United States v. Howard Cotterman , 709 F.3d 952 ( 2013 )

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-1
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.1
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.
2 UNITED STATES V . COTTERMAN
SUMMARY*
Criminal Law
The en banc court reversed the district court’s order
suppressing evidence of child pornography obtained from a
forensic examination of the defendant’s laptop, which was
seized by agents at the U.S.-Mexico border in response to an
alert based in part on a prior conviction for child molestation.
The en banc court explained that a border search of a
computer is not transformed into an “extended border search”
requiring particularized suspicion simply because the device
is transported and examined beyond the border. The en banc
court wrote that the fact that the forensic examination
occurred 170 miles away from the border did not heighten the
interference with the defendant’s privacy, and the extended
border search doctrine does not apply, in this case in which
the defendant’s computer never cleared customs and the
defendant never regained possession.
The en banc court held that the forensic examination of
the defendant’s computer required a showing of reasonable
suspicion, a modest requirement in light of the Fourth
Amendment. The en banc court wrote that it is the
comprehensive and intrusive nature of forensic examination
– not the location of the examination – that is the key factor
triggering the requirement of reasonable suspicion here. The
en banc court wrote that the uniquely sensitive nature of data
on electronic devices, which often retain information far
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . COTTERMAN 3
beyond the perceived point of erasure, carries with it a
significant expectation of privacy and thus renders an
exhaustive exploratory search more intrusive than with other
forms of property.
The en banc court held that the border agents had
reasonable suspicion to conduct an initial search at the border
(which turned up no incriminating material) and the forensic
examination. The en banc court wrote that the defendant’s
Treasury Enforcement Communication System alert, prior
child-related conviction, frequent travels, crossing from a
country known for sex tourism, and collection of electronic
equipment, plus the parameters of the Operation Angel Watch
program aimed at combating child sex tourism, taken
collectively, gave rise to reasonable suspicion of criminal
activity.
The en banc court wrote that password protection of files,
which is ubiquitous among many law-abiding citizens, will
not in isolation give rise to reasonable suspicion, but that
password protection may be considered in the totality of the
circumstances where, as here, there are other indicia of
criminal activity. The en banc court wrote that the existence
of password-protected files is also relevant to assessing the
reasonableness of the scope and duration of the search of the
defendant’s computer.
The en banc court concluded that the examination of the
defendant’s electronic devices was supported by reasonable
suspicion and that the scope and manner of the search were
reasonable under the Fourth Amendment.
Concurring in part, dissenting in part, and concurring in
the judgment, Judge Callahan (with whom Judge Clifton
4 UNITED STATES V . COTTERMAN
joined and with whom Judge M. Smith joined as to all but
Part II.A) wrote that the majority’s new rule requiring
reasonable suspicion for any thorough search of electronic
devices entering the United States 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.
Judge M. Smith (with whom Judges Clifton and Callahan
joined with respect to Part I) dissented. Judge Smith wrote
that the majority’s decision to create a reasonable suspicion
requirement for some property searches at the border so
muddies current border search doctrine that border agents will
be left to divine on an ad hoc basis whether a property search
is sufficiently “comprehensive and intrusive” to require
suspicion, or sufficiently “unintrusive” to come within the
traditional border search exception. Judge Smith also wrote
that the majority’s determination that reasonable suspicion
exists under the exceedingly weak facts of this case
undermines the liberties of U.S. citizens generally – not just
at the border, and not just with regard to our digital data – but
on every street corner, in every vehicle, and wherever else we
rely on the doctrine of reasonable suspicion to safeguard our
legitimate privacy interests.
UNITED STATES V . COTTERMAN 5
COUNSEL
Dennis K. Burke, Christina M. Cabanillas, Carmen F. Corbin,
John S. Leonardo, John J. Tuchi, United States Attorney’s
Office for the District of Arizona, Tucson, Arizona, for
Appellant.
William J. Kirchner, Law Office of Nash & Kirchner, P.C.,
Tucson, Arizona, for Appellee.
David M. Porter, Malia N. Brink, National Association of
Criminal Defense Lawyers, Washington, D.C.; Michael Price,
Brennan Center for Justice, New York, New York; Hanni M.
Fakhoury, Electronic Frontier Foundation, San Francisco,
California, for Amicus Curiae National Association of
Criminal Defense Lawyers and Electronic Frontier
Foundation.
Christopher T. Handman, Mary Helen Wimberly, Hogan
Lovells US LLP, Washington, D.C.; Sharon Bradford
Franklin, The Constitution Project, Washington, D.C., for
Amicus Curiae The Constitution Project.
OPINION
McKEOWN, Circuit Judge:
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,
6 UNITED STATES V . COTTERMAN
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 search exception to the Fourth Amendment’s
warrant requirement and privacy rights in commonly used
electronic devices. The question we confront “is what limits
there are upon this power of technology to shrink the realm
of guaranteed privacy.” Kyllo v. United States, 533 U.S. 27,
34 (2001). More specifically, we consider the reasonableness
of a computer search that began as a cursory review at the
border but transformed into a forensic examination of
Cotterman’s hard drive.
Computer forensic examination is a powerful tool capable
of unlocking password-protected files, restoring deleted
material, and retrieving images viewed on web sites. But
while technology may have changed the expectation of
privacy to some degree, it has not eviscerated it, and certainly
not with respect to the gigabytes of data regularly maintained
as private and confidential on digital devices. Our Founders
were indeed prescient in specifically incorporating “papers”
within the Fourth Amendment’s guarantee of “[t]he right of
UNITED STATES V . COTTERMAN 7
the people to be secure in their persons, houses, papers, and
effects.” U.S. Const. amend. IV. The papers we create and
maintain not only in physical but also in digital form reflect
our most private thoughts and activities.
Although courts have long recognized that border
searches constitute a “historically recognized exception to the
Fourth Amendment’s general principle that a warrant be
obtained,” United States v. Ramsey, 431 U.S. 606, 621
(1977), reasonableness remains the touchstone for a
warrantless search. Even at the border, we have rejected an
“anything goes” approach. See United States v. Seljan,
547 F.3d 993, 1000 (9th Cir. 2008) (en banc).
Mindful of the heavy burden on law enforcement to
protect our borders juxtaposed with individual privacy
interests in data on portable digital devices, we conclude that,
under the circumstances here, reasonable suspicion was
required for the forensic examination of Cotterman’s laptop.
Because border agents had such a reasonable suspicion, we
reverse the district court’s order granting Cotterman’s motion
to suppress the evidence of child pornography obtained from
his laptop.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 2
Howard Cotterman and his wife were driving home to the
United States from a vacation in Mexico on Friday morning,
April 6, 2007, when they reached the Lukeville, Arizona, Port
of Entry. During primary inspection by a border agent, the
2
The facts related here are drawn from the record of the evidentiary
hearing held before the magistrate judge.
8 UNITED STATES V . COTTERMAN
Treasury Enforcement Communication System (“TECS”)3
returned a hit for Cotterman. The TECS hit indicated that
Cotterman was a sex offender—he had a 1992 conviction for
two counts of use of a minor in sexual conduct, two counts of
lewd and lascivious conduct upon a child, and three counts of
child molestation—and that he was potentially involved in
child sex tourism. Because of the hit, Cotterman and his wife
were referred to secondary inspection, where they were
instructed to exit their vehicle and leave all their belongings
in the car. The border agents called the contact person listed
in the TECS entry and, following that conversation, believed
the hit to reflect Cotterman’s involvement “in some type of
child pornography.” The agents searched the vehicle and
retrieved two laptop computers and three digital cameras.
Officer Antonio Alvarado inspected the electronic devices
and found what appeared to be family and other personal
photos, along with several password-protected files.
Border agents contacted Group Supervisor Craig Brisbine
at the Immigration and Customs Enforcement (“ICE”) office
in Sells, Arizona, and informed him about Cotterman’s entry
and the fact that he was a sex offender potentially involved in
child sex tourism. The Sells Duty Agent, Mina Riley, also
spoke with Officer Alvarado and then contacted the ICE
Pacific Field Intelligence Unit, the office listed on the TECS
hit, to get more information. That unit informed Riley that
the alert was part of Operation Angel Watch, which was
aimed at combating child sex tourism by identifying
registered sex offenders in California, particularly those who
travel frequently outside the United States. She was advised
3
The TECS is an investigative tool of the Department of Homeland
Security that keeps track of individuals entering and exiting the country
and of individuals involved in or suspected to be involved in crimes.
UNITED STATES V . COTTERMAN 9
to review any media equipment, such as computers, cameras,
or other electronic devices, for potential evidence of child
pornography. Riley then spoke again to Alvarado, who told
her that he had been able to review some of the photographs
on the Cottermans’ computers but had encountered password-
protected files that he was unable to access.
Agents Brisbine and Riley departed Sells for Lukeville at
about 1:30 p.m. and decided en route to detain the
Cottermans’ laptops for forensic examination. Upon their
arrival, they gave Cotterman and his wife Miranda warnings
and interviewed them separately. The interviews revealed
nothing incriminating. During the interview, Cotterman
offered to help the agents access his computer. The agents
declined the offer out of concern that Cotterman might be
able to delete files surreptitiously or that the laptop might be
“booby trapped.”
The agents allowed the Cottermans to leave the border
crossing around 6 p.m., but retained the Cottermans’ laptops
and a digital camera.4 Agent Brisbine drove almost 170 miles
from Lukeville to the ICE office in Tucson, Arizona, where
he delivered both laptops and one of the three digital cameras
to ICE Senior Special Agent & Computer Forensic Examiner
John Owen. Agent Owen began his examination on Saturday,
the following day. He used a forensic program to copy the
hard drives of the electronic devices. He determined that the
digital camera did not contain any contraband and released
the camera that day to the Cottermans, who had traveled to
Tucson from Lukeville and planned to stay there a few days.
Agent Owen then used forensic software that often must run
for several hours to examine copies of the laptop hard drives.
4
The other two cameras were returned to the Cottermans.
10 UNITED STATES V . COTTERMAN
He began his personal examination of the laptops on Sunday.
That evening, Agent Owen found seventy-five images of
child pornography within the unallocated space of
Cotterman’s laptop.5
Agent Owen contacted the Cottermans on Sunday evening
and told them he would need Howard Cotterman’s assistance
to access password-protected files he found on Cotterman’s
laptop. Cotterman agreed to provide the assistance the
following day, but never showed up. When Agent Brisbine
called again to request Cotterman’s help in accessing the
password-protected files, Cotterman responded that the
computer had multiple users and that he would need to check
with individuals at the company from which he had retired in
order to get the passwords. The agents had no further contact
with Cotterman, who boarded a flight to Mexico from Tucson
the next day, April 9, and then flew onward to Sydney,
Australia. On April 11, Agent Owen finally managed to open
twenty-three password-protected files on Cotterman’s laptop.
The files revealed approximately 378 images of child
pornography. The vast majority of the images were of the
same girl, approximately 7–10 years of age, taken over a two-
to three-year period. In many of the images, Cotterman was
sexually molesting the child. Over the next few months,
Agent Owen discovered hundreds more pornographic images,
stories, and videos depicting children.
5
“Unallocated space is space on a hard drive that contains deleted data,
usually emptied from the operating system’s trash or recycle bin folder,
that cannot be seen or accessed by the user without the use of forensic
software. Such space is available to be written over to store new
information.” United States v. Flyer, 633 F.3d 911, 918 (9th Cir. 2011).
UNITED STATES V . COTTERMAN 11
A grand jury indicted Cotterman for a host of offenses
related to child pornography. Cotterman moved to suppress
the evidence gathered from his laptop and the fruits of that
evidence. The magistrate judge filed a Report and
Recommendation finding that the forensic examination was
an “extended border search” that required reasonable
suspicion. He found that the TECS hit and the existence of
password-protected files on Cotterman’s laptop were
suspicious, but concluded that those facts did not suffice to
give rise to reasonable suspicion of criminal activity. The
district judge adopted the Report and Recommendation and
granted Cotterman’s motion to suppress.
In its interlocutory appeal of that order, the government
characterized the issue as follows: “Whether the authority to
search a laptop computer without reasonable suspicion at a
border point of entry permits law enforcement to take it to
another location to be forensically examined, when it has
remained in the continuous custody of the government.” A
divided panel of this court answered that question in the
affirmative and reversed. United States v. Cotterman,
637 F.3d 1068 (9th Cir. 2011). The panel concluded that
reasonable suspicion was not required for the search and that
“[t]he district court erred in suppressing the evidence lawfully
obtained under border search authority.” Id. at 1084. In
dissent, Judge Betty B. Fletcher wrote that “officers must
have some level of particularized suspicion in order to
conduct a seizure and search like the one at issue here.” Id.(B. Fletcher, J., dissenting). By a vote of a majority of
nonrecused active judges, rehearing en banc was ordered.
673 F.3d 1206 (9th Cir. 2012). Following en banc oral
argument, we requested supplemental briefing on the issue of
whether reasonable suspicion existed at the time of the
search.
12 UNITED STATES V . COTTERMAN
II. WAIVER
The government argued below that the forensic
examination was part of a routine border search not requiring
heightened suspicion and, alternatively, that reasonable
suspicion justified the search. Before the district court, the
government maintained “the facts of this case clearly
establish that there was reasonable suspicion.” However,
having failed to obtain a favorable ruling on that ground, the
government did not challenge on appeal the conclusion that
there was no reasonable suspicion. Rather, it sought a broad
ruling that no suspicion of any kind was required. Cotterman
thus argued in his answering brief that the government had
waived the issue—an assertion that the government did not
address in its reply brief. Cotterman contends that the
government has abandoned and conceded the issue of
reasonable suspicion and that this court may not address that
issue. We disagree.
We review de novo the ultimate question of whether a
warrantless search was reasonable under the Fourth
Amendment. United States v. Johnson, 256 F.3d 895, 905
(9th Cir. 2001) (en banc). Our review necessarily
encompasses a determination as to the applicable standard: no
suspicion, reasonable suspicion or probable cause. That the
government may hope for the lowest standard does not alter
our de novo review, particularly when the issue was fully
briefed and argued below. Further, we may consider an issue
that has not been adequately raised on appeal if such a failure
will not prejudice the opposing party. United States v. Ullah,
976 F.2d 509, 514 (9th Cir. 1992). Where, as here, we
“called for and received supplemental briefs by both parties,”
Alcarez v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004), the
government’s failure to address the issue does not prejudice
UNITED STATES V . COTTERMAN 13
Cotterman. See also United States v. Resendiz-Ponce,
549 U.S. 102, 103–04 (2007).
III. THE BORDER SEARCH
The broad contours of the scope of searches at our
international borders are rooted in “the long-standing right of
the sovereign to protect itself by stopping and examining
persons and property crossing into this country.” Ramsey,
431 U.S. at 616. Thus, border searches form “a narrow
exception to the Fourth Amendment prohibition against
warrantless searches without probable cause.” Seljan,
547 F.3d at 999 (internal quotation marks and citation
omitted). Because “[t]he Government’s interest in preventing
the entry of unwanted persons and effects is at its zenith at the
international border,” United States v. Flores-Montano,
541 U.S. 149, 152 (2004), border searches are generally
deemed “reasonable simply by virtue of the fact that they
occur at the border.” Ramsey, 431 U.S. at 616.
This does not mean, however, that at the border “anything
goes.” Seljan, 547 F.3d at 1000. Even at the border,
individual privacy rights are not abandoned but “[b]alanced
against the sovereign’s interests.” United States v. Montoya
de Hernandez, 473 U.S. 531, 539 (1985). That balance “is
qualitatively different . . . than in the interior” and is “struck
much more favorably to the Government.” Id. at 538, 540.
Nonetheless, the touchstone of the Fourth Amendment
analysis remains reasonableness. Id. at 538. The
reasonableness of a search or seizure depends on the totality
of the circumstances, including the scope and duration of the
deprivation. See United States v. Jacobsen, 466 U.S. 109,
124 (1984); see also United States v. Duncan, 693 F.2d 971,
977 (9th Cir. 1982).
14 UNITED STATES V . COTTERMAN
In view of these principles, the legitimacy of the initial
search of Cotterman’s electronic devices at the border is not
in doubt. Officer Alvarado turned on the devices and opened
and viewed image files while the Cottermans waited to enter
the country. It was, in principle, akin to the search in Seljan,
where we concluded that a suspicionless cursory scan of a
package in international transit was not unreasonable.
547 F.3d at 1004. Similarly, we have approved a quick look
and unintrusive search of laptops. United States v. Arnold,
533 F.3d 1003, 1009 (9th Cir. 2008) (holding border search
reasonable where “CBP officers simply ‘had [traveler] boot
[the laptop] up, and looked at what [he] had inside.’”) (second
alteration in original).6 Had the search of Cotterman’s laptop
ended with Officer Alvarado, we would be inclined to
conclude it was reasonable even without particularized
suspicion. See id. But the search here transformed into
something far different. The difficult question we confront is
the reasonableness, without a warrant, of the forensic
examination that comprehensively analyzed the hard drive of
the computer.
A. The Forensic Examination Was Not An Extended
Border Search
Cotterman urges us to treat the examination as an
extended border search that requires particularized suspicion.
6
Although the Arnold decision expressed its conclusion in broad terms,
stating that, “reasonable suspicion is not needed for customs officials to
search a laptop or other personal electronic storage devices at the border,”
Arnold, 533 F.3d at 1008, the facts do not support such an unbounded
holding. As an en banc court, we narrow Arnold to approve only the
relatively simple search at issue in that case, not to countenance
suspicionless forensic examinations. The dissent’s extensive reliance on
Arnold is misplaced in the en banc environment.
UNITED STATES V . COTTERMAN 15
Although the semantic moniker “extended border search”
may at first blush seem applicable here, our jurisprudence
does not support such a claim. We have “define[d] an
extended border search as any search away from the border
where entry is not apparent, but where the dual requirements
of reasonable certainty of a recent border crossing and
reasonable suspicion of criminal activity are satisfied.”
United States v. Guzman-Padilla, 573 F.3d 865, 878–79 (9th
Cir. 2009) (internal quotation marks and citations omitted).
The key feature of an extended border search is that an
individual can be assumed to have cleared the border and thus
regained an expectation of privacy in accompanying
belongings. See United States v. Abbouchi, 502 F.3d 850,
855 (9th Cir. 2007) (“Because the delayed nature of an
extended border search . . . necessarily entails a greater level
of intrusion on legitimate expectations of privacy than an
ordinary border search, the government must justify an
extended border search with reasonable suspicion that the
search may uncover contraband or evidence of criminal
activity.”) (internal quotation marks omitted) (emphasis
added).
Cotterman’s case is different. Cotterman was stopped and
searched at the border. Although he was allowed to depart
the border inspection station after the initial search, some of
his belongings, including his laptop, were not. The follow-on
forensic examination was not an “extended border search.”
A border search of a computer is not transformed into an
extended border search simply because the device is
transported and examined beyond the border.
To be sure, our case law has not always articulated the
“extended border search” doctrine with optimal clarity. But
the confusion has come in distinguishing between facts
16 UNITED STATES V . COTTERMAN
describing a functional border search and those describing an
extended border search, not in defining the standard for a
search at the border. See, e.g., United States v. Cardona,
769 F.2d 625, 628 (9th Cir. 1985) (“We have recently
recognized the difficulty of making sharp distinctions
between searches at the functional equivalent of the border
and extended border searches.”). The “functional equivalent”
doctrine effectively extends the border search doctrine to all
ports of entry, including airports. See Almeida-Sanchez v.
United States, 413 U.S. 266, 273 (1973). A routine customs
search at the “functional equivalent” of the border is
“analyzed as a border search” and requires neither probable
cause nor reasonable suspicion. Seljan, 547 F.3d at 999.
This case involves a search initiated at the actual border and
does not encounter any of the difficulties surrounding
identification of a “functional” border. As to the extended
border search doctrine, we believe it is best confined to cases
in which, after an apparent border crossing or functional
entry, an attenuation in the time or the location of conducting
a search reflects that the subject has regained an expectation
of privacy.7
In his dissent, Judge Smith advocates applying the
extended border search doctrine because the forensic
examination occurred 170 miles from the border and days
after Cotterman’s entry. Moving the laptop to a specialized
7
This characterization is consistent with how our circuit and others have
articulated the doctrine. See, e.g., United States v. Villasenor, 608 F.3d
467, 471–72 (9th Cir. 2010); United States v. Yang, 286 F.3d 940, 945–46
(7th Cir. 2002); United States v. Hyde, 37 F.3d 116, 120 n.2 (3d Cir.
1994); United States v. Santiago, 837 F.2d 1545, 1548 (11th Cir. 1988);
United States v. Gaviria, 805 F.2d 1108, 1112 (2d Cir. 1986); United
States v. Niver, 689 F.2d 520, 526 (5th Cir. 1982); United States v. Bilir,
592 F.2d 735, 739–40 (4th Cir. 1979).
UNITED STATES V . COTTERMAN 17
lab at a distant location might highlight that the search
undertaken there was an extensive one, but it is not the
dispositive factor here. Because Cotterman never regained
possession of his laptop, the fact that the forensic
examination occurred away from the border, in Tucson, did
not heighten the interference with his privacy. Time and
distance become relevant to determining whether there is an
adequate nexus to a recent border crossing only after the
subject or items searched have entered. See Villasenor,
608 F.3d at 471 (explaining that reasonableness of extended
border search depends on “whether the totality of the
surrounding circumstances, including the time and distance
elapsed” establish that items to be searched have recently
entered the country) (internal quotation marks omitted).
Cotterman’s computer never cleared customs so entry was
never effected. In short, the extended border search doctrine
does not fit the search here.
B. Forensic Examination At The Border Requires
Reasonable Suspicion
It is the comprehensive and intrusive nature of a forensic
examination—not the location of the examination—that is the
key factor triggering the requirement of reasonable suspicion
here.8 See Cotterman, 637 F.3d at 1086–87 n.6 (B. Fletcher,
J., dissenting) (recognizing that “[a] computer search in a
forensic lab will always be equivalent to an identical search
at the border. The duration of a computer search is not
8
The concurrence goes to great lengths to “refute any such notion” that
location and duration contributed to our holding reasonable suspicion
required here. Concurrence at 40–43. W e see no reason for such an
exegesis; our opinion is clear on the point that these factors are not at
issue.
18 UNITED STATES V . COTTERMAN
controlled by where the search is conducted. The duration of
a computer search is controlled by what one is looking for
and how one goes about searching for it.”) (emphasis in
original). The search would have been every bit as intrusive
had Agent Owen traveled to the border with his forensic
equipment. Indeed, Agent Owen had a laptop with forensic
software that he could have used to conduct an examination
at the port of entry itself, although he testified it would have
been a more time-consuming effort. To carry out the
examination of Cotterman’s laptop, Agent Owen used
computer forensic software to copy the hard drive and then
analyze it in its entirety, including data that ostensibly had
been deleted. This painstaking analysis is akin to reading a
diary line by line looking for mention of criminal
activity—plus looking at everything the writer may have
erased.9
Notwithstanding a traveler’s diminished expectation of
privacy at the border, the search is still measured against the
Fourth Amendment’s reasonableness requirement, which
considers the nature and scope of the search. Significantly,
the Supreme Court has recognized that the “dignity and
privacy interests of the person being searched” at the border
will on occasion demand “some level of suspicion in the case
of highly intrusive searches of the person.” Flores-Montano,
541 U.S. at 152. Likewise, the Court has explained that
“some searches of property are so destructive,” “particularly
offensive,” or overly intrusive in the manner in which they
9
Agent Owen used a software program called EnCase that exhibited the
distinctive features of computer forensic examination. The program
copied, analyzed, and preserved the data stored on the hard drive and gave
the examiner access to far more data, including password-protected,
hidden or encrypted, and deleted files, than a manual user could access.
UNITED STATES V . COTTERMAN 19
are carried out as to require particularized suspicion. Id. at
152, 154 n.2, 155–56; Montoya de Hernandez, 473 U.S. at
541. The Court has never defined the precise dimensions of
a reasonable border search, instead pointing to the necessity
of a case-by-case analysis. As we have emphasized,
“[r]easonableness, when used in the context of a border
search, is incapable of comprehensive definition or of
mechanical application.” Duncan, 693 F.2d at 977 (internal
quotation marks and citation omitted).
Over the past 30-plus years, the Supreme Court has dealt
with a handful of border cases in which it reaffirmed the
border search exception while, at the same time, leaving open
the question of when a “particularly offensive” search might
fail the reasonableness test. The trail begins with United
States v. Ramsey, where the Court reserved judgment on this
question: “We do not decide whether, and under what
circumstances, a border search might be deemed
‘unreasonable’ because of the particularly offensive manner
in which it is carried out.” 431 U.S. at 618 n.13. Of note, the
Court cited two cases, albeit non-border cases, as examples:
Kremen v. United States, 353 U.S. 346, 347–48 (1957)
(holding unconstitutional an exhaustive warrantless search of
a cabin and seizure of its entire contents that were moved 200
miles away for examination) and Go-Bart Importing Co. v.
United States, 282 U.S. 344, 358 (1931) (condemning as
“lawless invasion of the premises and a general exploratory
search” a warrantless “unlimited search, ransacking the desk,
safe, filing cases and other parts of [an] office”).
Less than ten years later, in 1985, the Court observed that
it had “not previously decided what level of suspicion would
justify a seizure of an incoming traveler for purposes other
than a routine border search” and then went on to hold in the
20 UNITED STATES V . COTTERMAN
context of an alimentary canal search that reasonable
suspicion was required for “the detention of a traveler at the
border, beyond the scope of a routine customs search and
inspection.” Montoya de Hernandez, 473 U.S. at 540–41.
The Court’s reference to “routine border search” was parsed
in a later case, Flores-Montano, where the Court explained
that “the reasons that might support a requirement of some
level of suspicion in the case of highly intrusive searches of
the person—dignity and privacy interests of the person being
searched—simply do not carry over to vehicles,” and, more
specifically, to the gas tank of a car. 541 U.S. at 152.
Accordingly, the Court rejected a privacy claim vis-a-vis an
automobile gas tank.
We are now presented with a case directly implicating
substantial personal privacy interests. The private
information individuals store on digital devices—their
personal “papers” in the words of the Constitution—stands in
stark contrast to the generic and impersonal contents of a gas
tank. See, e.g., United States v. Jones, 132 S. Ct. 945, 957
(2012) (Sotomayor, J., concurring) (expressing “doubt that
people would accept without complaint the warrantless
disclosure to the Government of a list of every Web site they
had visited in the last week, or month, or year”). We rest our
analysis on the reasonableness of this search, paying
particular heed to the nature of the electronic devices and the
attendant expectation of privacy.
The amount of private information carried by
international travelers was traditionally circumscribed by the
size of the traveler’s luggage or automobile. That is no
longer the case. Electronic devices are capable of storing
warehouses full of information. The average 400-gigabyte
laptop hard drive can store over 200 million pages—the
UNITED STATES V . COTTERMAN 21
equivalent of five floors of a typical academic library. See
Orin S. Kerr, Searches and Seizures in a Digital World,
119 Harv. L. Rev. 531, 542 (2005) (explaining that an 80 GB
hard drive is equivalent to 40 million pages or one floor of an
academic library); see also LexisNexis, How Many Pages in
a Gigabyte?, http://www.lexisnexis.com/applieddiscovery/
lawlibrary/whitePapers/ADI_FS_PagesInAGigabyte.pdf.
Even a car full of packed suitcases with sensitive documents
cannot hold a candle to the sheer, and ever-increasing,
capacity of digital storage.10
The nature of the contents of electronic devices differs
from that of luggage as well. Laptop computers, iPads and
the like are simultaneously offices and personal diaries. They
contain the most intimate details of our lives: financial
records, confidential business documents, medical records
and private emails. This type of material implicates the
Fourth Amendment’s specific guarantee of the people’s right
to be secure in their “papers.” U.S. Const. amend. IV. The
express listing of papers “reflects the Founders’ deep concern
with safeguarding the privacy of thoughts and ideas—what
we might call freedom of conscience—from invasion by the
government.” Seljan, 547 F.3d at 1014 (Kozinski, C.J.,
dissenting); see also New York v. P.J. Video, Inc., 475 U.S.
868, 873 (1986). These records are expected to be kept
10
W e are puzzled by the dissent’s speculation about “how many
gigabytes of storage [one must] buy to secure the guarantee that
reasonable suspicion will be required before one’s devices are searched.”
Dissent at 68. We discuss the typical storage capacity of electronic
devices simply to highlight the features that generally distinguish them
from traditional baggage. Indeed, we do not and need not determine
whether Cotterman’s laptop possessed unusually large or simply
“average” capacity in order to resolve that the forensic examination of it
required reasonable suspicion.
22 UNITED STATES V . COTTERMAN
private and this expectation is “one that society is prepared to
recognize as ‘reasonable.’” Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring).11
Electronic devices often retain sensitive and confidential
information far beyond the perceived point of erasure,
notably in the form of browsing histories and records of
deleted files. This quality makes it impractical, if not
impossible, for individuals to make meaningful decisions
regarding what digital content to expose to the scrutiny that
accompanies international travel. A person’s digital life
ought not be hijacked simply by crossing a border. When
packing traditional luggage, one is accustomed to deciding
what papers to take and what to leave behind. When carrying
a laptop, tablet or other device, however, removing files
unnecessary to an impending trip is an impractical solution
given the volume and often intermingled nature of the files.
It is also a time-consuming task that may not even effectively
erase the files.
The present case illustrates this unique aspect of
electronic data. Agents found incriminating files in the
unallocated space of Cotterman’s laptop, the space where the
computer stores files that the user ostensibly deleted and
maintains other “deleted” files retrieved from web sites the
user has visited. Notwithstanding the attempted erasure of
material or the transient nature of a visit to a web site,
11
The dissent’s discussion about Facebook and other platforms where
the user voluntarily transmits personal data over the Internet, often
oblivious to privacy issues, Dissent at 65–66, is a red herring. Of course,
willful disclosure of electronic data, like disclosure of other material,
undercuts an individual’s expectation of privacy. But there was no such
disclosure here. Nor does the border search implicate such an affirmative
disclosure.
UNITED STATES V . COTTERMAN 23
computer forensic examination was able to restore the files.
It is as if a search of a person’s suitcase could reveal not only
what the bag contained on the current trip, but everything it
had ever carried.
With the ubiquity of cloud computing, the government’s
reach into private data becomes even more problematic.12 In
the “cloud,” a user’s data, including the same kind of highly
sensitive data one would have in “papers” at home, is held on
remote servers rather than on the device itself. The digital
device is a conduit to retrieving information from the cloud,
akin to the key to a safe deposit box. Notably, although the
virtual “safe deposit box” does not itself cross the border, it
may appear as a seamless part of the digital device when
presented at the border. With access to the cloud through
forensic examination, a traveler’s cache is just a click away
from the government.
As Justice Scalia wrote, “It would be foolish to contend
that the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of
technology.” Kyllo, 533 U.S. at 33–34. Technology has the
dual and conflicting capability to decrease privacy and
augment the expectation of privacy. While the thermal
imaging device in Kyllo threatened to expose the hour at
12
“The term ‘cloud computing’ is based on the industry usage of a cloud
as a metaphor for the ethereal internet. . . . An external cloud platform is
storage or software access that is essentially rented from (or outsourced to)
a remote public cloud service provider, such as Amazon or Google. . . .
By contrast, an internal or private cloud is a cluster of servers that is
networked behind an individual or company’s own firewall.” David A.
Couillard, Defogging the Cloud: Applying Fourth Amendment Principles
to Evolving Privacy Expectations in Cloud Computing, 93 Minn. L. Rev.
2205, 2216 (2009) (internal citations omitted).
24 UNITED STATES V . COTTERMAN
which “the lady of the house” took her daily “sauna and
bath,” id. at 38, digital devices allow us to carry the very
papers we once stored at home.
The point is technology matters. The Department of
Homeland Security has acknowledged as much in the context
of international travelers:
Where someone may not feel that the
inspection of a briefcase would raise
significant privacy concerns because the
volume of information to be searched is not
great, that same person may feel that a search
of their laptop increases the possibility of
privacy risks due to the vast amount of
information potentially available on electronic
devices.
DHS, Privacy Impact Assessment for the Border Searches of
Electronic Devices 2 (Aug. 25, 2009), available at
h t t p : / / w w w . d hs.gov/ x li brary/ ass e t s / p r i v a c y
/privacy_pia_cbp_laptop.pdf.
This is not to say that simply because electronic devices
house sensitive, private information they are off limits at the
border. The relevant inquiry, as always, is one of
reasonableness. But that reasonableness determination must
account for differences in property. See Samson v.
California, 547 U.S. 843, 848 (2006) (“Under our general
Fourth Amendment approach, we examine the totality of the
circumstances to determine whether a search is reasonable
. . . .”) (internal quotation marks, citation, and alterations
omitted) (emphasis added). Unlike searches involving a
reassembled gas tank, Flores-Montano, 541 U.S. at 150, or
UNITED STATES V . COTTERMAN 25
small hole in the bed of a pickup truck, United States v.
Chaudhry, 424 F.3d 1051, 1054 (9th Cir. 2005), which have
minimal or no impact beyond the search itself—and little
implication for an individual’s dignity and privacy
interests—the exposure of confidential and personal
information has permanence. It cannot be undone.
Accordingly, the uniquely sensitive nature of data on
electronic devices carries with it a significant expectation of
privacy and thus renders an exhaustive exploratory search
more intrusive than with other forms of property.
After their initial search at the border, customs agents
made copies of the hard drives and performed forensic
evaluations of the computers that took days to turn up
contraband. It was essentially a computer strip search. An
exhaustive forensic search of a copied laptop hard drive
intrudes upon privacy and dignity interests to a far greater
degree than a cursory search at the border. It is little comfort
to assume that the government—for now—does not have the
time or resources to seize and search the millions of devices
that accompany the millions of travelers who cross our
borders. It is the potential unfettered dragnet effect that is
troublesome.
We recognize the important security concerns that prevail
at the border. The government’s authority to protect the
nation from contraband is well established and may be
“heightened” by “national cris[e]s,” such as the smuggling of
illicit narcotics, Montoya de Hernandez, 473 U.S. at 538, the
current threat of international terrorism and future threats yet
to take shape. But even in the face of heightened concerns,
we must account for the Fourth Amendments rights of
travelers. Id. at 539.
26 UNITED STATES V . COTTERMAN
The effort to interdict child pornography is also a
legitimate one. But legitimate concerns about child
pornography do not justify unfettered crime-fighting searches
or an unregulated assault on citizens’ private information.
Reasonable suspicion is a modest, workable standard that is
already applied in the extended border search, Terry stop,13
and other contexts. Its application to the forensic
examination here will not impede law enforcement’s ability
to monitor and secure our borders or to conduct appropriate
searches of electronic devices.
Nor does applying this standard impede the deterrent
effect of suspicionless searches, which the dissent contends
is critical to thwarting savvy terrorists and other criminals.
Dissent at 63. The Supreme Court has never endorsed the
proposition that the goal of deterring illegal contraband at the
border suffices to justify any manner of intrusive search.
Rather, reasonableness remains the touchstone and the Court
has expressed support for the deterrence value of
suspicionless searches of a routine nature, such as vehicle
checkpoints near the border. See United States v.
Martinez-Fuerte, 428 U.S. 543, 556 (1976) (“We note here
only the substantiality of the public interest in the practice of
routine stops for inquiry at permanent checkpoints, a practice
which the Government identifies as the most important of the
traffic-checking operations.”) (emphasis added). In practical
terms, suspicionless searches of the type approved in Arnold
will continue; border officials will conduct further, forensic
examinations where their suspicions are aroused by what they
find or by other factors. Reasonable suspicion leaves ample
room for agents to draw on their expertise and experience to
pick up on subtle cues that criminal activity may be afoot.
13
Terry v. Ohio, 392 U.S. 1, 30 (1983).
UNITED STATES V . COTTERMAN 27
See United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir.
2000).14
We have confidence in the ability of law enforcement to
distinguish a review of computer files from a forensic
examination. We do not share the alarm expressed by the
concurrence and the dissent that the standard we announce
will prove unmanageable or give border agents a “Sophie’s
choice” between thorough searches and Bivens actions.
Concurrence at 48–49; Dissent at 65. Determining whether
reasonable suspicion is required does not necessitate a
“complex legal determination[]” to be made on a “moment-
by-moment basis.” Dissent at 61. Rather, it requires that
officers make a commonsense differentiation between a
manual review of files on an electronic device and application
of computer software to analyze a hard drive, and utilize the
latter only when they possess a “particularized and objective
14
The greatest obstacle to ferreting out contraband at the border has
always been the sheer number of international travelers. Any contention
that national security will be critically hampered by stripping border
agents of a critical law enforcement tool— suspicionless forensic
examinations of electronics— is undermined by the fact that, as a matter
of commonsense and resources, it is only when reasonable suspicion is
aroused that such searches typically take place. See, e.g., Chaudhry,
424 F.3d at 1054 (B. Fletcher, J., concurring) (“As a practical matter,
border agents are too busy to do extensive searches (removing gas tanks
and door panels, boring holes in truck beds) unless they have suspicion.”).
As Judge Callahan acknowledges in her separate opinion, the record
suggests that “remote and/or intensive searches of electronic devices
crossing the border do not occur all that often.” Concurrence at 50 n.11.
The reference that only a small fraction of travelers at the border have
their devices searched simply reinforces our point— our ruling will not
place an undue burden on border agents who already rely on a degree of
suspicion in referring travelers to secondary inspection.
28 UNITED STATES V . COTTERMAN
basis for suspecting the person stopped of criminal activity.”
Tiong, 224 F.3d at 1140 (internal quotation marks omitted).
International travelers certainly expect that their property
will be searched at the border. What they do not expect is
that, absent some particularized suspicion, agents will mine
every last piece of data on their devices or deprive them of
their most personal property for days (or perhaps weeks or
even months, depending on how long the search takes).
United States v. Ramos-Saenz, 36 F.3d 59, 61 n.3 (9th Cir.
1994) (“Intrusiveness includes both the extent of a search as
well as the degree of indignity that may accompany a
search.”). Such a thorough and detailed search of the most
intimate details of one’s life is a substantial intrusion upon
personal privacy and dignity. We therefore hold that the
forensic examination of Cotterman’s computer required a
showing of reasonable suspicion, a modest requirement in
light of the Fourth Amendment.
IV. REASONABLE SUSPICION
Reasonable suspicion is defined as “a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.” United States v. Cortez, 449 U.S. 411,
417–18 (1981). This assessment is to be made in light of “the
totality of the circumstances.” Id. at 417. “[E]ven when
factors considered in isolation from each other are susceptible
to an innocent explanation, they may collectively amount to
a reasonable suspicion.” United States v. Berber-Tinoco,
510 F.3d 1083, 1087 (9th Cir. 2007). We review reasonable
suspicion determinations de novo, reviewing findings of
historical fact for clear error and giving “due weight to
inferences drawn from those facts by resident judges and
UNITED STATES V . COTTERMAN 29
local law enforcement officers.” Ornelas v. United States,
517 U.S. 690, 699 (1996).
In the district court and in supplemental briefing, the
government argued that the border agents had reasonable
suspicion to conduct the initial search and the forensic
examination of Cotterman’s computer. We agree.
The objective facts reflect that both the agents at the
border and the agents who arrived later from Sells based their
decision to search Cotterman’s belongings on the TECS hit.
Officer Alvarado was told by those in charge of administering
the TECS database that he should search Cotterman’s
property because the TECS hit indicated “that [Cotterman]
appeared to [have] been involved in some type of child
pornography.” Agent Riley also looked up Cotterman’s
criminal record and understood that he had a prior conviction
for child pornography. As it turned out, Cotterman’s
previous conviction was not for pornography, but for child
molestation. Nonetheless, the agents’ understanding of the
objective facts, albeit mistaken, is the baseline for
determining reasonable suspicion. See Liberal v. Estrada,
632 F.3d 1064, 1077 (9th Cir. 2011) (“Even if an officer
makes a mistake of fact, that mistake ‘will not render a stop
illegal, if the objective facts known to the officer gave rise to
a reasonable suspicion that criminal activity was afoot.’”
(quoting United States v. Mariscal, 285 F.3d 1127, 1131 (9th
Cir. 2002))).
By itself, Cotterman’s 1992 conviction for child
molestation does not support reasonable suspicion to conduct
an extensive forensic search of his electronic devices.
“Although a prior criminal history cannot alone establish
reasonable suspicion . . . it is permissible to consider such a
30 UNITED STATES V . COTTERMAN
fact as part of the total calculus of information in th[at]
determination[].” Burrell v. McIlroy, 464 F.3d 853, 858 n.3
(9th Cir. 2006). The TECS alert was not based merely on
Cotterman’s conviction—the agents were aware that the alert
targeted Cotterman because he was a sex offender “who
travel[ed] frequently out of the country” and who was
“possibly involved in child sex tourism.” Further, Agent
Riley testified that an examination of Cotterman’s passport
confirmed that he had traveled in and out of the country
frequently since his conviction in 1992.
In further support of reasonable suspicion, the
government asserts that Mexico, from which the Cottermans
were returning, is “a country associated with sex tourism.”15
The ICE field office specifically informed Agent Riley that
the alert was part of Operation Angel Watch, which targeted
individuals potentially involved in sex tourism and alerted
officials to be on the lookout for laptops, cameras and other
paraphernalia of child pornography. See 156 Cong. Rec.
S9581-03 (daily ed. Dec. 14, 2010) (describing Operation
Angel Watch as a program “help[ing] ICE [to] identify travel
patterns of convicted sex offenders who may attempt to
exploit children in foreign countries”). Cotterman’s TECS
alert, prior child-related conviction, frequent travels, crossing
from a country known for sex tourism, and collection of
electronic equipment, plus the parameters of the Operation
15
It is ironic that the dissent expresses concern that, by factoring in the
incidence of crime in particular countries, “thousands of individuals . . .
will now be forced to reconsider traveling to entire countries . . . or will
need to leave all their electronic equipment behind, to avoid arousing a
‘reasonable’ suspicion,” Dissent at 78, when, if forensic examination of
those travelers’ electronics occurs at the border, the dissent would require
no suspicion at all.
UNITED STATES V . COTTERMAN 31
Angel Watch program, taken collectively, gave rise to
reasonable suspicion of criminal activity.
To these factors, the government adds another—the
existence of password-protected files on Cotterman’s
computer.16 We are reluctant to place much weight on this
factor because it is commonplace for business travelers,
casual computer users, students and others to password
protect their files. Law enforcement “cannot rely solely on
factors that would apply to many law-abiding citizens,”
Berber-Tinoco, 510 F.3d at 1087, and password protection is
ubiquitous. National standards require that users of mobile
electronic devices password protect their files. See generally
United States Department of Commerce, Computer Security
Division, National Institute of Standards and Technology,
Computer Security (2007) (NIST Special Publication
800-111). Computer users are routinely advised—and in
some cases, required by employers—to protect their files
when traveling overseas. See, e.g., Michael Price, National
Security Watch, 34-MAR Champion 51, 52 (March 2010)
(“[T]here is one relatively simple thing attorneys can do
[when crossing the border] to protect their privacy and the
rights of their clients: password-protect the computer login
and any sensitive files or folders.”).
Although password protection of files, in isolation, will
not give rise to reasonable suspicion, where, as here, there are
other indicia of criminal activity, password protection of files
16
Agent Riley testified that Alvarado told her that he had “encounter[ed]
some files that were password protected,” while Agent Alvarado testified
that he found one file.
32 UNITED STATES V . COTTERMAN
may be considered in the totality of the circumstances.17 To
contribute to reasonable suspicion, encryption or password
protection of files must have some relationship to the
suspected criminal activity. Here, making illegal files
difficult to access makes perfect sense for a suspected holder
of child pornography. When combined with the other
circumstances, the fact that Officer Alvarado encountered at
least one password protected file on Cotterman’s computer
contributed to the basis for reasonable suspicion to conduct
a forensic examination.
The existence of the password-protected files is also
relevant to assessing the reasonableness of the scope and
duration of the search of Cotterman’s computer. The search
was necessarily protracted because of the password protection
that Cotterman employed. After Cotterman failed to provide
agents with the passwords to the protected files and fled the
country, it took Agent Owen days to override the computer
security and open the image files of child pornography.
Although we must take into account factors weighing
both in favor and against reasonable suspicion, Cotterman’s
innocent explanation does not tip the balance. See Tiong,
224 F.3d at 1140 (recognizing that “innocent possibilities
. . . do not undermine reasonable suspicion”). The dissent
suggests that Cotterman’s offer at the border “to help the
agents access his computer” counsels against a finding of
reasonable suspicion. Dissent at 80. The agents were
17
W e do not suggest that password protecting an entire device—as
opposed to files within a device— can be a factor supporting a reasonable
suspicion determination. Using a password on a device is a basic means
of ensuring that the device cannot be accessed by another in the event it
is lost or stolen.
UNITED STATES V . COTTERMAN 33
appropriately wary of such an offer due to concerns that
Cotterman could tamper with the devices. Nor did the
agents’ discovery of vacation photos eliminate the suspicion
that Cotterman had engaged in criminal activity while abroad
or might be importing child pornography into the country.
Because the first examination of Cotterman’s laptop, by
Officer Alvarado, turned up nothing incriminating, Cotterman
urges that any suspicion prompted by the TECS alert was
dispelled by this initial failure. But the nature of the alert on
Cotterman, directing agents to review media and electronic
equipment for child pornography, justified conducting the
forensic examination despite the failure of the first search to
yield any contraband.
Collectors of child pornography can hardly be expected
to clearly label such files and leave them in readily visible
and accessible sections of a computer’s hard drive,
particularly when they are traveling through border crossings,
where individuals ordinarily anticipate confronting at least a
cursory inspection. Officer Alvarado, who was responsible
for conducting the initial search, was specifically looking for
photographs as described in the TECS hit but testified that he
had only a slightly above-average familiarity with laptops.
He could do no more than open a file, look at it and see if he
could access it. He testified that “[i]f [he] encountered
something that [he] could not access, then [he] would
reference it to somebody that may have that ability to look at
[it].” That is precisely what occurred here. Officer Alvarado
came across password-protected files but, unable to open
them, moved on to other files. Alvarado told Agent Riley
about the password protection, and she and Agent Brisbine
decided to seize the computers for further examination. The
border agents “certainly had more than an inchoate and
unparticularized suspicion or hunch” of criminal activity to
34 UNITED STATES V . COTTERMAN
support their decision to more carefully search for evidence
of child pornography. Montoya de Hernandez, 473 U.S. at
542 (internal quotation marks and citation omitted). An alert
regarding possession of this type of criminal contraband
justified obtaining additional resources, here available in
Tucson, to properly determine whether illegal files were
present.
Unlike the dissent, we credit the agents’ observations and
experience in acting upon significant myriad factors that
support reasonable suspicion. It is not our province to nitpick
the factors in isolation but instead to view them in the totality
of the circumstances. For the above reasons, we conclude
that the examination of Cotterman’s electronic devices was
supported by reasonable suspicion and that the scope and
manner of the search were reasonable under the Fourth
Amendment. Cotterman’s motion to suppress therefore was
erroneously granted.
REVERSED.
CALLAHAN, Circuit Judge, 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
UNITED STATES V . COTTERMAN 35
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
Cotterman’s electronic devices. I therefore also concur in the
judgment.
I.
Over the last 125 years, the Supreme Court has explained
that the United States and its people have a “paramount
interest” in national self-protection and an “inherent” right to
exclude illegal and “unwanted persons and effects.” United
States v. Flores-Montano, 541 U.S. 149, 152–53 (2004); see
also United States v. Montoya de Hernandez, 473 U.S. 531,
537–40 (1985); United States v. Ramsey, 431 U.S. 606,
616–18 (1977); United States v. Thirty-Seven (37)
Photographs, 402 U.S. 363, 376 (1971); Carroll v. United
States, 267 U.S. 132, 154 (1925); Boyd v. United States,
116 U.S. 616, 623 (1886). Accordingly, “[t]he Government’s
interest in preventing the entry of unwanted persons and
effects is at its zenith at the international border.” Flores-
Montano, 541 U.S. at 152.
To effectuate this interest, the Supreme Court has
recognized a broad exception to the Fourth Amendment’s
requirement of probable cause or a warrant for searches
36 UNITED STATES V . COTTERMAN
conducted at the border. Under that exception, searches of
people and their property at the United States borders and
their functional equivalents are per se reasonable, meaning
that they typically do not require a warrant, probable cause,
or even reasonable suspicion. Montoya de Hernandez,
473 U.S. at 538; see also Flores-Montano, 541 U.S. at152–53; Ramsey, 431 U.S. at 616–18; United States v. Seljan,
547 F.3d 993, 999–1000 (9th Cir. 2008) (en banc), cert.
denied, 129 S. Ct. 1368 (2009).
In the long time that the Court has recognized the border
search doctrine, the Court has found just one search at the
border that required reasonable suspicion. See Montoya de
Hernandez, 473 U.S. at 541 (upholding the 24-hour detention
of a woman suspected of smuggling illegal drugs in her
digestive system, followed by a pregnancy test and rectal
examination, based on reasonable suspicion). In the
remaining cases, the Court consistently has described the
government’s border search authority in very broad terms1
1
See, e.g., Flores-Montano, 541 U.S. at 152 (“The Government’s
interest in preventing the entry of unwanted persons and effects is at its
zenith at the international border.”); id. at 153 (“It is axiomatic that the
United States, as sovereign, has the inherent authority to protect, and a
paramount interest in protecting, its territorial integrity.”); Ramsey,
431 U.S. at 617 (“This interpretation, that border searches were not
subject to the warrant provisions of the Fourth Amendment and were
‘reasonable’ within the meaning of that Amendment, has been faithfully
adhered to by this Court.”); id. at 620 (“The border-search exception is
grounded in the recognized right of the sovereign to control, subject to
substantive limitations imposed by the Constitution, who and what may
enter the country.”); Thirty-Seven (37) Photographs, 402 U.S. at 376 (“[A
traveler’s] right to be let alone neither prevents the search of his luggage
nor the seizure of unprotected, but illegal, materials when his possession
of them is discovered during such a search. Customs officers
characteristically inspect luggage and their power to do so is not
UNITED STATES V . COTTERMAN 37
and overturned the lower courts’ attempts to cabin that
authority.2 The Court also repeatedly has gone out of its way
to explain that border searches generally are exempt from the
limits it imposes on domestic searches. See, e.g., Flores-
Montano, 541 U.S. at 154 (“[O]n many occasions, we have
noted that the expectation of privacy is less at the border than
it is in the interior.”); Montoya de Hernandez, 473 U.S. at539–40 (“But 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.” (internal and external citations
omitted)); United States v. 12 200-Foot Reels of Super 8mm.
Film, 413 U.S. 123, 125 (1973) (“Import restrictions and
searches of persons or packages at the national borders rest on
questioned in this case; it is an old practice and is intimately associated
with excluding illegal articles from the country.”); Carroll, 267 U.S. at
154 (“Travelers may be so stopped in crossing an international boundary
because of national self-protection reasonably requiring one entering the
country to identify himself as entitled to come in, and his belongings as
effects which may be lawfully brought in.”). Even in Montoya de
Hernandez the Court described the government’s border search authority
expansively. See 473 U.S. at 539–40, 542–44.
2
See, e.g., Flores-Montano, 541 U.S. at 152–55 (overturning the Ninth
Circuit’s conclusion that the border search of a gas tank required
reasonable suspicion); Ramsey, 431 U.S. at 616–22 (overturning the D.C.
Circuit’s conclusion that the search of international mail required probable
cause); Thirty-Seven (37) Photographs, 402 U.S. at 376 (relying in part on
border search doctrine to overturn lower court’s decision that statute
barring the importation of obscene material was unconstitutional).
38 UNITED STATES V . COTTERMAN
different considerations and different rules of constitutional
law from domestic regulations.”).3
II.
It is against this legal backdrop that we must assess the
constitutionality of the government’s search in this case. As
with all searches subject to Fourth Amendment review, the
constitutionality of a border search turns on whether it is
reasonable. See Brigham City, Utah v. Stuart, 547 U.S. 398,
403 (2006) (“[T]he ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’”). Under the border search
doctrine, suspicionless border searches are per se reasonable.
However, the Supreme Court has identified three situations
in which they might not be per se reasonable, i.e., at least
reasonable suspicion is required: (1) “highly intrusive
searches of the person;” (2) destructive searches of property;
3
See also City of Indianapolis v. Edmond, 531 U.S. 32, 47–48 (2000)
(explaining that decision barring domestic drug interdiction checkpoints
“does not affect the validity of border searches or searches at places like
airports”); United States v. Ross, 456 U.S. 798, 823 (1982) (explaining
that while the Fourth Amendment gives protection to containers in
domestic vehicles, “[t]he luggage carried by a traveler entering the country
may be searched at random by a customs officer”); Torres v. Puerto Rico,
442 U.S. 465, 472–74 (1979) (distinguishing between United
States–Puerto Rico border and international borders in holding
unconstitutional the search of a traveler’s luggage without “articulable
suspicion”); United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)
(“Except at the border and its functional equivalents, officers on roving
patrol may stop vehicles” only with reasonable suspicion they contain
illegal aliens); Almeida-Sanchez v. United States, 413 U.S. 266, 272–76
(1973) (distinguishing searches of vehicles at the border from a search that
occurred 25 miles away); Carroll, 267 U.S. at 151–54 (distinguishing
between interior and border searches of vehicles and persons).
UNITED STATES V . COTTERMAN 39
and (3) searches conducted in a “particularly offensive”
manner. Flores-Montano, 541 U.S. at 152–56 & n.2.
Although its opinion is not entirely clear, the majority
appears to rely on the first and third exceptions to hold that
the search at issue in this case required reasonable suspicion.
(There is no claim that the government damaged or destroyed
Cotterman’s property.) But the exception for “highly
intrusive searches of the person,” Flores-Montano, 541 U.S.
at 152, cannot apply here; “papers,” even private ones in
electronic format, are not a “person.” See id. (“The reasons
that might support a requirement of some level of suspicion
in the case of highly intrusive searches of the person—dignity
and privacy interests of the person being searched—simply
do not carry over to vehicles.”). That leaves the exception for
searches conducted in a “particularly offensive” manner. Id.at 154 n.2. The majority relies primarily on the notion that
electronic devices are special to conclude that reasonable
suspicion was required. Majority at 20–28. The majority is
mistaken.
A.
The majority correctly concludes that the government’s
forensic search in Tucson was not an extended border search,
as the border agents retained custody of Cotterman’s laptop.4
4
I agree with the majority that this case does not involve an extended
border search. Unlike a border search, an extended border search takes
place at a location “away from the border where entry is not apparent, but
where the dual requirements of reasonable certainty of a recent border
crossing and reasonable suspicion of criminal activity are satisfied.”
United States v. Guzman-Padilla, 573 F.3d 865, 878–79 (9th Cir. 2009)
(internal quotation marks and citation omitted), cert. denied, 131 S. Ct. 67(2010). Reasonable suspicion is required precisely because the individual
40 UNITED STATES V . COTTERMAN
Id. at 9, 14–15. The majority also states that “[i]t is the
comprehensive and intrusive nature of a forensic
examination—not the location of the examination—that is the
key factor triggering the requirement of reasonable suspicion
here.” Majority at 17. The inclusion of the word “key” might
be read to imply that some other factor, such as the location
and duration of the search, contributed to its purported
unreasonableness. I write to refute any such notion.
First consider the facts. The border agents took
Cotterman’s electronic devices to the nearest computing
center (to Tucson, where Cotterman and his wife were
already traveling), before clearing them for entry into the
United States. The computer specialist moved the search
ahead of his other work and conducted it over the weekend.
Although the forensic search lasted five days, it took only 48
hours to discover the initial 75 images of child pornography.
The agents were reasonably reluctant to rely on Cotterman’s
offer to help, since he might have deleted or otherwise made
unrecoverable any contraband that his devices contained.
The agents returned the devices as soon as they cleared them.
has regained an expectation of privacy by moving away from the border.
See United States v. Villasenor, 608 F.3d 467, 471–72 (9th Cir.), cert.
denied, 131 S. Ct. 547 (2010); United States v. Whiting, 781 F.2d 692, 695
(9th Cir. 1986). Here, there was no attenuation between Cotterman’s
border crossing and the forensic search of his electronic property; the
government conducted that search before clearing the property for entry
and before Cotterman could regain an expectation of privacy in that
property. See 19 U.S.C. § 1499 (providing that imported goods are
permitted entry only after Customs clears them); United States v. Alfonso,
759 F.2d 728, 734 (9th Cir. 1985) (“Extended border searches occur after
the actual entry has been effected and intrude more on an individual’s
normal expectation of privacy.”).
UNITED STATES V . COTTERMAN 41
Now consider the law. The Supreme Court has upheld the
constitutionality of a police search of packages retrieved from
an automobile, even though the police conducted their search
three days after the police stopped the vehicle and at the
police station. United States v. Johns, 469 U.S. 478, 485–88
(1985). The Court rejected the argument that “searches of
containers discovered in the course of a vehicle search are
subject to temporal restrictions not applicable to the vehicle
search itself.” Id. at 485. Although Johns involved a
domestic automobile search based on probable cause, it still
stands for the proposition, equally applicable to this case, that
“the legality of the search was determined by reference to the
[applicable] exception to the warrant requirement.” Id.In the border search context, the Supreme Court, in
upholding the lengthy detention of a person reasonably
suspected of smuggling drugs in her digestive system at an
airport, addressed whether that detention was “reasonably
related in scope to the circumstances which justified it
initially.” Montoya de Hernandez, 473 U.S. at 542. The
Court explained that: (1) “courts should not indulge in
unrealistic second-guessing” when answering this question,
as “[a]uthorities must be allowed to graduate their response
to the demands of any particular situation;” (2) the Court
consistently has “refused to charge police with delays in
investigatory detention attributable to the suspect’s evasive
actions;” and (3) “we have also consistently rejected hard-
and-fast time limits.” Id. at 542–43 (quotation marks and
citations omitted). The Court emphasized that, at the
international border, “the Fourth Amendment balance of
interests leans heavily to the Government” because the
government is charged not just with investigating crime but
with “protecting this Nation from entrants who may bring
anything harmful into this country.” Id. at 544. Finally, any
42 UNITED STATES V . COTTERMAN
“length” or “discomfort” associated with a border search does
not offend the Fourth Amendment when it “result[s] solely
from the method by which [a traveler] cho[oses] to smuggle
[contraband] into this country.” Id.Any suggestion that the government’s search here was
“particularly offensive” due to the location and duration of
the search runs counter to the Supreme Court’s admonitions
in Johns and Montoya de Hernandez. It also effectively
requires the government to supply every port of entry with the
equipment and staff needed to conduct forensic electronic
searches, or at least to have such equipment and staff waiting
at a nearby location. Such a requirement is unreasonable,
particularly since the record in this case suggests that a
forensic search of Cotterman’s electronic devices at the
border station would have taken longer than the search at the
Tucson computing center.5 See United States v. Hill,
459 F.3d 966, 974–75 (9th Cir. 2006), cert. denied, 127 S. Ct.
1863 (2007) (discussing problems inherent in requiring police
to bring with them equipment to search electronic media); cf.
Johns, 469 U.S. at 486–87 (explaining that requiring police
5
The district court found that the government could have conducted the
forensic search at the Lukeville border station. United States v.
Cotterman, No. CR 07-1207-TUC-RCC, 2009 WL 465028, at *1 (D. Ariz.
Feb. 24, 2009). The court presumably based this finding on testimony that
the computer specialist who conducted the forensic examination had a
specially-equipped laptop. However, the specialist testified that using his
laptop at the border station, rather than transporting Cotterman’s electronic
devices to the Tucson computer center, would have taken “a lot longer”
because the laptop was “not nearly as extensive as what I have in my lab,”
the “processor in my laptop is much slower” than the lab equipment, and
“I could only do one computer at a time with the laptop.” Technical
difficulties also could have slowed down an examination conducted at the
border station.
UNITED STATES V . COTTERMAN 43
officers to immediately inspect all packages “would be of
little benefit to the person whose property is searched”).
B.
The majority’s opinion turns primarily on the notion that
electronic devices deserve special consideration because they
are ubiquitous and can store vast quantities of personal
information. That idea is fallacious and has no place in the
border search context.
The Supreme Court has been willing to distinguish only
between border searches of people and property, not between
different types of property. In 2004, in Flores-Montano, the
Court explained that
the reasons that might support a requirement
of some level of suspicion in the case of
highly intrusive searches of the
person—dignity and privacy interests of the
person being searched—simply do not carry
over to vehicles. Complex balancing 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.
541 U.S. at 152. We have since applied Flores-Montano to
hold that any distinction between “routine” and “nonroutine”
searches does not apply to searches of property, and that there
can be no “least restrictive means” test for border searches.
United States v. Chaudhry, 424 F.3d 1051, 1054 (9th Cir.
2005), cert. denied, 547 U.S. 1083 (2006); United States v.
Cortez-Rocha, 394 F.3d 1115, 1122–23 (9th Cir. 2004), cert.
44 UNITED STATES V . COTTERMAN
denied, 546 U.S. 849 (2005).6 Put another way, the Supreme
Court—and, reluctantly, this court—have refused to adopt a
sliding “intrusiveness” scale for border searches of property.
Thus, the Court has all but held that property that crosses the
border, whatever it is, does not merit Fourth Amendment
protection.
Of course, Flores-Montano, Chaudhry, and Cortez-Rocha
involved vehicles or parts of vehicles, not electronic devices,
and the other border search cases that have reached the
Supreme Court all involved containers of some sort. See,
e.g., Ramsey, 431 U.S. at 616–22 (mail); Thirty-Seven (37)
Photographs, 402 U.S. at 376 (luggage). And yes, the Court
has left open the possibility that a border search might be
“‘‘unreasonable’ because of the particularly offensive manner
in which it is carried out.’” Flores-Montano, 541 U.S. at 154
n.2 (quoting Ramsey, 431 U.S. at 618 n.13). But is the mere
fact that Cotterman chose to save his child pornography
electronically, rather than print it out on paper, enough to
invoke that exception?
The two courts of appeals—including this court—that
have had occasion to address whether electronic devices
6
In 1985, the Supreme Court wrote about the government’s “plenary
authority to conduct routine searches and seizures at the border.”
Montoya de Hernandez, 473 U.S. at 537 (emphasis added); see also id. at
541 n.4 (“Because the issues are not presented today we suggest no view
on what level of suspicion, if any, is required for nonroutine border
searches such as strip, body-cavity, or involuntary x-ray searches.”)
(emphasis added). W e unfortunately seized on the word “routine” to
establish a sliding scale of intrusiveness, with more intrusive (i.e., less
“routine”) searches requiring reasonable suspicion. See, e.g., United
States v. Molina-Tarazon, 279 F.3d 709, 711–13 (9th Cir. 2002). Flores-
Montano plainly repudiated that approach.
UNITED STATES V . COTTERMAN 45
deserve special consideration have correctly concluded that
they do not. In United States v. Arnold, 533 F.3d 1003,
1008–10 (9th Cir. 2008), cert. denied, 555 U.S. 1176 (2009),
we held that laptops are like other property, relying on the
reasoning and language in Flores-Montano, Chaudhry, and
Cortez-Rocha discussed above (among other cases).
Similarly, in United States v. Ickes, 393 F.3d 501, 503–07
(4th Cir. 2005), the Fourth Circuit upheld an extensive border
search of the defendant’s laptop that revealed child
pornography. Notably, the court held that the border agents
had reasonable suspicion to search the defendant’s laptop, but
explained why that did not matter:
The agents did not inspect the contents of
Ickes’s computer until they had already
discovered marijuana paraphernalia, photo
albums of child pornography, a disturbing
video focused on a young ball boy, and an
outstanding warrant for Ickes’s arrest. As a
practical matter, computer searches are most
likely to occur where—as here—the traveler’s
conduct or the presence of other items in his
possession suggest the need to search further.
However, to state the probability that
reasonable suspicions will give rise to more
intrusive searches is a far cry from enthroning
this notion as a matter of constitutional law.
The essence of border search doctrine is a
reliance upon the trained observations and
judgments of customs officials, rather than
upon constitutional requirements applied to
the inapposite context of this sort of search.
46 UNITED STATES V . COTTERMAN
Id. at 507. Thus, the Fourth Circuit has recognized what the
majority does not: electronic devices are like any other
container that the Supreme Court has held may be searched
at the border without reasonable suspicion.7 Though we are
not bound by Arnold nor Ickes in this en banc proceeding, we
are bound by what the Supreme Court has said: in the unique
context of border searches, property is property and we may
not chip away at the government’s authority to search it by
adopting a sliding scale of intrusiveness. It’s the border, not
the technology, that “matters.” Majority at 24; cf. Ramsey,
431 U.S. at 620 (“It is clear that there is nothing in the
rationale behind the border-search exception which suggests
that the mode of entry will be critical.”).
Logic and commonsense, not just Supreme Court
precedent, reveal the flaws in the majority’s opinion. The
fact that electronic devices are capable of storing a lot of
personal information does not make an extensive search of
them “particularly offensive.” We have squarely rejected the
idea that the “intrusiveness” of a search depends in whole or
in part on the nature of the property being searched. In
United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), we
specifically rebuffed the argument that computers are special
for Fourth Amendment purposes by virtue of how much
information they store; “neither the quantity of information,
nor the form in which it is stored, is legally relevant in the
Fourth Amendment context.” Id. at 888; see also California
v. Carney, 471 U.S. 386, 393–94 (1985) (rejecting applying
7
I agree with Judge Smith that the majority’s opinion appears to create
an imprudent split with the Fourth Circuit. See Dissent at 58.
UNITED STATES V . COTTERMAN 47
Fourth Amendment protection to property (a mobile home)
that is “capable of functioning as a home” simply on account
of the property’s size or “worth[iness]” as a container);
United States v. Payton, 573 F.3d 859, 864 (9th Cir. 2009)
(“Giberson held that computers were not entitled to a special
categorical protection of the Fourth Amendment.”); Kyllo v.
United States, 533 U.S. 27, 41 (2001) (Stevens, J., dissenting)
(explaining that Fourth Amendment exceptions and
distinctions based solely on a type of technology are
“unwise[ ] and inconsistent with the Fourth Amendment”).
While Giberson and Carney involved domestic searches,
their reasoning applies equally in the border search context.
If the government may search the contents of a briefcase, car,
or mobile home that transits the border, there is no reason it
should not also be able to search the contents of a camera,
tablet, or laptop that enters the country. All of those things
are capable of storing, and often do store, private information.
See Ross, 456 U.S. at 823 (“The luggage carried by a traveler
entering the country may be searched at random by a customs
officer; the luggage may be searched no matter how great the
traveler’s desire to conceal the contents may be.” (emphasis
added)). The majority points out that electronic devices can
and usually do store much more private information than their
non-electronic counterparts. Majority at 17–24. But “a port
of entry is not a traveler’s home,” Thirty-Seven (37)
Photographs, 402 U.S. at 376, even if a traveler chooses to
carry a home’s worth of personal information across it.8
8
The element of choice is crucial. The fact that border searches occur
at fixed times and checkpoints makes them inherently less intrusive; a
person “with advance notice of the location of a permanent checkpoint has
an opportunity to avoid the search entirely, or at least to prepare for, and
limit, the intrusion on her privacy.” Mich. Dep’t of State Police v. Sitz,
48 UNITED STATES V . COTTERMAN
Moreover, a bright-line rule distinguishing electronic from
non-electronic devices—of the sort the Supreme Court has
made clear has no place in Fourth Amendment jurisprudence,
Ohio v. Robinette, 519 U.S. 33, 39 (1996)—is arbitrary; there
is no reason someone carrying a laptop should receive greater
privacy protection than someone who chooses (or can only
afford) to convey his or her personal information on paper.
In short, today the court erects a new bright-line rule:
“forensic examination” of electronic devices “at the border
requires reasonable suspicion.” Majority at 17; see also id. at
21 n.10. The majority never defines “forensic,” leaving
border agents to wonder exactly what types of searches are
496 U.S. 444, 463 (1990) (Stevens, J., dissenting); see also Montoya de
Hernandez, 473 U.S. at 544 (“Respondent’s detention was long,
uncomfortable, indeed, humiliating; but both its length and its discomfort
resulted solely from the method by which she chose to smuggle illicit
drugs into this country.”).
The element of choice goes to the more fundamental issue of whether
someone can have any reasonable expectation of privacy when he or she
voluntarily carries electronic equipment across the border. Border officers
are permitted to examine a written diary, and someone who wants to keep
the contents of a diary secret should know not to take it across the border.
The same should be true for personal data stored on a laptop or other
electronic device rather than a written diary.
Moreover, the fact that the Fourth Amendment does not apply in
foreign countries further weakens any claim to a reasonable expectation
of privacy in property that crosses the United States border. Carrying an
electronic device outside the United States almost always entails carrying
it into another country, making it subject to search under that country’s
laws. Travelers expect these intrusions, or at least their possibility.
UNITED STATES V . COTTERMAN 49
off-limits.9 Even if the majority means to require reasonable
suspicion for any type of digital forensic border search, no
court has ever erected so categorical a rule, based on so
general a type of search or category of property, and the
Supreme Court has rightly slapped down anything remotely
similar. The majority invites—indeed, requires—the Court
to do so again.10
III.
The majority’s holding contravenes Supreme Court
precedent, defies logic and commonsense, and is unworkable.
It is also unnecessary and will impair the federal
government’s ability to protect our borders.
As Judge Smith points out in his dissent, “[b]order patrol
agents process hundreds of thousands of travelers each day
and conduct thousands of searches on electronic devices each
year.” Dissent at 61–62 (citation omitted). All the evidence
in this case suggests that the government does not have the
resources—time, personnel, facilities, or technology—to
exhaustively search every (or even a majority) of the
electronic devices that cross our borders. Cf. Ickes, 393 F.3d
at 507. Unless we somehow manage to solve our fiscal
problems, and unless the government somehow manages to
9
See Darrin J. Behr, Anti-Forensics: What it Does and Why You Need
to Know, 255 N.J. Law. 9, 10 (Dec. 2008) (“Due to the fact that there are
hundreds of digital forensic investigation procedures developed all over
the world, digital forensics has yet to be defined.”).
10
I note that a case currently pending in the Sixth Circuit appears to
raise similar issues as this case. See United States v. Stewart, No. 12-1427
(6th Cir. filed Apr. 5, 2012); see also United States v. Stewart, 715 F.
Supp. 2d 750 (E.D. Mich. 2010).
50 UNITED STATES V . COTTERMAN
acquire better technology at a faster pace than the rest of us,
these restraints will continue. That means border agents must
prioritize who, what, and how they search. By and large,
border agents will conduct forensic electronic searches of
people who, like Howard Cotterman, the agents reasonably
suspect may be trying to carry illegal articles into, or
themselves illegally enter, the country.11 That agents
typically will have reasonable suspicion is, of course, “a far
cry from enthroning this notion as a matter of constitutional
law.” Ickes, 393 F.3d at 507.
The majority finds this reality check to be of “little
comfort[;] [i]t is the potential unfettered dragnet effect that is
troublesome.” Majority at 25. But that abstract risk, which
exists with any exception to the Fourth Amendment, does not
justify a bright-line rule requiring reasonable suspicion for
any thorough search of electronic devices entering the United
11
Testimony from the suppression hearing in this case suggests that
remote and/or intensive searches of electronic devices crossing the border
do not occur all that often. For example, the computer specialist who
conducted the forensic search of Cotterman’s laptop testified that the
search was the first one he was asked to conduct in his 18 months on the
job at the Tucson computer center. (He added that at his previous post at
San Francisco International Airport, forensic searches were done right at
the airport.) Similarly, one of the border agents testified that this was the
first case he was aware of in which electronic devices were turned over to
Immigrations and Customs Enforcement for forensic examination, and
that even cursory reviews of laptops for information about illegal drug
trading occurred “no more than five” times during agent’s three-plus years
at the Lukeville border station. See Michael Chertoff, Secretary of
Homeland Security, Searches Are Legal, Essential, USA Today, July 16,
2008 (“Of the approximately 400 million travelers who entered the
country last year, only a tiny percentage were referred to secondary
baggage inspection for a more thorough examination. Of those, only a
fraction had electronic devices that may have been checked.”).
UNITED STATES V . COTTERMAN 51
States. See Robinette, 519 U.S. at 39 (“[W]e have
consistently eschewed bright-line rules, instead emphasizing
the fact-specific nature of the reasonableness inquiry.”); see
also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.
439, 445 (1988) (“A fundamental and longstanding principle
of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of
deciding them.”).
Moreover, border agents are not free to undertake
“unfettered crime-fighting searches or an unregulated assault
on citizens’ private information.” Majority at 26. As I
explained in my concurrence in Seljan, Congress and the
Executive Branch have (and have exercised) the authority to
restrict when and how border agents conduct searches. See
Seljan, 547 F.3d at 1012 (Callahan, J., concurring) (citing,
e.g., 19 U.S.C. § 1583; 19 C.F.R. § 145.3(b)-(c)); see also
Yule Kim, Cong. Research Serv. RL34404, Border Searches
of Laptop Computers and Other Electronic Storage Devices,
13–14 (2009) (describing recent legislative proposals to limit
border searches of electronic devices). In a similar vein,
Justice Breyer has noted that “Customs keeps track of the
border searches its agents conduct, including the reasons for
the searches. This administrative process should help
minimize concerns that [border] searches might be
undertaken in an abusive manner.” Flores-Montano,
541 U.S. at 156 (Breyer, J., concurring) (internal citation
omitted).12
12
See also U.S. Customs & Border Protection, Directive No. 3340-049,
Border Search of Electronic Devices Containing Information, 3–9 (2009)
(describing procedures for, and limits on, border searches of electronic
devices).
52 UNITED STATES V . COTTERMAN
Apart from being unnecessary, the majority’s new limits
on the government’s border search authority will make it
much harder for border agents to do their jobs, for at least two
reasons. First, it is common knowledge that border agents at
security checkpoints conduct more thorough searches not
simply of those persons who arouse suspicion but also of a
percentage of travelers on a random basis. Otherwise, a
person who appears entirely innocent will have nothing to
fear and will not be deterred from carrying something that
should not be brought into the country. A checkpoint limited
to searches that can be justified by articulable grounds for
“reasonable suspicion” is bound to be less effective.
Second, courtesy of the majority’s decision, criminals
now know they can hide their child pornography or terrorist
connections in the recesses of their electronic devices, while
border agents, fearing Fourth Amendment or Bivens actions,
will avoid conducting the searches that could find those
illegal articles. The result will be that people and things we
wish to keep out of our country will get in—a result hardly in
keeping with our “inherent authority to protect, and a
paramount interest in protecting,” the “territorial integrity” of
the United States. Flores-Montano, 541 U.S. at 153. The
border search doctrine must account for the fact that border
agents may need time and forensics to bypass “evasive
actions” a criminal has taken to hide contraband or other
illegal articles from plain view. Montoya de Hernandez,
473 U.S. at 542–43. I would rather leave those difficult
decisions “to the discretion of the officers in the field who
confront myriad circumstances we can only begin to imagine
from the relative safety of our chambers.” United States v.
UNITED STATES V . COTTERMAN 53
Williams, 419 F.3d 1029, 1034 (9th Cir.), cert. denied,
546 U.S. 1081 (2005).13
IV.
The border search exception to the Fourth Amendment
may be just that—an exception—but it is, and must be, a
mighty one. The government’s right and duty to protect our
nation’s territorial integrity demand that the government have
clear authority to exclude—and thus to find—those people
and things we have decided are offensive, threatening, or
otherwise unwanted. Recognizing this, the Supreme Court
has only once required reasonable suspicion for border
searches in the 125 years it has been reviewing them. In the
remaining cases, the Court has eschewed bright-line rules,
balancing tests, and sliding intrusiveness scales, alluding to
the possibility of, but never finding, a “particularly offensive”
13
The majority insists that reasonable suspicion is a “modest, workable
standard” that is applied in domestic stops of automobiles “and other
contexts,” and that still allows “agents to draw on their expertise and
experience.” Majority at 26, 27 n.14. The majority is wrong for at least
three reasons. First, in making this argument, the majority reveals that it
does not appreciate the crucial differences between domestic and border
searches, despite those differences being spelled out in a century of case
law. Those differences range from the legitimate expectation of privacy
that people have in their property to the constraints government officials
face in searching it. Second, a reasonable suspicion standard injects
unnecessary judicial review where previously it was absent. Third, just
because border agents could apply the reasonable suspicion standard does
not mean they are, or should be, constitutionally compelled to do so. See
Ickes, 393 F.3d at 507; cf. Seljan, 547 F.3d at 1011 (Callahan, J.
concurring) (explaining that requiring border agents to apply a First
Amendment exception to border searches “would require them to engage
in the sort of decision-making process that the Supreme Court wished to
avoid in sanctioning expansive border searches”).
54 UNITED STATES V . COTTERMAN
search. The fact that electronic devices can store large
amounts of private information, or that the government can
search them forensically, does not make a thorough search of
such devices “particularly offensive.” Rather, the Supreme
Court and this court have wisely avoided making the
reasonableness of a search turn on the nature of the property
being searched, for the many reasons discussed above. The
result has been a clear, well-understood, efficient, and
effective rule that border searches are per se reasonable.
Regrettably the majority, dispensing with these well-
settled, sensible, and binding principles, lifts our anchor and
charts a course for muddy waters. Now border agents,
instead of knowing that they may search any and all property
that crosses the border for illegal articles, must ponder
whether their searches are sufficiently “comprehensive and
intrusive,” Majority at 17, to require reasonable suspicion,
and whether they have such suspicion. In most cases the
answer is going to be as clear as, well, mud. We’re due for
another course correction.
M. SMITH, Circuit Judge, dissenting, with whom CLIFTON
and CALLAHAN, Circuit Judges, join with respect to Part I:
I respectfully dissent. Until today, federal courts have
consistently upheld suspicionless 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 (2009) (“[R]easonable 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
UNITED STATES V . COTTERMAN 55
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
requirement for some property searches at the border so
muddies current border search doctrine that border agents will
be left to divine on an ad hoc basis whether a property search
is sufficiently “comprehensive and intrusive” to require
reasonable suspicion, or sufficiently “unintrusive” to come
within the traditional border search exception. Requiring
border patrol agents to determine that reasonable suspicion
exists prior to performing a basic forensic examination of a
laptop or other electronic devices discourages such searches,
leaving our borders open to electronically savvy terrorists and
criminals who may hereafter carry their equipment and data
across our borders with little fear of detection. In fact, the
majority opinion makes such a legal bouillabaisse out of the
previously unambiguous border search doctrine, that I
sincerely hope the Supreme Court will grant certiorari, and
reverse the holding in this case regarding the level of
suspicion necessary to search electronic devices at the border,
for the sake of our national security, and the consistency of
our national border search law.
The Supreme Court rejected our last attempt to narrow the
border search exception, cautioning us not to create “complex
56 UNITED STATES V . COTTERMAN
balancing tests” for border searches of property except in the
rarest of cases, where the search is “so destructive as to
require” reasonable suspicion. United States v. Flores-
Montano, 541 U.S. 149, 152, 156 (2004) (rejecting our
proposed reasonable suspicion requirement in United States
v. Molina-Tarazon, 279 F.3d 709, 713–17 (9th Cir. 2002)).
“Time and again” the Court has concluded that border
searches are “‘reasonable simply by virtue of the fact that
they occur at the border.’” Id. at 152–53 (quoting United
States v. Ramsey, 431 U.S. 606, 616 (1977)).
Despite the Court’s clear ruling on the issue, the majority
again seeks to whittle away at the border search exception,
this time by conjuring a reasonable suspicion requirement for
border searches that employ computer software to search an
electronic storage device. Why the use of computer software
to analyze a hard drive triggers a reasonable suspicion
requirement while a “manual review” of the same hard drive
requires no suspicion, is left unexplained. Although
technology may serve as a useful proxy for the intrusiveness
of a search today, in the future even cursory searches might
be more efficiently conducted by the use of such technology.
Under the majority’s reasonable suspicion standard,
individuals’ privacy rights are only as secure as the
sophistication of the government’s current search mechanism.
Moreover, the task of distinguishing these
“comprehensive and intrusive” laptop searches from the
“unintrusive search” of a laptop affirmed in Arnold, 533 F.3d
at 1008, or the search of a private letter affirmed in United
States v. Seljan, 547 F.3d 993, 1003 (9th Cir. 2008) (en banc),
leaves border patrol officers with a difficult choice: either
protect our nation from those who mean us harm, or risk their
own jobs and livelihood in a Bivens action, or disciplinary
UNITED STATES V . COTTERMAN 57
proceedings. Apart from being administratively impractical,
the majority’s reasonable suspicion requirement disregards
well established border search jurisprudence, and undermines
vital national security interests. Ironically, the majority did
not even need to consider the border search doctrine in this
case because the search at issue in this case did not occur at
the border.
Separately, but importantly, the majority’s application of
the reasonable suspicion requirement to Cotterman is also
troubling. The majority purports to be concerned with
travelers’ “personal privacy and dignity,” but its
determination that reasonable suspicion exists under the
exceedingly weak facts of this case undermines the liberties
of U.S. citizens generally—not just at the border, and not just
with regard to our digital data—but on every street corner, in
every vehicle, and wherever else we rely on the doctrine of
reasonable suspicion to safeguard our legitimate privacy
interests.
I. The Border Search Doctrine
The majority heralds this as a “watershed” case that
requires a narrowing of the border search exception to
accommodate the privacy interests allegedly created by new
technologies. Yet despite the majority’s attempts to avoid the
fact, the border search exception is clear and inflexible. The
Supreme Court has repeatedly affirmed the breadth of the
border search doctrine, extending a reasonable suspicion
requirement only to: (1) “highly intrusive searches of the
person”; (2) “searches of property [that] are so destructive as
to require” reasonable suspicion; and (3) searches carried out
in a “particularly offensive manner”—of which the Court has
yet to find an example. Flores-Montano, 541 U.S. at 152,
58 UNITED STATES V . COTTERMAN
154 n.2, 156 (quotations and citations omitted) (emphasis
added).
The majority misconstrues these narrowly-defined
exceptions, reading Flores-Montano to require reasonable
suspicion whenever a search of property is deemed “overly
intrusive.” Majority at 18–19. Yet, the exceptions articulated
in Flores-Montano are far more circumscribed—applying not
to “overly intrusive” searches of property, like the search of
Cotterman’s computer, but only to “highly intrusive searches
of the person.” Flores-Montano, 541 U.S. at 152 (emphasis
added). The majority’s adoption of a reasonable suspicion
requirement to “comprehensive forensic examination[s]” of
property is irreconcilable with Flores-Montano. Majority at
6.
We have consistently rejected a reasonable suspicion
requirement for border searches of expressive materials, such
as papers and their modern-day equivalent—the data
contained on electronic storage devices. See, e.g., Seljan,
547 F.3d at 1003 (“An envelope containing personal
correspondence is not uniquely protected from search at the
border.”); Arnold, 533 F.3d at 1008 (“[R]easonable suspicion
is not needed for customs officials to search a laptop or other
personal electronic storage devices at the border.”). The
majority states that its en banc decision narrows Arnold to
permit only “relatively simple” border searches of laptops,
and “not to countenance suspicionless forensic
examinations.” Majority at 14 n.6. In narrowing Arnold,
however, the court creates a circuit split regarding the
application of reasonable suspicion to border searches of
electronic devices. See United States v. Ickes, 393 F.3d 501(4th Cir. 2005); see also United States v. Linarez-Delgado,
259 Fed. Appx. 506, 508 (3d Cir. 2007).
UNITED STATES V . COTTERMAN 59
For instance, in Ickes (as in Arnold) the defendant-
appellant argued that a reasonable suspicion requirement was
necessary for laptop searches at the border because otherwise
“any person carrying a laptop computer [] on an international
flight would be subject to a search of the files on the
computer hard drive.” Ickes, 393 F.3d at 506–07. The Fourth
Circuit rejected this argument, noting that
“[a]s a practical matter, computer searches are
most likely to occur where—as here—the
traveler’s conduct or the presence of other
items in his possession suggest the need to
search further. However, to state the
probability that reasonable suspicions will
give rise to more intrusive searches is a far
cry from enthroning this notion as a matter of
constitutional law. The essence of border
search doctrine is a reliance upon the trained
observations and judgments of customs
officials, rather than upon constitutional
requirements applied to the inapposite context
of this sort of search.”
Id. at 507 (emphasis added). The Third Circuit similarly
rejected a reasonable suspicion requirement for border
searches of electronic data, albeit in an unpublished opinion.
See United States v. Linarez-Delgado, 259 Fed. Appx. 506,
508 (3d Cir. 2007) (“Data storage media and electronic
equipment, such as films, computer devices, and videotapes,
may be inspected and viewed during a reasonable border
search.”) (citing Ickes, 393 F.3d 501). Because the majority
has narrowed our holding in Arnold that “reasonable
suspicion is not needed for customs officials to search a
laptop or other personal electronic storage devices at the
60 UNITED STATES V . COTTERMAN
border,” Arnold, 533 F.3d at 1008, the Ninth Circuit stands
alone, as it so often does.
The majority likens the search of Cotterman’s laptop to a
“computer strip search,” Majority at 25, and proceeds to
conflate the law regarding property searches with that
regarding “highly intrusive searches of the person.” Flores-
Montano, 541 U.S. at 152. However, the “reasons that might
support a requirement of some level of suspicion in the case
of highly intrusive searches of the person—dignity and
privacy interests of the person being searched—simply do not
carry over” to laptops, which know no dignity or shame, and
thus have neither of those interests. Flores-Montano,
541 U.S. at 152 (emphasis added). Moreover, even genuine
strip searches do not necessarily require reasonable suspicion
at the border. See United States v. Montoya de Hernandez,
473 U.S. 531, 541 n.4 (1985) (expressly declining to decide
“what level of suspicion, if any, is required for . . . strip, body
cavity, or involuntary x-ray searches”) (emphasis added).
The majority’s decision to insulate electronic storage
devices from the border search exception unsettles the border
search doctrine, places inappropriate burdens on law
enforcement, reduces deterrence, and raises serious national
security concerns. It also ignores the realities of electronic
data transmission and the reduced privacy expectations that
accompany much of this data, particularly at the border where
“[t]he government’s interest in preventing the entry of
unwanted persons and effects is at its zenith.” Flores-
Montano, 541 U.S. at 152.
UNITED STATES V . COTTERMAN 61
A. Burdens on Law Enforcement
The majority’s holding cripples law enforcement at the
border by depriving border patrol agents of the clear
administrative guidance they need to carry out core law
enforcement activities. “Officers who interact with those
suspected of violating the law have an essential interest in
readily administrable rules.” Florence v. Bd. of Chosen
Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1522
(2012). Yet the majority’s holding requires border patrol
agents to determine on a case-by-case and moment-by-
moment basis whether a search of digital data remains
“unintrusive,” a la Arnold, or has become “comprehensive
and intrusive,” a la Cotterman. Majority at 14, 17.
Requiring law enforcement to make such complex legal
determinations on the spot, and in the face of potentially
grave national security threats, strips agents of their necessary
discretion and deprives them of an efficient and administrable
rule.
The majority dismisses the burden its reasonable
suspicion requirement places on law enforcement, asserting
that agents can simply “draw on their expertise and
experience” to make the necessary judgment calls. Majority
at 26. Yet rather than actually deferring to this expertise and
experience, the majority forces border patrol agents to justify
their decisions under a heightened standard that has never
before been applied to border searches of property.
Border patrol agents process hundreds of thousands of
travelers each day and conduct thousands of searches on
62 UNITED STATES V . COTTERMAN
electronic devices each year.1 Identifying national security
and criminal threats at the border requires a high level of
experience and discretion in order to recognize and respond
to the ever-changing tactics of those who seek to enter our
country with nefarious intent. In recognition of these crucial
interests, the border search exception provides law
enforcement with broad discretion to conduct border searches
of property without resorting to case-by-case determinations
of reasonable suspicion—determinations border patrol agents
are ill-equipped to handle. See generally Florence, 132 S. Ct.
at 1522 (rejecting reasonable suspicion requirement for prison
strip-searches under this rationale). Moreover, as a practical
matter, suspicionless border searches of property make sense,
in light of the sheer number of individuals crossing the border
with electronic devices each day. See United States v.
Martinez-Fuerte, 428 U.S. 543, 557 (1976) (requiring
reasonable suspicion for vehicle checkpoints near the
Mexican border “would be impractical because the flow of
traffic tends to be too heavy to allow the particularized study
of a given car”). Given these realities of law enforcement at
the border, a reasonable suspicion requirement for all “overly
intrusive” electronic searches is simply not practicable.
B. National Security Concerns
The majority’s decision to insulate electronic devices
from search at the border creates serious national security
concerns. An “ever present threat exists from the potential
for terrorists to employ the same smuggling and
transportation networks, infrastructure, drop houses, and
other support” as other illegal aliens. U.S. Customs and
1
Department of Homeland Security Privacy Office, Annual Report to
Congress 54 (2009).
UNITED STATES V . COTTERMAN 63
Border Protection, National Border Patrol Strategy 5 (2005).
The Department of Homeland Security has found that border
searches of electronic storage devices are “essential” for
“detect[ing] evidence relating to terrorism and other national
security matters.”2 Terrorists rely on electronic storage
devices, for example, to copy and alter passports and other
travel documents.3 By providing special privacy protections
for electronic devices at the border, the majority eliminates
the powerful deterrent of suspicionless searches and
significantly aids technologically savvy terrorists and
criminals who rely on encryption and other surreptitious
forms of data storage in their efforts to do harm. See
Martinez-Fuerte, 428 U.S. at 557 (rejecting reasonable
suspicion requirement for vehicle checkpoints near the
Mexican border because to hold otherwise “would largely
eliminate any deterrent to the conduct of well-disguised
smuggling operations”).
The majority contends that the goal of deterrence does not
justify “any manner of intrusive search” at the border.
Majority at 26. Although I certainly agree with the majority
that a policy objective like deterrence cannot justify an
otherwise unconstitutional “highly intrusive search[] of the
person” at the border, Flores-Montano, 541 U.S. at 152, the
crucial role of deterrence cannot, and should not, be
understated. In fact, the Supreme Court recently affirmed the
importance of deterrence in upholding suspicionless strip
2
U.S. Customs and Border Protection, Border Search of Electronic
Devices Containing Information, CBP Directive No. 3340-049 § 1 (2009).
3
Thomas R. Eldridge, et al., 9/11 and Terrorist Travel: Staff Report of
the National Commission on Terrorist Attacks Upon the United States 60
(2004).
64 UNITED STATES V . COTTERMAN
searches—the apotheosis of an intrusive search. Florence,
132 S. Ct. at 1516 (rejecting reasonable suspicion
requirement for prison strip searches and reasoning that
“deterring the possession of contraband depends in part on
the ability to conduct searches without predictable
exceptions”). The suspicionless strip search upheld in
Florence, which included a close visual inspection of “the
buttocks or genital areas,” was unquestionably more intrusive
than the so-called “computer strip search” at issue here. Id.
at 1515.
The majority contends that the deterrence function of
suspicionless searches will not be hampered by the
requirement of reasonable suspicion because, “as a matter of
commonsense and resources, it is only when reasonable
suspicion is aroused that such searches typically take place.”
Majority at 27 n.14. This is, of course, the very argument
rejected by the Fourth Circuit in Ickes. See Ickes, 393 F.3d at
507 (“As a practical matter, computer searches are most
likely to occur where—as here—the traveler’s conduct or the
presence of other items in his possession suggest the need to
search further. However, to state the probability that
reasonable suspicions will give rise to more intrusive
searches is a far cry from enthroning this notion as a matter
of constitutional law.”).
In addition to undermining deterrence, a reasonable
suspicion requirement will likely disincentivize agents to
conduct laptop searches in close cases. See Florence, 132
S. Ct. at 1522 (“To avoid liability” if required to find
reasonable suspicion, “officers might be inclined not to
conduct a thorough search in any close case, thus creating
unnecessary risk for the entire jail population.”). Border
patrol agents accused of conducting an “unreasonable” search
UNITED STATES V . COTTERMAN 65
face very real consequences—as federal officials, for
example, they may be sued in their individual capacities for
civil damages, as part of a Bivens4 action. See Ronald J.
Sievert, Meeting the Twenty-First Century Terrorist Threat
Within the Scope of Twentieth Century Constitutional Law,
37 Hous. L. Rev. 1421, 1424 (2000). The majority’s
reasonable suspicion requirement saddles border patrol agents
with a “Sophie’s choice” between securing our nation, and
protecting their own livelihoods. These misaligned incentives
create unnecessary risk, not just for a prison population, as in
Florence, 132 S. Ct. at 1522, but for our entire nation.
C. Expectation of Privacy in Electronic Data at the
Border
The majority suggests that travelers at the border have a
heightened expectation of privacy in their electronic storage
devices, due to the “uniquely sensitive nature of [this] data.”
Majority at 25. There is no question that searches of
electronic data are protected by the Fourth Amendment, but
we have never found this data to be immune from the border
search exception. In fact, these electronic storage devices are
hardly a bastion of privacy. When connected to the Internet,
they transmit a massive amount of intimate data to the public
on an almost constant basis, rendering it unremarkable that
they can be searched at the border, where “[t]he government’s
interest in preventing the entry of unwanted persons and
effects is at its zenith.” Flores-Montano, 541 U.S. at 152.
Indeed, Facebook, for example, now has more than 500
million users, who share more than 25 billion pieces of data
4
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
66 UNITED STATES V . COTTERMAN
each month.5 Those who opt out of social networking sites
are no less susceptible to the ubiquitous Internet cookie,
which collects data on users’ Internet activities to share or
sell with other organizations. Max Stul Oppenheimer,
Consent Revisited, 13 No. 12 J. Internet L. 3, 4 (2010). Until
recently, a federally funded data accumulation system
allowed clients to “search tens of billions of data records on
individuals and businesses in mere seconds.”6 Considering
the steady erosion of our privacy on the Internet, searches of
electronic storage devices may be increasingly akin to a well-
placed Internet search. Ironically, the majority creates a zone
of privacy in electronic devices at the border that is
potentially greater than that afforded the Google searches we
perform in our own homes, and elsewhere.
The majority muses that “[a] person’s digital life ought
not be hijacked simply by crossing the border,” Majority at
22, but it fails to explain why electronic data deserves special
protections when we have never extended such protections to
the same data in written form. See Seljan, 547 F.3d at 1003(“An envelope containing personal correspondence is not
uniquely protected from search at the border.”); see also
United States v. Tsai, 282 F.3d 690, 696 (9th Cir. 2002) (no
reasonable suspicion needed to search a traveler’s briefcase);
United States v. Grayson, 597 F.2d 1225, 1228–29 (9th Cir.
1979) (no reasonable suspicion needed to search papers found
5
Jeffrey Rosen, The Deciders: Facebook, Google, and the Future of
Privacy and Free Speech, in Constitution 3.0: Freedom and Technological
Change (Constitution 3.0) 76 (Jeffrey Rosen & Benjamin W ittes eds.,
Brookings Institution Press 2011).
6
Christopher Slobogin, Is the Fourth Amendment Relevant?, in
Constitution 3.0 18 (citing Laura K. Donohue, Anglo-American Privacy
and Surveillance, 96 J. Crim. L. & Criminology 1059, 1150–51 (2006)).
UNITED STATES V . COTTERMAN 67
in a shirt pocket); Henderson v. United States, 390 F.2d 805,
808 (9th Cir. 1967) (no reasonable suspicion needed to search
a traveler’s “purse, wallet, or pockets”). The documents
carried on today’s smart phones and laptops are different only
in form, but not in substance, from yesterday’s papers, carried
in briefcases and wallets. The majority contends that
electronic devices hold data of a “uniquely sensitive nature”
and that, inexplicably, these devices have the “capability to
. . . augment the expectation of privacy.” Majority at 23, 25.
Under the majority’s reasoning, the mere process of
digitalizing our diaries and work documents somehow
increases the “sensitive nature” of the data therein,
providing travelers with a greater expectation of privacy in
a diary that happens to be produced on an iPad rather than
a legal pad. Such artificial and arbitrary distinctions cannot
serve as a reasonable basis for determining privacy rights at
the border.
The majority attempts to distinguish electronic devices
from papers by the vast amount of data they can hold, noting
that “[a] car full of packed suitcases . . . cannot hold a candle
to the sheer, and ever-increasing, capacity of digital storage.”
Majority at 21. Yet, “case law does not support a finding that
a search which occurs in an otherwise ordinary manner, is
‘particularly offensive’ simply due to the storage capacity of
the object being searched.” Arnold, 533 F.3d at 1010. The
majority contends that it “discuss[es] the typical storage
capacity of electronic devices simply to highlight the features
that generally distinguish them from traditional baggage.”
Majority at 21 n.10. Yet why the majority would bother to
distinguish between the storage capacities of electronic
devices and traditional luggage is a mystery, unless to support
its enhanced protections for electronic devices based on their
greater storage capacity.
68 UNITED STATES V . COTTERMAN
Mapping our privacy rights by the amount of information
we carry with us leads to unreasonable and absurd results.
Under the majority’s reasoning, a Mini Cooper filled with
documents is entitled to less privacy protection at the border
than a stretch Rolls-Royce filled with documents; a pickup
truck filled with documents is entitled to less protection than
an 18 wheeler filled with documents. It appears that those
who cannot afford a 64 gigabyte iPad, or the “average” 400
gigabyte hard drive discussed by the majority, Majority at 20,
will alone be subject to suspicionless searches. The
majority’s reasoning also protects the rich (who can generally
afford more sophisticated devices) to a greater extent than the
poor (who are presumably less able to afford those more
capable devices.) See United States v. Ross, 456 U.S. 798,
822 (1982) (“[A] traveler who carries a toothbrush and a few
articles of clothing in a paper bag or knotted scarf claim[s] an
equal right to conceal his possessions from official inspection
as the sophisticated executive with the locked attache case.”).
If our privacy interests are to be dictated by the quantity
of data we possess, the question then becomes, how many
gigabytes of storage must one buy to secure the guarantee that
reasonable suspicion will be required before one’s devices are
searched? The majority gives us no firm basis for deciding
how much storage space is necessary—32 gigabytes? 64
gigabytes? 400 gigabytes? Who knows? Moreover, the
majority’s test must constantly change to accommodate the
ever-increasing capacity of electronic storage and new
technologies. Before we know it, today’s “average” 400
gigabyte hard drive will look like yesterday’s diary next to
tomorrow’s “average” 2 terabyte hard drive.
The majority asserts that our “reasonableness
determination must account for differences in property.”
UNITED STATES V . COTTERMAN 69
Majority at 24. This assertion has no basis in law, however,
since Flores-Montano distinguished not between types of
property, but between searches of property and “searches of
the person.” Flores-Montano, 541 U.S. at 152 (emphasis
added). In any event, it appears that the majority’s
reasonableness requirement accounts not for “differences in
property,” as it suggests, but rather for differences in the
intrusiveness of a particular property search. As discussed
supra, however, these intrusiveness-based tests have no place
in border searches of property and have been explicitly
rejected by the Supreme Court as “[c]omplex balancing
tests.” Flores-Montano, 541 U.S. at 152.
The majority additionally speculates about the privacy
implications of searching an external cloud platform, which
may “includ[e] the same kind of highly sensitive data one
would have in ‘papers’ at home.” Majority at 23. I share the
majority’s keen interest in the Fourth Amendment
implications of this burgeoning technology, but the
reasonableness of cloud computing has no bearing on the case
at hand, absent any facts that Cotterman utilized such a
platform, or that such a platform was searched.
II. Waiver
There is another important issue in this case that is
separate from the majority’s new standard for border
searches. Specifically, I refer to the majority’s finding that
there was reasonable suspicion to search Cotterman’s
computer and other electronic devices, miles from the border.
In its zeal to cripple the application of the current border
search doctrine, while still securing Cotterman’s conviction,
the majority turns on their heads all the parties’ arguments
about reasonable suspicion as to Cotterman, and the findings
70 UNITED STATES V . COTTERMAN
made by the lower courts concerning that suspicion. First, the
majority now stakes its holding on a finding of reasonable
suspicion—despite the fact that the government knowingly
and unequivocally conceded on appeal any argument that the
computer search was supported by reasonable suspicion.
Second, the majority’s determination that reasonable
suspicion was required under the border search exception is
contrary to every argument raised by either party in its briefs
prior to our request for supplemental briefing. Third, even
the majority seems to concede that the search of Cotterman’s
own computer that actually occurred at the border did not
involve a computer with sufficient storage capacity, and was
not sufficiently intrusive, to require reasonable suspicion,
under its “new” border search doctrine. Thus, it need not
have treated, nor altered, the current border search exception.
Fourth, the Magistrate Judge’s Report and Recommendation,
adopted by the District Judge, did not conclude that
reasonable suspicion was required under the border search
exception. Despite all the above, the majority upholds
Cotterman’s conviction on grounds that the government had
reasonable suspicion to extensively search his computer 170
miles from the border. Being mindful that the government
has the burden of proof in this case, not the majority of our
panel, I would have heeded the government’s strategic, good
faith decision to abandon on appeal its argument that
reasonable suspicion existed.7
The majority claims that Cotterman has not been
prejudiced—despite the fact that the majority’s finding of
reasonable suspicion is the raison d’être for his
7
W hen asked during oral argument why it failed to argue reasonable
suspicion on appeal, the government acknowledged that the issue was a
“close” one.
UNITED STATES V . COTTERMAN 71
conviction—because Cotterman was allowed to file a
supplemental brief on the matter after oral argument.
Although I concede that what the majority did is technically
permissible, see U.S. Nat’l Bank of Oregon v Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 446 (1993) (“When an
issue or claim is properly before the court, the court is not
limited to the particular legal theories advanced by the
parties, but rather retains the independent power to identify
and apply the proper construction of governing law”)
(citations and quotations omitted), it is clear to me that
Cotterman has been severely prejudiced, because his
conviction is based solely on an issue the government
conceded, and that Appellant, and the lower courts, took for
granted because it was not needed for a border search. It is
the majority of our panel, not the government, that prosecuted
the reasonable suspicion issue in this case.
III. Extended Border Search
The extended border search doctrine applies to “searches
that do not occur at the time of entry or in the immediate
vicinity of the border.” United States v. Alfonso, 759 F.2d
728, 735 (9th Cir. 1985). Because these searches “intrude
more on an individual’s normal expectation of privacy,”
reasonable suspicion is required. Id. at 734.
The majority’s mutation of the border search exception is
especially unnecessary given that this search did not occur at
the border, but rather 170 miles away from the border and
five days after the border was crossed. Indeed, the majority
concedes that the government could have performed the
forensic computer search at the border, but instead chose to
transport Cotterman’s electronics more than 170 miles away.
By labeling this a border search, the majority has conjured a
72 UNITED STATES V . COTTERMAN
sort of “floating border,” whereby any item initially seized at
the border, but not cleared there, can be transported thousands
of miles away and searched anywhere, and at any time,
simply because the government did not find anything (or
enough) during its original search at the border. Because the
search at issue occurred neither “at the time of entry or in the
immediate vicinity of the border,” it is more appropriately
analyzed as an extended border search. See Alfonso, 759 F.2d
at 735.
The majority asserts that this case cannot be analyzed as
an extended border search because Cotterman’s computer
was never “cleared” at the border prior to search. Majority at
15. The majority is mistaken. In United States v. Cardona,
769 F.2d 625, 628 (9th Cir. 1985), we applied the extended
border search doctrine to a search of a Federal Express
package that occurred twenty-four hours before the scheduled
border crossing, and 3,000 miles from the border. See
769 F.2d at 628 (“Considering the distance and time factors
of the present case, we conclude that the facts of this case
should be analyzed under the extended border search
doctrine.”).
While this case presents issues we have not yet addressed
in the context of an extended border search, United States v.
Alfonso is squarely on point. In Alfonso, the government
conducted an initial, cursory search of a ship upon its arrival
at the Los Angeles harbor. Alfonso, 759 F.2d at 732. Thirty-
six hours later, while still docked at the port, officials
conducted a second, more intrusive search. Id. Tasked with
determining whether the second search was an extended
border search or a search at the functional equivalent of the
border, we noted that “the instant case illustrates the
difficulty of making sharp distinctions in this area.” Id. at
UNITED STATES V . COTTERMAN 73
735. We determined that “[a]lthough we have no difficulty
in relating this site with the border, we shall, because of the
time factor—the lapse of thirty-six hours in conducting the
searches—examine the facts under the rules of extended
border search.” Id. at 734. The majority suggests that cases
like Alfonso are distinguishable from the case at issue because
those cases wrestled with distinguishing between a functional
border search and an extended border search, whereas this
case involves distinguishing between a traditional border
search and an extended border search. This is a distinction
without a difference since, as the majority acknowledges,
there is no operative difference between border searches and
searches that occur at the functional equivalent of the border,
at least for purposes of determining whether a search is an
extended border search.
I would hold that the search which took place 170 miles
from the border, five days after crossing—a much greater
lapse than the thirty-six hours in Alfonso—requires this case
to be analyzed as an extended border search. Additionally,
the reasonable suspicion requirement already applies to
extended border searches, in recognition of the fact that such
searches “intrude more on an individual’s normal expectation
of privacy.” Id. As such, the extended border search doctrine
is aptly suited to address the privacy expectations at issue in
this case.
IV. Reasonable Suspicion
Irrespective of the government’s concession of the issue,
the evidence in this case falls woefully short of reasonable
suspicion. “[R]easonable suspicion exists when an officer is
aware of specific, articulable facts which, when considered
with objective and reasonable inferences, form a basis for
74 UNITED STATES V . COTTERMAN
particularized suspicion.” United States v. Montero-
Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc).
We assess reasonable suspicion under the totality of the
circumstances, “tak[ing] into account both factors weighing
for and against reasonable suspicion.” United States v.
Manzo-Jurado, 457 F.3d 928, 938 (9th Cir. 2006). We “will
defer to officers’ inferences only when such inferences
rationally explain how the objective circumstances ‘aroused
a reasonable suspicion that the particular person being
stopped had committed or was about to commit a crime.’”
Manzo-Jurado, 457 F.3d at 934–35 (quoting Montero-
Camargo, 208 F.3d at 1129) (alterations omitted).
“Reasonable suspicion may not be based on broad profiles
which cast suspicion on entire categories of people without
any individualized suspicion of the particular person to be
stopped.” United States v. Sigmond-Ballesteros, 285 F.3d
1117, 1121 (9th Cir. 2001) (internal quotations and citations
omitted).
I agree with the majority that reasonable suspicion was
not needed to conduct the initial search of Cotterman’s
computer at the border, and that we analyze reasonable
suspicion only as to the second search (the majority would
say a continuation of the initial search,) which took place 170
miles from the border and several days after the border
crossing. The majority’s reasonable suspicion finding
appears to be based solely on the TECS alert: it states that
“the nature of the alert on Cotterman, directing agents to
review media and electronic equipment for child
pornography, justified conducting the forensic examination
despite the failure of the first search to yield any contraband.”
Majority at 33. Thus, the majority pins reasonable suspicion
on the TECS alert, dismisses out of hand the numerous
factors weighing against reasonable suspicion, and paves the
UNITED STATES V . COTTERMAN 75
way for a government database to target “entire categories
of people without any individualized suspicion of the
particular person to be stopped.” Sigmond-Ballesteros,
285 F.3d at 1121 (internal quotations and citations omitted)
(emphasis added). The majority considers the TECS alert to
be a sufficient basis for reasonable suspicion, but in reality,
it is nothing more than a mechanism that automatically flags
all individuals who are registered sex offenders in
California—no matter the nature of the sex offense or how
old the conviction—who travel frequently.8 California is
home to more than 106,000 sex offenders.9 Some of these
individuals are required to register as sex offenders for life.
Depending on how many of them travel frequently, a TECS
hit could affect tens of thousands of Californians—many with
decades-old convictions. The TECS database clearly hits on
“a very large category of presumably innocent travelers, who
would be subject to virtually random seizures were the Court
to conclude that as little foundation as there was in this case
could justify a seizure.” Reid v. Georgia, 448 U.S. 438, 441
(1980). By allowing reasonable suspicion to rest entirely on
the TECS alert, the majority rules that a decades-old
conviction can serve as a basis to deprive a person of his or
8
The TECS alert is part of Operation Angel W atch, a program that
targets California residents who are registered sex offenders based on the
suspicion that those individuals who travel internationally are engaging in
child sex tourism. The majority at one point improperly lists “the
parameters of the Operation Angel W atch program” as an independent
factor supporting reasonable suspicion. Majority at 30–31. W e must look
solely at the underlying facts supporting reasonable suspicion— i.e.,
Cotterman’s status as a sex offender and his frequent travel— rather than
the database or mechanisms used to deliver that information.
9
Press Release, National Center for Missing and Exploited Children,
Number of Registered Sex Offenders in the US Nears Three-Quarters of
a Million (Jan. 23, 2012).
76 UNITED STATES V . COTTERMAN
her property for an indefinite period, so that a “border search”
may be conducted hundreds of miles from the border.
The majority suggests that the TECS alert informed
border patrol agents of the nature of Cotterman’s conviction.
In fact, the TECS hit did not state the nature of Cotterman’s
conviction, although one agent mistakenly recollected that “it
stated that [Cotterman] appeared to [sic] been involved in
some type of child pornography.” Curiously, another agent
stated that a criminal history check on Cotterman revealed
that “that he had a prior conviction pertaining to child
pornography.” In fact, and despite the erroneous contentions
of the referenced agents, Cotterman had no prior child
pornography conviction; he had a 15-year-old conviction for
sexual conduct with a minor. While we generally give “due
weight to inferences drawn” by law enforcement, Ornelas v.
United States, 517 U.S. 690, 699 (1996), the case for
deference is questionable here in the absence of any rational
explanation as to how the officers could have read the TECS
alert and criminal history check, neither of which listed a
conviction for child pornography, and come away thinking
that Cotterman was guilty of that offense. See Manzo-
Jurado, 457 F.3d at 934–35 (“[W]e will defer to officers’
inferences only when such inferences rationally explain how
the objective circumstances aroused a reasonable
suspicion.”); see also Liberal v. Estrada, 632 F.3d 1064, 1078
(9th Cir. 2011) (mistake of fact must be reasonable).
All things considered, the fact that an individual with a
15-year-old sex conviction was also a frequent traveler
appears to be a rather weak lynchpin for reasonable suspicion.
Yet, other than Cotterman’s prior conviction and travels, the
factors cited by the majority are far too generalized to provide
even an indicia of suspicion that Cotterman was involved in
UNITED STATES V . COTTERMAN 77
sex tourism. For instance, the majority considers
Cotterman’s “collection of electronic equipment” to be a
factor supporting reasonable suspicion. In today’s world, the
fact that Cotterman and his wife each carried a laptop and
digital camera when traveling internationally, as well as one
video camera between them,10 is no more evidence of “sex
tourism” than of any other kind of tourism.
Similarly, the fact that Cotterman was returning from
Mexico fails to support a finding of reasonable suspicion.
Mexico is a popular travel destination for Californians,
including those who travel to Mexico for its beaches, culture
and weather, and not for its sex tourism. Travel to Mexico
simply does not support reasonable suspicion without more
specific evidence that Cotterman traveled to a particular
establishment, city, or even region, associated with sex
tourism. See United States v. Irving, 452 F.3d 110, 114, 124
(2d Cir. 2006) (finding reasonable suspicion based on
knowledge that suspect, a convicted pedophile and the subject
of criminal investigation, had visited an orphanage in Mexico
and had luggage with children’s books and drawings).
According to the Department of Justice, American sex
tourism is a problem not only in Mexico, but also in
Southeast Asia, Central and South America, and, to a lesser
extent, Eastern Europe.11 Under the majority’s application of
reasonable suspicion, an individual who committed a sex
offense 30 years ago cannot visit the Charles Bridge in
Prague, the Cristo Redentor in Rio de Janeiro, or even the
“lost city” of Machu Picchu, without arousing a “reasonable”
10
The video camera was apparently Mrs. Cotterman’s.
11
U.S. Department of Justice, The National Strategy for Child
Exploitation Prevention and Interdiction, A Report to Congress 36 (2010).
78 UNITED STATES V . COTTERMAN
suspicion of sex tourism. Someone who was convicted of tax
evasion 15 years ago, or any other kind of conviction listed
on a federal database, and particularly one that involved the
use of a computer, should also probably avoid visiting
Switzerland or Luxemburg under the majority’s new
standard. The bottom line is that thousands of
individuals—many with decades-old convictions—will now
be forced to reconsider traveling to entire countries or even
continents, or will need to leave all their electronic equipment
behind, to avoid arousing a “reasonable” suspicion.
Perhaps the most concerning aspect of the majority’s
opinion, especially given its stated stance on privacy rights at
the border, is its readiness to strip former sex offenders and
others convicted of past crimes (and who are, theoretically,
entitled to be presumption of innocence) of even the most
basic of privacy rights, such as the right to password-protect
their electronic devices. The majority acknowledges that “it
is commonplace for business travelers, casual computer users,
students and others to password protect their files” and that
“password protection is ubiquitous.” Majority at 31. It avers
that “[n]ational standards require that users of mobile
electronic devices password protect their files,” and that
“[c]omputer users are routinely advised—and in some cases,
required by employers—to protect their files when traveling
overseas.” Majority at 31 (emphasis added). Yet because
border patrol agents encountered a single password-protected
file on Cotterman’s computer, the majority considers
password protection a factor contributing to reasonable
suspicion.12 Worse still, the majority contends that it is
12
The unequivocal testimony of Agent Antonio Alvarado confirms that
only a single password-protected file was discovered on Cotterman’s
computer at the border.
UNITED STATES V . COTTERMAN 79
justified in considering the password-protected file because
“making illegal files difficult to access makes perfect sense
for a suspected holder of child pornography.” Majority at 32.
I fail to see how the agents had reasonable suspicion that
Cotterman’s computer contained “illegal files” based solely
on his 15-year-old sex offense, travel to Mexico with his
wife, and the “ubiquitous” act of password-protection.
Indeed, as the majority acknowledges, making legal files
difficult to access makes “perfect sense” for anyone, even
former sex offenders.
I would find a password-protected file to be not at all
suspicious, unless we want to start basing reasonable
suspicion on locked diaries and briefcases. Registered sex
offenders face numerous consequences as a result of their
convictions, but the law has never before punished them for
using “ubiquitous” and “commonplace” password-protection.
Yet under the majority’s analysis, an individual traveling to
Southeast Asia for business, who happens to be subject to one
of TECS’s broad-based alerts, and who follows his
company’s security protocols, should expect to have his
electronic equipment seized and transported hundreds of
miles away.13
Moreover, the majority fails to consider reasonable
suspicion in light of the totality of the circumstances because
13
The majority finds ironic my concern about the expansiveness of its
reasonable suspicion standard, since at the border, I would advocate for no
suspicion at all. The majority is correct that at the border, my concern is
simply with following Flores-Montano and maintaining national security.
I view the majority’s application of its reasonable suspicion requirement
as a separate issue, and my concern there is that the majority has so diluted
the reasonable suspicion requirement as to undermine the rights of U.S.
citizens generally.
80 UNITED STATES V . COTTERMAN
it dismisses without explanation numerous factors that weigh
against a finding of reasonable suspicion in this case. See
Manzo-Jurado, 457 F.3d at 938 (the reasonable suspicion
determination must “take[] into account both factors
weighing for and against reasonable suspicion.”) (emphasis
added). At the time the border patrol agents commenced the
second search, 170 miles away from the border, any
suspicions they may have initially harbored against
Cotterman would have been largely addressed by their
interrogations of Cotterman and his wife, which produced
nothing suspicious. An initial search of Cotterman’s
computer and the digital cameras turned up nothing more
than a single password protected file and photos of “whale
hunting and various excursions,” all of which corroborated
Cotterman’s story about vacationing in Mexico. Also during
this initial search, one of the border patrol agents did a
records check and discovered that Cotterman’s conviction for
the sex offense had occurred more than 15 years ago.
Cotterman was fully cooperative and even offered to help the
agents access his computer. The majority contends that
Cotterman’s offer to help does not weigh against a finding of
reasonable suspicion because the agents declined Cotterman’s
offer based on the possibility—however slight—that
Cotterman could “booby trap” the devices. That the agents
were unable to accept Cotterman’s offer, however, does not
change the reasonable inference that his offer was a genuine
one.
Accordingly, it is irrelevant whether there was reasonable
suspicion for the initial search, because I agree with the
majority that reasonable suspicion was not required. The
relevant inquiry here is what suspicion existed after all of
Cotterman’s electronics were searched, and he and his wife
were interrogated separately, and every piece of evidence
UNITED STATES V . COTTERMAN 81
obtained corroborated the Cottermans’ story about
vacationing in Mexico. The only hint of suspicion remaining
at that point—after the initial border search and
interrogations—was the single password-protected file, which
I agree with the majority is insufficient, by itself, to sustain a
finding of reasonable suspicion. See Manzo-Juardo, 457 F.3d
at 935 (“[T]o establish reasonable suspicion, an officer cannot
rely solely on generalizations that, if accepted, would cast
suspicion on large segments of the lawabiding population.”).
V. Conclusion
Reasonable suspicion has no place in property searches at
the border, as the Supreme Court has consistently held. See
Flores-Montano, 541 U.S. at 152–53 (“Time and time again,
we have stated that searches made at the border, pursuant to
the longstanding right of the sovereign to protect itself by
stopping and examining persons and property crossing into
this country, are reasonable simply by virtue of the fact that
they occur at the border.”). Imposing a reasonable suspicion
requirement here forces courts and border patrol agents to
engage in just the “sort of decision-making process that the
Supreme Court wished to avoid in sanctioning expansive
border searches.” Seljan, 547 F.3d at 1011 (citation omitted)
(Callahan, J. concurring). Rather than rewrite the border
search exception, as the majority does, I would affirm the
district court’s application of the extended border search
doctrine to Cotterman’s case, which appears most appropriate
given the extensive lapse in distance and time between the
first and the second search. Additionally, I would hold the
government to its burden of proof in determining that
reasonable suspicion was absent here. Under the doctrine of
this case, the majority sweeps in thousands of innocent
individuals whose electronic equipment can now be taken
82 UNITED STATES V . COTTERMAN
away from the border and searched indefinitely, under the
border search exception.
I respectfully dissent.