| United States v. Cotterman | |
|---|---|
 | |
| Court | United States Court of Appeals for the Ninth Circuit |
| Decided | March 31, 2011 |
| Citation | No. 09-10139 |
| Case history | |
| Prior actions | United States v. Cotterman, United States District Court, District of Arizona [1][2] |
| Subsequent action | Motion to suppress denied. |
| Court membership | |
| Judges sitting | Fletcher B.B., Tallman R.C. & Rawlinson J.B. |
| Case opinions | |
| Property presented when entering the United States at the border may be transported to a secondary site for adequate inspection. | |
United States v. Cotterman, No. 09-10139 (9th Cir. 2011), is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that property presented for inspection when entering the United States at the border may be transported to a secondary site for adequate inspection, even if there is no reason for suspicion. [3][4]
Background
editOn April 6, 2007 at approximately 10 AM, Howard and Maureen Cotterman drove from Mexico to the Lukeville Port of Entry. Upon arrival, the inspector checked the Customs and Border Patrol electronic database and found a Treasury Enforcement Communication System alert, based upon Howard Cotterman's prior conviction for child sex crimes in 1992. The alert advised the inspector to be on the lookout for child pornography and the Cotterman's were send to a secondary inspection area.
During the vehicle search, two CBP officers discovered two laptops and three digital cameras. The officers were unable to find any contraband, but did discover a number of password protected files. During this time, the ICE case was assigned to Agent Riley, who then drove with her supervisor Agent Brisbane from Sells, Arizona to Lukeville. During the drive, the two agents decided that they would detain the laptops for forensic examination. [3]
After arriving at Lukeville POE at 3 or 3:30 PM, the two agents interviewed Howard and Maureen Cotterman seperately. Howard Cotterman offered to help the agents with the computer, but the offer was declined. At 6 PM, the two agents left with both laptops and one digital camera. The devices were taken to Tucson and delivered to John Owens, an ICE Computer Forensic Examiner at 11 PM that night. On April 8, Agent Owen's forensic examination turned up approximately 75 images of child pornography on Howard Cotterman's computer. Agent Owen's called the Cotterman's that night, asking Howard Cotterman for assistance opening the password protected files. Howard Cotterman agreed to come in the next day, but only his wife showed up to pick up the other laptop.
It was later discovered that Howard Cotterman boarded a flight to Mexico on April 9, 2007, with a final destination on Sydney, Australia. On April 11, 2007, Agent Owen was able to break the computer security and discovered 378 more images of child pornography. Cotterman was indicted on June 27, 2007 for several charges related to child pornography and unlawful flight to avoid prosecution. Cotterman was arrested by Australian law officials and delivered to the U.S. Marshals Service on March 31, 2008.
Cotterman filed a motion to suppress all evidence seized by Customs officials and argued that the search of his laptop 170 miles from the port of entry over a period of four days is a non-routine border search requiring reasonable suspicion."[1] The motion was granted by the District Court in Cotterman's favor.[5] The government appealed, and stated that the border search doctrine justified the initial search and the transport of the computer to Tucson to adequately conduct the search. The Ninth Circuit Court of Appeals overturned the lower court's ruling, in favor of the Government.
Opinion of the Court
editIn the majority opinion, Judge Tallman agreed with the Government that border search doctrine allowed property to be transported to secondary site for examination. But, he did also state that the Government cannot sieze property and hold it for "weeks, months, years on a whim", and therefore the courts will continue to determine whether searches and seizures are reasonable on a case-to-case basis.[3][6]
Arguments
editWhen appealing the District Court's decision, the government did not argue that there was reasonable suspicion. Instead, the government argued that the boder search doctrine supported both the initial search and the transportation of the laptop to Tucson for examination. [7]
Judgement
editThe majority found that time and distance did not matter in this instance. In the opinion, Judge Tallman states the need to control entry at the border. If the government was unable to remove property away from the border, they would have to fully staff and equip each border crossing or be content with blindly shutting its eyes, with both positions being unreasonable.[8] Since the defendent's property was never cleared for entry, it was functionally still at the border at the time of the forensic search. In the opinion, Judge Tallman stated:
- Time and space are only relevant to this initial inquiry to the extent that they inform us whether an individual would reasonably expect to be stopped and searched at a geographic point beyond the international border.
The majorirty also found that reasonable suspicion was not needed since they considered the search routine. [9] There was no body search nor was property destroyed. Finally, the Court ruled that they did not consider the two day delay particularly offensive.[6]
Dissent
editJudge Fletcher dissented with the majority. She argued that "sticking point" was not whether the government could transport property from the border to another location for inspection, but whether the government could sieze property for inspection for an unknown amount of time with no reason to suspect the property contained contraband. [6][8][10][11]
- 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.
See also
editReferences
edit- ^ a b United States v Cotterman (D. Ariz. February 24, 2009), Text.
- ^ United States v. Cotterman, Order adopting Magistrate's Recommendation (February 24, 2009).
- ^ a b c United States v Cotterman, 09-10139 (Ninth Court of Appeals March 30, 2011).
- ^ Fakhoury, Hanni (September 21, 2011). "EFF To Appeals Court: Border Is Not An "Anything Goes" Zone". Retrieved February 29, 2012.
- ^ Susan, Brenner (May 22, 2009). "Border Search... Fails". Retrieved February 28, 2012.
- ^ a b c Sands, Jon (March 30, 2011). "U.S. vs. Cotterman, No. 09-10139 (3-30-11)(Tallman with Rawlinson; dissent by B. Fletcher)". Retrieved February 13, 2012.
- ^ Kerr, Orin (Janurary 17, 2011). "Update on United States v. Cotterman, Ninth Circuit Case Applying the Border Search Exception to Computers". Retrieved February 13, 2012.
{{cite web}}: Check date values in:|date=(help) - ^ a b Howard Fischer Capitol Media Services (March 30, 2011). "Court ruling backs search of laptop by Arizona customs officers". Arizona Daily Star. Retrieved February 13, 2012.
- ^ Walker, Michael (April 5, 2011). "Ninth Circuit Sustains Lengthy Laptop Search". Retrieved February 13, 2012.
- ^ Kalar, Steven (April 2, 2011). "Case o' The Week: Betty Balks at Broad "Border" Bromide, 4th Amendment and Border Searches". Retrieved February 13, 2012.
- ^ Carver, Brian (April 1, 2012). "The Boundless Border Search Exception". Retrieved February 13, 2012.
Category:United States Fourth Amendment case law Category:2011 in United States case law Category:Digital forensics
External links
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