08 March 2013

Law in Plain English: United States v. Cotterman

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

United States v. Cotterman

Cotterman was returning to the United States from Mexico. Cotterman's name was flagged for a 1992 child molestation conviction. The initial search of Cotterman's laptop and cameras revealed no incriminating information, but his laptop was seized for futher inspection. Later examination of his laptop (at a location 170 miles away from the border checkpoint) revealed the presence of child pornography. Cotterman tried to suppress the evidence, alleging that the search of his laptop was an extended border search that required reasonable suspicion. The court rejected Cotterman's extended border search claim, saying that a border search of his computer was not transformed into an extended border search simply because the device was
transported and examined beyond the border. A cursory, unintrusive search of the laptop is permissible without any suspicion. On the other hand, a forensic search of his computer was more intrusive than an initial, ordinary, and suspicion-less search at the border would normally allow. The question before the Court of Appeals for the Ninth Circuit was whether reasonable suspicion existed at the time of the border search. The court held that the totality of the circumstances (including his prior conviction for child molestation, coming from a country associated with sex tourism, frequent travels, and password protected files) amounted to reasonable suspicion. As a result, the search of Cotterman's laptop was valid, and the evidence was properly admitted. The court did point out that password protection was not, by itself, enough to give rise to reasonable suspicion (internal citations omitted):
To these factors, the government adds another—the existence of password-protected files on Cotterman’s computer. We are reluctant to place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files. Law enforcement “cannot rely solely on factors that would apply to many law-abiding citizens,” and password protection is ubiquitous. National standards require that users of mobile electronic devices password protect their files. Computer users are routinely advised—and in some cases, required by employers—to protect their files when traveling overseas. “[T]here is one relatively simple thing attorneys can do [when crossing the border] to protect their privacy and the rights of their clients: password-protect the computer login and any sensitive files or folders.”).
The dissent writes that this decision creates a circuit split with the Fourth Circuit, who ruled in United States v. Ickes that electronic devices were "cargo" and thus could be searched without suspicion during a routine border search. Here in Cotterman, because the United States won, it is unclear if the government can appeal to the Supreme Court for clarification on whether forensic searches at the border require reasonable suspicion, as the Ninth Circuit found. And there's no incentive for Cotterman to appeal because he lost even after the court required a showing of reasonable suspicion. Either way, there does appear to be a circuit split; the majority doesn't even discuss the Ickes opinion (because it is from the Fourth Circuit; it is considered persuasive but not binding).

Update (8/11/13): Cotterman filed a cert petition with the Supreme Court.
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