United States v. Arnold ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-50581
Plaintiff-Appellant, D.C. No.
v.
 CR-05-00772-DDP
MICHAEL TIMOTHY ARNOLD, ORDER AND
Defendant-Appellee. AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
October 18, 2007—Pasadena, California
Filed April 21, 2008
Amended July 10, 2008
Before: Diarmuid F. O’Scannlain and Milan D. Smith, Jr.,
Circuit Judges, and Michael W. Mosman,* District Judge.
Opinion by Judge O’Scannlain
*The Honorable Michael W. Mosman, United States District Judge for
the District of Oregon, sitting by designation.
8361
8364 UNITED STATES v. ARNOLD
COUNSEL
Steve Kim, Assistant United States Attorney, Criminal
Appeals Section, Los Angeles, California, argued the cause
for the plaintiff-appellant and filed briefs; George S. Cardona,
United States Attorney, and Thomas P. O’Brien, Assistant
United States Attorney, Chief, Criminal Division, Los Ange-
les, California, were on the briefs.
Marilyn E. Bednarski, Kaye, McLane, & Bednarski, LLP,
Pasadena, California, argued the cause for the defendant-
appellee and filed a brief; Kevin Lahue, Kaye, McLane, &
Bednarski, LLP, Pasadena, California, was on the brief.
ORDER
The opinion filed April 21, 2008, is amended as follows:
1. At 523 F.3d 941, 946 n.1 (9th Cir. 2008), in the first
sentence replace “incoming” with “outgoing.”
With the foregoing amendment, the panel has unanimously
voted to deny the petition for rehearing. Judge O’Scannlain
and Judge M. Smith, Jr., vote to deny the petition for rehear-
ing en banc and Judge Mosman so recommends. The full
court has been advised of the petition for rehearing en banc
and no active judge has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en
banc are DENIED. Further petitions for rehearing or rehear-
ing en banc may not be filed.
UNITED STATES v. ARNOLD 8365
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether customs officers at Los Angeles
International Airport may examine the electronic contents of
a passenger’s laptop computer without reasonable suspicion.
I
On July 17, 2005, forty-three-year-old Michael Arnold
arrived at Los Angeles International Airport (“LAX”) after a
nearly twenty-hour flight from the Philippines. After retriev-
ing his luggage from the baggage claim, Arnold proceeded to
customs. U.S. Customs and Border Patrol (“CBP”) Officer
Laura Peng first saw Arnold while he was in line waiting to
go through the checkpoint and selected him for secondary
questioning. She asked Arnold where he had traveled, the pur-
pose of his travel, and the length of his trip. Arnold stated that
he had been on vacation for three weeks visiting friends in the
Philippines.
Peng then inspected Arnold’s luggage, which contained his
laptop computer, a separate hard drive, a computer memory
stick (also called a flash drive or USB drive), and six compact
discs. Peng instructed Arnold to turn on the computer so she
could see if it was functioning. While the computer was boot-
ing up, Peng turned it over to her colleague, CBP Officer John
Roberts, and continued to inspect Arnold’s luggage.
When the computer had booted up, its desktop displayed
numerous icons and folders. Two folders were entitled
“Kodak Pictures” and one was entitled “Kodak Memories.”
Peng and Roberts clicked on the Kodak folders, opened the
files, and viewed the photos on Arnold’s computer including
one that depicted two nude women. Roberts called in supervi-
sors, who in turn called in special agents with the United
States Department of Homeland Security, Immigration and
8366 UNITED STATES v. ARNOLD
Customs Enforcement (“ICE”). The ICE agents questioned
Arnold about the contents of his computer and detained him
for several hours. They examined the computer equipment
and found numerous images depicting what they believed to
be child pornography. The officers seized the computer and
storage devices but released Arnold. Two weeks later, federal
agents obtained a warrant.
A grand jury charged Arnold with: (1) “knowingly trans-
port[ing] child pornography, as defined in [18 U.S.C.
§ 2256(8)(A)], in interstate and foreign commerce, by any
means, including by computer, knowing that the images were
child pornography”; (2) “knowingly possess[ing] a computer
hard drive and compact discs which both contained more than
one image of child pornography, as defined in [18 U.S.C.
§ 2256(8)(A)], that had been shipped and transported in inter-
state and foreign commerce by any means, including by com-
puter, knowing that the images were child pornography”; and
(3) “knowingly and intentionally travel[ing] in foreign com-
merce and attempt[ing] to engage in illicit sexual conduct, as
defined in [18 U.S.C. § 2423(f)], in a foreign place, namely,
the Philippines, with a person under 18 years of age, in viola-
tion of [18 U.S.C. § 2423(c)].”
Arnold filed a motion to suppress arguing that the govern-
ment conducted the search without reasonable suspicion. The
government countered that: (1) reasonable suspicion was not
required under the Fourth Amendment because of the border-
search doctrine; and (2) if reasonable suspicion were neces-
sary, that it was present in this case.
The district court granted Arnold’s motion to suppress find-
ing that: (1) reasonable suspicion was indeed necessary to
search the laptop; and (2) the government had failed to meet
the burden of showing that the CBP officers had reasonable
suspicion to search.
The government timely appealed the district court’s order
granting the motion to suppress.
UNITED STATES v. ARNOLD 8367
II
Arnold argues that the district court was correct in conclud-
ing that reasonable suspicion was required to search his laptop
at the border because it is distinguishable from other contain-
ers of documents based on its ability to store greater amounts
of information and its unique role in modern life.
Arnold argues that “laptop computers are fundamentally
different from traditional closed containers,” and analogizes
them to “homes” and the “human mind.” Arnold’s analogy of
a laptop to a home is based on his conclusion that a laptop’s
capacity allows for the storage of personal documents in an
amount equivalent to that stored in one’s home. He argues
that a laptop is like the “human mind” because of its ability
to record ideas, e-mail, internet chats and web-surfing habits.
Lastly, Arnold argues that application of First Amendment
principles requires us to rule contrary to the Fourth Circuit in
United States v. Ickes, 393 F.3d 501, 506-08 (4th Cir. 2005)
(rejecting the argument based on the First Amendment that a
higher level of suspicion is needed for searches of “expressive
material”), and to promulgate a reasonable suspicion require-
ment for border searches where the risk is high that expressive
material will be exposed.
III
A
[1] The Fourth Amendment states that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated . . . .” U.S. Const. amend. IV. Searches of interna-
tional passengers at American airports are considered border
searches because they occur at the “functional equivalent of
a border.” Almeida-Sanchez v. United States, 413 U.S. 266,
273 (1973) (“For . . . example, a search of the passengers and
8368 UNITED STATES v. ARNOLD
cargo of an airplane arriving at a St. Louis airport after a non-
stop flight from Mexico City would clearly be the functional
equivalent of a border search.”). “It is axiomatic that the
United States, as sovereign, has the inherent authority to pro-
tect, and a paramount interest in protecting, its territorial
integrity.” United States v. Flores-Montano, 541 U.S. 149,
153 (2004). Generally, “searches made at the border . . . are
reasonable simply by virtue of the fact that they occur at the
border . . . .” United States v. Ramsey, 431 U.S. 606, 616
(1977).
[2] The Supreme Court has stated that:
The authority of the United States to search the bag-
gage of arriving international travelers is based on its
inherent sovereign authority to protect its territorial
integrity. By reason of that authority, it is entitled to
require that whoever seeks entry must establish the
right to enter and to bring into the country whatever
he may carry.
Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979). In other
words, the “Government’s interest in preventing the entry of
unwanted persons and effects is at its zenith at the interna-
tional border.” Flores-Montano, 541 U.S. at 152. Therefore,
“[t]he luggage carried by a traveler entering the country may
be searched at random by a customs officer . . . no matter how
great the traveler’s desire to conceal the contents may be.”
United States v. Ross, 456 U.S. 798, 823 (1982). Furthermore,
“a traveler who carries a toothbrush and a few articles of
clothing in a paper bag or knotted scarf [may] claim an equal
right to conceal his possessions from official inspection as the
sophisticated executive with the locked attaché case.” Id. at
822.
B
[3] Courts have long held that searches of closed containers
and their contents can be conducted at the border without par-
UNITED STATES v. ARNOLD 8369
ticularized suspicion under the Fourth Amendment. Searches
of the following specific items have been upheld without par-
ticularized suspicion: (1) the contents of a traveler’s briefcase
and luggage, United States v. Tsai, 282 F.3d 690, 696 (9th
Cir. 2002); (2) a traveler’s “purse, wallet, or pockets,” Hen-
derson v. United States, 390 F.2d 805, 808 (9th Cir. 1967); (3)
papers found in containers such as pockets, see United States
v. Grayson, 597 F.2d 1225, 1228-29 (9th Cir. 1979) (allowing
search without particularized suspicion of papers found in a
shirt pocket); and (4) pictures, films and other graphic materi-
als. See United States v. Thirty-Seven Photographs, 402 U.S.
363, 376 (1971); see also 12,200-Ft. Reels of Super 8MM.
Film, 413 U.S. 123, 124-25 (1973) (“Import restrictions and
searches of persons or packages at the national borders rest on
different considerations and different rules of constitutional
law from domestic regulations.”).
Nevertheless, the Supreme Court has drawn some limits on
the border search power. Specifically, the Supreme Court has
held that reasonable suspicion is required to search a travel-
er’s “alimentary canal,” United States v. Montoya de Her-
nandez, 473 U.S. 531, 541 (1985), because “ ‘[t]he interests
in human dignity and privacy which the Fourth Amendment
protects forbid any such intrusion [beyond the body’s surface]
on the mere chance that desired evidence might be
obtained.’ ” Id. at 540 n.3 (quoting Schmerber v. California,
384 U.S. 757, 769 (1966)). However, it has expressly declined
to decide “what level of suspicion, if any, is required for non-
routine border searches such as strip, body cavity, or involun-
tary x-ray searches.” Id. at 541 n.4 (emphasis added).
Furthermore, the Supreme Court has rejected creating a bal-
ancing test based on a “routine” and “nonroutine” search
framework, and has treated the terms as purely descriptive.
See United States v. Cortez-Rocha, 394 F.3d 1115, 1122 (9th
Cir. 2005).
[4] Other than when “intrusive searches of the person” are
at issue, Flores-Montano, 541 U.S. at 152 (emphasis added),
8370 UNITED STATES v. ARNOLD
the Supreme Court has held open the possibility, “that some
searches of property are so destructive as to require” particu-
larized suspicion. Id. at 155-56 (emphasis added) (holding
that complete disassembly and reassembly of a car gas tank
did not require particularized suspicion). Indeed, the Supreme
Court has left open the question of “ ‘whether, and under what
circumstances, a border search might be deemed ‘unreason-
able’ because of the particularly offensive manner in which it
is carried out.’ ” Id. at 155 n.2 (quoting Ramsey, 431 U.S. at618 n.13).
C
In any event, the district court’s holding that particularized
suspicion is required to search a laptop, based on cases
involving the search of the person, was erroneous. Its reliance
on such cases as United States v. Vance, 62 F.3d 1152, 1156
(9th Cir. 1995) (holding that “[a]s the search becomes more
intrusive, more suspicion is needed” in the context of a search
of the human body), to support its use of a sliding intrusive-
ness scale to determine when reasonable suspicion is needed
to search property at the border is misplaced. United States v.
Arnold, 454 F. Supp. 2d 999, 1002-04 (C.D. Cal. 2006).
[5] The Supreme Court has stated that “[c]omplex balanc-
ing tests to determine what is a ‘routine’ search of a vehicle,
as opposed to a more ‘intrusive’ search of a person, have no
place in border searches of vehicles.” Flores-Montano, 541
U.S. at 152. Arnold argues that the district court was correct
to apply an intrusiveness analysis to a laptop search despite
the Supreme Court’s holding in Flores-Montano, by distin-
guishing between one’s privacy interest in a vehicle compared
to a laptop. However, this attempt to distinguish Flores-
Montano is off the mark. The Supreme Court’s analysis deter-
mining what protection to give a vehicle was not based on the
unique characteristics of vehicles with respect to other prop-
erty, but was based on the fact that a vehicle, as a piece of
property, simply does not implicate the same “dignity and pri-
UNITED STATES v. ARNOLD 8371
vacy” concerns as “highly intrusive searches of the person.”
Flores-Montano, 541 U.S. at 152.
[6] Furthermore, we have expressly repudiated this type of
“least restrictive means test” in the border search context. See
Cortez-Rocha, 394 F.3d at 1123 (refusing to fashion a “least
restrictive means test for border control vehicular searches,
and . . . refus[ing] to tie the hands of border control inspectors
in such a fashion”). Moreover, in both United States v.
Chaudhry, 424 F.3d 1051, 1054 (9th Cir. 2005) (finding the
distinction between “routine” and “non-routine” inapplicable
to searches of property) and Cortez-Rocha, 394 F.3d at 1122-
23, we have recognized that Flores-Montano rejected our
prior approach of using an intrusiveness analysis to determine
the reasonableness of property searches at the international
border.
[7] Therefore, we are satisfied that reasonable suspicion is
not needed for customs officials to search a laptop or other
personal electronic storage devices at the border.1
IV
While the Supreme Court left open the possibility of requir-
ing reasonable suspicion for certain border searches of prop-
erty in Flores-Montano, 541 U.S. at 155-56, the district court
did not base its holding on the two narrow grounds left open
by the Supreme Court in that case.
Arnold has never claimed that the government’s search of
his laptop damaged it in any way; therefore, we need not con-
1
We recently issued an opinion on a separate issue of whether reason-
able suspicion is required to search outgoing international correspondence;
however, this opinion has since been withdrawn and the case has been
reheard by an en banc panel of this court that has yet to issue a decision.
United States v. Seljan, 497 F.3d 1035 (9th Cir. 2007), withdrawn by 512
F.3d 1203 (9th Cir. 2008) (ordering rehearing en banc).
8372 UNITED STATES v. ARNOLD
sider whether “exceptional damage to property” applies.
Arnold does raise the “particularly offensive manner” excep-
tion to the government’s broad border search powers.2 But,
there is nothing in the record to indicate that the manner in
which the CBP officers conducted the search was “particu-
larly offensive” in comparison with other lawful border
searches. According to Arnold, the CBP officers simply “had
me boot [the laptop] up, and looked at what I had inside . . . .”
[8] Whatever “particularly offensive manner” might mean,
this search certainly does not meet that test. Arnold has failed
to distinguish how the search of his laptop and its electronic
contents is logically any different from the suspicionless bor-
der searches of travelers’ luggage that the Supreme Court and
we have allowed. See Ross, 456 U.S. at 823; see also Vance,
62 F.3d at 1156 (“In a border search, a person is subject to
search of luggage, contents of pockets and purse without any
suspicion at all.”).
[9] With respect to these searches, the Supreme Court has
refused to draw distinctions between containers of informa-
tion and contraband with respect to their quality or nature for
purposes of determining the appropriate level of Fourth
Amendment protection. Arnold’s analogy to a search of a
home based on a laptop’s storage capacity is without merit.
The Supreme Court has expressly rejected applying the
2
Notwithstanding the government’s objection, we can decide this issue
because the “particularly offensive manner” exception can be found in
Flores-Montano, which was presented to the district court by the parties,
and “the matter [of what the Fourth Amendment requires] was fairly
before the [district court]” and, in any event, it is a question of law. See
Nelson v. Adams USA, Inc., 529 U.S. 460, 469-70 (2000); see also Bal-
laris v. Wacker Siltronic Corp., 370 F.3d 901, 908 (9th Cir. 2004) (“Once
a federal claim is properly presented, a party can make any argument in
support of that claim; parties are not limited to the precise argument they
made below. . . . Where . . . the question presented is one of law, we con-
sider it in light of all relevant authority, regardless of whether such author-
ity was properly presented in the district court.” (citations and quotation
marks omitted)).
UNITED STATES v. ARNOLD 8373
Fourth Amendment protections afforded to homes to property
which is “capable of functioning as a home” simply due to its
size, or, distinguishing between “ ‘worthy and ‘unworthy’
containers.” California v. Carney, 471 U.S. 386, 393-94
(1985).
In Carney, the Supreme Court rejected the argument that
evidence obtained from a warrantless search of a mobile
home should be suppressed because it was “capable of func-
tioning as a home.” Id. at 387-88, 393-94. The Supreme Court
refused to treat a mobile home differently from other vehicles
just because it could be used as a home. Id. at 394-95. The
two main reasons that the Court gave in support of its holding,
were: (1) that a mobile home is “readily movable,” and (2)
that “the expectation [of privacy] with respect to one’s auto-
mobile is significantly less than that relating to one’s home or
office.” Id. at 391 (quotation marks omitted).
[10] Here, beyond the simple fact that one cannot live in a
laptop, Carney militates against the proposition that a laptop
is a home. First, as Arnold himself admits, a laptop goes with
the person, and, therefore is “readily mobile.” Carney, 471
U.S. at 391. Second, one’s “expectation of privacy [at the bor-
der] . . . is significantly less than that relating to one’s home
or office.” Id.Moreover, case law does not support a finding that a search
which occurs in an otherwise ordinary manner, is “particu-
larly offensive” simply due to the storage capacity of the
object being searched. See California v. Acevedo, 500 U.S.
565, 576 (1991) (refusing to find that “looking inside a closed
container” when already properly searching a car was unrea-
sonable when the Court had previously found “destroying the
interior of an automobile” to be reasonable in Carroll v.
United States, 267 U.S. 132 (1925)).
[11] Because there is no basis in the record to support the
contention that the manner in which the search occurred was
8374 UNITED STATES v. ARNOLD
“particularly offensive” in light of other searches allowed by
the Supreme Court and our precedents, the district court’s
judgment cannot be sustained.
V
Finally, despite Arnold’s arguments to the contrary we are
unpersuaded that we should create a split with the Fourth Cir-
cuit’s decision in Ickes. In that case, the defendant was
stopped by Customs agents as he attempted to drive his van
from Canada into the United States. 393 F.3d at 502. Upon a
“cursory search” of defendant’s van, the inspecting agent dis-
covered a video camera containing a tape of a tennis match
which “focused excessively on a young ball boy.” Id. This
prompted a more thorough examination of the vehicle, which
uncovered several photograph albums depicting
provocatively-posed prepubescent boys, most nude or semi-
nude. Id. at 503.
The Fourth Circuit held that the warrantless search of
defendant’s van was permissible under the border search doc-
trine. The court refused to carve out a First Amendment
exception to that doctrine because such a rule would: (1) pro-
tect terrorist communications “which are inherently ‘expres-
sive’ ”; (2) create an unworkable standard for government
agents who “would have to decide—on their feet—which
expressive material is covered by the First Amendment”; and
(3) contravene the weight of Supreme Court precedent refus-
ing to subject government action to greater scrutiny with
respect to the Fourth Amendment when an alleged First
Amendment interest is also at stake. See id. at 506-08 (citing
New York v. P.J. Video, 475 U.S. 868, 874 (1986) (refusing
to require a higher standard of probable cause for warrant
applications when expressive material is involved)).
We are persuaded by the analysis of our sister circuit and
will follow the reasoning of Ickes in this case.
UNITED STATES v. ARNOLD 8375
VI
For the foregoing reasons, the district court’s decision to
grant Arnold’s motion to suppress must be
REVERSED.