United States v. Howard Cotterman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 09-10139 Plaintiff-Appellant, D.C. No. v. 4:07-cr-01207-

RCC-CRP-

HOWARD WESLEY COTTERMAN ,

Defendant-Appellee. OPINION

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Argued and Submitted En Banc June 19, 2012—Pasadena, California

Filed March 8, 2013

Before: Alex Kozinski, Chief Judge, Sidney R. Thomas, M. Margaret McKeown, Kim McLane Wardlaw, Raymond C. Fisher, Ronald M. Gould, Richard R. Clifton, Consuelo M. Callahan, Milan D. Smith, Jr., Mary H. Murguia, and Morgan Christen, Circuit Judges.

Opinion by Judge McKeown; Partial Concurrence and Partial Dissent by Judge Callahan; Dissent by Judge Milan D. Smith, Jr.

1 Judge Betty B. Fletcher was a member of the en banc panel but passed away after argument of the case. Judge W ardlaw was drawn as her replacement. UNITED STATES V . COTTERMAN

SUMMARY*

Criminal Law

The en banc court reversed the district court’s order suppressing evidence of child pornography obtained…

Opinion by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge CALLAHAN; Dissent by Judge MILAN D. SMITH, JR.

OPINION

Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW). As denizens of a digital world, they carry with them laptop computers, iPhones, iPads, iPods, Kindles, Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and sensitive information ranging from personal, financial, and medical data to corporate trade secrets. And, in the case of Howard Cotterman, child pornography.

Agents seized Cotterman’s laptop at the U.S.-Mexico border in response to an alert based in part on a fifteen-year-old conviction for child molestation. The initial search at the border turned up no incriminating material. Only after Cotterman’s laptop was shipped almost 170 miles away and subjected to a comprehensive forensic examination were images of child pornography discovered.

This watershed case implicates both the scope of the narrow border…

concurring in part, dissenting in part, and concurring in the judgment, with whom CLIFTON, Circuit Judge, joins, and with whom M. SMITH, Circuit Judge, joins as to all but Part II.A:

Whether it is drugs, bombs, or child pornography, we charge our government with finding and excluding any and all illegal and unwanted articles and people before they cross our international borders. Accomplishing that Herculean task requires that the government be mostly free from the Fourth Amendment’s usual restraints on searches of people and their property. Today the majority ignores that reality by erecting a new rule requiring reasonable suspicion for any thorough search of electronic devices entering the United States. This rule flouts more than a century of Supreme Court precedent, is unworkable and unnecessary, and will severely hamstring the government’s ability to protect our borders.

I therefore dissent from Part III of the majority’s opinion. I concur in Parts I, II, and IV, and in particular the majority’s conclusion in Part IV that the government had reasonable suspicion to conduct the forensic examination of Howard Cotter-man’s electronic devices. I therefore also concur in the…

dissenting, with whom CLIFTON and CALLAHAN, Circuit Judges, join with respect to Part I:

I respectfully dissent. Until today, federal courts have consistently upheld suspi-cionless searches of electronic storage devices at the border. See United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir.2008), cert. denied, 555 U.S. 1176 , 129 S.Ct. 1312 , 173 L.Ed.2d 595 (2009) (“[Reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”); see also United States v. Ickes, 393 F.3d 501, 507 (4th Cir.2005) (no finding of reasonable suspicion required to search personal computers and disks at border); United States v. Linarez-Delgado, 259 Fed.Appx. 506, 508 (3d Cir.2007); United States v. McAuley, 563 F.Supp.2d 672, 677-78 (W.D.Tex.2008); United States v. Bunty, 617 F.Supp.2d 359, 365 (E.D.Pa.2008). Yet the majority ignores these cases, rewrites long standing Fourth Amendment jurisprudence, and, in narrowing Arnold , creates a circuit split.

While I share some of the majority’s concerns about the steady erosion of our personal privacy in this digital age, the majority’s decision to create a reasonable suspicion…