Court and Case:
- United States v. Cotterman, No. 09-10139 (9th Cir. Mar. 30, 2011).
When the colonies adopted a Constitution for these United States a few abuses of government power were of such significant concern that they were singled out as beyond the power of government in the Bill of Rights. Unreasonable searches and seizures were among these abuses and are forbidden by the Fourth Amendment.
The Supreme Court recalled the basis of this concern in its 1886 opinion, Boyd v. United States, 116 U.S. 616 (1886):
In order to ascertain the nature of the proceedings intended by the Fourth Amendment to the Constitution under the terms “unreasonable searches and seizures,” it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this country and in England. The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods, which James Otis pronounced “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book;” since they placed “the liberty of every man in the hands of every petty officer.” This was in February, 1761, in Boston, and the famous debate in which it occurred was perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. “Then and there,” said John Adams, “then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”
This history of the origins of the Fourth Amendment stands in stark contrast to its interpretation in the context of searches and seizures at the international border (or its “equivalent”) and this already-broad exception appears to have now “swallowed the rule” especially in digital contexts. The border search “exception” that has grown up in non-digital contexts is sometimes summarized with statements such as,
Generally, “searches made at the border… are reasonable simply by virtue of the fact that they occur at the border…” United States v. Ramsey, 413 U.S. 606, 616 (1977).
This exception for the international border creeps inland with the following sort of reasoning:
Searches of international passengers at American airports are considered border searches because they occur at the “functional equivalent of a border.” Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973).
And thus, searches of various types of items have been upheld even where those searches were not based on any particularized suspicion:
- the contents of a traveler’s briefcase and luggage. United States v. Tsai, 282 F.3d 690 (9th Cir. 2002);
- a traveler’s “purse, wallet, or pockets,” Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967);
- papers found in containers such as pockets. United States v. Grayson, 597 F.2d 1225, 1228-29 (9th Cir. 1979); and
- pictures, films, and other graphic materials. United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971).
While the argument that the border search exception is fundamentally flawed in all contexts is not frivolous, it’s persuasive authority would depend on displacing an extremely long line of precedents. However, more recently a narrower argument has been made that new contexts created by ubiquitous digital devices requires the case law in the border search context to take a new direction. Digital devices such as laptops, and increasingly, smartphones, are capable of massive amounts of storage of all manner of information about the most private areas of one’s life. The argument thus would suggest that this is not merely a change in the degree of the intrusiveness of suspicionless government searches, but a fundamental change of kind that requires a different result.
When applying these non-digital border search precedents to a suspicionless laptop search, the Ninth Circuit recently concluded that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border. United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008).
Cotterman at the District Court
This expansion of the border search exception seemed to finally have found a limit in another laptop case, United States v. Cotterman, No. 07-01207, 2009 WL 465028 (D. Ariz. Feb. 24, 2009) (Order adopting Magistrate’s Recommendation), in which the district court concluded that when a laptop is seized at the border and then a forensic search of the laptop is conducted 170 miles away from the border over a period of four days (without a search warrant) that this constitutes a non-routine border search that requires reasonable suspicion.
Cotterman at the Ninth Circuit
On March 30, 2011, the Ninth Circuit reversed the district court. United States v. Cotterman, No. 09-10139 (9th Cir. 2011). The court summarized,
We find no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry—and not yet admitted or released from the sovereign’s control—to be transported to a secondary site for adequate inspection. The border search doctrine is not so rigid as to require the United States to equip every entry point—no matter how desolate or infrequently traveled—with inspectors and sophisticated forensic equipment capable of searching whatever property an individual may wish to bring within our borders or be otherwise precluded from exercising its right to protect our nation absent some heightened suspicion.
Still, the line we draw stops far short of “anything goes” at the border. The Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim. Rather, we continue to scrutinize searches and seizures effectuated under the longstanding border search power on a case-by-case basis to determine whether the manner of the search and seizure was so egregious as to render it unreasonable.
The decision was reached over a vigorous dissent:
I would hold that officers must have some level of particularized suspicion in order to conduct a seizure and search like the one at issue here, because (1) seizing one’s personal property deprives the individual of his valid possessory interest in his property, and (2) authorizing a generalized computer forensic search (untethered to any particularized suspicion) permits the Government to engage in the type of generalized fishing expeditions that the Fourth Amendment is designed to prevent.
With this latest holding, it is unclear whether even time and space can limit the apparently boundless border search exception. Instead, it appears that once again the liberty of every man is in the hands of every petty officer.
- Howard Fischer, Court ruling backs search of laptop by Arizona customs officers, Arizona Daily Star (Mar. 30, 2011).
- Orin Kerr, Ninth Circuit Decides Cotterman Case, Reversing District Court on Laptop Seizure at the Border, The Volokh Conspiracy (Mar. 30, 2011).
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