Back in 2009, I blogged about United States v. Cotterman, a fascinating Fourth Amendment case from the District of Arizona involving a forensic search of a computer seized at the U.S./Mexico border. Ninth Circuit precedent holds that the government can search a computer at the border with no suspicion under the border search exception, just like it can search any other property. The question in Cotterman was whether the government could seize the computer, bring it to a forensic specialist 170 miles away, and have the forensic specialist search the computer there two days later. Is that still a border search? Or does the delay in time, or the change in location, mean that the border search exception doesn’t apply (or applies differently)? The District Court held that the delay in time and the moving of the computer required applying the ‘extended’ border search doctrine, which requires reasonable suspicion, instead of the traditional border search exception, which does not. As I noted here, the Government appealed but has not argued that the search was justified by reasonable suspicion. As a result, the case presents a pure legal question: Does the Fourth Amendment require reasonable suspicion in these circumstances, or is the seizure and subsequent search permitted without any cause?
In a decision released this morning, United States v. Cotterman, a divided Ninth Circuit reversed and held that the seizure and search were permitted without cause. The majority opinion by Judge Tallman, joined by Judge Rawlinson, reasons that it is clear, under Ninth Circuit precedent, that the search would have been legal if it had occurred at the border without delay. The opinion reasons that Cotterman’s expectation of privacy is what matters, and that because Cotterman’s computer was taken to be searched at the border, Cotterman’s expectation of privacy is not impacted by where the computer was taken:
[T]he Government made it abundantly clear to Cotterman that his computers and cameras were not cleared for entry into the United States and that it had retained custody of that property until it could fully allay its concerns that they contained contraband. As a result, he never regained his normal expectation of privacy in his computer because he ould only reasonably expect that it would be searched to alleviate the self-protection concerns of the sovereign. He never breathed that deep sigh of relief that follows from the realization that he had faced all the rigors of inspection and that nothing more lingered to impede his travels.
As a result, the moving of the computer after it was seized was constitutionally irrelevant:
So long as property has not been officially cleared for entry into the United States and remains in the control of the Government, any further search is simply a continuation of the original border search—the entirety of which is justified by the Government’s border search power.
The next question was how much delay is permitted. That is, for how long can the government hold a computer pursuant to the border search exception in order to search it? Because holding the computer was a seizure, the test was reasonableness: Specifically, whether the detention “was reasonably related in scope to the circumstances that justified the initial detention at the border.” In this case, it was: The Government proceeded quickly to bring the computer to an expert, the expert searched the computer pretty quickly, and worked through the weekend to get the search completed. Further, the fact that the computer was brought to the expert rather than the expert being brought to the computer was not only acceptable, but wise: “our common sense and experience inform us that the decision to transport the property to the laboratory, instead of transporting the laboratory to the property, resulted in a shorter deprivation.”
Judge Betty Fletcher dissented. She agreed that the moving of the computer was irrelevant, but argued that all time-consuming and comprehensive computer searches at the border should require reasonable suspicion. In a footnote, Judge Fletcher tried to distinguish United States v. Arnold, the Ninth Circuit precedent allowing suspicionless computer searches at the border on the ground that the prior Ninth Circuit precedent did not involve a comprehensive search that took considerable time.
My basic take is that I think the Ninth Circuit’s decision was right. As I argued in my initial post, it doesn’t make sense to say that the border search doctrine applies differently depending on where the computer is moved. Further, it seems right that the duration of the seizure should be determined by a reasonableness inquiry. And here, the government’s conduct seems very reasonable. Judge Fletcher asked the question of what reasonableness means in the setting of the border search exception, but that’s an old question, I think: I don’t see any reason to think that the reasonableness standard gives the government limitless authority, which is what Judge Fletcher seems to fear. More broadly, Judge Fletcher’s dissent seems to really want to go back and relitigate Arnold, which rejected a reasonable suspicion requirement for computer searches at the border. Given the issues raised by the Cotterman case itself, and the issues it raised, I think the majority was basically right.