United States v. Cotterman

Last updated

United States v. Cotterman
Seal of the United States Court of Appeals, 9th Circuit.svg
Court United States Court of Appeals for the Ninth Circuit
DecidedMarch 8, 2013
Citation(s)Docket No. 09-10139
Case history
Prior action(s)
  • Motion to suppress granted, United States v. Cotterman, 2009 WL 465028, D. Ariz. (2009) [1] [2]
  • Reversed and remanded, United States v. Cotterman, 637 F.3d 1068, 9th Cir. (2011) [3]
  • Order to rehear en banc, United States v. Cotterman, 673 F.3d 1206, 9th Cir. (2012)
Appealed to Supreme Court of the United States
Case opinions
Reasonable suspicion is required to subject a computer seized at the border to forensic examination.
Court membership
Judge(s) sitting Kozinski, C.J, Thomas, McKeown, Wardlaw, Fisher, Gould, Clifton, Callahan, Smith Jr., Murguia, Christen, Cir. Js.
Keywords
Border search exception Fourth Amendment Motion to suppress Reasonable suspicion Search and seizure

United States v. Cotterman, [4] (9th Cir. en banc 2013), is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that property, such as a laptop and other electronic storage devices, presented for inspection when entering the United States at the border may not be subject to forensic examination without a reason for suspicion, a holding that weakened the border search exception of the Fourth Amendment to the United States Constitution.

Contents

Background

On April 6, 2007 at approximately 10 AM, Howard and Maureen Cotterman drove from Mexico to the Lukeville Port of Entry (POE). Upon arrival, the inspector checked the U.S. Customs and Border Protection, or CBP, electronic database and found a computer-generated alert, based upon Howard Cotterman's prior conviction for child sex crimes in 1992. The alert advised the inspector to be on the lookout for child pornography and due to the warning, the Cottermans were sent to a secondary inspection area. [3]

During the vehicle search, two CBP officers discovered two laptops and three digital cameras. The officers were unable to find any contraband, but did discover a number of password protected files. During this time, the ICE case was assigned to Agent Riley, who then drove with her supervisor Agent Brisbane from Sells, Arizona to Lukeville. During the drive, the two agents decided that they would detain the laptops for forensic examination. [3]

After arriving at Lukeville POE at 3 or 3:30 PM, the two agents interviewed Howard and Maureen Cotterman separately. Howard Cotterman offered to help the agents with the computer, but the offer was declined. At 6 PM, the two agents left with both laptops and one digital camera. The devices were taken to Tucson and delivered to John Owens, an ICE Computer Forensic Examiner at 11 PM that night. The camera was returned to the Cottermans as there was no evidence of contraband found. However, on April 8, Agent Owens' forensic examination turned up approximately 75 images of child pornography on Howard Cotterman's computer. Agent Owens called the Cottermans that night, asking Howard Cotterman for assistance opening the password protected files. Howard Cotterman agreed to come in the next day, but only his wife showed up to pick up the other laptop. [3]

It was later discovered that Howard Cotterman boarded a flight to Mexico on April 9, 2007, with a final destination of Sydney, Australia. On April 11, 2007, Agent Owen was able to break the computer security and discovered 378 more images of child pornography. Cotterman was indicted on June 27, 2007 for several charges related to child pornography and unlawful flight to avoid prosecution. He was arrested by Australian law officials and delivered to the U.S. Marshals Service on March 31, 2008. [3]

Cotterman filed a motion to suppress all evidence seized by Customs officials and argued that the search of his laptop 170 miles from the port of entry over a period of four days was a non-routine border search requiring reasonable suspicion." [1] The motion was granted by the District Court in Cotterman's favor. [5] The government appealed, and stated that the border search doctrine justified the initial search and the transport of the computer to Tucson to adequately conduct the search. The Ninth Circuit Court of Appeals overturned the lower court's ruling, in favor of the Government. [3]

Opinion of the Ninth Circuit panel

In the majority opinion, Judge Tallman agreed with the Government that border search doctrine allowed property to be transported to a secondary site for examination. However, he also stated that the Government cannot seize property and hold it for "weeks, months, years on a whim" - effectively allowing the courts to continue to determine whether searches and seizures are reasonable on a case-to-case basis. [3] [6]

Arguments

When appealing the District Court's decision, the government did not argue that there was reasonable suspicion. Instead, the government argued that the border search doctrine supported both the initial search and the transportation of the laptop to Tucson for examination. [7]

Judgment

The majority found that time and distance did not matter in this instance. In the opinion, Judge Tallman stated the need to control entry at the border. If the government was unable to remove property away from the border, they would have to fully staff and equip each border crossing or be content with blindly shutting its eyes, with both positions being unreasonable. [8] Since the defendant's property was never cleared for entry, it was functionally still at the border at the time of the forensic search. In the opinion, Judge Tallman stated:

Time and space are only relevant to this initial inquiry to the extent that they inform us whether an individual would reasonably expect to be stopped and searched at a geographic point beyond the international border.

The majority also found that reasonable suspicion was not needed since they considered the inspection as a routine search. [9] There was no body search nor was property destroyed. Finally, the Court ruled that they did not consider the two-day delay particularly offensive. [6]

Dissent

Judge Fletcher dissented with the majority. She argued that the "sticking point" was not whether the government could transport property from the border to another location for inspection, but whether the government could seize property for inspection for an unknown amount of time with no reason to suspect the property contained contraband. [6] [8] [10] [11]

I would hold that officers must have some level of particularized suspicion in order to conduct a seizure and search like the one at issue here, because (1) seizing one's personal property deprives the individual of his valid possessory interest in his property, and (2) authorizing a generalized computer forensic search (untethered to any particularized suspicion) permits the Government to engage in the type of generalized fishing expeditions that the Fourth Amendment is designed to prevent.

Opinion en banc

Reversing the reasoning of the panel, the Ninth Circuit held that forensic examination of a computer seized at the border requires reasonable suspicion. The court also held that there was reasonable suspicion in this case because there was an alert informing the seizing officer of the possibility of child pornography.

Supreme Court Appeal

A petition for Writ of Certiorari was filed with the United States Supreme Court on August 5, 2013, after several extensions of time. [12] [13]

Did the Ninth Circuit violate the Constitution, create circuit splits, contravene this Court's decisions, and subvert the appellate process by replacing the question presented by the parties with an issue that the prosecution deliberately abandoned, and by making a factual finding (i.e. that reasonable suspicion existed) for the first time on appeal that disregarded the factual findings of the district court and agents at the scene, and then by holding that a citizen's personal belongings may be seized at the border with no suspicion of wrongdoing?

Question Presented, p. i of the cert. petition

On January 13, 2014, the Court denied the petition for Certiorari. In March 2014, the Court denied a Petition for Rehearing filed in February 2014, letting the Ninth Circuit's decision stand, along with the reasonable suspicion standard it created. [13]

Criminal conviction

On September 29, 2014, Cotterman was sentenced by Chief U.S. District Judge Raner C. Collins to serve 35 years in prison for child exploitation offenses. Following a trial in June 2014, Cotterman was found guilty of two counts of production of child pornography, one count of transportation of child pornography, one count of possession of child pornography, and one count of importation of obscene material. Cotterman's term of imprisonment will be followed by lifetime supervised release, with stringent sex offender conditions, including the condition that he register as a sex offender. [14]

On June 27, 2007, Cotterman was indicted by a federal Grand Jury. An investigation revealed that Cotterman sexually abused a young girl multiple times over a two-year period, beginning when she was seven years old. Photographs and videos of the abuse were discovered on Cotterman's laptop after he crossed the international border from Mexico into Arizona. [14]

Cotterman had previously been convicted in 1992 in California of thirty-three offenses, which included two counts of use of a minor in sexual conduct, two counts of lewd and lascivious conduct upon a child, and three counts of annoy/molest a child. [14]

See also

Related Research Articles

Search and seizure Police power to confiscate any relevant evidence found in connection to a crime

Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime.

Canada Border Services Agency Canadian agency in charge of border security

The Canada Border Services Agency is a federal law enforcement agency that is responsible for border control, immigration enforcement, and customs services in Canada.

United States v. Place, 462 U.S. 696 (1983), was a decision by the Supreme Court of the United States which held that a sniff of luggage in a public place, by a police dog specially trained to detect the odor of narcotics, was not a "search" under the meaning of the Fourth Amendment to the United States Constitution. The Court reasoned that the sniff of a dog is sui generis, intended to disclose only the presence or absence of narcotics. Because a dog sniff is such a limited test, the Court carved out this exception from the broad category of "searches" for which a warrant is generally required.

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch'"; it must be based on "specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with the specific individual. If police additionally have reasonable suspicion that a person so detained is armed and dangerous, they may "frisk" the person for weapons, but not for contraband like drugs. However, if the police develop probable cause during a weapons frisk, they may then conduct a full search. Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard, in which said person in the same circumstances could reasonably suspect a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

In the United States, the plain view doctrine is an exception to the Fourth Amendment's warrant requirement that allows an officer to seize evidence and contraband that are found in plain view during a lawful observation. The doctrine is also regularly used by TSA officers while screening persons and property at U.S. airports.

United States v. Grubbs, 547 U.S. 90 (2006), was a case decided by the Supreme Court of the United States involving the constitutionality of "anticipatory" search warrants under the Fourth Amendment to the United States Constitution. The Court ruled that such warrants, which are issued in advance of a "triggering condition" that makes them executable, are constitutional and do not need to describe that condition on their face.

United States v. Montoya De Hernandez, 473 U.S. 531 (1985), was a U.S. Supreme Court case regarding the Fourth Amendment's border search exception and balloon swallowing.

United States v. Arvizu, 534 U.S. 266 (2002), is a case in which the Supreme Court of the United States unanimously reaffirmed the proposition that the Fourth Amendment required courts to analyze the reasonableness of a traffic stop based on the totality of the circumstances instead of examining the plausibility of each reason an officer gives for stopping a motorist individually.

Child erotica is non-pornographic material relating to children that is used by any individuals for sexual purposes. It is a broader term than child pornography, incorporating material that may cause sexual arousal such as nonsexual images, books or magazines on children or pedophilia, toys, diaries, or clothes. Law enforcement investigators have found that child erotica is often collected by pedophiles and child sexual abuse offenders. Child erotica may be collected as a form of compulsive behavior and as a substitute for illegal child pornography and is often a form of evidence for criminal behavior.

Bradley Willman is an anti-pedophile activist from Canada who engaged in private investigations using the Internet to expose pedophiles. At one time, he had unfettered access to between 2,000 and 3,000 computers that had been used to visit websites of interest to pedophiles as the result of his use of a Trojan horse. Willman's actions helped put California Superior Court judge Ronald Kline in prison for more than two years in 2007 for possession of child pornography. However, the legality of Willman's use of the Trojan horse was a basis for appeal by the judge.

United States v. Flores-Montano, 541 U.S. 149 (2004), was a United States Supreme Court case in which the Court held that customs agents may remove the gas tank from a vehicle crossing the international border in an effort to look for contraband.

In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. The doctrine is not regarded as an exception to the Fourth Amendment, but rather to its requirement for a warrant or probable cause. Balanced against the sovereign's interests at the border are the Fourth Amendment rights of entrants. Not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the government and the privacy right of the individual is also struck much more favorably to the government at the border. This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the Fourth Amendment's proscription against "unreasonable searches and seizures".

<i>In re Boucher</i>

In re Boucher, is a federal criminal case in Vermont, which was the first to directly address the question of whether investigators can compel a suspect to reveal their encryption passphrase or password, despite the U.S. Constitution's Fifth Amendment protection against self-incrimination. A magistrate judge held that producing the passphrase would constitute self-incrimination. In its submission on appeal to the District Court, the Government stated that it does not seek the password for the encrypted hard drive, but only sought to force Boucher to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury. A District Court judge agreed with the government, holding that, given Boucher's initial cooperation in showing some of the content of his computer to border agents, producing the complete contents would not constitute self-incrimination.

United States v. Williams, 553 U.S. 285 (2008), was a decision by the Supreme Court of the United States that a federal statute prohibiting the "pandering" of child pornography did not violate the First Amendment to the United States Constitution, even if a person charged under the code did not in fact possess child pornography with which to trade.

United States v. Arnold, 533 F.3d 1003, is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that the Fourth Amendment to the United States Constitution does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports.

United States v. Martinez-Fuerte, 428 U.S. 543 (1976), was a decision of the United States Supreme Court that allowed the United States Border Patrol to set up permanent or fixed checkpoints on public highways leading to or away from the Mexican border and that the checkpoints are not a violation of the Fourth Amendment.

Almeida-Sanchez v. United States, 413 U.S. 266 (1973), was a United States Supreme Court case holding that the warrantless search of an automobile by the United States Border Patrol without a warrant or probable cause violates the Fourth Amendment. The vehicle was stopped and searched for illegal aliens twenty-five miles (40 km) from the Mexican border. The Court approached the search from four views: automobile search, administrative inspection, heavily regulated industry inspection, and border search. As to the validity of the search under the automobile exception, the Court found no justification for the search under the Carroll doctrine because there was no probable cause. As to the validity of the search under various administrative inspection doctrines, the Court found that the officers lacked an area warrant. As to the validity of the heavily regulated industry inspection, the Court found that the doctrine is not applicable to traveling on a state highway. As to the validity of a border search, the Court found that the site of the stop and the entirety of the road on which the stop occurred was too far from the border to be considered a border search.

O'Connor v. Ortega, 480 U.S. 709 (1987), is a United States Supreme Court decision on the Fourth Amendment rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses. It was brought by Magno Ortega, a doctor at a California state hospital after his supervisors found allegedly inculpatory evidence in his office while he was on administrative leave pending an investigation of alleged misconduct. Some of what they uncovered was later used to impeach a witness who testified on his behalf at the hearing where he unsuccessfully appealed his dismissal.

Lisa A. Biron is an attorney from Manchester, New Hampshire, and a convicted child molester and child pornographer. In November 2012, she was indicted on federal charges related to the sexual exploitation of her 14-year-old daughter, including taking her to Canada to have sex with a man there. She was convicted on all charges in a January 2013 trial, and was sentenced that May to 40 years in prison.

<i>House v. Napolitano</i>

House v. Napolitano is a United States District Court for the District of Massachusetts case involving David House, a known supporter of Chelsea Manning and co-founder of the Manning Support Network, who brought action against Janet Napolitano, Secretary of the United States Department of Homeland Security(DHS), Alan Bersin, Commissioner of the U.S. Customs and Border Protection(CBP), and John T. Morton, Director of the U.S. Immigration and Customs Enforcement(ICE) for the search and seizure of his electronic devices by federal agents at the border. Defendants moved to dismiss, and the court denied the motion on First Amendment and Fourth Amendment grounds.​ House subsequently reached a settlement with the government in May 2013, to return or destroy all information obtained from the investigation.​

References

  1. 1 2 United States v. Cotterman(D. Ariz. September 12, 2008).Text
  2. United States v. Cotterman(D. Ariz. February 24, 2009)("Order adopting Magistrate's Recommendation").Text
  3. 1 2 3 4 5 6 7 United States v. Cotterman(9th Cir. March 30, 2011).Text
  4. "United States v. Cotterman (9th Cir. en banc)".
  5. Susan, Brenner (May 22, 2009). "Border Search ... Fails" . Retrieved February 28, 2012.
  6. 1 2 3 Sands, Jon (March 30, 2011). "U.S. vs. Cotterman, No. 09-10139 (3-30-11)(Tallman with Rawlinson; dissent by B. Fletcher)" . Retrieved February 13, 2012.
  7. Kerr, Orin (January 17, 2011). "Update on United States v. Cotterman, Ninth Circuit Case Applying the Border Search Exception to Computers" . Retrieved February 13, 2012.
  8. 1 2 Howard Fischer Capitol Media Services (March 30, 2011). "Court ruling backs search of laptop by Arizona customs officers". Arizona Daily Star. Retrieved February 13, 2012.
  9. Walker, Michael (April 5, 2011). "Ninth Circuit Sustains Lengthy Laptop Search". Vanderbilt Journal of Entertainment and Technology Law. Retrieved February 13, 2012.
  10. Kalar, Steven (April 2, 2011). "Case o' The Week: Betty Balks at Broad "Border" Bromide, 4th Amendment and Border Searches" . Retrieved February 13, 2012.
  11. Carver, Brian W. (April 1, 2011). "The Boundless Border Search Exception". Cyberlaw Cases. Retrieved February 13, 2012.
  12. William J. Kirchner (August 5, 2013). "Petition for Writ of Certiorari" . Retrieved August 8, 2013.
  13. 1 2 "Supreme Court Docket File 13-186: Howard W. Cotterman, Petitioner v. United States, Respondent". August 5, 2013. Retrieved April 29, 2014.
  14. 1 2 3 "Man Sentenced To 35 Years In Prison For Child Pornography Offenses". US Department of Justice. September 30, 2014. Retrieved March 4, 2018.PD-icon.svgThis article incorporates text from this source, which is in the public domain.