United States v. Arnold , 523 F.3d 941 ( 2008 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                      No. 06-50581
    Plaintiff-Appellant,
    v.                                D.C. No.
    CR-05-00772-DDP
    MICHAEL TIMOTHY ARNOLD,
    OPINION
    Defendant-Appellee.
    
    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
    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.
    4173
    UNITED STATES v. ARNOLD                 4175
    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,
    4176                UNITED STATES v. ARNOLD
    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.
    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-
    UNITED STATES v. ARNOLD                4177
    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
    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
    4178               UNITED STATES v. ARNOLD
    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.
    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.
    UNITED STATES v. ARNOLD                      4179
    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
    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
    4180               UNITED STATES v. ARNOLD
    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-
    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
    UNITED STATES v. ARNOLD                  4181
    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),
    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. at 618
    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,
    4182                   UNITED STATES v. ARNOLD
    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-
    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
    1
    We recently issued an opinion on a separate issue of whether reason-
    able suspicion is required to search incoming international correspon-
    dence; 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 deci-
    sion. United States v. Seljan, 
    497 F.3d 1035
    (9th Cir. 2007), withdrawn by
    
    512 F.3d 1203
    (9th Cir. 2008) (ordering rehearing en banc).
    UNITED STATES v. ARNOLD                          4183
    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-
    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
    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)).
    4184               UNITED STATES v. ARNOLD
    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
    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-
    UNITED STATES v. ARNOLD                4185
    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
    “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-
    4186              UNITED STATES v. ARNOLD
    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.
    VI
    For the foregoing reasons, the district court’s decision to
    grant Arnold’s motion to suppress must be
    REVERSED.