portrayed Cotterman and a minor girl. Id. District Judge Collins suppressed the fruits of this search, finding the search could have taken place at the border and that it took at least forty-hours to yield results. Id. at *4. The government filed an interlocutory appeal. Id.

Issue(s): “The United States contends that it did not need to demonstrate reasonable suspicion because the border search doctrine justified both its initial search and its decision to transport Cotterman’s computer away from the border to adequately complete its search. As a result, the narrow issues before us are simply whether the border search doctrine applied and, if it did, whether the Government’s conduct was so egregious as to render the search unreasonable.” Id. at *4.

Held:We find no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry – and not yet admitted or released from the sovereign’s control – to be transported to a secondary site for adequate inspection.” Id. at *1.

Of Note: In a persuasive dissent, Judge Betty Fletcher focuses on the long-term deprivation of property, and a forensic search that is a fishing exhibition. Id. at *12 (B. Fletcher, dissenting). She worries, “The majority gives the Government a free pass to copy, review, categorize, and even read all that information [on a hard drive] in the hope that it will find some evidence of any crime.” Id. at *13.

Our Fourth Amendment Champion is skeptical of the government’s abandonment of its argument that it had reasonable suspicion to seize the laptop -- a strategy that she suspects stemmed “in part from [the government’s] eagerness to secure our sweeping approval of suspicionless border seizure and search of electronics equipment.” Id. at 12 & n.1. Judge Fletcher ends by “add[ing] her voice to the chorus lamenting the apparent demise of the Fourth Amendment.” Id. at *14.

How to Use: Perhaps stung by Judge B. Fletcher’s rebuke, Judge Tallman laces Cotterman with exceptions and limitations on this (frankly dramatic) expansion of the border search exception. See e.g., id. at *7 & n.12 (limiting case to property, not individuals). As he concedes, “We by no means suggest that the Government has carte blanche at the border to do as it pleases absent any regard for the Fourth Amendment . . . Rather, we continue to analyze the Government’s conduct on a case-by-case basis to determine whether searches or seizures are effectuated in such a manner as to render them unreasonable.” Id. at *8 (footnote omitted). If Cotterman survives an en banc call, those concessions will give some room to distinguish the opinion in future “border” search cases (that take place two hundred miles from the border).

For Further Reading: Professor Orin Kerr thinks Judge Tallman got Cotterman right. See Volokh Conspiracy blog here. (Although, as one commentator questions Kerr, “Do ever not agree with increasing government power when it comes to the 4th amendment?” Id.)

Image of the Honorable Judge Betty Fletcher from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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