Posted by Orin Kerr:
Does the Border Search Doctrine Apply To Searching Computers if the Government
Moves the Computer Away from the Border Before Searching It?:
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236047827
One of the fun aspects of computer search and seizure law is that
computers often allow facts that just don't come up very often in
traditional cases. The new facts raise intriguing and new questions
that test the basis of existing law, forcing courts to choose which
principles of preexisting law should apply to the new facts. A border
search opinion from last week,[1] United States v. Cotterman, provides
a fascinating example.
Cotterman considers a novel question triggered by the reality that
comprehensive search for evidence of a computer generally requires a
careful analysis at a lab by a trained forensic analyst. In the
Cotterman case, agents seized a computer at the Mexico-Arizona border
and wanted to search it, but they apparently didn't have a trained
analyst nearby. As a result, they let the computer owner go on into
the U.S., and in the meantime they drove the computer to a government
forensic analyst in Tucson, about 170 miles away. The analyst in
Tucson searched the computer two days later and found child
pornography.
Here's the question: Does the border search exception apply to the
search of the computer that was seized at the border but actually
searched in Tucson two days later? The question is interesting because
searches and seizures ordinarily occur at the same place in border
searches. If evidence is seized at the border, it normally will be
searched at the border. The dynamics of computer searches are
different: computers normally are seized in one place and then
searched later on in a different place. So what happens when the
location of the search and seizure diverge? Should the law follow the
location of the seizure or location of the search?
In the Cotterman case, the court ruled that the law should follow
the time and place of the search rather than the seizure. By bringing
the computer to the forensic analyst instead of the analyst to the
computer, the border search exception didn't apply. The court focused
on Ninth Circuit caselaw involving "extended border searches" which
have ruled that as time and space passes from the initial border
crossing, a search can be justified based on reasonable suspicion --
and that only after more time/space passes from the border is a search
no longer even an "extended border search." From the opinion:
When a search is removed in time and place from the border, the
courts have repeatedly held that this represents a greater
intrusion on the person requiring that under the totality of the
circumstances, customs officers had reasonable suspicion of
criminal activity in order to justify the search, the so-called
�extended border search.� United States v. Whiting, 781 F.2d 692,
695 (9th Cir.1986); United States v. Cardona, 769 F.2d 625, 628
(9th Cir.1985); United States v. Alfonso, 759 F.2d 728, 734 (9th
Cir.1985); United States v. Bilir, 592 F.2d 735, 740-741 (9th
Cir.1979). As the Court in Alfonso stated: "We recognize, of
course, that time and place are relevant, since the level of
suspicion for extended border searches is stricter than the
standard for ordinary border searches. Extended border searches
occur after the actual entry has been effected and intrude more on
an individual's normal expectation of privacy. Therefore, extended
border searches must be justified by �reasonable suspicion� that
the subject of the search was involved in criminal activity, rather
than simply mere suspicion or no suspicion." Alfonso, 759 F.2d at
734. In Alfonso, the search took place thirty-six hours after the
ship docked at Los Angeles harbor.
At some point, the discrepancy in time and distance will become
so great that it is no longer an extended border search, thus
requiring probable cause and a warrant. Again, there is no bright
line test, but an examination of the totality of circumstances,
including time, distance and law enforcement efforts is required.
Alfonso, 759 F.2d at 736; United States v. Sahanaja, 430 F.3d 1049,
1054-1055 (9th Cir.2005). For instance, had the forensic examiner
in this case placed the Cottermans electronics equipment at the end
of the queue, conducting the examination in a month or two, it
could be argued the search was so removed in time as to no longer
be an extended border search. We need not reach that question here,
where the facts show reasonable diligence and speed in conducting
the computer forensic examination. Therefore, the Government need
only show reasonable suspicion, not probable cause, to justify the
search in this case.
Because the court concluded that the government lacked reasonable
suspicion, the motion to suppress was granted.
I find this analysis unpersuasive, and I think that if the
Government appeals -- which I would guess it will, given the ICE
guidelines allowing what it did -- the Ninth Circuit will very likely
reverse. The Ninth Circuit cases concluding that the place of the
search were relevant were all cases in which the search occurred at
the same place as the seizure. It makes sense that the location of the
seizure would matter: The idea behind the border search exception is
that expectations of privacy vary based on location, so the the law
should adjust the threshold of cause to correspond to the extent of
the experienced intrusion.
But location doesn't seem to matter when a computer is taken from a
suspect at the border and searched offsite. To be sure, the computer
is seized, and the duration of the seizure must be constitutionally
reasonable. Cf. [2]United States v. Van Leeuwen, 397 U.S. 249 (1970).
But the location of the search has no obvious relevance to the
intrusion experienced by the defendant, who doesn't know where the
computer is searched or in all likelihood even care. Indeed, it often
happens that agents in one district will ship off a computer to
another district for analysis: It would be quite odd if the courts
based the legality of the search on where the forensic analysis just
happened to be done.
I'm reminded of an analogous issue that I wrote about [3]in this
article, the timing of the execution of warrants. When government
agents obtain a warrant, they normally have 10 days to conduct the
search. The agents will search the target's home, seize the computer,
and then ship it to a forensic analyst where it will wait in the queue
to be analyzed. The computer normally won't be searched until weeks or
months later. Defendants sometimes argued that this violates the
10-day rule; they argue that law requires not just the physical search
within 10 days, but that it also requires the search of the computer
for evidence. Courts have uniformly rejected this argument, however,
reasoning that the staleness concerns that require warrants to be
executed in 10 days are absent after the computer has been seized and
taken into custody. The 10-day rule therefore applies to the physical
search but not the digital search. The only requirement then, some
courts have held, is that the computer must be searched in a
reasonable amount of time.
I would think a similar analysis should apply for computer border
searches. If a computer is seized at the border, the police must
search it in a constitutionally reasonable period of time. Cf. Van
Leeuwen. But the cause required to search the computer should be based
on the location where it was seized, not the location where it was
searched.
References
1. file://localhost/files/cotterman.pdf
2. http://supreme.justia.com/us/397/249/case.html
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=665662
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