On September 9, 2011, Brennan Center Counsel Michael Price served as counsel for amici on a brief in United States v. Cotterman arguing that the suspicionless seizure and forensic search of a defendant’s laptop at the border violated the Fourth Amendment.
On March 8, 2013, the Ninth Circuit ruled en banc that there is a “reasonable suspicion” requirement for border agents to search personal property, such as laptops and other electronic devices.
Howard Cotterman had his laptop seized and sent for forensic examination at the border crossing into the United States from Mexico. His name had triggered a Treasury Enforcement Communication System alert based on his prior conviction for child molestation, his frequent travels, and crossing from a country known for sex tourism. The forensic examination found child pornography on the laptop. The defense moved to suppress this evidence as the product of an unreasonable search and seizure.
The government argued that no suspicion was required for a search at the border, and, separately, the agents had reasonable suspicion for the search. The original Ninth Circuit panel decision found that no suspicion was required to seize at the border and detain a computer indefinitely for forensic search.
However, in an en banc review, the Ninth Circuit found that a forensic search of an electronic device was much more intrusive than a traditional border search, so a reasonable suspicion standard must be met. In this case the court found that there was reasonable suspicion for the search and denied the move to suppress.
Brennan Center Counsel Michael Price filed an amicus brief on behalf of the National Association for Criminal Defense Lawyers and the Electronic Frontier Foundation in the case arguing that a suspicionless, indefinite seizure and search at the border violates the Fourth Amendment and requesting an en banc review.
First, the brief argues that the original panel decision was unprecedented and raised special constitutional concerns. The opinion held that a detention must be related in scope to the reason that prompted it—but required no justification at the border, meaning that property could be held indefinitely for a general search for evidence of any crime. While Supreme Court precedent supports suspicionless search at the border, seizure has always required reasonable suspicion.
Second, the brief argues that seizing a laptop, without suspicion, for a computer forensic search is not a legally permissible detention. Seizure of a laptop interferes with both an important possessory interest, as many people use their computers for crucial everyday tasks, and a liberty interest, as traveler is unlikely to be willing to leave their possessions to continue their trip. With no suspicion requirement, it is impossible to determine the limit of a reasonable detention. Even at the border, indefinite seizure with no suspicion exceeds the scope of permissible investigative detention.
Finally, the brief argues that a general forensic computer search without suspicion is abhorrent to the Fourth Amendment and therefore always is conducted in a “particularly offensive manner”—the standard set by the Supreme Court for when a boarder search is impermissible. The Fourth Amendment was created in part in reaction to unlimited searches looking for evidence of any crime, and the Supreme Court has consistently found such searches to be unconstitutional. A computer contains vast quantities of information, much of it highly private, and custom’s officials are responsible for enforcing hundreds of laws. They cannot be permitted to seize anyone’s computer and search it for any criminal violation, simply because that person crosses a border. Without limits on the search based on reasonable suspicion of a particular crime, such a search is an unconstitutional fishing expedition.