United States v. Howard Cotterman
2013 U.S. App. LEXIS 4731
| 9th Cir. | 2013Background
- Cotterman’s laptop was seized at Lukeville border; TECS flagged him as a sex offender and potential in child pornography.
- Initial border search opened some files; password-protected data could not be accessed at the port of entry.
- Laptop was transported ~170 miles to Tucson for a forensic hard-drive examination that uncovered child-pornography images.
- Agent Owen conducted an extensive forensic analysis over several days, including unallocated space and password-protected files.
- District court suppressed the evidence; Ninth Circuit en banc held reasonable suspicion was required for the forensic search.
- Case centers on border-search Fourth Amendment limits, especially for digital devices, and whether a forensic search at a lab violated those limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether forensic laptop search at a lab requires reasonable suspicion | Cotterman | Cotterman | Reasonable suspicion required |
| Whether the search is an extended border search | Cotterman contends extended-border analysis applies | Government argues standard border search suffices | Not an extended border search; location/distance not dispositive |
| Role of TECS alert and password protection in establishing suspicion | Cotterman | Cotterman | TECS alert plus password protection contributed to suspicion |
| Whether electronic devices warrant different treatment than other property at border | Cotterman and dissent: devices deserve heightened protection | Government: property at border treated like other containers | Device data considered under reasonableness; not categorically protected |
| Impact of border-search doctrine on privacy expectations and deterrence | Cotterman | Cotterman | Reasonable suspicion limits are compatible with deterrence and security needs |
Key Cases Cited
- Flores-Montano, 541 U.S. 149 (U.S. 2004) (border searches per se reasonable unless highly intrusive or offensive)
- Montoya de Hernandez, 473 U.S. 531 (U.S. 1985) (detention at border requires some suspicion for nonroutine searches)
- Ramsey, 431 U.S. 606 (U.S. 1977) (border search generally reasonable by entry at border)
- Seljan, 547 F.3d 993 (9th Cir. 2008) (border searches not allowed to be 'anything goes' despite border context)
- Arnold, 533 F.3d 1003 (9th Cir. 2008) (reasonable suspicion not required for border laptop searches (en banc limited))
- Chaudhry, 424 F.3d 1051 (9th Cir. 2005) (border property searches not on a sliding intrusiveness scale)
- Cardona, 769 F.2d 625 (9th Cir. 1985) (extended border search considerations sometimes apply to distant searches)
- Ickes, 393 F.3d 501 (4th Cir. 2005) (no automatic need for reasonable suspicion for laptop border searches)
- Flores-Montano (repeat for emphasis), 541 U.S. 149 (U.S. 2004) (border searches generally per se reasonable; exceptions limited)