United States v. Cotterman
By Casey Holzapfel – Edited by Jessica Vosgerchian
United States v. Cotterman, No. 09-10139 (9th Cir. March 8, 2013)
In an en banc decision, the United States Court of Appeals for the Ninth Circuit reversed a decision of the District Court of Arizona suppressing evidence found in a laptop seized by border agents.
The Ninth Circuit held that comprehensive searches of electronic devices must meet a standard of reasonable suspicion of criminal activity, extending the standard for searches conducted away from the point of entry to forensic examinations of computers carried out as part of a border search. The Ninth Circuit reversed the district court after finding that the agents did meet that standard.
After a grand jury indictment for charges related to child pornography, Howard Cotterman moved to suppress evidence obtained when agents seized his laptop at the U.S.-Mexico border. The district court judge granted the motion, finding that the examination of the laptop was an extended border search, which takes place away from the point of entry, and did not meet the required reasonable suspicion standard. On appeal, the government argued that no reasonable suspicion should be required. A panel of the Ninth Circuit agreed and reversed the district court. After the Ninth Circuit voted to rehear the issue en banc, the court found that the forensic examination of the laptop was not an extended border search, but that law enforcement nevertheless must meet a standard of reasonable suspicion to justify the search. The majority of the 8–3 decision found that the agents satisfied this standard, and held that the district court had erroneously granted the motion to suppress.When Cotterman and his wife crossed the U.S.-Mexico border into Lukeville, Arizona, a communications system used to track suspected criminals alerted the border agents to Cotterman’s sex offender status based on his 1992 child molestation conviction. An initial search of Cotterman’s personal laptop revealed password-protected files. The agents allowed the couple to enter the United States but retained two laptops and a camera for further inspection. A forensic examination of Cotterman’s computer at the Immigration and Customs Enforcement office in Tucson, Arizona, revealed pornographic images and videos of children both in password-protected files and in unallocated space, which preserves deleted information. Some of the images portrayed Cotterman sexually molesting a young girl.
Border searches have traditionally been allowed without a warrant because of national security interests. However, even though agents may initiate the search without any degree of suspicion, the Fourth Amendment requires the nature and scope of the search to be reasonable.
The majority found that while the initial search of Cotterman’s laptop—an attempt to simply open files—was valid regardless of any level of suspicion, the subsequent forensic examination of password-protected files and deleted information was only justified by a reasonable suspicion of criminal activity. The court reasoned that electronic devices justified a heightened expectation of privacy because of the sheer magnitude of personal information they may contain and their retention of deleted files. Cotterman, 21–22. The majority wrote that it is “impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel.” Id. at 22. The opinion also recognized the emergence of cloud technology, analogizing an electronic device to a key to a safety deposit box. Id. at 23. While taking a key across a border would not give border agents access to the contents of a safety deposit box, the court wrote, contents in the cloud “may appear as a seamless part of the digital device when presented at the border.” Id.
This comparison illustrates the court’s willingness to accept that technology has changed the laws surrounding privacy. The court noted the “dual and conflicting capability” of technology to both “decrease privacy and augment the expectation of privacy.” Id. Searches of electronic devices are therefore subject to a different standard than other forms of property.
Casey Holzapfel is a 1L at Harvard Law School.