EFTA00314991

Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sere. 2531, 2013 Daily Journal =. 3018 Callahan, Circuit Judge, filed opinion concurring in part, 11 -I KeyCite Yellow Flag - Negative Treatment dissenting in part, and concurring in the judgment, with whom Declined to Extend by United States v. Hassanshahi. Clifton, Circuit Judge, joined, and with whom M. Smith, December I. 2014 Circuit Judge, joined in part. 709 F.3d 952 United States Court of Appeals, M. Smith, Circuit Judge, filed dissenting opinion, with whom Ninth Circuit. Clifton and Callahan, Circuit Judges, joined in part. UNITED STATES of America, Plaintiff—Appellant, v. West Headnotes (27) Howard Wesley COTTERMAN, Defendant—Appellee. [1] Customs Duties No. 09-10139. I Argued and Submitted En P- Searches and Seizures Banc June 19, 2012. I Filed March 8, 2013. Searches and Seizures Synopsis iis• Fourth Amendment and reasonableness in Background: Defendant was charged with production of general child pornography, transportation and shipping of child Border searches constitute a historically pornography, receipt of child pornography, possession recognized exception to the Fourth Amendment's of child pornography, importation of obscene material, general principle that a warrant be obtained, transportation of obscene material, and unlawful flight but reasonableness remains the touchstone for a to avoid prosecution. The United States District Court warrantless search. U.S.C.A. Const.Amend. 4. for the District of Arizona, 2009 WL 465028, Raner C. Cases that cite this headnote Collins, J., granted defendant's motion to suppress evidence. Government filed interlocutory appeal. The Court of Appeals, 637 F.3d 1068. reversed and remanded. The Court of Appeals [2] Criminal Law granted rehearing en banc. 673 F.3d 1206. Review De Novo The ultimate question of whether a warrantless search was reasonable under the Fourth Holdings: The Court of Appeals, McKeown, Circuit Judge, Amendment is reviewed de novo. U.S.C.A. held that: Const.Amend. 4. Cases that cite this headnote [1 ] extended border search doctrine did not apply to seizure and forensic examination of defendant's laptop computer; [3] Criminal Law [2] forensic examination of defendant's computer that Specification of errors comprehensively analyzed its hard drive required showing of The Court of Appeals may consider an issue that reasonable suspicion; and has not been adequately raised on appeal if such a failure will not prejudice the opposing party. [3] border agents had reasonable suspicion to conduct initial search and subsequent forensic examination of defendant's Cases that cite this headnote computer that comprehensively analyzed hard drive. [4] Criminal Law Reversed. P- Specification of errors WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. EFTA00314991 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 Government's failure to address issue on appeal more favorably to the government. U.S.C.A. of whether there was reasonable suspicion for Const.Amend. 4. border search, after addressing issue before district court, did not prejudice defendant, and Cases that cite this headnote thus Court of Appeals could consider issue, where Court of Appeals called for, and received, [8] Searches and Seizures supplemental briefs by both parties. U.S.C.A. P- Scope, Conduct, and Duration of Const.Amend. 4. Warrantless Search 2 Cases that cite this headnote The reasonableness of a search or seizure depends on the totality of the circumstances, including the scope and duration of the [5] Customs Duties deprivation. U.S.C.A. Const.Amend. 4. 4' Searches and Seizures Searches and Seizures 2 Cases that cite this headnote Necessity of and preference for warrant, and exceptions in general [9] Customs Duties The broad contours of the scope of searches p- Time and distance factors; checkpoints at international borders are rooted in the long- Extended border search doctrine, which standing right of the sovereign to protect encompassed any search away from border itself by stopping and examining persons where entry was not apparent, but where and property crossing into the country; thus, dual requirements of reasonable certainty of border searches form a narrow exception to recent border crossing and reasonable suspicion the Fourth Amendment prohibition against of criminal activity were satisfied, did not warrantless searches without probable cause. apply to seizure and forensic examination of U.S.C.A. Const.Amend. 4. defendant's laptop computer after defendant had been stopped and searched at border; although 4 Cases that cite this headnote device had been transported and subjected to extended and extensive examination beyond [6] Customs Duties border, computer never cleared customs and P- Searches and Seizures search would have been every bit as intrusive Because the government's interest in preventing had it been conducted at border. U.S.C.A. the entry of unwanted persons and effects is Const.Amend. 4. at its zenith at the international border, border 10 Cases that cite this headnote searches are generally deemed reasonable simply by virtue of the fact that they occur at the border. U.S.C.A. Const.Amend. 4. [10] Customs Duties 4'- Time and distance factors; checkpoints 4 Cases that cite this headnote The key feature of an extended border search is that an individual can be assumed to have cleared [7] Customs Duties the border and thus regained an expectation of P- Searches and Seizures privacy in accompanying belongings. U.S.C.A. Even at the border, individual privacy rights Const.Amend. 4. are not abandoned but balanced against the 2 Cases that cite this headnote sovereign's interests; that balance is qualitatively different than in the interior and is struck much WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00314992 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 [11] Customs Duties Cases that cite this headnote 4— Time and distance factors; checkpoints Customs Duties [14] Customs Duties Airports and airplanes 46... Scope and Nature; Successive or The "functional equivalent" doctrine effectively Secondary, Searches extends the border search doctrine to all ports Obscenity of entry, including airports; a routine customs P- Computers; electronic transmission search at the "functional equivalent" of the After seizure at border, forensic examination border is analyzed as a border search and requires of defendant's computer that comprehensively neither probable cause nor reasonable suspicion. analyzed its hard drive required showing of U.S.C.A. Const.Amend. 4. reasonable suspicion; although government had 2 Cases that cite this headnote legitimate concerns about child pornography, such concerns did not justify unfettered crime-fighting searches or unregulated assault [12] Customs Duties on citizens' private information. U.S.C.A. Time and distance factors; checkpoints Const.Amend. 4. The extended border search doctrine, which encompasses any search away from border Cases that cite this headnote where entry was not apparent, but where dual requirements of reasonable certainty of recent [15] Searches and Seizures border crossing and reasonable suspicion of 6'- Persons, Places and Things Protected criminal activity were satisfied, is best confined The Fourth Amendment's specific guarantee of to cases in which, after an apparent border the people's right to be secure in their "papers" crossing or functional entry, an attenuation encompasses financial records, confidential in the time or the location of conducting a business documents, medical records, and search reflects that the subject has regained an private emails on personal electronic devices. expectation of privacy. U.S.C.A. Const.Amend. U.S.C.A. Const.Amend. 4. 4. Cases that cite this headnote 3 Cases that cite this headnote [16] Searches and Seizures [13] Customs Duties fia Persons. Places and Things Protected Time and distance factors; checkpoints The express listing of papers under the Fourth Under the extended border search doctrine, Amendment reflects the Founders' deep concern which encompasses any search away from with safeguarding the privacy of thoughts border where entry was not apparent, but where and ideas, what might be called freedom of dual requirements of reasonable certainty of conscience, from invasion by the government; recent border crossing and reasonable suspicion these records are expected to be kept private of criminal activity were satisfied, time and and this expectation is one that society is distance become relevant to determining whether prepared to recognize as reasonable. U.S.C.A. there is an adequate nexus to a recent border Const.Amend. 4. crossing only after the subject or items searched have entered. U.S.C.A. Const.Amend. 4. Cases that cite this headnote WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00314993 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 "Reasonable suspicion" is defined as a [17] Searches and Seizures particularized and objective basis for suspecting 4. Expectation of privacy the particular person stopped of criminal activity. The uniquely sensitive nature of data on U.S.C.A. Const.Amend. 4. electronic devices carries with it a significant expectation of privacy and thus renders an 9 Cases that cite this headnote exhaustive exploratory search more intrusive than with other forms of property. U.S.C.A. [21] Arrest Const.Amend. 4. 0— Collective knowledge 4 Cases that cite this headnote The assessment of reasonable suspicion is to be made in light of the totality of the circumstances; even when factors considered in isolation from [18] Customs Duties each other are susceptible to an innocent 4- Searches and Seizures explanation, they may collectively amount to a The government's authority to protect the reasonable suspicion. U.S.C.A. Const.Amend. 4. nation from contraband crossing its borders may be heightened by national crises, such as 5 Cases that cite this headnote the smuggling of illicit narcotics, the threat of international terrorism, and future threats [22] Criminal Law yet to take shape, but even in the face of 4— Review De Novo heightened concerns, a court must account for Criminal Law the Fourth Amendments rights of travelers. Evidence wrongfully obtained U.S.C.A. Const.Amend. 4. The Court of Appeals reviews reasonable Cases that cite this headnote suspicion determinations de novo, reviewing findings of historical fact for clear error and giving due weight to inferences drawn from [19] Customs Duties those facts by resident judges and local law Scope and Nature; Successive or enforcement officers. U.S.C.A. Const.Amend. 4. Secondary Searches Reasonable suspicion to search personal 2 Cases that cite this headnote electronic devices at the border requires that officers make a commonsense differentiation [23] Customs Duties between a manual review of files on the Scope and Nature; Successive or electronic device and application of computer Secondary, Searches software to analyze a hard drive, and utilize the latter only when they possess a particularized and Obscenity objective basis for suspecting the person stopped 0. Particular cases of criminal activity. U.S.C.A. Const.Amend. 4. Border agents had reasonable suspicion to conduct initial search and subsequent forensic 10 Cases that cite this headnote examination of defendant's computer that comprehensively analyzed hard drive after [20] Arrest seizing it at border, where defendant had prior 0. Reasonableness; reason or founded conviction for child molestation, he traveled suspicion, etc frequently to country associated with sex tourism, and computer contained password- protected files; although defendant had offered to WestlawNexts © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00314994 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 open files, computer contained vacation photos, and initial examination did not turn up anything Cases that cite this headnote incriminating, agents appropriately were wary of offer of assistance due to concerns that defendant [27] Customs Duties could tamper with computer and reasonable 6*, Scope and Nature; Successive or suspicion otherwise had not been eliminated. Secondary Searches U.S.C.A. Const.Amend. 4. Obscenity 3 Cases that cite this headnote 4- Scope of search Existence of password•protected files was relevant to assessing reasonableness of scope and [24] Arrest duration of search of defendant's computer after 4- Reasonableness; reason or founded its seizure at border; search necessarily had been suspicion, etc protracted because of password protection that Although a prior criminal history cannot alone defendant had employed, and after defendant establish reasonable suspicion, it is permissible refused to provide agents with passwords to to consider such a fact as part of the total calculus protected files and fled country, it took agent of information in that determination. U.S.C.A. days to override computer security and open Const.Amend. 4. image files of child pornography. U.S.C.A. Const.Amend. 4. 4 Cases that cite this headnote Cases that cite this headnote [25] Customs Duties 4'- Particular Objects or Products Although password protection of files, in isolation, will not give rise to reasonable Attorneys and Law Firms suspicion justifying border search, where there •956 Dennis K. Burke, Christina M. Cabanillas, Carmen are other indicia of criminal activity, password F. Corbin, John S. Leonardo, John J. Tuchi, United States protection of files may be considered in the Attorney's Office for the District of Arizona, Tucson, AZ, for totality of the circumstances; to contribute to Appellant. reasonable suspicion, encryption or password protection of files must have some relationship William J. Kirchner, Law Office of Nash & Kirchner, M. to the suspected criminal activity. U.S.C.A. Tucson, AZ, for Appellee. Const.Amend. 4. David M. Porter, Melia N. Brink, National Association Cases that cite this headnote of Criminal Defense Lawyers, Washington, Michael Price, Brennan Center for Justice, New York, NY; Hanni [26] Customs Duties M. Fakhoury, Electronic Frontier Foundation, San Francisco, P- Particular Objects or Products CA, for Amicus Curiae National Association of Criminal Defense Lawyers and Electronic Frontier Foundation. Password protecting an entire device, as opposed to files within a device, cannot be a factor Christopher T. Handman, Mary Helen Wimberly, Hogan supporting a reasonable suspicion, such as would Lovells US LLP, Washington, M.; Sharon Bradford justify border search; using a password on a Franklin, The Constitution Project, Washington, ■., for device is a basic means of ensuring that the Amicus Curiae The Constitution Project. device cannot be accessed by another in the event it is lost or stolen. U.S.C.A. Const.Amend. 4. WeStlaWNPA" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00314995 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 requirement and privacy rights in commonly used electronic Appeal from the United States District Court for the District devices. The question we confront "is what limits there are of Arizona, Raner C. Collins, District Judge, Presiding. M. upon this power of technology to shrink •957 the realm of No. 4:07-cr-01207-RCC-CRP-I. guaranteed privacy." Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). More specifically, Before: ALEX KOZINSKI, Chief Judge, SIDNEY R. we consider the reasonableness of a computer search that THOMAS, M. MARGARET McKEOWN, KIM McLANE began as a cursory review at the border but transformed into WARDLAW, RAYMOND C. FISHER, RONALD M. a forensic examination of Cotterman's hard drive. GOULD, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., MARY H. Computer forensic examination is a powerful tool capable MURGUIA, and MORGAN CHRISTEN, Circuit Judges. I of unlocking password-protected files, restoring deleted material, and retrieving images viewed on web sites. But 1 Judge Betty B. Fletcher was a member of the en bane while technology may have changed the expectation of panel but passed away after argument of the case. Judge privacy to some degree, it has not eviscerated it, and certainly Wardlaw was drawn as her replacement. not with respect to the gigabytes of data regularly maintained as private and confidential on digital devices. Our Founders were indeed prescient in specifically incorporating "papers" Opinion by Judge McKEOWN; Partial Concurrence and within the Fourth Amendment's guarantee of "[Otte right of Partial Dissent by Judge CALLAHAN; Dissent by Judge the people to be secure in their persons, houses, papers, and MILAN D. SMITH, JR. effects." U.S. Const. amend. IV. The papers we create and maintain not only in physical but also in digital form reflect our most private thoughts and activities. OPINION McKEOWN, Circuit Judge: [I] Although courts have long recognized that border searches constitute a "historically recognized exception to Every day more than a million people cross American the Fourth Amendment's general principle that a warrant be borders, from the physical borders with Mexico and Canada obtained," United States v. Ramsey, 431 U.S. 606, 621, 97 to functional borders at airports such as Los Angeles (LAX), S.Ct. 1972, 52 L.Ed.2d 617 (1977), reasonableness remains Honolulu (HNL), New York (JFK, LGA), and Chicago the touchstone for a warrantless search. Even at the border, we (ORD, MDW). As denizens of a digital world, they carry have rejected an "anything goes" approach. See United States with them laptop computers, iPhones, iPads, iPods. Kindles, v. Seljan, 547 F.3d 993. 1000 (9th Cir.2008) (en banc). Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and Mindful of the heavy burden on law enforcement to protect sensitive information ranging from personal, financial, and our borders juxtaposed with individual privacy interests in medical data to corporate trade secrets. And, in the case of data on portable digital devices, we conclude that, under the Howard Cotterman, child pornography. circumstances here, reasonable suspicion was required for the forensic examination of Cotterman's laptop. Because border Agents seized Cotterrnan's laptop at the U.S.-Mexico border agents had such a reasonable suspicion, we reverse the district in response to an alert based in part on a fifteen-year- court's order granting Cotterman's motion to suppress the old conviction for child molestation. The initial search at evidence of child pornography obtained from his laptop. the border turned up no incriminating material. Only after Cotterman's laptop was shipped almost 170 miles away and subjected to a comprehensive forensic examination were I. FACTUAL BACKGROUND AND PROCEDURAL images of child pornography discovered. HISTORY 2 The facts related here are drawn from the record of the This watershed case implicates both the scope of the narrow evidentiary hearing held before the magistrate judge. border search exception to the Fourth Amendment's warrant WeStlaWNeXt" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00314996 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 Howard Cotterman and his wife were driving home to the Agents Brisbine and Riley departed Sells for Lukeville United States from a vacation in Mexico on Friday morning. at about 1:30 and decided en route to detain the April 6, 2007, when they reached the Lukeville, Arizona, Port Cottermans' laptops for forensic examination. Upon their of Entry. During primary inspection by a border agent, the arrival, they gave Cotterman and his wife Miranda warnings Treasury Enforcement Communication System ("TECS") 3 and interviewed them separately. The interviews revealed returned a hit for Cotterman. The TECS hit indicated that nothing incriminating. During the interview, Cotterman Cotterman was a sex offender—he had a 1992 conviction for offered to help the agents access his computer. The agents two counts of use of a minor in sexual conduct, two counts declined the offer out of concern that Cotterman might be of lewd and lascivious conduct upon a child, and three counts able to delete files surreptitiously or that the laptop might be of child molestation—and that he was potentially involved "booby trapped." in child sex tourism. Because of the hit, Cotterman and his wife were referred to secondary inspection, where they were The agents allowed the Cottermans to leave the border instructed to exit their vehicle and leave all their belongings crossing around 6 E., but retained the Cottermans' laptops in the car. The border agents called the contact person listed and a digital camera. 4 Agent Brisbine drove almost 170 miles in the TECS entry and, following that conversation, believed from Lukeville to the ICE office in Tucson, Arizona, where the hit to reflect Cotterman's involvement "in some type of he delivered both laptops and one of the three digital cameras child pornography." The agents searched the vehicle and to ICE Senior Special Agent & Computer Forensic Examiner retrieved two laptop computers and three digital cameras. John Owen. Agent Owen began his examination on Saturday, Officer Antonio Alvarado inspected the electronic devices the following day. He used a forensic program to copy the and found *953 what appeared to be family and other hard drives of the electronic devices. He determined that the personal photos, along with several password-protected files. digital camera did not contain any contraband and released the camera that day to the Cottermans, who had traveled 3 The TECS is an investigative tool of the Department to Tucson from Lukeville and planned to stay there a few of Homeland Security that keeps track of individuals days. Agent Owen then used forensic software that often entering and exiting the country and of individuals must run for several hours to examine copies of the laptop involved in or suspected to be involved in crimes. hard drives. He began his personal examination of the laptops on Sunday. That evening, Agent Owen found seventy-five Border agents contacted Group Supervisor Craig Brisbine at the Immigration and Customs Enforcement ("ICE') office images of child pornography within the unallocated space of in Sells, Arizona, and informed him about Cotterman's entry Cotterman's laptop. 5 and the fact that he was a sex offender potentially involved in child sex tourism. The Sells Duty Agent, Mina Riley, 4 The other two cameras were returned to the Cottermans. also spoke with Officer Alvarado and then contacted the 5 "Unallocated space is space on a hard drive that contains ICE Pacific Field Intelligence Unit, the office listed on the TECS hit, to get more information. That unit informed Riley deleted data, usually emptied from the operating system's trash or recycle bin folder, that cannot be seen or that the alert was part of Operation Angel Watch, which accessed by the user without the use of forensic software. was aimed at combating child sex tourism by identifying Such space is available to be written over to store new registered sex offenders in California, particularly those who information." United States v. Flyer. 633 F.3d 911. 918 travel frequently outside the United States. She was advised (9th Cir.201 I). to review any media equipment, such as computers, cameras, Agent Owen contacted the Cottermans on Sunday evening or other electronic devices, for potential evidence of child and told them he would need Howard Cotterrnan's assistance pornography. Riley then spoke again to Alvarado, who told to access password-protected files he found on Cotterman's her that he had been able to review some of the photographs laptop. Cotterman agreed to provide the assistance the on the Cottermans' computers but had encountered password- following day, but never showed up. When Agent Brisbine protected files that he was unable to access. called again to request Cotterman's help in accessing the password-protected files, Cotterman responded that the WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00314997 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 computer had multiple users and that he would need to we requested supplemental briefing on the issue of whether check with individuals at the *959 company from which reasonable suspicion existed at the time of the search. he had retired in order to get the passwords. The agents had no further contact with Cotterman, who boarded a flight to Mexico from Tucson the next day, April 9, and then flew H. WAIVER onward to Sydney, Australia. On April II, Agent Owen The government argued below that the forensic examination finally managed to open twenty-three password-protected was part of a routine border search not requiring heightened files on Cotterman's laptop. The files revealed approximately suspicion and, alternatively, that reasonable suspicion 378 images of child pornography. The vast majority of the justified the search. Before the district court, the government images were of the same girl, approximately 7-10 years of maintained "the facts of this case clearly establish that age, taken over a two-to three-year period. In many of the there was reasonable suspicion." However, having failed to images, Cotterman was sexually molesting the child. Over obtain a favorable ruling on that ground, the government did the next few months, Agent Owen discovered hundreds more not challenge on appeal the conclusion that there was no pornographic images, stories, and videos depicting children. reasonable suspicion. Rather, it sought a broad ruling that no suspicion of any kind was required. Cotterman thus argued in A grand jury indicted Cotterman for a host of offenses his answering brief that the government had waived the issue related to child pornography. Cotterman moved to suppress —an assertion that the government did not address in its reply the evidence gathered from his laptop and the fruits of brief. Cotterman contends that the government has abandoned that evidence. The magistrate judge filed a Report and and conceded the issue of reasonable suspicion and that this Recommendation finding that the forensic examination court may not address that issue. We disagree. was an "extended border search" that required reasonable suspicion. He found that the TECS hit and the existence [21 [3] [4] We review de novo the ultimate question of of password-protected files on Cotterman's laptop were whether a warrantless search *960 was reasonable under suspicious, but concluded that those facts did not suffice to the Fourth Amendment. United States v. Johnson, 256 F.3d give rise to reasonable suspicion of criminal activity. The 895, 905 (9th Cir.200 I ) (en banc). Our review necessarily district judge adopted the Report and Recommendation and encompasses a determination as to the applicable standard: granted Cotterman's motion to suppress. no suspicion, reasonable suspicion or probable cause. That the government may hope for the lowest standard does not In its interlocutory appeal of that order, the government alter our de novo review, particularly when the issue was fully characterized the issue as follows: "Whether the authority briefed and argued below. Further, we may consider an issue to search a laptop computer without reasonable suspicion that has not been adequately raised on appeal if such a failure at a border point of entry permits law enforcement to take will not prejudice the opposing party. United States v. Ullah. it to another location to be forensically examined, when it 976 F.2d 509, 514 (9th Cir.1992). Where, as here, we "called has remained in the continuous custody of the government." for and received supplemental briefs by both parties,"Alcaraz A divided panel of this court answered that question in v. INS, 384 F.3d 1150, 1161 (9th Cir.2004), the government's the affirmative and reversed. United States v. Cottertnan. failure to address the issue does not prejudice Cotterman. See 637 F.3d 1068 (9th Cir.20 I I ). The panel concluded that also United States v. Resendiz-Ponce, 549 U.S. 102, 103-04, reasonable suspicion was not required for the search and 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). that "[t]he district court erred in suppressing the evidence lawfully obtained under border search authority." Id. at 1084. III. THE BORDER SEARCH In dissent, Judge Betty B. Fletcher wrote that "officers [5] [6] The broad contours of the scope of searches at our must have some level of particularized suspicion in order international borders are rooted in "the long-standing right to conduct a seizure and search like the one at issue here." of the sovereign to protect itself by stopping and examining M. (B. Fletcher, J., dissenting). By a vote of a majority of persons and property crossing into this countly." Ramsey. nonrecused active judges, rehearing en banc was ordered. 673 431 U.S. at 616, 97 S.Ct. 1972. Thus, border searches form F.3d 1206 (9th Cir.2012). Following en banc oral argument, "a narrow exception to the Fourth Amendment prohibition WeStlaWNeff © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00314998 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 against warrantless searches without probable cause." Seljan, 547 F.3d at 999 (internal quotation marks and citation 6 Although the Arnold decision expressed its conclusion omitted). Because "[t]he Government's interest in preventing in broad terms, stating that. "reasonable suspicion is the entry of unwanted persons and effects is at its zenith at not needed for customs officials to search a laptop or the international border," United States v. Flores-Montano, other personal electronic storage devices at the border." 541 U.S. 149, 152, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004), Arnold, 533 F.3d at 1008, the facts do not support such border searches are generally deemed "reasonable simply by an unbounded holding. As an en bane court, we narrow virtue of the fact that they occur at the border." Ramsey, 431 Arnold to approve only the relatively simple search U.S. at 616. 97 S.Ct. 1972. at issue in that case, not to countenance suspicionless forensic examinations. The dissent's extensive reliance on Arnold is misplaced in the en banc environment. [71 [8] This does not mean, however, that at the border "anything goes." Seljan, 547 F.3d at 1000. Even at the border, individual privacy rights are not abandoned but A. The Forensic Examination Was Not An Extended Border Search "[b]alanced against the sovereign's interests." United States t'. Montoya de Hernandez, 473 U.S. 531, 539, 105 S.Ct. [9] [10] Cotterman urges us to treat the examination as an 3304, 87 L.Ed.2d 381 (1985). That balance "is qualitatively extended border search that requires particularized suspicion. Although the semantic moniker "extended border search" different ... than in the interior" and is "struck much more favorably to the Government." Id. at 538, 540, 105 S.Ct. may at first blush seem applicable here, our jurisprudence 3304. Nonetheless, the touchstone of the Fourth Amendment does not support such a claim. We have "define[d] an extended border search as any search away from the border analysis remains reasonableness. Id. at 538, 105 S.Ct. 3304. The reasonableness of a search or seizure depends on the where entry is not apparent, but where the dual requirements totality of the circumstances, including the scope and duration of reasonable certainty of a recent border crossing and reasonable suspicion of criminal activity am satisfied." of the deprivation. See United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see also United States v. Guzman-Padilla. 573 F.3d 865, 878-79 (9th United States v. Duncan, 693 F.2d 971, 977 (9th Cir.1982). Cir.2009) (internal quotation marks and citations omitted). The key feature of an extended border search is that an In view of these principles, the legitimacy of the initial search individual can be assumed to have cleared the border and of Cotterman's electronic devices at the border is not in thus regained an expectation of privacy in accompanying belongings. See United States v. Abbouchi, 502 F.3d 850, 855 doubt. Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter (9th Cir.2007) ("Because the delayed nature of an extended the country. It was, in principle, akin to the search in Seljan, border search ... necessarily entails a greater level of intrusion on legitimate expectations of privacy than an ordinary border where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable. 547 search, the government must justify an extended border F.3d at 1004. Similarly, we have approved a quick look search with reasonable suspicion that the search may uncover contraband or evidence of criminal activity.") (internal and unintrusive search of laptops. United States v. Arnold. 533 F.3d 1003, 1009 (9th Cir.2008) (holding border search quotation marks omitted) (emphasis added). reasonable where "CBP officers simply 'had [traveler] boot Cotterman's case is different. Cotterman was stopped and [the laptop] up, and looked at what [he] had inside.' ") (second searched at the border. Although he was allowed to depart alteration in original). 6 *961 Had the search of Cotterman's the border inspection station after the initial search, some of laptop ended with Officer Alvarado, we would be inclined his belongings, including his laptop, were not. The follow•on to conclude it was reasonable even without particularized forensic examination was not an "extended border search." suspicion. See id. But the search here transformed into A border search of a computer is not transformed into something far different. The difficult question we confront an extended border search simply because the device is is the reasonableness, without a warrant, of the forensic transported and examined beyond the border. examination that comprehensively analyzed the hard drive of the computer. WeStlaWNP5 © 2015 Thomson Reuters. No claim to original U.S. Government Works. EFTA00314999 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 [11] [12] To be sure, our case law has not always border crossing only after the subject or items searched articulated the "extended border search" doctrine with have entered. See Villasenor, 608 F.3d at 471 (explaining optimal clarity. But the confusion has come in distinguishing that reasonableness of extended border search depends on between facts describing a functional border search and "whether the totality of the surrounding circumstances, those describing an extended border search, not in defining including the time and distance elapsed" establish that the standard for a search at the border. See, e.g., United items to be searched have recently entered the country) States v. Cardona, 769 F.2d 625, 628 (9th Cir.1985) ("We (internal quotation marks omitted). Cotterman's computer have recently recognized the difficulty of making sharp never cleared customs so entry was never effected. In short, distinctions between searches at the functional equivalent of the extended border search doctrine does not fit the search the border and extended border searches."). The "functional here. equivalent" doctrine effectively extends the border search doctrine to all ports of entry, including airports. See Ahneida— Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, B. Forensic Examination At The Border Requires 37 L.Ed.2d 596 (1973). A routine customs search at the Reasonable Suspicion "functional equivalent" of the border is "analyzed as a border [141 It is the comprehensive and intrusive nature of a search" and requires neither probable cause nor reasonable forensic examination—not the location of the examination— suspicion. Seljan, 547 F.3d at 999. This case involves a that is the key factor triggering the requirement of reasonable search initiated at the actual border and does not encounter suspicion here. 8 See Cotterman, 637 F.3d at 1086-87 n. 6 any of the difficulties *962 surrounding identification of (B. Fletcher, J., dissenting) (recognizing that "[al computer a "functional" border. As to the extended border search search in a forensic lab will always be equivalent to an doctrine, we believe it is best confined to races in which, after identical search at the border. The duration of a computer an apparent border crossing or functional entry, an attenuation search is not controlled by where the search is conducted. in the time or the location of conducting a search reflects that The duration of a computer search is controlled by what one the subject has regained an expectation of privacy. 7 is looking for and how one goes about searching for it.") (emphasis in original). The search would have been every 7 bit as intrusive had Agent Owen traveled to the border with This characterization is consistent with how our circuit his forensic equipment. Indeed, Agent Owen had a laptop and others have articulated the doctrine. See, e.g., with forensic software that he could have used to conduct an United States v. Villasenor. 608 F.3d 467. 471-72 (9th examination at the port of entry itself, although he testified Cir.2010); United Stales v. Yang, 286 F.3d 940.945-46 it would have been a more time consuming effort. To carry (7th Cir.2002); United States v. Hyde, 37 F.3d 116. 120 n. 2 (3d Cit 1994); United States v. Santiago, 837 F.2d out the examination of Cotterman's laptop, Agent Owen used 1545. 1548 (11th Cir.1988); United States V. Gaviria, computer forensic software to copy the hard drive and then 805 F.2d 1108, 1112 (2d Cir.1986); United States v. analyze it in its entirety, including data that ostensibly had Niver, 689 F.2d 520, 526 (5th Cir.1982); United States V. been deleted. This painstaking analysis is akin to reading Mr, 592 F.2d 735, 739-40 (4th Cir.1979). a diary line by line looking for mention *963 of criminal [13] In his dissent, Judge Smith advocates applying activity—plus looking at everything the writer may have the extended border search doctrine because the forensic erased. 9 examination occurred 170 miles from the border and days after Cotterman's entry. Moving the laptop to a specialized lab 8 The concurrence goes to great lengths to "refute any at a distant location might highlight that the search undertaken such notion" that location and duration contributed to our there was an extensive one, but it is not the dispositive factor holding reasonable suspicion required here. Concurrence here. Because Cotterman never regained possession of his at 974-75. We see no reason for such an exegesis; our laptop, the fact that the forensic examination occurred away opinion is clear on the point that these factors are not at from the border, in Tucson, did not heighten the interference issue. with his privacy. Time and distance become relevant to 9 Agent Owen used a software program called EnCase determining whether there is an adequate nexus to a recent that exhibited the distinctive features of computer WeStlaWNeXt" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00315000 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 forensic examination. The program copied. analyzed. and preserved the data stored on the hard drive and Less than ten years later, in 1985, the Court observed that it gave the examiner access to far more data. including had "not previously decided what level of suspicion would password-protected. hidden or encrypted. and deleted justify a seizure of an incoming traveler for purposes other files. than a manual user could access. than a routine border search" and then went on to hold in Notwithstanding a traveler's diminished expectation of the context of an alimentary canal search that reasonable privacy at the border, the search is still measured against suspicion was required for "the detention of a traveler at the Fourth Amendment's reasonableness requirement, which the border, beyond the scope of a routine customs search considers the nature and scope of the search. Significantly, and inspection." Montoya de Hernandez, 473 U.S. at 540- the Supreme Court has recognized that the "dignity and 41. 105 S.Ct. 3304. The Court's reference to "routine border privacy interests of the person being searched" at the border search" was parsed in a later case, Flores—Montano, where will on occasion demand "some level of suspicion in the the Court explained that "the reasons that might support case of highly intrusive searches of the person." Flores- a requirement of some level of suspicion in the case of Montano, 541 U.S. at 152, 124 S.CI. 1582. Likewise, the highly intrusive searches of the person—dignity and privacy Court has explained that "some searches of property are interests of the person being searched—simply do not carry so destructive," "particularly offensive," or overly intrusive over to vehicles," and, more specifically, to the gas tank of a in the manner in which they are carried out as to require car. 541 U.S. at 152, 124 S.CI. 1582. Accordingly, the Court particularized suspicion. Id. at 152, 154 n. 2, 155-56, *964 rejected a privacy claim vis-a-vis an automobile gas 124 S.Ct. 1582; Montoya de Hernandez, 473 U.S. at 541. tank. 105 S.Ct. 3304. The Court has never defined the precise dimensions of a reasonable border search, instead pointing We are now presented with a case directly implicating to the necessity of a case-by-case analysis. As we have substantial personal privacy interests. The private emphasized, "[deasonableness, when used in the context of a information individuals store on digital devices—their border search, is incapable of comprehensive definition or of personal - papers" in the words of the Constitution—stands mechanical application." Duncan, 693 F.2d at 977 (internal in stark contrast to the generic and impersonal contents quotation marks and citation omitted). of a gas tank. See, e.g., United States v. Jones, — U.S. —, 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) Over the past 30-plus years, the Supreme Court has dealt with (Sotomayor, J., concurring) (expressing "doubt that people a handful of border cases in which it reaffirmed the border would accept without complaint the warrantless disclosure to search exception while, at the same time, leaving open the the Government of a list of every Web site they had visited in question of when a "particularly offensive" search might fail the last week, or month, or year"). We rest our analysis on the the reasonableness test. The trail begins with United States v. reasonableness of this search, paying particular heed to the Ramsey, where the Court reserved judgment on this question: nature of the electronic devices and the attendant expectation "We do not decide whether, and under what circumstances, of privacy. a border search might be deemed 'unreasonable' because of the particularly offensive manner in which it is carried out." The amount of private information carried by international 431 U.S. at 618 n. 13, 97 S.Ct. 1972. Of note, the Court travelers was traditionally circumscribed by the size of the cited two cases, albeit non-border cases, as examples: Kremen traveler's luggage or automobile. That is no longer the case. v. United States, 353 U.S. 346. 347-48, 77 S.Ct. 828, 1 Electronic devices are capable of storing warehouses full of L.Ed.2d 876 (1957) (holding unconstitutional an exhaustive information. The average 400—gigabyte laptop hard drive can warrantless search of a cabin and seizure of its entire contents store over 200 million pages—the equivalent of five floors that were moved 200 miles away for examination) and Go- of a typical academic library. See Orin S. Kerr, Searches Bart Importing Co. v. United States, 282 U.S. 344, 358. 51 and Seizures in a Digital World, 119 Harv. L.Rev. 531, 542 S.Ct. 153, 75 L.Ed. 374 (1931) (condemning as "lawless (2005) (explaining that an 80 GB hard drive is equivalent invasion of the premises and a general exploratory search" to 40 million pages or one floor of an academic library); a warrantless "unlimited search, ransacking the desk, safe, see also LexisNexis, How Many Pages in a Gigabyte?. filing cases and other parts of [an] office"). http:/Avww.lexisnexis. corn/applieddiscovery/lawlibrary/ WeSflaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 EFTA00315001 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 whitePapers/ADI_FS_PageslnAGigabyte.pdf. Even a car full erasure, notably in the form of browsing histories and records of packed suitcases with sensitive documents cannot hold a of deleted files. This quality makes it impractical, if not candle to the sheer, and ever-increasing, capacity of digital impossible, for individuals to make meaningful decisions storage. to regarding what digital content to expose to the scrutiny that accompanies international travel. A person's digital life 10 ought not be hijacked simply by crossing a border. When We are puzzled by the dissent's speculation about "how packing traditional luggage, one is accustomed to deciding many gigabytes of storage [one must! buy to secure the guarantee that reasonable suspicion will be required what papers to take and what to leave behind. When carrying before one's devices are searched." Dissent at 987. a laptop, tablet or other device, however, removing files We discuss the typical storage capacity of electronic unnecessary to an impending trip is an impractical solution devices simply to highlight the features that generally given the volume and often intermingled nature of the files. distinguish them from traditional baggage. Indeed, we do It is also a time-consuming task that may not even effectively not and need not determine whether Cotterman's laptop erase the files. possessed unusually large or simply "average" capacity in order to resolve that the forensic examination of it The present case illustrates this unique aspect of electronic required reasonable suspicion. data. Agents found incriminating files in the unallocated [15] [16] The nature of the contents of electronic devices space of Cotterman's laptop, the space where the computer differs from that of luggage as well. Laptop computers, stores files that the user ostensibly deleted and maintains iPads and the like are simultaneously offices and personal other "deleted" files retrieved from web sites the user has diaries. They contain the most intimate details of our lives: visited. Notwithstanding the attempted erasure of material or financial records, confidential business documents, medical the transient nature of a visit to a web site, computer forensic records and private emails. This type of material implicates examination was able to restore the files. It is as if a search of a the Fourth Amendment's specific guarantee of the people's person's suitcase could reveal not only what the bag contained right to be secure in their "papers." U.S. Const. amend. IV. on the current trip, but everything it had ever carried. The express listing of papers "reflects the Founders' deep concern with safeguarding the privacy of thoughts and ideas With the ubiquity of cloud computing, the government's reach —what we might call freedom of conscience—from invasion into private data becomes even more problematic. 12 In the by the government." Seljan, 547 F.3d at 1014 (Kozinski, C.J., "cloud," a user's data, including the same kind of highly dissenting); see also New York v. Video, Inc., 475 U.S. sensitive data one would have in "papers" at home, is held 868, 873, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986). These on remote servers rather than on the device itself. The digital records are expected to be kept private and this expectation device is a conduit to retrieving information from the cloud, is "one that society is prepared to recognize as `reasonable.' akin to the key to a safe deposit box. Notably, although the " Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 virtual "safe deposit box" does not itself cross the border, L.Ed.2d 576 (1967) (Harlan, J., concurring). II it may appear as a seamless part of the digital device when presented at the border. With access to the cloud through 1I forensic examination, a traveler's cache is just a click away The dissent's discussion about Facebook and other platforms where the user voluntarily transmits personal from the government. data over the Internet. often oblivious to privacy issues. Dissent at 65-66. is a red herring. Of course. 12 "The term 'cloud computing' is based on the industry willful disclosure of electronic data. like disclosure of usage of a cloud as a metaphor for the ethereal other material, undercuts an individual's expectation of internat.... An external cloud platform is storage or privacy. But there was no such disclosure here. Nor software access that is essentially rented from (or does the border search implicate such an affirmative outsourced to) a remote public cloud service provider. disclosure. such as Amazon or Google.... By contrast, an internal •965 Electronic devices often retain sensitive and or private cloud is a cluster of servers that is networked behind an individual or company's own firewall.- David confidential information far beyond the perceived point of A. Couillard. Defogging the Cloud: Applying Fourth WeStlaWNeff © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 EFTA00315002 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 Amendment Principles to Evolving Privacy Expectations (9th Cir.2005), which have minimal or no impact beyond in Cloud Computing, 93 Minn. L.Rev. 2205. 2216 (2009) the search itself—and little implication for an individual's (internal citations omitted). dignity and privacy interests—the exposure of confidential As Justice Scalia wrote. "It would be foolish to contend and personal information has permanence. It cannot be that the degree of privacy secured to citizens by the undone. Accordingly, the uniquely sensitive nature of data Fourth Amendment has been entirely unaffected by the on electronic devices carries with it a significant expectation advance of technology." Kyllo, 533 U.S. at 33-34, 121 S.Ct. of privacy and thus renders an exhaustive exploratory search 2038. Technology has the dual and conflicting capability to more intrusive than with other forms of property. decrease privacy and augment the expectation of privacy. While the thermal imaging device in Kyllo threatened to After their initial search at the border, customs agents made expose the hour at which "the lady of the house" took her daily copies of the hard drives and performed forensic evaluations "sauna and bath," id. at 38, 121 S.Ct. 2038, digital devices of the computers that took days to turn up contraband. It was allow us to carry the very papers we once stored at home. essentially a computer strip search. An exhaustive forensic search of a copied laptop hard drive intrudes upon privacy and The point is technology matters. The Department of dignity interests to a far greater degree than a cursory search Homeland Security has acknowledged as much in the context at the border. It is little comfort to assume that the government of international travelers: —for now—does not have the time or resources to seize and search the millions of devices that accompany the millions of Where someone may not feel that the travelers who cross our borders. It is the potential unfettered inspection of a briefcase would raise dragnet effect that is troublesome. significant privacy concerns because the volume of information to be [18] We recognize the important security concerns that searched is not great, that same person prevail at the border. The government's authority to protect may feel *966 that a search of the nation from contraband is well established and may be their laptop increases the possibility of "heightened" by "national crisiels," such as the smuggling privacy risks due to the vast amount of illicit narcotics, Montoya de Hernandez, 473 U.S. at 538, of information potentially available on 105 S.Ct. 3304, the current threat of international terrorism electronic devices. and future threats yet to take shape. But even in the face of heightened concerns, we must account for the Fourth DHS, Privacy Impact Assessment for the Border Amendments rights of travelers. Id. at 539, 105 S.Ct. 3304. Searches of Electronic Devices 2 (Aug. 25, 2009), available at http://www.dhs. govlxlibrarylassets/privacy/ The effort to interdict child pornography is also a legitimate privacy_pia_cbp_laptop.pdf. one. But legitimate concerns about child pornography do not justify unfettered crime-fighting searches or an unregulated [17] This is not to say that simply because electronic assault on citizens' private information. Reasonable suspicion devices house sensitive, private information they are off is a modest, workable standard that is already applied in the limits at the border. The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must extended border search, Terry stop, 13 and other contexts. Its account for differences in property. See Samson v. California, application to the forensic examination here will not impede 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 law enforcement's ability to monitor and secure our borders (2006) ("Under our general Fourth Amendment approach, or to conduct appropriate searches of electronic devices. we examine the totality of the circumstances to determine whether a search is reasonable....") (internal quotation marks, 13 Terry v. Ohio, 392 U.S. 1, 30.88 S.Ct. 1868.20 L.Ed.2d citation, and alterations omitted) (emphasis added). Unlike 889 (1968). searches involving a reassembled gas tank, Flores-Montana Nor does applying this standard impede the deterrent effect of 541 U.S. at 150, 124 S.Ct. 1582, or small hole in the bed of a suspicionless searches, which the dissent contends is *967 pickup truck, United States v. Chaudhry, 424 F.3d 1051, 1054 critical to thwarting savvy terrorists and other criminals. WeStlaWNPid" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 EFTA00315003 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Serv. 2531, 2013 Daily Journal =. 3018 Dissent at 985. The Supreme Court has never endorsed concurrence and the dissent that the standard we announce the proposition that the goal of deterring illegal contraband will prove unmanageable or give border agents a "Sophie's at the border suffices to justify any manner of intrusive choice" between thorough searches and Bivens actions. search. Rather, reasonableness remains the touchstone and Concurrence at 977-78; Dissent at 986. Determining whether the Court has expressed support for the deterrence value of reasonable suspicion is required does not necessitate a suspicionless searches of a routine nature, such as vehicle "complex legal determination[ ]" to be made on a "moment- checkpoints near the border. See United States v. Maninez— by-moment basis." Dissent at 984. Rather, it requires that Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 49 L.Ed.2d officers make a commonsense differentiation between a 1116 (1976) ("We note here only the substantiality of manual review of files on an electronic device and application the public interest in the practice of routine stops for of computer software to analyze a hard drive, and utilize the inquiry at permanent checkpoints, a practice which the latter only when they possess a "particularized and objective Government identifies as the most important of the traffic- basis for suspecting the person stopped of criminal activity." checking operations.") (emphasis added). In practical terms, Tiong, 224 F.3d at 1140 (internal quotation marks omitted). suspicionless searches of the type approved in Arnold will continue; border officials will conduct further, forensic International travelers certainly expect that their property examinations where their suspicions are aroused by what they will be searched at the border. What they do not expect is find or by other factors. Reasonable suspicion leaves ample that, absent some particularized suspicion, agents will mine room for agents to draw on their expertise and experience every last piece of data on their devices or deprive them to pick up on subtle cues that criminal activity may be of their most personal property for days (or perhaps weeks afoot. See United States v. Tiong, 224 F.3d 1136, 1140 (9th or even months, depending on how long the search takes). Cir.?000). 14 United States v. Ramos—Saenz, 36 F.3d 59, 61 n. 3 (9th Cir.1994) ("Intrusiveness includes both the extent of a search 14 as well as the degree of indignity that may accompany a The greatest obstacle to ferreting out contraband at the search."). •968 Such a thorough and detailed search of the border has always been the sheer number of international most intimate details of one's life is a substantial intrusion travelers. Any contention that national security will be critically hampered by stripping border agents of upon personal privacy and dignity. We therefore hold that a critical law enforcement tool—suspicionless forensic the forensic examination of Cotterman's computer required examinations of electronics—is undermined by the fact a showing of reasonable suspicion, a modest requirement in that, as a matter of commonsense and resources, it is only light of the Fourth Amendment. when reasonable suspicion is aroused that such searches typically take place. See. e.g.. Chaudhry. 424 F.3d at 1054 (B. Fletcher. J.. concurring) ("As a practical matter. IV. REASONABLE SUSPICION border agents are too busy to do extensive searches [20] [21] [22] Reasonable suspicion is defined as (removing gas tanks and door panels, boring holes in particularized and objective basis for suspecting the particular truck beds) unless they have suspicion."). As Judge person stopped of criminal activity." United States v. Cortez, Callahan acknowledges in her separate opinion, the 449 U.S. 411. 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). record suggests that "remote and/or intensive searches This assessment is to be made in light of "the totality of of electronic devices crossing the border do not occur the circumstances." Id. at 417, 101 S.Ct. 690. "[Elven when all that often." Concurrence at 978 n. 11. The reference factors considered in isolation from each other are susceptible that only a small fraction of travelers at the border have to an innocent explanation, they may collectively amount their devices searched simply reinforces our point—our to a reasonable suspicion." United States v. Berber—Tinoco, ruling will not place an undue burden on border agents who already rely on a degree of suspicion in referring 510 F.3d 1083, 1087 (9th Cir.2007). We review reasonable travelers to secondary inspection. suspicion determinations de novo, reviewing findings of historical fact for clear error and giving "due weight to [19] We have confidence in the ability of law enforcement inferences drawn from those facts by resident judges and local to distinguish a review of computer files from a forensic law enforcement officers." Ornelas v. UnitedStates, 517 U.S. examination. We do not share the alarm expressed by the 690. 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). WeStlaWNP5 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 EFTA00315004 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 Riley that the alert was part of Operation Angel Watch, which [23] In the district court and in supplemental briefing, the targeted individuals potentially involved in sex tourism and government argued that the border agents had reasonable alerted officials to be on the lookout for laptops, cameras and suspicion to conduct the initial search and the forensic other paraphernalia of child pornography. See 156 Cong. Rec. examination of Cotterman's computer. We agree. S9581-03 (daily ed. Dec. 14, 2010) (describing Operation Angel Watch as a program "helplingl ICE [to] identify travel The objective facts reflect that both the agents at the patterns of convicted sex offenders who may attempt to border and the agents who arrived later from Sells based exploit children in foreign countries"). Cotterman's TECS their decision to search Cotterman's belongings on the alert, prior child-related conviction, frequent travels, crossing TECS hit. Officer Alvarado was told by those in charge from a country known for sex tourism, and collection of of administering the TECS database that he should search electronic equipment, plus the parameters of the Operation Cotterman's property because the TECS hit indicated "that Angel Watch program, taken collectively, gave rise to [Cotterman] appeared to [have] been involved in some type of reasonable suspicion of criminal activity. child pornography." Agent Riley also looked up Cotterman's criminal record and understood that he had a prior conviction 15 It is ironic that the dissent expresses concern that, by for child pornography. As it turned out, Cotterman's previous factoring in the incidence of crime in particular countries. conviction was not for pornography, but for child molestation. "thousands of individuals ... will now be forced to Nonetheless, the agents' understanding of the objective facts, reconsider traveling to entire countries ... or will need albeit mistaken, is the baseline for determining reasonable to leave all their electronic equipment behind, to avoid suspicion. See Liberal v. Estrada, 632 F.3d 1064, 1077 (9th arousing a 'reasonable' suspicion." Dissent at 78. when. Cir.20II) ("Even if an officer makes a mistake of fact, that if forensic examination of those travelers' electronics mistake `will not render a stop illegal, if the objective facts occurs at the border. the dissent would require no known to the officer gave rise to a reasonable suspicion suspicion or all. that criminal activity was afoot.' " (quoting United States v. To these factors, the government adds another—the existence Morisco!, 285 F.3d 1127, 1131 (9th Cir.2002))). of password-protected files on Cotterman's computer. 16 We are reluctant to place much weight on this factor [24] By itself, Cotterman's 1992 conviction for child because it is commonplace for business travelers, casual molestation does not support reasonable suspicion to conduct computer users, students and others to password protect an extensive forensic search of his electronic devices. their files. Law enforcement "cannot rely solely on factors "Although a prior criminal history cannot alone establish that would apply to many law-abiding citizens," Berber- reasonable suspicion ... it is permissible to consider such Tinoco, 510 F.3d at 1087, and password protection is a fact as part of the total calculus of information in ti[al] ubiquitous. National standards require that users of mobile determination 1." Burrell v. Mcllroy, 464 F.3d 853, 858 electronic devices password protect their files. See generally n. 3 (9th Cir.2006). The TECS alert was not based merely United States Department of Commerce, Computer Security on Cotterman's conviction—the agents were aware that the Division, National Institute of Standards and Technology, alert targeted Cotterman because he was a sex offender Computer Security (2007) (NISI Special Publication 800- "who travel[ed] frequently out of the country" and who was 1l l). Computer users are routinely advised—and in some "possibly involved in child sex tourism." Further, Agent cases, required by employers—to protect their files when Riley testified that an examination of Cotterman's passport traveling overseas. See, e.g., Michael Price, National Security confirmed that he had traveled in and out of the country Watch, 34-MAR Champion 51, 52 (March 2010) ("[T]here frequently since his conviction in 1992. is one relatively simple thing attorneys can do [when crossing the border] to protect their privacy and the rights In further support of reasonable suspicion, the government of their clients: password-protect the computer login and any asserts that Mexico, from which the Cottermans were sensitive files or folders."). returning, is "a country associated with sex *969 tourism.. IS The ICE field office specifically informed Agent WeStlaWNPiff" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 EFTA00315005 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 16 Agent Riley testified that Alvarado told her that he hadof Cotterman's laptop, by Officer Alvarado, turned up nothing "encounterfed] somefiles that were password protected." incriminating, Cotterman urges that any suspicion prompted while Agent Alvarado testified that he found one file. by the TECS alert was dispelled by this initial failure. But the nature of the alert on Cotterman, directing agents to review [25] [26] Although password protection of files, in media and electronic equipment for child pornography, isolation, will not give rise to reasonable suspicion, where, justified conducting the forensic examination despite the as here, there are other indicia of criminal activity, failure of the first search to yield any contraband. password protection of files may be considered in the totality of the circumstances. 17 To contribute to reasonable Collectors of child pornography can hardly be expected to suspicion, encryption or password protection of files must clearly label such files and leave them in readily visible and have some relationship to the suspected criminal activity. accessible sections of a computer's hard drive, particularly Here, making illegal files difficult to access makes perfect when they are traveling through border crossings, where sense for a suspected holder of child pornography. When individuals ordinarily anticipate confronting at least a cursory combined with the other circumstances, the fact that Officer inspection. Officer Alvarado, who was responsible for Alvarado encountered at least one password protected file on conducting the initial search, was specifically looking for Cotterman's computer contributed to the basis for reasonable photographs as described in the TECS hit but testified that he suspicion to conduct a forensic examination. had only a slightly above-average familiarity with laptops. He could do no more than open a file, look at it and see if he could 17 We do not suggest that password protecting an entire access it. He testified that "IiIf [he] encountered something device—as opposed to files within a device—can be a that Ihel could not access, then [he] would reference it to factor supporting a reasonable suspicion determination. somebody that may have that ability to look at [it]." That is Using a password on a device is a basic means of precisely what occurred here. Officer Alvarado came across ensuring that the device cannot be accessed by another password-protected files but, unable to open them, moved on in the event it is lost or stolen. to other files. Alvarado told Agent Riley about the password [27] The existence of the password-protected files is also protection, and she and Agent Brisbine decided to seize relevant to assessing *970 the reasonableness of the scope the computers for further examination. The border agents and duration of the search of Cotterman's computer. The "certainly had more than an inchoate and unparticularized search was necessarily protracted because of the password suspicion or hunch" of criminal activity to support their protection that Cotterman employed. After Cotterman failed decision to more carefully search for evidence of child to provide agents with the passwords to the protected files pornography. Montoya de Hernandez, 473 U.S. at 542, 105 and fled the country, it took Agent Owen days to override &Ct. 3304 (internal quotation marks and citation omitted). An the computer security and open the image files of child alert regarding possession of this type of criminal contraband pornography. justified obtaining additional resources, here available in Tucson, to properly determine whether illegal files were Although we must take into account factors weighing both in present. favor and against reasonable suspicion, Cotterman's innocent explanation does not tip the balance. See Tiong, 224 F.3d Unlike the dissent, we credit the agents' obsen'ations and at 1140 (recognizing that "innocent possibilities ... do not experience in acting upon significant myriad factors that undermine reasonable suspicion"). The dissent suggests that support reasonable suspicion. It is not our province to nitpick Cotterman's offer at the border "to help the agents access his the factors in isolation but instead to view them in the totality computee' counsels against a finding ofreasonable suspicion. of the circumstances. For the above reasons, we conclude Dissent at 993. The agents were appropriately wary of that the examination of Cotterman's electronic devices was such an offer due to concerns that Cotterman could tamper supported by reasonable suspicion and that the scope and with the devices. Nor did the agents' discovery of vacation manner of the search were reasonable under the Fourth photos eliminate the suspicion that Cotterman had engaged Amendment. Cotterman's motion to suppress therefore was in criminal activity while abroad or might be importing child erroneously granted. pornography into the country. Because the first examination WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 EFTA00315006 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 REVERSED. zenith at the international border." Flores—Montano, 541 U.S. at 152, 124 S.Ct. 1582. To effectuate this interest, the Supreme Court has recognized *971 CALLAHAN, Circuit Judge, concurring in part, a broad exception to the Fourth Amendment's requirement dissenting in part, and concurring in the judgment, with whom of probable cause or a warrant for searches conducted at the CLIFTON, Circuit Judge, joins, and with whom M. SMITH, border. Under that exception, searches of people and their Circuit Judge, joins as to all but Part II.A: property at the United States borders and their functional Whether it is drugs, bombs, or child pornography, we charge equivalents are per se reasonable, meaning that they typically our government with finding and excluding any and all do not require a warrant, probable cause, or even reasonable illegal and unwanted articles and people before they cross suspicion. Montoya de Hernandez, 473 U.S. at 538, 105 our international bothers. Accomplishing that Herculean task S.Ct. 3304; see also Flores-Montano, 541 U.S. at 152- requires that the government be mostly free from the Fourth 53, 124 S.Ct. 1582; Ramsey, 431 U.S. at 616-18, 97 S.Ct. Amendment's usual restraints on searches of people and their 1972; United States v. Seljan, 547 F.3d 993, 999-1000 (9th property. Today the majority ignores that reality by erecting Cir.2008) (en banc), cen. denied, 555 U.S. 1195, 129 S.Ct. a new rule requiring reasonable suspicion for any thorough 1368, 173 L.Ed.2d 627 (2009). search of electronic devices entering the United States. This rule flouts more than a century of Supreme Court precedent, In the long time that the Court has recognized the border is unworkable and unnecessary, and will severely hamstring search doctrine, the Court has found just one search at the the government's ability to protect our bothers. border that required reasonable suspicion. See Montoya de Hernandez, 473 U.S. at 541, 105 S.Ct. 3304 (upholding the I therefore dissent from Part III of the majority's opinion. I 24—hour detention of a woman suspected of smuggling illegal concur in Parts I, II, and IV, and in particular the majority's drugs in her digestive system, followed by a pregnancy test conclusion in Part IV that the government had reasonable and rectal examination, based on reasonable suspicion). In suspicion to conduct the forensic examination of Howard the remaining cases, the Court consistently has described the Cotterman's electronic devices. I therefore also concur in the government's *972 border search authority in very broad judgment. terms t and overturned the lower courts' attempts to cabin that authority. 2 The Court also repeatedly has gone out of its way to explain that border searches generally are exempt from I. the limits it imposes on domestic searches. See, e.g., Flores— Over the last 125 years, the Supreme Court has explained that Montano, 541 U.S. at 154, 124 S.Ct. 1582 ("[Oln many the United States and its people have a "paramount interest" occasions, we have noted that the expectation of privacy is in national self-protection and an "inherent" right to exclude less at the border than it is in the interior."); Montoya de illegal and "unwanted persons and effects." United States Hernandez, 473 U.S. at 539-40, 105 S.Ct. 3304 ("But not v. Flores-Montano, 541 U.S. 149, 152-53, 124 S.Ct. 1582, only is the expectation of privacy less at the border than in the 158 L.Ed.2d 311 (2004); see also United States v. Montoya interior, the Fourth Amendment balance between the interests de Hernandez, 473 U.S. 531, 537-40, 105 S.Ct. 3304, 87 of the Government and the privacy right of the individual L.Ed.2d 381 (1985); United States v. Ramsey, 431 U.S. 606, is also struck much more favorably to the Government at 616-18, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); United States the border." (internal and external citations omitted)); United v. Thirty—Seven (37) Photographs, 402 U.S. 363, 376, 91 States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. S.Ct. 1400, 28 L.Ed.2d 822 (1971); Carroll v. United States. 123, 125, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) ("Import 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Boyd restrictions and searches of persons or packages at the v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 29 L.Ed. national borders rest on different considerations and different 746 (1886). Accordingly, "Etlhe Government's interest in rules of constitutional law from domestic regulations."). 3 preventing the entry of unwanted persons and effects is at its WestlawNext" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 EFTA00315007 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 1 102 &Ct. 2157, 72 L.Ed.2d 572 (1982) (explaining See, e.g., Flores-Montano. 541 U.S. at 152, 124 5.0. that while the Fourth Amendment gives protection 1582 (- The Government's interest in preventing the entry to containers in domestic vehicles, "(tjhe luggage of unwanted persons and effects is at its zenith at the carried by a traveler entering the country may be international border."); id. at 153. 124 S.Ct. 1582 ("It is searched at random by a customs officer"); Torres v. axiomatic that the United States, as sovereign. has the Puerto Rico. 442 U.S. 465. 472-74. 99 S.Ct. 2425. inherent authority to protect, and a paramount interest in 61 L.Ed.2d 1 (1979) (distinguishing between United protecting, its territorial integrity."); Ramsey, 431 U.S. States—Puerto Rico border and international borders at 617. 97 S.Ct. 1972 ("This interpretation, that border in holding unconstitutional the search of a traveler's searches were not subject to the warrant provisions of luggage without "aniculable suspicion"): United States the Fourth Amendment and were 'reasonable' within v. Brignoni—Ponce, 422 U.S. 873. 884. 95 S.Ct. 2574. the meaning of that Amendment, has been faithfully 45 L.Ed.2d 607 (1975) ("Except at the border and its adhered to by this Court.- ); id. at 620. 97 S.Ct. functional equivalents, officers on roving patrol may stop 1972 (- The border-search exception is grounded in the vehicles" only with reasonable suspicion they contain recognized right of the sovereign to control, subject illegal aliens): Almeida—Sanchez v. United States, 413 to substantive limitations imposed by the Constitution. U.S. 266.272-76, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) who and what may enter the country."); Thirty-Seven (distinguishing searches of vehicles at the border from a (37) Photographs, 402 U.S. at 376. 91 S.Ct. 1400 ("IA search that occurred 25 miles away); Carroll. 267 U.S. traveler's] right to be let alone neither prevents the at 151-54.45 S.Ct. 280 (distinguishing between interior search of his luggage nor the seizure of unprotected. and border searches of vehicles and persons). but illegal. materials when his possession of them is discovered during such a search. Customs officers characteristically inspect luggage and their power to •973 II. do so is not questioned in this case: it is an old practice and is intimately associated with excluding It is against this legal backdrop that we must assess the illegal articles from the country."); Carroll, 267 U.S. constitutionality of the government's search in this case. As at 154, 45 S.Ct. 280 ("Travelers may be so stopped in with all searches subject to Fourth Amendment review, the crossing an international boundary because of national self-protection reasonably requiring one entering the constitutionality of a border search turns on whether it is country to identify himself as entitled to come in. and reasonable. See Brigham City, Utah v. Swan, 547 U.S. 398, his belongings as effects which may be lawfully brought 403. 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ("ITIhe ultimate in."). Even in Montoya de Hernandez the Coun described touchstone of the Fourth Amendment is 'reasonableness.' the government's border search authority expansively. "). Under the border search doctrine, suspicionless border See 473 U.S. at 539-40. 542-44, 105 S.Ct. 3304. searches are per se reasonable. However, the Supreme Court has identified three situations in which they might not See, e.g.. Flores-Montano. 541 U.S. at 152-55. 124 be per se reasonable, i.e., at least reasonable suspicion is S.Ct. 1582 (overturning the Ninth Circuit's conclusion required: (1) "highly intrusive searches of the person;" (2) that the border search of a gas tank required reasonable suspicion): Ramsey, 431 U.S. at 616-22.97 S.Ct. 1972 destructive searches of property; and (3) searches conducted (overturning the■. Circuit's conclusion that the search in a "particularly offensive" manner. Flores—Montano, 541 of international mail required probable cause): Thirty— U.S. at 152-56 & n. 2, 124 S.Ct. 1582. Seven (37) Photographs. 402 U.S. at 376. 91 5.0. 1400 (relying in pan on border search doctrine to overturn Although its opinion is not entirely clear, the majority appeals lower court's decision that statute barring the importation to rely on the first and third exceptions to hold that the of obscene material was unconstitutional). search at issue in this case required reasonable suspicion. 3 (There is no claim that the government damaged or destroyed See also City of Indianapolis v. Edmond, 531 Cotterman's property.) But the exception for "highly intrusive U.S. 32. 47-48. 121 S.Ct. 447. 148 L.Ed.2d 333 (2000) (explaining that decision barring domestic searches of the person?' Flores—Montano, 541 U.S. at 152, drug interdiction checkpoints "does not affect the 124 S.Ct. 1582, cannot apply here; "papers," even private validity of border searches or searches at places like ones in electronic format, are not a "person." See id. ('The airports"): United States v. Ross. 456 U.S. 798. 823. reasons that might support a requirement of some level of WeStlaWNeXi © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 EFTA00315008 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 suspicion in the case ofhighly intrusive searches of the person border searches occur after the actual entry has been —dignity and privacy interests of the person being searched effected and intrude more on an individual's normal —simply do not carry over to vehicles."). That leaves the expectation of privacy."). exception for searches conducted in a "particularly offensive" First consider the facts. The border agents took Cotterman's manner. Id. at 154 n. 2, 124 S.Ct. 1582. The majority relies electronic devices to the nearest computing center (to Tucson, primarily on the notion that electronic devices are special to where Cotterman and his wife were already traveling), before conclude that reasonable suspicion was required. Majority at clearing them for entry into the United States. The computer 963-68. The majority is mistaken. specialist moved the search ahead of his other work and conducted it over the weekend. Although the forensic search lasted five days, it took only 48 hours to discover the initial A. 75 images of child pornography. The agents were reasonably reluctant to rely on Cotterman's offer to help, since he The majority correctly concludes that the government's might have deleted or otherwise made unrecoverable any forensic search in Tucson was not an extended border search, contraband that his devices contained. The agents returned the as the border agents retained custody of Cotterman's laptop. 4 devices as soon as they cleared them. Id. at 958, 960-61. The majority also states that lilt is the comprehensive and intrusive nature of a forensic examination Now consider the law. The Supreme Court has upheld the —not the location of the *974 examination—that is the constitutionality of a police search of packages retrieved key factor triggering the requirement of reasonable suspicion from an automobile, even though the police conducted their here." Majority at 962. The inclusion of the word "key" search three days after the police stopped the vehicle and might be read to imply that some other factor, such as at the police station. United States v. Johns, 469 U.S. 478, the location and duration of the search, contributed to its 485-88, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985). The Court purported unreasonableness. I write to refute any such notion. rejected the argument that "searches of containers discovered in the course of a vehicle search are subject to temporal 4 restrictions not applicable to the vehicle search itself." Id. I agree with the majority that this case does not involve at 485. 105 S.Ct. 881. Although Johns involved a domestic an extended border search. Unlike a border search, an automobile search based on probable cause, it still stands extended border search takes place at a location "away for the proposition, equally applicable to this case, that "the from the border where entry is not apparent. but where the dual requirements of reasonable certainty of a recent legality of the search was determined by reference to the border crossing and reasonable suspicion of criminal [applicable] exception to the warrant requirement." Id. activity are satisfied." United States v. Guzman-Padilla. 573 F.3d 865, 878-79 (9th Cir.2009) (internal quotation In the border search context, the Supreme Court, in upholding marks and citation omitted), ten. denied, — U.S. the lengthy detention of a person reasonably suspected —. 131 S.Ct. 67, 178 L.Ed.2d 245 (2010). Reasonable of smuggling drugs in her digestive system at an airport, suspicion is required precisely because the individual addressed whether that detention was "reasonably related has regained an expectation of privacy by moving away in scope to the circumstances which justified it initially." from the border. See United Slates v. Villasenor. 608 Montoya de Hernandez, 473 U.S. at 542, 105 S.Ct. 3304. F.3d 467.471-72 (9th Cir.), cert. denied, —U.S., The Court explained that: (1) "courts should not indulge in 131 S.Ct. 547. 178 L.Ed.2d 401 (2010); United States v. unrealistic second-guessing" when answering this question, Whiting. 781 F.2d 692.695 (9th Cir.1986). Here, there as "[aluthorities must be allowed to graduate their response was no attenuation between Cotterman's border crossing and the forensic search of his electronic property: the to the demands of any particular situation;" (2) the Court government conducted that search before clearing the consistently has "refused to charge police with delays in property for entry and before Cotterman could regain an investigatory detention attributable to the suspect's evasive expectation of privacy in that property. See 19 U.S.C. actions•;" and (3) "we have also consistently rejected hard- § 1499 (providing that imported goods are permitted and-fast time limits."Id. at 542-43, 105 S.Ct. 3304 (quotation entry only after Customs clears them); United States v. marks and citations omitted). The Court emphasized that, Alfonso, 759 F.2d 728. 734 (9th Cir.1985) ("Extended at the international border. "the Fourth Amendment balance WeStlaWNeff © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 EFTA00315009 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 of interests leans heavily to the Government" because the government is charged not just with investigating crime but B. with "protecting this Nation from entrants who may bring anything harmful into this country." Id. at 544, 105 S.Ct. The majority's opinion turns primarily on the notion that 3304. Finally, any "length" or "discomfort" associated with a electronic devices deserve special consideration because they border search does not offend the Fourth Amendment when are ubiquitous and can store vast quantities of personal it "result's] solely from the method by which [a traveler] cho information. That idea is fallacious and has no place in the roses) to smuggle [contraband] into this country." Id. border search context. Any suggestion that the government's search here was The Supreme Court has been willing to distinguish only "particularly offensive" due to the location and duration of between border searches of people and property, not between the search runs counter to the Supreme Court's admonitions different types of property. In 2004, in Flores-Montano, the in Johns and Montoya de Hernandez. It also effectively Court explained that requires the government to supply every port of entry with the equipment and staff needed to conduct forensic electronic the reasons that might support a searches, or at least to have such equipment and staff requirement of some level of suspicion waiting at a nearby location. *975 Such a requirement in the case of highly intrusive searches is unreasonable, particularly since the record in this case of the person—dignity and privacy suggests that a forensic search of Cotterman's electronic interests of the person being searched devices at the border station would have taken longer than the —simply do not carry over to vehicles. search at the Tucson computing center. 5 See United States Complex balancing tests to determine v. Hill, 459 F.3d 966, 974-75 (9th Cir.2006), cert. denied, what is a "routine" search of a vehicle, 549 U.S. 1299, 127 S.Ct. 1863, 167 L.Ed.2d 353 (2007) as opposed to a more "intrusive" (discussing problems inherent in requiring police to bring search of a person, have no place in with them equipment to search electronic media); cf. Johns, border searches of vehicles. 469 U.S. at 486-87, 105 S.Ct. 881 (explaining that requiring 541 U.S. at 152, 124 S.Ct. 1582. We have since applied police officers to immediately inspect all packages "would be Flores-Montano to hold that any distinction between of little benefit to the person whose property is searched"). "routine" and "nonroutine" searches does not apply to searches of property, and that there can be no "least restrictive 5 The district coon found that the government could have means" test for border searches. United States v. Chaudhry, conducted the forensic search at the Lukeville border 424 F.3d 1051, 1054 (9th Cir.2005), cert. denied, 547 U.S. station. United States v. Conerman. No. CR 07-1207— 1083, 126 S.Ct. 1803, 164 L.Ed.2d 540 (2006); United States TUC—RCC 2009 WL 465028. at *I (=. Feb. 24. v. Cortez-Rocha, 394 F.3d 1115, 1122-23 (9th Cir.2004), 2009). The court presumably based this finding on cert. denied, 546 U.S. 849, 126 S.Ct. 105, 163 L.Ed.2d testimony that the computer specialist who conducted the forensic examination had a specially-equipped laptop. 118 (2005).6 Put another way, the Supreme Court—and, However, the specialist testified that using his laptop at reluctantly, this court—have refused to *976 adopt a sliding the border station. rather than transporting Cotterman's "intrusiveness" scale for border searches of property. Thus, electronic devices to the Tucson computer center, would the Court has all but held that property that crosses the border, have taken "a lot longer" because the laptop was "not whatever it is, does not merit Fourth Amendment protection. nearly as extensive as what I have in my lab." the "processor in my laptop is much slower" than the lab 6 In 1985. the Supreme Court wrote about the equipment. and "I could only do one computer at a time government's "plenary authority to conduct routine with the laptop." Technical difficulties also could have searches and seizures at the border." Montoya de slowed down an examination conducted at the border Hernandez, 473 U.S. at 537, 105 S.Ct. 3304 (emphasis station. added): see also id. at 541 n. 4, 105 S.Ct. 3304 ("Because the issues are nor presented today we suggest no view WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 EFTA00315010 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent. 2531, 2013 Daily Journal =. 3018 on what level of suspicion, if any. is required for searches are most likely to occur where nonroutine border searches such as strip, body-cavity. —as here—the traveler's conduct or involuntary x-ray searches.") (emphasis added). We or the presence of other items in unfortunately seized on the word "routine" to establish a his possession suggest the need to sliding scale of intrusiveness, with more intrusive (Le., search further. However, to state the less "routine") searches requiring reasonable suspicion. probability that reasonable suspicions See, e.g.. United States v. Molina—Tarazon. 279 F.3d will give rise to more intrusive 709. 711-13 (9th Cir.2002). Flares—Montana plainly repudiated that approach. searches is a far cry from enthroning this notion as a matter of constitutional Of course, Flores-Montano, Chaudhry, and Cortez-Rocha law. The essence of border search involved vehicles or parts of vehicles, not electronic devices, doctrine is a reliance upon the and the other border search cases that have reached the trained observations and judgments of Supreme Court all involved containers of some sort. See, e.g., customs officials, rather than upon Ramsey, 431 U.S. at 616-22, 97 S.Ct. 1972 (mail); Thirty— constitutional requirements applied to Seven (37) Photographs, 402 U.S. at 376, 91 S.Ct. 1400 the inapposite context of this sort of (luggage). And yes, the Court has left open the possibility search. that a border search might be " "unreasonable" because of the particularly offensive manner in which it is carried /d. at 507. Thus, the Fourth Circuit has recognized what out.' " Flores-Montano, 541 U.S. at 154 n. 2, 124 S.Ct. 1582 the majority does not: electronic devices are like any other (quoting Ramsey, 431 U.S. at 618 n. 13, 97 S.Ct. 1972). container that the Supreme Court has held may be searched But is the mere fact that Cotterman chose to save his child at the border without reasonable suspicion. 7 Though we are pornography electronically, rather than print it out on paper, not bound by Arnold nor Ickes in this en banc proceeding, we enough to invoke that exception? are bound by what the Supreme Court has said: in the unique context of border searches, property is property and we may The two courts of appeals—including this court—that have not chip away at the government's authority to search it by had occasion to address whether electronic devices deserve adopting a sliding scale of intrusiveness. It's the border, not special consideration have correctly concluded that they do the technology, that "matters." Majority at 965; cf. Ramsey, not. In United States v. Arnold, 533 F.3d 1003, 1008-10 431 U.S. at 620, 97 S.Ct. 1972 ("It is clear that there is nothing (9th Cir.2008), cert. denied, 555 U.S. 1176, 129 S.Ct. 1312. in the rationale behind the border-search exception which 173 L.Ed.2d 595 (2009), we held that laptops are like other •977 suggests that the mode of entry will be critical."). property, relying on the reasoning and language in Flores— Montano, Chaudhry, and Cortez—Rocha discussed above 7 I agree with Judge Smith that the majority's opinion (among other cases). Similarly, in United States v. Ickes, 393 appears to create an imprudent split with the Fourth F.3d 501, 503-07 (4th Cir.2005), the Fourth Circuit upheld an Circuit. See Dissent at 982. extensive border search of the defendant's laptop that revealed child pornography. Notably, the court held that the border Logic and commonsense, not just Supreme Court precedent, agents had reasonable suspicion to search the defendant's reveal the flaws in the majority's opinion. The fact that laptop, but explained why that did not matter: electronic devices are capable of storing a lot of personal information does not make an extensive search of them The agents did not inspect the "particularly offensive." We have squarely rejected the idea contents of Ickes's computer until that the "intrusiveness" of a search depends in whole or they had already discovered marijuana in part on the nature of the property being searched. In paraphernalia, photo albums of child United States v. Giberson, 527 F.3d 882 (9th Cir.2008), we pornography, a disturbing video specifically rebuffed the argument that computers are special focused on a young ball boy, and for Fourth Amendment purposes by virtue of how much an outstanding warrant for Ickes's information they store; "neither the quantity of information, arrest. As a practical matter, computer nor the form in which it is stored, is legally relevant in the WeStlaWNeXt" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 21 EFTA00315011 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 Fourth Amendment context" Id. at 888; see also California to prepare for, and limit, the intrusion on her privacy." v. Carney, 471 U.S. 386,393-94, 105 S.Ct. 2066, 85 L.Ed.2d Mich. Delft of State Police v. Sitz. 496 U.S. 444. 463. 406 (1985) (rejecting applying Fourth Amendment protection 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (Stevens, J.. to property (a mobile home) that is "capable of functioning dissenting): see also Montoya de Hernandez, 473 U.S. at 544. 105 S.Ct. 3304 ("Respondent's detention was as a home" simply on account of the property's size or long, uncomfortable, indeed, humiliating: but both its "worth[inessl" as a container); United States v. Payton, 573 length and its discomfort resulted solely from the method F.3d 859, 864 (9th Cir.2009) ("Giberson held that computers by which she chose to smuggle illicit drugs into this were not entitled to a special categorical protection of the country.- ). Fourth Amendment."); Kyllo v. United States, 533 U.S. 27. The element of choice goes to the more fundamental 41, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (Stevens, J., issue of whether someone can have any reasonable dissenting) (explaining that Fourth Amendment exceptions expectation of privacy when he or she voluntarily and distinctions based solely on a type of technology are canes electronic equipment across the border. Border "unwise[ ] and inconsistent with the Fourth Amendment"). officers are permitted to examine a written diary. and someone who wants to keep the contents of a diary While Giberson and Carney involved domestic searches, secret should know not to take it across the border. their reasoning applies equally in the border search context. The same should be true for personal data stored on a If the government may search the contents of a briefcase, car, laptop or other electronic device rather than a written diary. or mobile home that transits the border, there is no reason it Moreover, the fact that the Fourth Amendment should not also be able to search the contents of a camera, does not apply in foreign countries further weakens tablet, or laptop that enters the country. All of those things any claim to a reasonable expectation of privacy are capable of storing, and often do store, private information. in property that crosses the United States border. See Ross, 456 U.S. at 823, 102 S.Ct. 2157 ("The luggage Carrying an electronic device outside the United States carried by a traveler entering the country may be searched at almost always entails carrying it into another country. random by a customs officer; the luggage may be searchedno making it subject to search under that country's laws. matter how great the traveler's desire to conceal the contents Travelers expect these intrusions, or at least their may be." (emphasis added)). The majority points out that possibility. electronic devices can and usually do store much more private In short, today the court erects a new bright-line rule: information than their non-electronic counterparts. Majority "forensic examination" of electronic devices "at the border at 962-65. But "a port of entry is not a traveler's home," requires reasonable suspicion." Majority at 962; see also id. Thirty—Seven (37) Photographs, 402 U.S. at 376, 91 S.Ct. at 964 n. 10. The majority never defines "forensic," leaving 1400, even if a traveler chooses to carry a home's worth border agents to wonder exactly what types of searches are of personal information across it. 8 Moreover, a bright-line off-limits.9 Even if the majority means to require reasonable rule distinguishing electronic from non-electronic devices— suspicion for any type of digital forensic border search, no of the *978 sort the Supreme Court has made clear has no court has ever erected so categorical a rule, based on so place in Fourth Amendment jurisprudence, Ohio v. Robinette, general a type of search or category of property, and the 519 U.S. 33, 39, 1l7 S.Ct. 417, 136 L.Ed.2d 347 (1996)—is Supreme Court has rightly slapped down anything remotely arbitrary; there is no reason someone carrying a laptop should similar. The majority invites—indeed, requires—the Court to receive greater privacy protection than someone who chooses do so again. 10 (or can only afford) to convey his or her personal information on paper. 9 See Darrin J. Behr. Anti-Forensics: What it Does and 8 Why You Need to Know, 255 Law. 9. 10 (Dec. The element of choice is crucial. The fact that border 2008) ("Due to the fact that there are hundreds of digital searches occur at fixed times and checkpoints makes forensic investigation procedures developed all over the them inherently less intrusive: a person "with advance world. digital forensics has yet to be defined."). notice of the location of a permanent checkpoint has an opportunity to avoid the search entirely. or at least WeStlaWNeXt" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 22 EFTA00315012 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 10 I note that a case currently pending in the Sixth Circuit examination, and that even cursory reviews of laptops for appears to raise similar issues as this case. See United information about illegal drug trading occurred "no more States v. Stewart, No. 12-1427 (6th Cir. filed Apr. 5. than five" times during agent's three-plus years at the 24342): see also United States p. Stewart, 715 F.Supp.2d Lukeville border station. See Michael Chenoff. Secretary 750 (2010). of Homeland Security. Searches Are Legal. Essential. USA Today. July 16. 2008 ("Of the approximately 400 million travelers who entered the country last year. only a tiny percentage were referred to secondary baggage inspection for a more thorough examination. Of those. The majority's holding contravenes Supreme Court only a fraction had electronic devices that may have been precedent, defies logic and commonsense, and is unworkable. checked."). It is also unnecessary and will impair the federal government's The majority finds this reality check to be of "little ability to protect our borders. comfort(;( lilt is the potential unfettered dragnet effect that is troublesome." Majority at 966. But that abstract risk, which As Judge Smith points out in his dissent, Iblorder patrol exists with any exception to the Fourth Amendment, does agents process hundreds of thousands of travelers each day not justify a bright-line rule requiring reasonable suspicion and conduct thousands of searches on electronic devices each for any thorough search of electronic devices entering the year." Dissent at 61-62 (citation omitted). All the evidence United States. See Robinette, 519 U.S. at 39, 117 S.Ct. 417 in this case suggests that the government does not have ("(W'e have consistently eschewed bright-line rules, instead the resources—time, personnel, facilities, or technology— emphasizing the fact-specific nature of the reasonableness to exhaustively search every (or even a majority) of the inquiry."); see also Lyng v. My. Indian Cemetery Protective electronic devices that cross ow borders. Cf. Ickes, 393 F.3d 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d at 507. Unless we somehow manage to solve our fiscal 534 (1988) ("A fundamental and longstanding principle problems, and unless the government somehow manages of judicial restraint requires that courts avoid reaching to acquire better technology at a faster pace than the rest constitutional questions in advance of the nrreccity of of us, these restraints will continue. That means border deciding them."). agents must prioritize who, what, and how they search. By and large, border agents will conduct forensic electronic Moreover, border agents are not free to undertake "unfettered searches of people who, like Howard Cotterman, the agents crime-fighting searches or an unregulated assault on citizens' reasonably suspect may be trying to carry illegal articles private information." Majority at 966. As I explained in my into, or themselves illegally enter, the country. II That concurrence in Seljan, Congress and the Executive Branch agents typically will have reasonable suspicion is, *979 of have (and have exercised) the authority to restrict when and course, "a far cry from enthroning this notion as a matter of how border agents conduct searches. See Seljan, 547 F.3d at constitutional law." Ickes, 393 F.3d at 507. 1012 (Callahan, J.. concurring) (citing, e.g., 19 U.S.C. § 1583; 19 C.F.R. § 145.3(b)-(c)); see also Yule Kim, Cong. Research 11 Serv. RL34404, Border Searches of Laptop Computers and Testimony from the suppression hearing in this case Other Electronic Storage Devices, 13-14 (2009) (describing suggests that remote and/or intensive searches of electronic devices crossing the border do not occur all recent legislative proposals to limit border searches of that often. For example. the computer specialist who electronic devices). In a similar vein, Justice Breyer has conducted the forensic search of Cotterman's laptop noted that "Customs keeps track of the border searches its testified that the search was the first one he was asked agents conduct, including the reasons for the searches. This to conduct in his 18 months on the job at the Tucson administrative process should help minimize concerns that computer center. (He added that at his previous post at [border' searches might be undertaken in an abusive manner." San Francisco International Airport. forensic searches Flores-Montano, 541 U.S. at 156, 124 S.Ct. 1582 (Breyer, J., were done right at the airport.) Similarly, one of the concurring) (internal citation omitted). 12 border agents testified that this was the first case he was aware of in which electronic devices were turned over to Immigrations and Customs Enforcement for forensic WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 23 EFTA00315013 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 12 See also U.S. Customs & Border Protection. argument. the majority reveals that it does not appreciate Directive No. 3340-049. Border Search of Electronic the crucial differences between domestic and border Devices Containing Information, 3-9 (2009) (describing searches, despite those differences being spelled out in procedures for, and limits on. border searches of a century of case law. Those differences range from the electronic devices). legitimate expectation of privacy that people have in their property to the constraints government officials face Apart from being unnecessary, the majority's new limits on in searching it. Second. a reasonable suspicion standard the government's border search authority will make it much injects unnecessary judicial review where previously harder for border agents to do their jobs, for at least two it was absent. Third, just because border agents could reasons. First, it is common knowledge that border agents apply the reasonable suspicion standard does not mean at security checkpoints conduct more thorough searches not they are, or should be. constitutionally compelled to do simply of those persons who arouse suspicion but also of so. See Ickes. 393 F.34 at 507: cf. Seljan. 547 F.34 at a percentage of travelers on a random basis. Othenvise, a 1011 (Callahan. J. concurring) (explaining that requiring person who appears entirely innocent will have nothing to border agents to apply a First Amendment exception to border searches "would require them to engage in fear and will not be deterred from carrying something that the son of decision-making process that the Supreme should not be brought into the country. A checkpoint limited Court wished to avoid in sanctioning expansive border to searches that can be justified by articulable grounds for searches"). "reasonable suspicion" is bound to be less effective. Second, courtesy of the majority's decision, criminals now Iv. know they can hide their child pornography or terrorist connections in the recesses of their electronic devices, while The border search exception to the Fourth Amendment border agents, fearing Fourth Amendment or Bivens actions, may be just that—an exception—but it is, and must be, a will avoid conducting the searches that could find those illegal mighty one. The government's right and duty to protect ow articles. The result *980 will be that people and things we nation's territorial integrity demand that the government have wish to keep out of our country will get in—a result hardly clear authority to exclude—and thus to find—those people in keeping with our "inherent authority to protect, and a and things we have decided are offensive, threatening, or paramount interest in protecting," the "territorial integrity" otherwise unwanted. Recognizing this, the Supreme Court of the United States. Flores-Montano, 541 U.S. at 153, 124 has only once required reasonable suspicion for border S.Ct. 1582. The border search doctrine must account for the searches in the 125 years it has been reviewing them. fact that border agents may need time and forensics to bypass In the remaining cases, the Court has eschewed bright- "evasive actions" a criminal has taken to hide contraband or line rules, balancing tests, and sliding intrusiveness scales, other illegal articles from plain view. Montoya de Hernandez. alluding to the possibility of, but never finding, a "particularly 473 U.S. at 542-43, 105 5.0. 3304. I would rather leave offensive" search. The fact that electronic devices can store those difficult decisions "to the discretion of the officers in large amounts of private information, or that the government the field who confront myriad circumstances we can only can search them forensically, does not make a thorough begin to imagine from the relative safety of our chambers." search of such devices "particularly offensive." Rather, the United States v. Williams, 419 F.3d 1029, 1034 (9th Cir.), Supreme Court and this court have wisely avoided making cert. denied, 546 U.S. 1081, 126 S.Ct. 840, 163 L.Ed.2d 715 the reasonableness of a search turn on the nature of the (2005). 13 property being searched, for the many reasons discussed above. The result has been a clear, well-understood, efficient, 13 and effective rule that border searches are per se reasonable. The majority insists that reasonable suspicion is a "modest, workable standard" that is applied in domestic Regrettably the majority, dispensing with these well-settled, stops of automobiles "and other contexts." and that sensible, and binding principles, lifts our anchor and charts still allows "agents to draw on their expertise and experience." Majority at 967. 967 n. 14. The majority a course for muddy waters. Now border agents, instead of is wrong for at least three reasons. First, in making this knowing that they may search any and all property that WeStlaWNW © 2015 Thomson Reuters. No claim to original U.S. Government Works. 24 EFTA00315014 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 crosses the border for illegal articles, must ponder whether suspicion necessary to search electronic devices at the border, their searches are sufficiently "comprehensive and intrusive," for the sake of our national security, and the consistency of Majority at 962, to require reasonable suspicion, and whether our national border search law. they have such suspicion. In *981 most cases the answer is going to be as clear as, well, mud. We're due for another The Supreme Court rejected our last attempt to narrow course correction. the border search exception, cautioning us not to create "complex balancing tests" for border searches of property except in the rarest of cases, where the search is "so destructive as to require" reasonable suspicion. United States M. SMITH, Circuit Judge, dissenting, with whom CLIFTON v. Flores—Montano, 541 U.S. 149, 152, 156, 124 S.Ct. 1582, and CALLAHAN, Circuit Judges, join with respect to Part I: 158 L.Ed.2d 311 (2004) (rejecting our proposed reasonable I respectfully dissent. Until today, federal courts have suspicion requirement in United States v. Molina-Tarazon, consistently upheld suspicionless searches of electronic 279 F.3d 709, 713-17 (9th Cir.2002)). "Time and again" the storage devices at the border. See United States v. Arnold, Court has concluded that border searches are " 'reasonable 533 F.3d 1003, 1008 (9th Cir.2008) cert. denied, 555 U.S. simply by virtue of the fact that they occur at the border.' " 1176, 129 S.Ct. 1312. 173 L.Ed.2d 595 (2009) ("[R]easonable Id. at 152-53 (quoting United States v. Ramsey, 431 U.S. 606, suspicion is not needed for customs officials to search a 616, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977)). laptop or other personal electronic storage devices at the border."); see also United States v. Ickes, 393 F.3d 501, 507 Despite the Court's clear ruling on the issue, the majority (4th Cir.2005) (no finding of reasonable suspicion required to again seeks to whittle away at the border search exception, search personal computers and disks at border); United States this time by conjuring a reasonable suspicion requirement for t'. Linarez—Delgado, 259 Fed.Appx. 506, 508 (3d Cir.2007); border searches that employ computer software to search an United States v. McAuley, 563 F.Supp.2d 672, 677-78 electronic storage device. Why the use of computer software .2008); United States v. Bunty, 617 F.Supp.2d 359, to analyze a hard drive triggers a reasonable suspicion 365 ( .2008). Yet the majority ignores these cases, requirement while a "manual review" of the same hard rewrites long standing Fourth Amendment jurisprudence, drive requires no suspicion, is left unexplained. Although and, in narrowing Arnold, creates a circuit split. technology may *982 serve as a useful proxy for the intrusiveness of a search today, in the future even cursory While I share some of the majority's concerns about the searches might be more efficiently conducted by the use of steady erosion of our personal privacy in this digital age. such technology. Under the majority's reasonable suspicion the majority's decision to create a reasonable suspicion standard, individuals' privacy rights are only as secure as the requirement for some property searches at the border so sophistication of the government's current search mechanism. muddies current border search doctrine that border agents will be left to divine on an ad hoc basis whether a property search Moreover, the task of distinguishing these "comprehensive is sufficiently "comprehensive and intrusive" to require and intrusive" laptop searches from the "unintrusive search" reasonable suspicion, or sufficiently "unintrusive" to come of a laptop affirmed in Arnold, 533 F.3d at 1008, or the within the traditional border search exception. Requiring search of a private letter affirmed in United States v. Seljan, border patrol agents to determine that reasonable suspicion 547 F.3d 993, 1003 (9th Cir.2008) (en bane), leaves border exists prior to performing a basic forensic examination of a patrol officers with a difficult choice: either protect our nation laptop or other electronic devices discourages such searches, from those who mean us harm, or risk their own jobs and leaving our borders open to electronically savvy terrorists livelihood in a Bivens action, or disciplinary proceedings. and criminals who may hereafter carry their equipment and Apart from being administratively impractical, the majority's data across our borders with little fear of detection. In fact, reasonable suspicion requirement disregards well established the majority opinion makes such a legal bouillabaisse out border search jurisprudence, and undermines vital national of the previously unambiguous border search doctrine, that security interests. Ironically, the majority did not even need I sincerely hope the Supreme Court will grant certiorari, to consider the border search doctrine in this case because the and reverse the holding in this case regarding the level of search at issue in this case did not occur at the border. WestlawNexts © 2015 Thomson Reuters. No claim to original U.S. Government Works. 25 EFTA00315015 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 contained on electronic storage devices. See, e.g., Seljan. Separately, but importantly, the majority's application of 547 F.3d at 1003 ("An envelope containing personal the reasonable suspicion requirement to Cotterman is correspondence is not uniquely protected from *983 search also troubling. The majority purports to be concerned at the border."); Arnold, 533 F.3d at 1008 ("[R]easonable with travelers' "personal privacy and dignity," but its suspicion is not needed for customs officials to search a determination that reasonable suspicion exists under the laptop or other personal electronic storage devices at the exceedingly weak facts of this case undermines the liberties border."). The majority states that its en bane decision of U.S. citizens generally—not just at the border, and not just narrows Arnold to permit only "relatively simple" border with regard to our digital data—but on every street corner, searches of laptops. and "not to countenance suspicionless in every vehicle, and wherever else we rely on the doctrine forensic examinations." Majority at 14 n.6. In narrowing of reasonable suspicion to safeguard our legitimate privacy Arnold, however, the court creates a circuit split regarding interests. the application of reasonable suspicion to border searches of electronic devices. See United States v. Ickes, 393 F.3d 501 (4th Cir.2005); see also United States v. Linarez—Delgado. I. The Border Search Doctrine 259 Fed.Appx. 506, 508 (3d Cir.2007). The majority heralds this as a "watershed" case that requires For instance, in Ickes (as in Arnold ) the defendant•appellant a narrowing of the border search exception to accommodate argued that a reasonable suspicion requirement was necessary the privacy interests allegedly created by new technologies. for laptop searches at the border because otherwise "any Yet despite the majority's attempts to avoid the fact, the person carrying a laptop computer on an international flight border search exception is clear and inflexible. The Supreme would be subject to a search of the files on the computer hard Court has repeatedly affirmed the breadth of the border search drive." Ickes. 393 F.3d at 506-07. The Fourth Circuit rejected doctrine, extending a reasonable suspicion requirement only this argument, noting that to: (I ) "highly intrusive searches oftheperson"; (2) "searches of property [that] are so destructive as to require" reasonable "Ns a practical matter, computer suspicion; and (3) searches carried out in a "particularly searches are most likely to occur where offensive manner"—of which the Court has yet to find an —as here—the travelers conduct example. Flores-Montano. 541 U.S. at 152, 154 n. 2, 156, or the presence of other items in 124 S.Ct. 1582 (quotations and citations omitted) (emphasis his possession suggest the need to added). search further. However, to state the probability that reasonable suspicions The majority misconstrues these narrowly-defined will give rise to more intrusive exceptions, reading Flores—Montano to require reasonable searches is a far cry from enthroning suspicion whenever a search of property is deemed "overly this notion as a matter ofconstitutional intrusive." Majority at 18-19. Yet, the exceptions articulated law. The essence of border search in Flores—Montano are far more circumscribed—applying doctrine is a reliance upon the not to "overly intrusive" searches of property, like the trained observations and judgments of search of Cotterman's computer, but only to "highly intrusive customs officials, rather than upon searches of the person." Flores-Montano, 541 U.S. at 152, constitutional requirements applied to 124 S.Ct. 1582 (emphasis added). The majority's adoption the inapposite context of this son of of a reasonable suspicion requirement to "comprehensive search." forensic examination[s]" of property is irreconcilable with Flores-Montano. Majority at 956. Id. at 507 (emphasis added). The Third Circuit similarly rejected a reasonable suspicion requirement for border We have consistently rejected a reasonable suspicion searches of electronic data, albeit in an unpublished opinion. requirement for border searches of expressive materials, See United States v. Linarez—Delgado, 259 Fed.Appx. 506, such as papers and their modem•day equivalent—the data 508 (3d Cir.2007) ("Data storage media and electronic WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 26 EFTA00315016 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 equipment, such as films, computer devices, and videotapes, administrable rules." Florence v. Bd. of Chosen Freeholders may be inspected and viewed during a reasonable border of Cnty. of Burlington, — U S —, 132 S.Ct. 1510, search.") (citing Ickes, 393 F.3d 501). Because the majority 1522, 182 L.Ed.2d 566 (2012). Yet the majority's holding has narrowed ow holding in Arnold that "reasonable requires border patrol agents to determine on a case-by-case suspicion is not needed for customs officials to search a laptop and moment-by-moment basis whether a search of digital or other personal electronic storage devices at the border," data remains "unintrusive," a la Arnold, or has become Arnold, 533 F.3d at 1008, the Ninth Circuit stands alone, as "comprehensive and intrusive," a la Cottennan. Majority at it so often does. 960. 962. Requiring law enforcement to make such complex legal determinations on the spot, and in the face of potentially The majority likens the search of Cotterman's laptop to grave national security threats, strips agents of their necessary a "computer strip search," Majority at 966, and proceeds discretion and deprives them of an efficient and administrable to conflate the law regarding property searches with that rule. regarding "highly intrusive searches of the person." Flores- Montano, 541 U.S. at 152, 124 5.0. 1582. However, the The majority dismisses the burden its reasonable suspicion "reasons that might support a requirement of some level requirement places on law enforcement, asserting that agents of suspicion in the case of highly intrusive searches of the can simply "draw on their expertise and experience" to make person—dignity and privacy interests of the person being the necessary judgment calls. Majority at 967. Yet rather searched—simply do not carry over" to laptops, which than actually deferring to this expertise and experience, the know no dignity or shame, and thus have neither of those majority forces border patrol agents to justify their decisions interests. Flores—Montano, 541 U.S. at 152, 124 set. 1582 under a heightened standard that has never before been (emphasis added). Moreover, even genuine strip searches do applied to border searches of property. not necessarily require reasonable suspicion at the border. See United States v. Montoya de Hernandez, 473 U.S. 531.541 n. Border patrol agents process hundreds of thousands of 4. 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (expressly declining travelers each day and conduct thousands of searches on to decide "what level of suspicion, if any, is required for ... electronic devices each year. I Identifying national security strip, body cavity, or involuntary x-ray searches") (emphasis and criminal threats at the border requires a high level of added). experience and discretion in order to recognize and respond to the ever-changing tactics of those who seek to enter The majority's decision to insulate electronic storage devices our country with nefarious intent. In recognition of these from the border search exception unsettles the border search crucial interests, the border search exception provides law doctrine, places inappropriate burdens on law enforcement, enforcement with broad discretion to conduct border searches reduces deterrence, *984 and raises serious national security of property without resorting to case-by-case determinations concerns. It also ignores the realities of electronic data ofreasonable suspicion—determinations border patrol agents transmission and the reduced privacy expectations that are ill-equipped to handle. See generally Florence, 132 S.Ct. accompany much of this data, particularly at the border at 1522 (rejecting reasonable suspicion requirement for prison where "[tlhe government's interest in preventing the entry strip-searches under this rationale). Moreover, as a practical of unwanted persons and effects is at its zenith." Flores— matter. suspicionless border searches of property make sense, Montano, 541 U.S. at 152, 124 S.Ct. 1582. in light of the sheer number of individuals crossing the border with electronic devices each day. See United States R Martinez—Fuerte, 428 U.S. 543, 557, 96 &Ct. 3074, 49 A. Burdens on Law Enforcement L.Ed.2d 1116 (1976) (requiring reasonable suspicion for The majority's holding cripples law enforcement at the border vehicle checkpoints near the Mexican border "would be by depriving border patrol agents of the clear administrative impractical because the flow of traffic tends to be too heavy guidance they need to carry out core law enforcement to allow the particularized study of a given car"). Given activities. "Officers who interact with those suspected of these realities of law enforcement at the border, a reasonable violating the law have an essential interest in readily WeStlaWNPid" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 27 EFTA00315017 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 suspicion requirement for all "overly intrusive" electronic cannot, and should not, be understated. In fact, the Supreme searches is simply not practicable. Court recently affirmed the importance of deterrence in upholding suspicionless strip searches—the apotheosis of 1 Department of Homeland Security Privacy Office. an intrusive search. Florence, 132 S.Ct. at 1516 (rejecting Annual Report to Congress 54 (2009). reasonable suspicion requirement for prison strip searches and reasoning that "deterring the possession of contraband B. National Security Concerns depends in part on the ability to conduct searches without predictable exceptions"). The suspicionless strip search The majority's decision to insulate electronic devices from upheld in Florence. which included a close visual inspection search at the border creates serious national security concerns. of "the buttocks or genital areas," was unquestionably more An "ever present threat exists from the *985 potential for intrusive than the so-called "computer strip search" at issue terrorists to employ the same smuggling and transportation here. Id. at 1515. networks. infrastructure, drop houses, and other support" as other illegal aliens. U.S. Customs and Border Protection, The majority contends that the deterrence function of National Border Patrol Strategy 5 (2005). The Department suspicionless searches will not be hampered by the of Homeland Security has found that border searches of requirement of reasonable suspicion because, "as a matter electronic storage devices are "essential" for "detect[ing] of commonsense and resources, it is only when reasonable evidence relating to terrorism and other national security suspicion is aroused that such searches typically take place." matters."2 Terrorists rely on electronic storage devices, Majority at 967 n. 14. This is, of course, the very argument for example, to copy and alter passports and other travel rejected by the Fourth Circuit in Ickes. See Ickes, 393 F.3d at 507 ("As a practical matter, computer searches are most documents. 3 By providing special privacy protections for likely to occur where—as here—the traveler's conduct or electronic devices at the border, the majority eliminates the the presence of other items in his possession suggest the powerful deterrent of suspicionless searches and significantly need to search further. However, to state the probability aids technologically savvy terrorists and criminals who that reasonable suspicions will give rise to more intrusive rely on encryption and other surreptitious forms of data searches is a far cry from enthroning this notion as a matter storage in their efforts to do harm. See Martinez-Fuerte, 428 of constitutional law."). U.S. at 557, 96 S.Ct. 3074 (rejecting reasonable suspicion requirement for vehicle checkpoints near the Mexican In addition to undermining deterrence, a reasonable suspicion border because to hold otherwise "would largely eliminate requirement will likely disincentivize agents to conduct any deterrent to the conduct of well-disguised smuggling laptop searches in close cases. See Florence, 132 S.Ct. at 1522 operations"). (- To avoid liability" if required to find reasonable suspicion, "officers might be inclined not to conduct a thorough search 2 U.S. Customs and Border Protection. Border Search in any close case, thus creating unnecessary risk for the of Electronic Devices Containing Information. CBP entire jail population."). Border patrol agents *986 accused Directive No. 3340-049 § 1 (2009). of conducting an - unreasonable" search face very real 3 Thomas R. Eldridge. et at.. 9/11 and Terrorist Travel: consequences—as federal officials, for example, they may Staff Report of the National Commission on Terrorist be sued in their individual capacities for civil damages, as Attacks Upon the United States 60 (2004). part of a Bivens 4 action. See Ronald J. Sievert. Meeting The majority contends that the goal of deterrence does the Twenty-First Century Terrorist Threat Within the Scope not justify "any manner of intrusive search" at the border. of Twentieth Century Constitutional Law, 37 Hous. L.Rev. Majority at 967. Although I certainly agree with the majority 1421, 1424 (2000). The majority's reasonable suspicion that a policy objective like deterrence cannot justify an requirement saddles border patrol agents with a "Sophie's otherwise unconstitutional "highly intrusive search' of choice" between securing our nation, and protecting their own the person " at the border, Flores-Montano, 541 U.S. livelihoods. These misaligned incentives create unnecessary at 152. 124 S.Ct. 1582, the crucial role of deterrence WeStlaWNPid" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 28 EFTA00315018 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 risk, not just for a prison population, as in Florence, 132 S.Ct. 6 Christopher Slobogin. Is the Fourth Amendment at 1522, but for our entire nation. Relevant?, in Constitution 3.0 18 (citing Laura K. Donohue. Anglo-American Privacy and Surveillance. 96 4 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. J.Critn. L. & Criminology 1059. 1150-51 (2006)). 388.91 S.Ct. 1999.29 L.Ed.2d 619 (1971). The majority muses that "[a] person's digital life ought not be hijacked simply by crossing the border," Majority at 22, C. Expectation of Privacy in Electronic Data at the but it fails to explain why electronic data deserves special Border protections when we have never extended such protections to the same data in written form. See Seljan, 547 F.3d at The majority suggests that travelers at the border have a 1003 ("An envelope containing personal correspondence is heightened expectation of privacy in their electronic storage not uniquely protected from search at the border."); see also devices, due to the "uniquely sensitive nature of [this] data." United States v. Tsai, 282 F.3d 690, 696 (9th Cir.2002) (no Majority at 966. There is no question that searches of reasonable suspicion needed to search a traveler's briefcase); electronic data are protected by the Fourth Amendment, but *987 United States v. Grayson, 597 F.2d 1225, 1228-29 we have never found this data to be immune from the border (9th Cir.1979) (no reasonable suspicion needed to search search exception. In fact, these electronic storage devices are papers found in a shirt pocket); Henderson v. United States. hardly a bastion of privacy. When connected to the Internet, 390 F.2d 805, 808 (9th Cir.1967) (no reasonable suspicion they transmit a massive amount of intimate data to the public needed to search a traveler's "purse, wallet, or pockets"). The on an almost constant basis, rendering it unremarkable that documents carried on today's smart phones and laptops are they can be searched at the border, where "[t]he government's different only in form, but not in substance, from yesterday's interest in preventing the entry of unwanted persons and papers, carried in briefcases and wallets. The majority effects is at its zenith." Flores—Montano, 541 U.S. at 152, 124 contends that electronic devices hold data of a "uniquely S.Ct. 1582. sensitive nature" and that, inexplicably, these devices have the "capability to ... augment the expectation of privacy." Indeed, Facebook, for example, now has more than 500 Majority at 965, 966. Under the tnajority's reasoning, the million users, who share more than 25 billion pieces of data mere process of digitalizing our diaries and work documents each month. 5 Those who opt out of social networking sites somehow increases the "sensitive nature" of the data therein, are no less susceptible to the ubiquitous Internet cookie, providing travelers with a greater expectation of privacy in which collects data on users' Internet activities to share or sell a diary that happens to be produced on an iPad rather than with other organizations. Max Stul Oppenheimer, Consent a legal pad. Such artificial and arbitrary distinctions cannot Revisited, 13 No. 12 J. Internet L. 3, 4 (2010). Until recently, serve as a reasonable basis for determining privacy rights at a federally funded data accumulation system allowed clients the border. to "search tens of billions of data records on individuals and businesses in mere seconds..6 Considering the steady The majority attempts to distinguish electronic devices from erosion of our privacy on the Internet, searches of electronic papers by the vast amount of data they can hold, noting that storage devices may be increasingly akin to a well-placed "[a] car full of packed suitcases ... cannot hold a candle to Internet search. Ironically, the majority creates a zone of the sheer, and ever-increasing, capacity of digital storage." privacy in electronic devices at the border that is potentially Majority at 964. Yet, "case law does not support a finding greater than that afforded the Google searches we perform in that a search which occurs in an otherwise ordinary manner. our own homes, and elsewhere. is `particularly offensive' simply due to the storage capacity of the object being searched." Arnold, 533 F.3d at 1010. 5 Jeffrey Rosen. The Deciders: Facebook. Google, and the The majority contends that it "discuss[es] the typical storage Future of Privacy and Free Speech. in Constitution 10: capacity of electronic devices simply to highlight the features Freedom and Technological Change (Constitution 3.0) that generally distinguish them from traditional baggage." 76 (Jeffrey Rosen & Benjamin Wittes Ms.. Brookings Majority at 964 n. 10. Yet why the majority would bother Institution Press 2011). to distinguish between the storage capacities of electronic WeStlaWNEd" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 29 EFTA00315019 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 devices and traditional luggage is a mystery, unless to support supra, however, these intrusiveness-based tests have no place its enhanced protections for electronic devices based on their in border searches of property and have been explicitly greater storage capacity. rejected by the Supreme Court as Iclomplex balancing tests." Flores—Montano, 541 U.S. at 152, 124 S.Ct. 1582. Mapping our privacy rights by the amount of information we carry with us leads to unreasonable and absurd results. The majority additionally speculates about the privacy Under the majority's reasoning, a Mini Cooper filled with implications of searching an external cloud platform, documents is entitled to less privacy protection at the border which may "includIel the same kind of highly sensitive than a stretch Rolls—Royce filled with documents; a pickup data one would have in 'papers' at home." Majority at truck filled with documents is entitled to less protection than 965. I share the majority's keen interest in the Fourth an 18 wheeler filled with documents. It appears that those Amendment implications of this burgeoning technology, but who cannot afford a 64 gigabyte iPad, or the "average" 400 the reasonableness of cloud computing has no bearing on the gigabyte hard drive discussed by the majority, Majority at case at hand, absent any facts that Cotterman utilized such a 964, will alone be subject to suspicionless searches. The platform, or that such a platform was searched. majority's reasoning also protects the rich (who can generally afford more sophisticated devices) to a greater extent than the poor (who are presumably less able to afford those more II. Waiver capable devices.) See United States v. Ross, 456 U.S. 798. There is another important issue in this case that is 822, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ("[A] traveler separate from the majority's new standard for border who carries a toothbrush and a few articles of clothing in a searches. Specifically, I refer to the majority's finding paper bag or knotted scarf claimis] an equal right to conceal that there was reasonable suspicion to search Cotterman's his possessions from official inspection as the sophisticated computer and other electronic devices, miles from the executive with the locked attache case."). border. In its zeal to cripple the application of the current border search doctrine, while still securing Cotterman's If our privacy interests are to be dictated by the quantity conviction, the majority turns on their heads all the parties' of data we possess, the question then becomes, how many arguments about reasonable suspicion as to Cotterman, and gigabytes of storage must one buy to secure the guarantee that the findings made by the lower courts concerning that reasonable suspicion will be required before one's devices are suspicion. First, the majority now stakes its holding on searched? The majority gives us no firm basis for deciding a finding of reasonable suspicion—despite the fact that how much storage space is necessary-32 gigabytes? 64 the government knowingly and unequivocally conceded on gigabytes? 400 gigabytes? Who knows? Moreover, the appeal any argument that the computer search was supported majority's test must constantly change to accommodate by reasonable suspicion. Second, the majority's determination the ever-increasing capacity of electronic storage and new that reasonable suspicion was required under the border technologies. Before we know it, today's "average" 400 search exception is contrary to every argument raised by gigabyte hard drive will look like *988 yesterday's diary either party in its briefs prior to our request for supplemental next to tomorrow's "average" 2 terabyte hard drive. briefing. Third, even the majority seems to concede that the search of Cotterman's own computer that actually occurred The majority asserts that our "reasonableness determination at the border did not involve a computer with sufficient must account for differences in property." Majority at storage capacity, and was not sufficiently intrusive, to require 966. This assertion has no basis in law, however, since reasonable suspicion, under its "new" border search doctrine. Flores-Montano distinguished not between types of property, Thus, it need not have treated, nor altered, the current border but between searches of property and "searches of the search exception. Fourth, the Magistrate Judge's Report person." Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582 and Recommendation, adopted by the District Judge, did (emphasis added). In any event, it appears that the majority's not conclude that reasonable suspicion was required under reasonableness requirement accounts not for "differences in the border search exception. Despite all the above, the property," as it suggests, but rather for differences in the majority upholds Cotterman's conviction on grounds that the intrusiveness of a particular property search. As discussed WestlawNext' © 2015 Thomson Reuters. No claim to original U.S. Government Works. 30 EFTA00315020 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 government had reasonable suspicion to extensively search transport Cotterman's electronics more than 170 miles away. his computer 170 miles from the border. Being mindful By labeling this a border search, the majority has conjured a that the government has the burden of proof in this case. sort of "floating border," whereby any item initially seized at not the majority of our panel, I would have heeded the the border, but not cleared there, can be transported thousands government% strategic, good faith decision to abandon on ofmiles away and searched anywhere, and at any time, simply appeal its argument that reasonable suspicion existed. 7 because the government did not find anything (or enough) during its original search at the border. Because the search at 7 issue occurred neither "at the time of entry or in the immediate When asked during oral argument why it failed to vicinity of the border," it is more appropriately analyzed as argue reasonable suspicion on appeal. the government an extended border search. See Alfonso. 759 F.2d at 735. acknowledged that the issue was a "close" one. *989 The majority claims that Cotterman has not been The majority asserts that this case cannot be analyzed as an prejudiced—despite the fact that the majority's finding of extended border search because Cotterman's computer was reasonable suspicion is the raison for his conviction— never "cleared" at the border prior to search. Majority at 961. because Cotterman was allowed to file a supplemental brief The majority is mistaken. In United States v. Cardona, 769 on the matter after oral argument. Although I concede that F.2d 625. 628 (9th Cir.1985), we applied the extended border what the majority did is technically permissible, see U.S. Nat'! search doctrine to a search of a Federal Express package Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. that occurred twenty-four hours before the scheduled border 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) ("When crossing, and 3,000 miles from the border. See 769 F.2d an issue or claim is properly before the court, the court is not at 628 ("Considering the distance and time factors of the limited to the particular legal theories advanced by the parties, present case, we conclude that the facts of this case should be but rather retains the independent power to identify and apply analyzed under the extended border search doctrine."). the proper construction of governing law") (citations and quotations omitted), it is clear to me that Cotterman has been While this case presents issues we have not yet addressed severely prejudiced, because his conviction is based solely on in the context of an extended border search, United States an issue the government conceded, and that Appellant, and v. Alfonso is squarely on point. In Alfonso. the government the lower courts, took for granted because it was not needed conducted an initial, cursory search of a ship upon its arrival at for a border search. It is the majority of our panel, not the the LOS Angeles harbor. Alfonso, 759 F.2d at 732. Thirty-six government, that prosecuted the reasonable suspicion issue in hours later, while still docked at the port, officials conducted this case. a second, more intrusive search. Id. Tasked *990 with determining whether the second search was an extended border search or a search at the functional equivalent of the III. Extended Border Search border, we noted that "the instant case illustrates the difficulty The extended border search doctrine applies to "searches of making sharp distinctions in this area." Id. at 735. We that do not occur at the time of entry or in the immediate determined that "rallthough we have no difficulty in relating vicinity of the border." UnitedStates v. Alfonso, 759 F.2d 728, this site with the border, we shall, because of the time factor 735 (9th Cir.1985). Because these searches "intrude more on —the lapse of thirty-six hours in conducting the searches— an individual's normal expectation of privacy," reasonable examine the facts under the rules of extended border search." suspicion is required. Id. at 734. Id. at 734. The majority suggests that cases like Alfonso are distinguishable from the case at issue because those cases The majority's mutation of the border search exception is wrestled with distinguishing between a functional border especially unnecessary given that this search did not occur search and an extended border search, whereas this case at the border, but rather 170 miles away from the border and involves distinguishing between a traditional border search five days after the border was crossed. Indeed, the majority and an extended border search. This is a distinction without concedes that the government could have performed the a difference since, as the majority acknowledges, there is no forensic computer search at the border, but instead chose to operative difference between border searches and searches that occur at the functional equivalent of the border, at least WestlawNext" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 31 EFTA00315021 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 for purposes of determining whether a search is an extended based solely on the TECS alert: it states that "the nature border search. of the alert on Cotterman, directing agents to review media and electronic equipment for child pornography, justified I would hold that the search which took place 170 miles from conducting the forensic examination despite the failure of the border, five days after crossing—a much greater lapse the first search to yield any contraband." Majority at 33. than the thirty-six hours in Alfonso—requires this case to Thus, the majority pins reasonable suspicion on the TECS be analyzed as an extended border search. Additionally, the alert, dismisses out of *991 hand the numerous factors reasonable suspicion requirement already applies to extended weighing against reasonable suspicion, and paves the way border searches, in recognition of the fact that such searches for a government database to target "entire categories of "intrude more on an individual's normal expectation of people without any individualized suspicion of the particular privacy." Id. As such, the extended border search doctrine is person to be stopped." Sigmond—Ballesteros, 285 F.3d at aptly suited to address the privacy expectations at issue in this 1121 (internal quotations and citations omitted) (emphasis case. added). The majority considers the TECS alert to be a sufficient basis for reasonable suspicion, but in reality, it is nothing more than a mechanism that automatically flags all IV. Reasonable Suspicion individuals who are registered sex offenders in California —no matter the nature of the sex offense or how old the Irrespective of the government's concession of the issue, the evidence in this case falls woefully short of reasonable conviction—who travel frequently. 8 California is home to suspicion. 1121easonable suspicion exists when an officer is more than 106,000 sex offenders. 9 Some of these individuals aware of specific, articulable facts which, when considered are required to register as sex offenders for life. Depending with objective and reasonable inferences, form a basis on how many of them travel frequently, a TECS hit could for particularized suspicion." United States v. Montero- affect tens of thousands of Californians—many with decades- Cantors°, 208 F.3d 1122, 1129 (9th Cir.2000) (en banc). old convictions. The TECS database clearly hits on "a very We assess reasonable suspicion under the totality of the large category of presumably innocent travelers, who would circumstances, "takfingl into account both factors weighing be subject to virtually random seizures were the Court to for and against reasonable suspicion." United States v. conclude that as little foundation as there was in this case Manzo-Jurado, 457 F.3d 928, 938 (9th Cir.2006). We "will could justify a seizure." Reid v. Georgia, 448 U.S. 438, defer to officers' inferences only when such inferences 441. 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). By allowing rationally explain how the objective circumstances 'aroused a reasonable suspicion to rest entirely on the TECS alert, the reasonable suspicion that the particular person being stopped majority rules that a decades-old conviction can serve as had committed or was about to commit a crime.' " Manzo- a basis to deprive a person of his or her property for an Jurado. 457 F.3d at 934-35 (quoting Montero-Camargo, 208 indefinite period, so that a "border search" may be conducted F.3d at 1129) (alterations omitted). "Reasonable suspicion hundreds of miles from the border. may not be based on broad profiles which cast suspicion on entire categories of people without any individualized 8 The TECS alert is part of Operation Angel Watch. suspicion of the particular person to be stopped." United a program that targets California residents who are States v. Sigmond—Ballesteros, 285 F.3d 1117. 1121 (9th registered sex offenders based on the suspicion that those Cir.2001) (internal quotations and citations omitted). individuals who travel internationally are engaging in child sex tourism. The majority at one point improperly I agree with the majority that reasonable suspicion was not lists - the parameters of the Operation Angel Watch needed to conduct the initial search of Cotterman's computer program" as an independent factor supporting reasonable at the border, and that we analyze reasonable suspicion suspicion. Majority at 968-49. We must look solely at the only as to the second search (the majority would say a underlying facts supporting reasonable suspicion—i.e.. continuation of the initial search,) which took place 170 miles Cotterman's status as a sex offender and his frequent travel—rather than the database or mechanisms used to from the border and several days after the border crossing. deliver that information. The majority's reasonable suspicion finding appears to be WestlawNexts © 2015 Thomson Reuters. No claim to original U.S. Government Works. 32 EFTA00315022 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 9 Press Release. National Center for Missing and Similarly, the fact that Cotterman was returning from Mexico Exploited Children. Number of Registered Sex fails to support a finding of reasonable suspicion. Mexico is Offenders in the U.S. Nears Three—Quarters of a Million a popular travel destination for Californians, including those (Jan. 23. 2012). who travel to Mexico for its beaches, culture and weather, The majority suggests that the TECS alert informed border and not for its sex tourism. Travel to Mexico simply does not support reasonable suspicion without more specific evidence patrol agents of the nature of Cotterman's conviction. In that Cotterman traveled to a particular establishment, city, fact, the TECS hit did not state the nature of Cotterman's conviction, although one agent mistakenly recollected that "it or even region, associated with sex tourism. See United States v. Irving, 452 F.3d 110. 114, 124 (2d Cir.2006) stated that [Cotterman) appeared to [sic] been involved in (finding reasonable suspicion based on knowledge that some type of child pornography." Curiously, another agent stated that a criminal history check on Cotterman revealed suspect, a convicted pedophile and the subject of criminal investigation, had visited an orphanage in Mexico and had that "that he had a prior conviction pertaining to child luggage with children's books and drawings). According pornography." In fact, and despite the erroneous contentions of the referenced agents, Cotterman had no prior child to the Department of Justice, American sex tourism is a problem not only in Mexico, but also in Southeast Asia, pornography conviction; he had a 15-year-old conviction for Central and South America, and, to a lesser extent, Eastern sexual conduct with a minor. While we generally give "due weight to inferences drawn" by law enforcement, Omelas Europe. I I Under the majority's application of reasonable v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657. 134 suspicion, an individual who committed a sex offense 30 L.Ed.2d 911 (19%), the case for deference is questionable years ago cannot visit the Charles Bridge in Prague, the here in the absence of any rational explanation as to how Cristo Redentor in Rio de Janeiro, or even the "lost city" the officers could have read the TECS alert and criminal of Machu Picchu, without arousing a -reasonable" suspicion history check, neither of which listed a conviction for child of sex tourism. Someone who was convicted of tax evasion pornography, and come away thinking that Cotterman was 15 years ago, or any other kind of conviction listed on a guilty of that offense. See Manzo-Jurado, 457 F.3d at 934- federal database, and particularly one that involved the use of 35 ("[Wie will defer to officers' inferences only when such a computer, should also probably avoid visiting Switzerland inferences rationally explain how the objective circumstances or Luxemburg under the majority's new standard. The bottom aroused a reasonable suspicion."); see also Liberal v. Estrada. line is that thousands of individuals—many with decades- 632 F.3d 1064, 1078 (9th Cir.2011) (mistake of fact must be old convictions—will now be forced to reconsider traveling reasonable). to entire countries or even continents, or will need to leave all their electronic equipment behind, to avoid arousing a All things considered, the fact that an individual with a 15— "reasonable" suspicion. year—old sex conviction *992 was also a frequent traveler appears to be a rather weak lynchpin for reasonable suspicion. 11 U.S. Department of Justice. The National Strategy for Yet, other than Cotterman's prior conviction and travels, the Child Exploitation Prevention and Interdiction. A Report factors cited by the majority are far too generalized to provide to Congress 36 (2010). even an indicia of suspicion that Cotterman was involved in Perhaps the most concerning aspect of the majority's opinion, sex tourism. For instance, the majority considers Cotterman's especially given its stated stance on privacy rights at the "collection of electronic equipment" to be a factor supporting border, is its readiness to strip former sex offenders and reasonable suspicion. In today's world, the fact that Cotterman others convicted of past crimes (and who are, theoretically, and his wife each carried a laptop and digital camera when entitled to be presumption of innocence) of even the most traveling internationally, as well as one video camera between basic of privacy rights, such as the right to password-protect them, 10 is no more evidence of "sex tourism" than of any their electronic devices. The majority acknowledges that other kind of tourism. "it is commonplace for business travelers, casual computer users, students and others to password protect their files" 10 The video camera was apparently Mrs. Cotterman's. and that "password protection is ubiquitous." Majority at 970. It avers that "Inlational standards require that users WeStlaWNPA" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 33 EFTA00315023 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 of mobile electronic devices password protect their files," Moreover, the majority fails to consider reasonable suspicion and that Iclomputer users are routinely advised—and in in light of the totality of the circumstances because it some cases, required by employers—to protect their files dismisses without explanation numerous factors that weigh when traveling overseas." Majority at 31 (emphasis added). against a finding of reasonable suspicion in this case. See Yet because border patrol agents encountered a single Manzo—Jurado, 457 F.3d at 938 (the reasonable suspicion password- *993 protectedfile on Cotterman's computer, the determination must "take[ into account both factors majority considers password protection a factor contributing weighing for and against reasonable suspicion.") (emphasis to reasonable suspicion. 12 Worse still, the majority contends added). At the time the border patrol agents commenced that it is justified in considering the password-protected file the second search, 170 miles away from the border, because "making illegal files difficult to access makes perfect any suspicions they may have initially harbored against sense for a suspected holder of child pornography." Majority Cotterman would have been largely addressed by their at 969. I fail to see how the agents had reasonable suspicion interrogations of Cotterman and his wife, which produced that Cotterman's computer contained "illegal files" based nothing suspicious. An initial search of Cotterman's computer solely on his 15—year—old sex offense, travel to Mexico with and the digital cameras turned up nothing more than a single his wife, and the "ubiquitous" act of password-protection. password protected file and photos of "whale hunting and Indeed, as the majority acknowledges, making legal files various excursions," all of which corroborated Cotterman's difficult to access makes "perfect sense" for anyone, even story about vacationing in Mexico. Also during this initial former sex offenders. search, one of the border patrol agents did a records check and discovered that Cotterman's conviction for the sex offense 12 had occurred more than 15 years ago. Cotterman was fully The unequivocal testimony of Agent Antonio Alvarado cooperative and even offered to help the agents access his confirms that only a single password-protected file was computer. The majority contends that Cotterman's offer to discovered on Cotterman's computer at the border. help does not weigh against a finding of reasonable suspicion I would find a password-protected file to be not at all because the agents declined Cotterman's offer based on the suspicious, unless we want to start basing reasonable possibility—however slight—that Cotterman could "booby suspicion on locked diaries and briefe9ws. Registered trap" the devices. That the agents were unable to accept sex offenders face numerous consequences as a result of Cotterman's offer, however, does not change the reasonable their convictions, but the law has never before punished inference that his offer was a genuine one. them for using "ubiquitous" and "commonplace" password- protection. Yet under the majority's analysis, an individual Accordingly, it is irrelevant whether there was reasonable traveling to Southeast Asia for business, who happens to be suspicion for the initial *994 search, because I agree with subject to one of TECS's broad-based alerts, and who follows the majority that reasonable suspicion was not required. his company's security protocols, should expect to have his The relevant inquiry here is what suspicion existed after electronic equipment seized and transported hundreds of all of Cotterman's electronics were searched, and he and miles away. 13 his wife were interrogated separately, and every piece of evidence obtained corroborated the Cottermans' story about 13 The majority finds ironic my concern about the vacationing in Mexico. The only hint of suspicion remaining expansiveness of its reasonable suspicion standard, since at that point-after the initial border search and interrogations at the border. I would advocate for no suspicion at all. —was the single password-protected file, which I agree with The majority is correct that at the border, my concern is the majority is insufficient, by itself, to sustain a finding simply with following Flores-Montano and maintaining of reasonable suspicion. See Manzo—Jurado, 457 F.3d at national security. I view the majority's application of its 935 ("Mo establish reasonable suspicion, an officer cannot reasonable suspicion requirement as a separate issue, and rely solely on generalizations that, if accepted, would cast my concern there is that the majority has so diluted the suspicion on large segments of the lawabiding population."). reasonable suspicion requirement as to undermine the rights of U.S. citizens generally. WeStlaWNeXt" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 34 EFTA00315024 Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 border search doctrine to Cotterman's case, which appears V. Conclusion most appropriate given the extensive lapse in distance and Reasonable suspicion has no place in property searches at time between the first and the second search. Additionally, the border, as the Supreme Court has consistently held. See I would hold the government to its burden of proof in Flores-Montano, 541 U.S. at 152-53, 124 S.Ct. 1582 ("Time determining that reasonable suspicion was absent here. Under and time again, we have stated that searches made at the the doctrine of this case, the majority sweeps in thousands of border, pursuant to the longstanding right of the sovereign innocent individuals whose electronic equipment can now be to protect itself by stopping and examining persons and taken away from the border and searched indefinitely, under property crossing into this country, are reasonable simply by the border search exception. virtue of the fact that they occur at the border.•"). Imposing a reasonable suspicion requirement here forces courts and I respectfully dissent. border patrol agents to engage in just the "sort of decision• making process that the Supreme Court wished to avoid in sanctioning expansive border searches." Seljan, 547 F.3d at All Citations 1011 (citation omitted) (Callahan, J. concurring). Rather than 709 F.3d 952, 13 Cal. Daily Op. Serv. 2531, 2013 Daily rewrite the border search exception, as the majority does, I Journal =. 3018 would affirm the district court's application of the extended End of Document O2015 Thomson Reuters. No claim to original U.S. Government Works. WeStiaWNPA" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 35 EFTA00315025