Court: Border Patrol within rights with extended search of computer - East Valley Tribune: Arizona

Court: Border Patrol within rights with extended search of computer

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Posted: Wednesday, March 30, 2011 12:32 pm

Customs officials are free to hold on to someone’s computer to search it for forbidden items — and even take it 170 miles away to Tucson — without violating the owner’s constitutional rights, the 9th Circuit Court of Appeals ruled Wednesday.

The attorney for Howard W. Cotterman said there was nothing wrong with federal agents examining his client’s laptop when they entered the country at Lukeville. But William Kirchner said that at some point the warrantless search became unconstitutional.

But Judge Richard Tallman, writing for the appellate court, rejected arguments that the government must demonstrate “reasonable suspicion” of illegal activity to continue a search initiated at the border.

“So long as the 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 entirely of which is justified by the government’s border search power,” the judge wrote.

Anyway, Tallman said, it would place an unreasonable burden on the government to have to maintain the type of specialized equipment and personnel to examine computers at every remote port of entry.

But appellate Judge Betty Fletcher dissented, saying her colleagues are missing the point by focusing on the fact that computer had not yet cleared customs.

“The real issue ... is whether the government has authority to seize an individual’s property in order to conduct an exhaustive search that takes days, weeks or even months, with no reason to suspect that the property contains contraband,” she wrote. Fletcher said this kind of action “permits the government to engage in the type of generalized fishing expedition that the Fourth Amendment is designed to prevent.”

The case involves Howard and Maureen Cotterman, who entered the country at Lukeville in 2007.

Following protocol, customs officials checked the names with a national database. There, they found that Cotterman had been convicted in California in 1992 of seven different counts related to child molestation. Based on that, they sent the couple to a secondary inspection area.

A search of the vehicle revealed two laptops and three digital cameras. While the inspecting officer found no child pornography, he noted that several files were password protected.

The officers said they refused Cotterman’s help fearing he could destroy any files. Instead, they took the laptops to Tucson.

Eventually, a specialist found what he said were 75 images of child pornography on Cotterman’s computer. Cotterman eventually fled to Australia but was extradited back to the United States after being indicted.

U.S. District Court Judge Raner Collins ruled that the images could not be used at trial.

He said agents did not have a “reasonably particularized suspicion” of anything improper to conduct an extended search. And Collins faulted the time involved as well as saying any search could have been performed at the border.

Tallman said looking at the fact the search of the computer was conducted away from the border is “far too rigid and simplistic.”

For example, he said, someone arriving in St. Louis on an international flight would be subject to the same search requirements. And he said courts have upheld searches of packages at a UPS sorting facility in Kentucky.

He said the only time the government has to demonstrate reasonable suspicion is when the initial search occurs away from the border, somewhere where an individual would have some expectation of privacy. And Tallman said this is not a situation where customs officials allowed some item into the country and then later subject to search.

Tallman also said the government was under no obligation to accept Cotterman’s offer of aid to officers at the border in removing password protection. He said sophisticated users can hide files and delete files.

“Furthermore, given his subsequent unlawful flight to avoid prosecution, we have substantial reason to doubt the efficacy of the aid he intended to render,” Tallman wrote.

The ruling, unless overturned, sends the case back to Collins for trial.

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