United States v. Cotterman
2011 U.S. App. LEXIS 6483
9th Cir.2011Background
- Cotterman and wife entered the U.S. at Lukeville, AZ; TECS alert flagged Cotterman for child pornography.
- CBP sent laptops and cameras to secondary inspection; password-protected files impeded initial review.
- Lukeville agents transported laptops to Tucson for forensic examination, intending to complete prior to Cotterman’s departure.
- Owen, ICE forensic examiner, mirror-imaged drives and began analysis; password-protected files were later bypassed in Tucson.
- Analytical process uncovered hundreds of child-pornography images on Cotterman’s laptop after several hours/days of examination.
- Cotterman fled to Mexico and Australia; defense moved to suppress seized evidence as an unlawful border search.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether border search doctrine permits offsite forensic search | Cotterman: offsite search requires suspicion; Government: permissible continuation. | Cotterman: moving property beyond border taints legality; needs suspicion. | Yes; offsite search permissible under border search doctrine. |
| Whether heightened suspicion is required for extended border searches of property | Cotterman seeks heightened suspicion for extended search. | Government does not need heightened suspicion for computer searches at the border. | Not required; reasoning weighed case-by-case with reasonableness. |
| Whether the two-day seizure was constitutionally reasonable | Cotterman: prolonged seizure unreasonable and unnecessary. | Government: detention reasonable to complete adequate search given complexity. | Detention held reasonable; duration did not render search unreasonable. |
Key Cases Cited
- Flores-Montano v. United States, 541 U.S. 149 (U.S. 2004) (border searches need not show suspicion; intrusiveness varies with context)
- Montoya de Hernandez, 473 U.S. 531 (U.S. 1985) (plenary border authority; time/delay judged by reasonableness)
- United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008) (border searches of laptops can occur without reasonable suspicion)
- United States v. Abbouchi, 502 F.3d 850 (9th Cir. 2007) (extended border searches may occur; not limited to immediate border)
- United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (border searches may occur at functional equivalents far from border)
- Hill, 459 F.3d 966 (9th Cir. 2006) (computer technology may justify seizure/relocation for meaningful search)
- United States v. Thirty-Seven Photographs, 402 U.S. 363 (U.S. 1971) (border searches; luggage may be searched upon entry)