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-
HOWARD WESLEY COTTERMAN, CRP-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
September 9, 2010—San Francisco, California
Filed March 30, 2011
Before: Betty B. Fletcher, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Tallman;
Dissent by Judge B. Fletcher
4205
UNITED STATES v. COTTERMAN 4209
COUNSEL
John J. Tuchi, United States Attorney, District of Arizona,
Christina M. Cabanillas, Appellate Chief, Carmen F. Corbin
(argued), Assistant United States Attorney, Tucson, Arizona,
for plaintiff-appellant United States of America.
William J. Kirchner (argued), Walter Nash, Law Offices of
Nash & Kirchner, P.C., Tucson, Arizona, for defendant-
appellee Howard Wesley Cotterman.
OPINION
TALLMAN, Circuit Judge:
Today we examine a question of first impression in the
Ninth Circuit: whether the search of a laptop computer that
begins at the border and ends two days later in a Government
forensic computer laboratory almost 170 miles away can still
fall within the border search doctrine. The district court con-
sidered the issue to be a simple matter of time and space. It
concluded that the search of property seized at an interna-
tional border and moved 170 miles from that border for fur-
ther search cannot be justified by the border search doctrine.
We disagree.
4210 UNITED STATES v. COTTERMAN
We find no basis under the law to distinguish the border
search power merely because logic and practicality may
require some property presented for entry—and not yet admit-
ted or released from the sovereign’s control—to be trans-
ported to a secondary site for adequate inspection. The border
search doctrine is not so rigid as to require the United States
to equip every entry point—no matter how desolate or infre-
quently traveled—with inspectors and sophisticated forensic
equipment capable of searching whatever property an individ-
ual may wish to bring within our borders or be otherwise pre-
cluded from exercising its right to protect our nation absent
some heightened suspicion.
Still, the line we draw stops far short of “anything goes” at
the border. The Government cannot simply seize property
under its border search power and hold it for weeks, months,
or years on a whim. Rather, we continue to scrutinize searches
and seizures effectuated under the longstanding border search
power on a case-by-case basis to determine whether the man-
ner of the search and seizure was so egregious as to render it
unreasonable.
Because we agree with the district court’s conclusion that
the federal agents acted reasonably, and find that neither the
scope of the intrusion nor the duration of the deprivation was
egregious, we reverse the district court’s order suppressing
hundreds of images and videos of child pornography found on
Howard Cotterman’s computer and remand the case to the
district court for further proceedings consistent with our deci-
sion.
I
A
On Friday, April 6, 2007, at approximately 10 a.m., How-
ard and Maureen Cotterman drove from Mexico to the
Lukeville, Arizona, Port of Entry (“POE”) and presented
UNITED STATES v. COTTERMAN 4211
themselves for admission into the United States with valid
United States passports. Following protocol, the inspector
checked both passports against the Customs and Border Pro-
tection (“CBP”) electronic database and discovered a Trea-
sury Enforcement Communication System (“TECS”) alert on
Cotterman’s1 name. The TECS alert—placed in the computer
system by Immigration and Customs Enforcement (“ICE”)
agents in Long Beach, California, after Cotterman was con-
victed in 1992 for two counts of use of a minor in sexual con-
duct, two counts of lewd and lascivious conduct upon a child,
and three counts of child molestation—informed the officer to
be on the “lookout” for child pornography.2 Because of the
alert, the inspector sent the Cottermans to a secondary inspec-
tion area for a more thorough search, as authorized by statute
and regulation. See 19 U.S.C. §§ 1433, 1582.3
The Lukeville CBP officer assigned to secondary inspec-
tion called the Long Beach contact number listed on the
1
All references to “Cotterman” in this opinion refer to Howard Cotter-
man. We will refer to his wife simply by her first name of Maureen.
2
The TECS entry was part of Operation Angel Watch, which combats
child sex tourism by flagging sex offenders who target children and fre-
quently travel outside the United States. Cotterman is a registered sex
offender in California.
3
Vehicles entering the United States may do so “only at border crossing
points designated by the Secretary” of the Treasury, and, “immediately
upon the arrival of any vehicle in the United States at a border crossing
point, the person in charge of the vehicle shall (A) report the arrival; and
(B) present the vehicle, and all persons and merchandise (including bag-
gage) on board, for inspection to the customs officer at the customs facil-
ity designated for that crossing point.” 19 U.S.C. § 1433(b). Furthermore,
“all persons coming into the United States from foreign countries shall be
liable to detention and search by authorized officers or agents of the Gov-
ernment,” and the Secretary of the Treasury is authorized to “prescribe
regulations for the search of persons and baggage” at our nation’s borders.
Id. § 1582. We recognize that the creation of the Department of Homeland
Security has resulted in the transfer of these responsibilities to the newly
created United States Customs and Border Protection component. That
reorganization is immaterial to the resolution of this case.
4212 UNITED STATES v. COTTERMAN
TECS alert and spoke with an agent from the ICE Pacific
Field Intelligence Office. The ICE agent told him to search
anything that could contain evidence of child pornography or
sex with children. During the vehicle search, CBP officers
found two laptop computers and three digital cameras. Officer
Antonio Alvarado was tasked with inspecting the laptops and
cameras while other officers continued searching the vehicle.
Officer Alvarado did not find any child pornography on the
equipment. His inspection was limited, however, by the fact
that many of Cotterman’s files were password protected.
At approximately 12:00 or 12:30 p.m., Group Supervisor
Craig Brisbine at the ICE office in Sells, Arizona, was noti-
fied about Cotterman. Agent Brisbine and the Sells Duty
Agent, Mina Riley, responded from Sells at approximately
1:30 p.m. and arrived at the Lukeville POE at 3:00 or 3:30
p.m. Agent Riley testified that she and Agent Brisbine
decided while en route that they would detain the Cottermans’
laptops for forensic examination.
Upon arrival, Agents Brisbine and Riley administered
Miranda warnings to Cotterman and Maureen and inter-
viewed them separately. Nothing incriminating was said dur-
ing the interviews. Cotterman offered to help the agents with
his computer, but the agents declined to allow him access to
any of the electronic equipment. Agent Riley testified that she
did not allow Cotterman to touch the laptops because she was
not trained in computer forensics and was concerned that (1)
files could be deleted by Cotterman without her knowledge,
(2) the laptops might be “booby trapped,” or (3) there might
be files she would be unable to see even with full access to
the laptops.
At approximately 6:00 p.m., Agents Brisbine and Riley left
the Lukeville POE with both laptops and one of the three digi-
tal cameras. The other two cameras were returned to the Cot-
termans, who were told that the laptops and camera were
being taken to Tucson for further examination. The agents
UNITED STATES v. COTTERMAN 4213
told the Cottermans that the examination would ideally be
completed prior to the Cottermans’ scheduled departure from
Tucson.4 Soon after the ICE agents departed, the Cottermans
were also permitted to leave the POE.
Agent Brisbine delivered the detained laptops and camera
to ICE Senior Special Agent & Computer Forensic Examiner
John Owen at the ICE office in Tucson at approximately
11:00 p.m. on April 6, 2007. The following morning, Agent
Owen used forensic computer software to make copies
(“mirror images”) of the three laptop hard drives—one hard
drive in Maureen’s computer and two drives in Cotterman’s—
and the digital memory card from the digital camera. Agent
Owen first examined the digital data copied from the camera
and determined that it did not contain any contraband. He
released the camera to Cotterman in Tucson that same day.
Next, Agent Owen used his forensic software to examine the
data copied from the laptop hard drives. Agent Owen testified
that the forensic scripts and procedures he utilizes to examine
mirror images for contraband generally take several hours to
run, so he often leaves them running overnight and examines
the results the following morning.
On Sunday, Agent Owen began his personal examination
of what he believed was Cotterman’s laptop. He later became
aware that he actually started with Maureen’s laptop because
it had been placed in Cotterman’s laptop bag. He did not find
any contraband on that laptop. He then began examining the
second laptop. That evening, he discovered approximately
seventy-five images of child pornography within the laptop’s
unallocated space.5
4
At some point during the interviews the Cottermans had told the offi-
cers that they were planning to stay in Tucson for a few days before
returning home to California.
5
Unallocated space is space on the hard drive where a computer stores
digital information that has been erased by the computer user or informa-
tion from web sites the computer user has visited, enabling the web site
to load more quickly the next time the site is visited.
4214 UNITED STATES v. COTTERMAN
Agent Owen called the Cottermans, who were still in Tuc-
son, to inform them that they could pick up Maureen’s laptop
on Monday morning. He told Cotterman that he needed Cot-
terman’s help to access the password-protected files on his
laptop before it could be released. Cotterman agreed to pro-
vide the requested assistance the next day.
Maureen arrived at the Tucson ICE offices at 9:00 a.m. on
Monday, April 9, 2007, to pick up her laptop. She told the
ICE agents that Cotterman had business to take care of in
Tucson and was unable to come in. Agent Brisbine spoke
with Cotterman on the phone and again asked for the pass-
words to the laptop files. Cotterman then claimed that the
computer had multiple users and he would have to contact his
business partners to obtain the passwords. Maureen waited at
the ICE office for more than two hours, ostensibly waiting for
Cotterman to call with passwords so ICE could clear his com-
puter and thereby permit her to collect his laptop as well as
her own. When he did not call by 11:30 a.m., she left with
only her computer.
On April 10, 2007, the ICE Pacific Field Intelligence Unit
notified Agent Riley that Cotterman had boarded a flight to
Mexico from Tucson at 12:15 p.m. on April 9. His final desti-
nation was Sydney, Australia. On April 11, 2007, Agent
Owen was finally able to bypass Cotterman’s computer secur-
ity and open twenty-three of the password-protected files. He
discovered approximately 378 images of child pornography—
360 of which appeared to be images of the same seven- to ten-
year-old girl over a two- to three-year period. Many of the
images show Cotterman sexually molesting the child. Hun-
dreds more pornographic images, stories, and videos depict-
ing children were discovered on the laptop hard drive by
Agent Owen over the next few months. Based on comparisons
of the physical features of the subjects shown in various
images on Cotterman’s laptop, ICE agents were able to iden-
UNITED STATES v. COTTERMAN 4215
tify both Cotterman as the molester and the young female vic-
tim, who was then located and interviewed.6
B
Cotterman was indicted in the District of Arizona on June
27, 2007, for production of child pornography, transportation
and shipping of child pornography, receipt of child pornogra-
phy, possession of child pornography, importation of obscene
material, transportation of obscene material, and unlawful
flight to avoid prosecution. After he was charged, Cotterman
was arrested by Australian law enforcement and was extra-
dited back to Arizona. He was subsequently turned over to the
United States Marshals Service on March 31, 2008, and
ordered detained pending trial.
On April 18, 2008, Cotterman moved to suppress the evi-
dence discovered on his laptop and any “fruits” of that evi-
dence. Magistrate Judge Charles Pyle held a suppression
hearing on August 27, 2008, and heard testimony from Agent
Riley, Agent Owen, Officer Alvarado, and Group Supervisor
Brisbine. On September 12, 2008, Judge Pyle filed a Report
& Recommendation urging that the motion to suppress be
granted in full and that the Government be required to return
the copies it had retained of Maureen’s laptop hard drive and
the Cottermans’ personal papers. He reasoned that the actual
search of the laptop occurred two days after Cotterman’s
entry into the United States and 170 miles from the border, so
it had to have been an extended border search requiring rea-
sonably particularized suspicion. Judge Pyle further deter-
mined that the ICE agents did not have reasonable suspicion
that evidence of criminal activity would be found on the lap-
top and, therefore, the search was performed in violation of
the Fourth Amendment.
6
We do not identify the victim here so as to protect her privacy.
4216 UNITED STATES v. COTTERMAN
District Judge Raner Collins adopted the Report & Recom-
mendation on February 23, 2009. Judge Collins also made
several factual findings, including two that are particularly
relevant to the lone issue raised on appeal: that the search of
the laptop could have been conducted at the border and that
it took at least forty-eight hours to yield results.
The Government filed this interlocutory appeal on March
19, 2009. We have jurisdiction pursuant to 18 U.S.C. § 3731.
II
“A district court’s ruling on the legality of a border search
is reviewed de novo.” United States v. Seljan, 547 F.3d 993,
999 n.6 (9th Cir. 2008) (en banc) (citing United States v. Ani,
138 F.3d 390, 391 (9th Cir. 1998)), cert. denied, 129 S. Ct.
1368 (2009). “A district court’s findings of fact are reviewed
for clear error.” Id. (citing United States v. Mendoza-Ortiz,
262 F.3d 882, 885 (9th Cir. 2001)). A finding of fact is clearly
erroneous if it is illogical, implausible, or without support in
the record. United States v. Hinkson, 585 F.3d 1247, 1261
(9th Cir. 2009) (en banc) (quoting Anderson v. City of Besse-
mer City, N.C., 470 U.S. 564, 577 (1985)).
III
On appeal, the United States does not contest the district
court’s determination that there was insufficient evidence to
establish reasonable particularized suspicion of criminal activ-
ity7 to support the search under the extended border search doc-
7
We do not take issue with the decision of the United States given the
record before us. Specifically, the district court made a factual finding that
only two facts supported reasonable suspicion: Cotterman was a convicted
sex offender on a watch list, and he had password-protected files on his
computer. Notably, the court additionally found, however, that whatever
abstract suspicious character these facts conveyed, that character was
entirely mitigated by the circumstances of this particular case.
UNITED STATES v. COTTERMAN 4217
trine.8 Rather, the United States contends that it did not need
to demonstrate reasonable suspicion because the border
search doctrine justified both its initial search and its decision
to transport Cotterman’s computer away from the border to
adequately complete its search. As a result, the narrow issues
before us are simply whether the border search doctrine
applied and, if it did, whether the Government’s conduct was
so egregious as to render the search unreasonable.
First, agents spent almost two hours searching Cotterman’s car and
electronic equipment and found nothing even remotely suspicious other
than password protected files. Rather, they found only photos of a family
vacation—evidence that would tend to negate a reasonable officer’s suspi-
cion.
Second, the court concluded that the presence of password-protected
files is not itself suspicious, noting that even the border patrol agent who
searched the laptops testified that the use of password protection is com-
monplace and can be for either legitimate or nefarious purposes. In that
regard, the court noted that the ICE agents had determined that they would
take both laptops for forensic evaluation before they had even left Sells for
Lukeville—a finding that renders any fact other than Cotterman’s TECS
hit practically irrelevant—and also seized the laptop of Maureen Cotter-
man, even though it did not contain any password-protected files.
Finally, the district court concluded that the customs officers “acted so
presumptively, without even considering whether they had reasonable sus-
picion,” because of their reliance on ICE field guidelines and an official
memorandum “that make[ ] clear that electronic media may be seized at
the border without any individualized suspicion.” Thus, the district court
made a factual finding that none of the other circumstances were even
considered; the agents decided to take the equipment because they were
told they could absent suspicion.
8
An extended border search is a “search away from the border where
entry is not apparent, but where the dual requirements of reasonable cer-
tainty 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)
(emphasis added), cert. denied, 131 S. Ct. 67 (2010), and Vasquez-Rosales
v. United States, 130 S. Ct. 1552 (2010).
4218 UNITED STATES v. COTTERMAN
A
We need not dwell long on the general scope of the Gov-
ernment’s border search power. It is well-established that the
sovereign need not make any special showing to justify its
search of persons and property at the international border.
United States v. Flores-Montano, 541 U.S. 149, 152-53
(2004) (“Time and again, [the Supreme Court] ha[s] stated
that searches made at the border, pursuant to the longstanding
right of the sovereign to protect itself by stopping and exam-
ining persons and property crossing into this country, are rea-
sonable simply by virtue of the fact that they occur at the
border.” (quoting United States v. Ramsey, 431 U.S. 606, 616
(1977))); Seljan, 547 F.3d at 999-1000. Rather, it is the trav-
eler who must demonstrate he is entitled to cross our borders
and to bring with him whatever he may wish to carry. Carroll
v. United States, 267 U.S. 132, 154 (1925) (“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.”
(emphasis added)); Torres v. Puerto Rico, 442 U.S. 465,
472-73 (1979) (“By reason of the [United States’ inherent
sovereign authority to protect its territorial integrity], it is
entitled to require that whoever seeks entry must establish the
right to enter and to bring into the country whatever he may
carry.” (emphasis added)).
Neither is there room for disagreement over the compelling
underpinnings of the doctrine. Its foundation is rooted in the
Government’s paramount interest in protecting our country
from people and property it does not desire within our bor-
ders. E.g., Flores-Montano, 541 U.S. at 152-53 (“The Gov-
ernment’s interest in preventing the entry of unwanted
persons and effects is at its zenith at the international border.
. . . It is axiomatic that the United States, as sovereign, has the
inherent authority to protect, and a paramount interest in pro-
tecting, its territorial integrity.”); see also United States v.
UNITED STATES v. COTTERMAN 4219
Arnold, 533 F.3d 1003, 1007 (9th Cir. 2008) (quoting Torres,
442 U.S. at 472-73), cert. denied, 129 S. Ct. 1312 (2009).
[1] Thus, there is no legitimate question as to whether the
border search doctrine justified the initial detention of Cotter-
man and his property.9 Cotterman himself concedes, albeit
reluctantly, that had the Government elected to transport its
personnel and specialized computer forensic equipment to the
border to perform its search, the border search doctrine like-
wise would have applied. The sticking point is whether the
inherent power of the Government to subject incoming travel-
ers to inspection before entry also permits the Government to
transport property not yet cleared for entry away from the bor-
9
As a preliminary matter, we readily dispense with Cotterman’s claim—
and the first of three principal arguments relied upon by the dissent—that
the Government may search property at the border, but is powerless to
seize property to adequately conduct its search absent some particularized
suspicion. Quite to the contrary, we note that the Supreme Court has
explicitly recognized that the Government possesses inherent authority to
seize property at the international border without suspicion: “Since the
founding of our Republic, Congress has granted the Executive plenary
authority to conduct routine searches and seizures at the border, without
probable cause or a warrant, in order to regulate the collection of duties
and to prevent the introduction of contraband into this country.” United
States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (citing Ram-
sey, 431 U.S. at 616-17) (emphasis added); see also Flores-Montano, 541
U.S. at 152, 154 n.2, 156 (holding that property deprivations at the border
remain “routine” regardless of the “degree of intrusiveness” of the search);
id. at 155 (“While the interference with a motorist’s possessory interest is
not insignificant when the Government removes, disassembles, and reas-
sembles his gas tank, it nevertheless is justified by the Government’s para-
mount interest in protecting the border.” (emphasis added)).
This same fundamental proposition—that the very act of seeking entry
across our borders triggers the sovereign right to search and seize, e.g.,
Montoya de Hernandez, 473 U.S. at 537; Torres, 442 U.S. at 472-73—
likewise refutes the dissent’s penultimate argument, Dissenting Opinion at
4238, by directly answering the question: “what circumstances justify the
seizure and search.” Because we recognize and adhere to these settled and
inescapable principles, we examine the seizure of Cotterman’s computer
only to determine whether the duration of the deprivation was egregious.
4220 UNITED STATES v. COTTERMAN
der to complete its search. Cotterman claims that it does not.
We cannot agree.
[2] The flaw in Cotterman’s claim, and the district court’s
conclusion, is that each relies on the simple physical act of
moving beyond the border—a “comparison of absolute time
and spatial differences alone”—to distinguish the border
search doctrine. United States v. Abbouchi, 502 F.3d 850, 855
(9th Cir. 2007), cert denied, 552 U.S. 1238 (2008). In light of
our jurisprudence, this analysis is far too rigid and simplistic.
See id. “Despite its name, a border search need not take place
at the actual international border.” Id. (“[Border] searches
may take place at the physical border or its ‘functional equiv-
alent.’ ”). Rather, the border search doctrine applies to
searches and seizures that occur hundreds or thousands of
miles from the physical border. Almeida-Sanchez v. United
States, 413 U.S. 266, 273 (1973) (“[A] search of the passen-
gers and cargo of an airplane arriving at a St. Louis airport
after a nonstop flight from Mexico City would clearly be the
functional equivalent of a border search.”); Seljan, 547 F.3d
at 996 (holding that a search of packages at a FedEx sorting
facility was a permissible border search). In Abbouchi, for
example, we held that the border search doctrine permitted the
suspicionless search and seizure of packages at a UPS sorting
facility in Louisville, Kentucky—a location that sits much far-
ther than 170 miles from the nearest border. 502 F.3d at 853,
856.
In addition, while permitting searches at those great dis-
tances, we have declined to apply the doctrine to some
searches that occur within a few miles of the border. See, e.g.,
United States v. Villasenor, 608 F.3d 467, 471-72 (9th Cir.
2010), cert. denied, 131 S. Ct. 547 (2010). If the border
search doctrine was constrained as simply as Cotterman con-
tends, this disparate treatment would be quite arbitrary. Our
jurisprudence makes perfect sense, however, when one con-
siders that the border search doctrine is guided—like all
Fourth Amendment jurisprudence—by reason and practical-
UNITED STATES v. COTTERMAN 4221
ity, not inflexible rules of time and space. United States v.
Montoya de Hernandez, 473 U.S. 531, 537 (1985).
The touchstone for particularized suspicion is therefore not
simply the occurrence of a search or seizure at a location
other than at the border; rather, it is the greater Fourth
Amendment intrusion that occurs when an individual is
detained and searched at a location beyond the border where
he had a normal expectation of privacy in the object
searched. Villasenor, 608 F.3d at 471-72; Abbouchi, 502 F.3d
at 855 (“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 [G]overnment must justify an extended border
search with reasonable suspicion that the search may uncover
contraband or evidence of criminal activity.” (internal quota-
tion marks omitted)); United States v. Alfonso, 759 F.2d 728,
734 (9th Cir. 1985).
[3] Time and space are only relevant to this initial inquiry
to the extent that they inform us whether an individual would
reasonably expect to be stopped and searched at a geographic
point beyond the international border. See, e.g., Alfonso, 759
F.2d at 734. In that regard, Cotterman’s claim is quite differ-
ent from each of the cases in which we required the Govern-
ment to demonstrate reasonable suspicion. Cf. Villasenor, 608
F.3d at 472 (stop and search began after the suspect and his
property had crossed the border); Guzman-Padilla, 573 F.3d
at 874-75 (same); Alfonso, 759 F.2d at 736-37 (same). Unlike
the defendants in those cases, Cotterman’s detention and ini-
tial search occurred at the border itself—a point at which trav-
elers do not have a normal expectation of privacy, but rather
must expect to have their privacy intruded upon. Montoya de
Hernandez, 473 U.S. at 537 (“Executive [has] plenary author-
ity to conduct routine searches and seizures at the border”);
United States v. Ross, 456 U.S. 798, 823 (1982) (“The lug-
gage carried by a traveler entering the country may be
searched at random by a customs officer . . . no matter how
4222 UNITED STATES v. COTTERMAN
great the traveler’s desire to conceal the contents may be.”);
United States v. Thirty-Seven Photographs, 402 U.S. 363, 376
(1971) (“But a port of entry is not a traveler’s home. His right
to be let alone neither prevents the search of his luggage nor
the seizure of unprotected, but illegal, materials when his pos-
session of them is discovered during such a search.”); see also
Flores-Montano, 541 U.S. at 155 n.3 (no “Fourth Amendment
right not to be subject to delay at the international border”).
[4] Unlike Villasenor, this is not a case where Customs
cleared an individual and his property for entry into the
United States and authorities later stopped and searched that
individual again after he had crossed the border. Cf. 608 F.3d
at 470-71. Rather, the Government made it abundantly clear
to Cotterman that his computers and cameras were not cleared
for entry into the United States and that it had retained cus-
tody of that property until it could fully allay its concerns that
they contained contraband. As a result, he never regained his
normal expectation of privacy in his computer because he
could only reasonably expect that it would be searched to alle-
viate the self-protection concerns of the sovereign. He never
breathed that deep sigh of relief that follows from the realiza-
tion that he had faced all the rigors of inspection and that
nothing more lingered to impede his travels. See id.; also
United States v. Espericueta Reyes, 631 F.2d 616, 620 (9th
Cir. 1980), (“Certainly there comes a point after a border
crossing where an individual’s relationship with the border is
so attenuated that a search may not be justified as a border
search.” (internal quotation marks omitted) (emphasis
added)).
Having stripped away the layers of what Cotterman’s claim
is not—and having distinguished all of our extended border
search jurisprudence in the process—we reach the very heart
of Cotterman’s claim: that travelers somehow have a constitu-
tionally protected expectation that their property will not be
removed from the border for search and, therefore, the Gov-
ernment must either staff every POE with the equipment and
UNITED STATES v. COTTERMAN 4223
personnel needed to fully search all incoming property or oth-
erwise be forced to blindly shut its eyes and hope for the best
absent some particularized suspicion. We find this position
simply untenable.10 See Montoya de Hernandez, 473 U.S. at
543; Torres, 442 U.S. at 472-73; Carroll, 267 U.S. at 154.
[5] First, the Supreme Court has recognized that the thor-
ough search of property under the border search power does
not implicate an individual’s privacy expectation—even if the
individual cannot depart from the border without that prop-
erty. Flores-Montano, 541 U.S. at 155 n.3 (refusing to credit
the claim that there exists “some sort of Fourth Amendment
right not to be subject to delay at the international border and
that the need for the use of specialized labor . . . and the
potential for even greater delay . . . are an invasion of that
right”). Quite to the contrary, the Court has indicated that
travelers should expect intrusions and delay in order to satisfy
the Government’s sovereign interest in protecting our borders
from those who would wish to do us harm.11 See id.; cf. Ross,
456 U.S. at 823; Torres, 442 U.S. at 472-73.
10
We recognize that few legitimate travelers would appreciate being
regularly delayed in order to allow the Government to adequately search
his or her property. However, our role is to determine what is legal, not
what is desirable. We leave to Congress or the Department of Homeland
Security the decision to promulgate limits on the utilization of more com-
plex searches through legislation or rulemaking and note that, subsequent
to this search, CBP did promulgate procedures for searching electronic
devices under its border search authority. Notably, these procedures pro-
vide some limits on the ability of CBP officers to search and seize elec-
tronic devices, including requiring that devices be searched in a traveler’s
presence whenever possible and limiting the maximum duration of a sei-
zure of a device to five days absent extenuating circumstances. U.S. Cus-
toms and Border Protection Directive No. 3340-049 (effective Aug. 20,
2009).
11
The dissent disagrees with this clear conclusion and cites United
States v. Place, 462 U.S. 696, 708 (1983), for the proposition that “deten-
tion of luggage within the traveler’s immediate possession . . . intrudes on
both the suspect’s possessory interest in his luggage as well as his liberty
interest in proceeding with his itinerary.” We recognize, however, that
4224 UNITED STATES v. COTTERMAN
Second, categorically requiring the Government to demon-
strate a higher level of suspicion before it may transport prop-
erty to conduct more thorough and efficient searches furthers
no constitutional purpose. Cf. Carroll, 267 U.S. at 154 (estab-
lishing nearly a century ago that travelers must demonstrate
that they and their effects are entitled to enter within our bor-
ders). To the contrary, it would only reward those individuals
who, either because of the nature of their contraband or the
sophistication of their criminal enterprise, hide their contra-
band more cleverly or would be inclined to seek entry at more
vulnerable points less equipped to discover them. See Ross,
456 U.S. at 823; Thirty-Seven Photographs, 402 U.S. at 376.
In other contexts, we have recognized that the complexity of
some property, specifically computer equipment, often will
require the Government to seize that property and relocate it
to a secondary site in order to adequately conduct a meaning-
ful search. United States v. Hill, 459 F.3d 966, 975 (9th Cir.
2006) (concluding that “computer technology may in theory
justify blanket seizures” in order to allow police to practicably
conduct searches otherwise authorized by law). We see no
basis for distinguishing that precedent because the property
was initially seized at the border.
[6] In sum, we will not confuse a search authorized by the
border search power with an extended border search simply
because the property was removed from the border. See
Abbouchi, 502 F.3d at 855 (cautioning against a “comparison
of absolute time and spatial differences alone”). Cotterman
did not have a reasonable expectation of privacy in his prop-
erty when he presented it to customs officials for inspection
at the border, see Montoya de Hernandez, 473 U.S. at 537
Place—decided not in the context of a border search but under run-of-the-
mill domestic circumstances—stands only for the rather unremarkable
proposition that individuals within our borders have a reasonable expecta-
tion of privacy in their possessions. See 462 U.S. at 699-701. We decline
to confuse border searches with their domestic counterparts. See Carroll,
267 U.S. at 154; cf. Flores-Montano, 541 U.S. at 155 n.3.
UNITED STATES v. COTTERMAN 4225
(“Executive [has] plenary authority to conduct routine
searches and seizures at the border”); Ross, 456 U.S. at 823
(“luggage . . . may be searched at random”), and he did not
gain one simply because the Government moved that property
to a secondary site with the necessary forensic equipment to
complete its search. See Hill, 459 F.3d at 975. We flatly reject
the contention that the Government must categorically dem-
onstrate reasonable suspicion to continue a search initiated at
the border to a secondary site.12 So long as property has not
been officially cleared for entry into the United States and
remains in the control of the Government, any further search
is simply a continuation of the original border search—the
entirety of which is justified by the Government’s border
search power.
B
[7] Our conclusion that the Government need not categori-
cally demonstrate some heightened suspicion to transport
property to a secondary site for inspection does not end our
inquiry. We by no means suggest that the Government has
carte blanche at the border to do as it pleases absent any
regard for the Fourth Amendment. See Seljan, 547 F.3d at
1000. Rather, we continue to analyze the Government’s con-
duct on a case-by-case basis to determine whether searches or
seizures are effectuated in such a manner as to render them
unreasonable.13
12
We expressly limit our holding to seizures and searches of property
as we recognize that individuals have a far different expectation of privacy
in their persons than in their luggage. Flores-Montano, 541 U.S. at 152.
13
Though we believe it clear from the opinion itself, we reject the dis-
sent’s claim that we are authorizing indefinite deprivations. The Court has
left open, and therefore we address, whether a border search might be
deemed unreasonable because of the manner in which it was carried out.
Flores-Montano, 541 U.S. at 154 n.2. Adhering to the Court’s mandate,
we examine only whether the actual deprivation that took place in this
case was within the limits the Supreme Court has drawn. We do not pre-
tend to address whether our holding would remain the same should the cir-
4226 UNITED STATES v. COTTERMAN
Notably, the Supreme Court has specified that the manner
in which even a border search is conducted may require the
Government to demonstrate a heightened degree of suspicion,
see Arnold, 533 F.3d at 1007-08, and that even an initially
permissible seizure can become unreasonable “if it is pro-
longed beyond the time reasonably required to complete th[e]
mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). We
address each of these concerns in turn.
1
[8] The Supreme Court has recognized three types of
searches in which more is required than simple application of
the border search doctrine. First, the Government must have
reasonable suspicion to conduct “highly intrusive searches of
the person.” Flores-Montano, 541 U.S. at 152; see also Mon-
toya de Hernandez, 473 U.S. at 541. Second, the Court has
recognized the possibility “that some searches of property are
so destructive as to require” particularized suspicion. Flores-
Montano, 541 U.S. at 155-56. Finally, the Court has left
“open the question ‘whether, and under what circumstances,
a border search might be deemed “unreasonable” because of
the particularly offensive manner in which it is carried out.’ ”
Id. at 154 n.2 (quoting Ramsey, 431 U.S. at 618 n.13).
[9] In Cotterman’s case, we quickly dispense with the first
two categories. The Court has been careful to distinguish
invasive searches of persons from those of a traveler’s prop-
erty, explicitly permitting highly intrusive searches of vehi-
cles without suspicion. Id. at 152 (“[T]he reasons that might
support a requirement of some level of suspicion in the case
cumstances before us be replaced with any one of a vast parade of
imagined horribles. Such hypothetical jurisprudence simply has no place
in our case-by-case analysis. Id.; see also Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and long-
standing principle of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding them.”).
UNITED STATES v. COTTERMAN 4227
of highly intrusive searches of the person—dignity and pri-
vacy 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.”).14 Within this framework, we have spe-
cifically held that “reasonable suspicion is not needed for cus-
toms officials to search a laptop or other personal electronic
storage devices at the border.” Arnold, 533 F.3d at 1008. In
addition, there is no claim that the search was destructive.
In regard to the third category, Cotterman raises two argu-
ments that can fairly be construed as suggesting a “particu-
larly offensive manner” claim. First, he contends that the time
required for the Government to conduct its search was so
extensive that it required some heightened degree of suspi-
cion. As this claim is better construed as a challenge to the
length of the Government’s seizure rather than the manner of
its search, we shall address it as such in the following section.
14
Despite the Court’s clear refutation of prior attempts to categorize
“highly invasive” searches of property as “non-routine”—a characteriza-
tion that would require the Government to demonstrate a degree of suspi-
cion to justify its actions, the dissent faults us for not recognizing that the
“highly invasive” nature of “computer forensic searches” renders them
non-routine and therefore requires the Government to demonstrate particu-
larized suspicion. Compare Flores-Montano, 541 U.S. at 152 (holding that
the balancing analysis undertaken in Montoya de Hernandez and the resul-
tant need for particularized suspicion do not apply to highly intrusive
searches of property at the border), with Dissenting Opinion at 4234 (“I
would hold that officers must have some level of particularized suspicion
in order to conduct a search and seizure like the one at issue here . . . .”
); id. at 4235-37 (“An exceptionally invasive search of property can con-
stitute a search conducted in a particularly offensive manner.”). We
decline to repeat the mistake corrected in Flores-Montano. Even assuming
the Court in Ramsey, 431 U.S. at 618 n.13, left open whether an excep-
tionally invasive search of property might constitute a particularly offen-
sive search, Flores-Montano did not. 541 U.S. at 152, 154 n.2, 156
(holding that, while “a border search might be deemed ‘unreasonable’
because of the particularly offensive manner in which it was carried out,”
the “degree of intrusiveness” of the search is immaterial to that inquiry).
4228 UNITED STATES v. COTTERMAN
Cotterman’s second claim is that the Government’s extended
search was particularly offensive because it was unnecessary.
He contends that the agents could have discovered the child
pornography at the POE had they either conducted their
search there or accepted his offer of assistance.
We do not credit Cotterman’s claim that his offer of assis-
tance was constitutionally relevant. We find no legal basis
from which to conclude that the Government is bound to
accept such offers, particularly when, as noted by Agent
Riley, sophisticated computer users can hide files, booby-trap
computers, and delete items and programs unbeknownst to
agents. Furthermore, given his subsequent unlawful flight to
avoid prosecution, we have substantial reason to doubt the
efficacy of the aid he intended to render.
[10] As to the need to search the property at the POE, both
Cotterman and the district court take pains to point out that in
many of the recent computer border search cases, the contra-
band was found without the need to transport the property off-
site. See Arnold, 533 F.3d at 1005; United States v. Romm,
455 F.3d 990, 994-95 (9th Cir. 2006); United States v. Ickes,
393 F.3d 501, 502-03 (4th Cir. 2005); United States v. Rob-
erts, 274 F.3d 1007, 1010-11 (5th Cir. 2001). Though this
may be true, we fail to see how those quick and easy discov-
eries somehow translate into a requirement that property can
never be moved from the border. Rather, we recognize that
the search of a computer is only as difficult as its owner
makes it.15 See Hill, 459 F.3d at 974 (recognizing that some
computers are so complicated that they require off-site inspec-
tion) (quoting United States v. Hill, 322 F. Supp. 2d 1081,
15
It seems unlikely that every potential terrorist or purveyor of child
pornography would label his or her contraband so that its incriminating
nature is immediately recognizable, like “Kiddie Porn” or “Plot to Destroy
America,” and place it in the middle of an unprotected computer desktop.
Nor is it likely that a criminal or terrorist would go to the trouble of hiding
and password protecting such a file, and then volunteer to identify and
open it for inspection at the border.
UNITED STATES v. COTTERMAN 4229
1089 (C.D. Cal. 2004)). Some criminals may leave the evi-
dence of their crimes out for easy discovery. E.g., Romm, 455
F.3d at 994. Others, like Cotterman, will choose to hide and
encrypt that evidence, requiring law enforcement to conduct
more technical and complicated searches. These latter
searches necessarily require the availability of more complex
equipment and technical personnel—resources that are not
easily moved. Hill, 459 F.3d at 974 (carrying sophisticated
forensic equipment capable of reading computer storage
media poses “significant technical problems,” and, “without
the necessary tools and expertise to deal with them, any effort
to read computer files at the scene is fraught with difficulty
and risk” (quoting Hill, 322 F. Supp. 2d at 1088-89)).
[11] The United States urges us to consider the practicality
of the situation to assess the reasonableness of what was done.
It contends that requiring forensic computer laboratories at all
ports of entry throughout the United States would place just
the type of unreasonable burden on the Government that our
functional equivalent of the border jurisprudence avoids. We
agree. Many ports of entry, like Lukeville, are located in
remote areas and have minimal staff and equipment because
they see so few travelers each day. We cannot conclude that
the Fourth Amendment requires that the Government either
maintain specialized equipment and personnel with the requi-
site technical skills at each of these points or be foreclosed
from ensuring the integrity of our borders. See Montoya de
Hernandez, 473 U.S. at 542-43.
[12] Unlike a traveler who chooses to cross the border, and
thereby tacitly consents to search and seizure, the United
States must simply take travelers as it finds them. In this case,
the property presented for the privilege of entry was suffi-
ciently complex to permit its relocation to the lab in Tucson—
a location where the Government could conduct an adequate
search to ensure the property was safe for entry.16 Its reloca-
16
We do not disturb the district court’s finding that the Government
could have conducted its search at the border—though we think that
4230 UNITED STATES v. COTTERMAN
tion was by no means so offensive as to render the Govern-
ment’s conduct unreasonable. Cf. Hill, 459 F.3d at 974.
2
Cotterman’s final claim is that the two-day seizure of his
property was unreasonable because Agent Owen could have
discovered the child pornography at the Lukeville POE “in a
matter of hours.” We find this argument entirely unpersua-
sive.
[13] First and foremost, the Supreme Court has concluded
that even a seizure of a person at the border does not become
unreasonable simply because it lasts for an extended period of
time. Montoya de Hernandez, 473 U.S. at 542-44 (“[W]e have
. . . consistently rejected hard-and-fast time limits. . . .
[C]ommon sense and ordinary human experience must govern
over rigid criteria.” (internal quotation marks omitted)); see
Flores-Montano, 541 U.S. at 155 n.3. Rather, the test for
unreasonableness is whether a detention remained “reason-
ably related in scope to the circumstances which justified it
initially.” Montoya de Hernandez, 473 U.S. at 542; see also
Caballes, 543 U.S. at 407. In undertaking that inquiry, we are
not to “indulge in ‘unrealistic second-guessing . . . .’ ” Mon-
toya de Hernandez, 473 U.S. at 542 (quoting United States v.
Sharpe, 470 U.S. 675, 686 (1985)).
“[C]reative judge[s], engaged in post hoc evaluations
of police conduct can almost always imagine some
alternative means by which the objectives of the
police might have been accomplished.” But “[t]he
fact that the protection of the public might, in the
abstract, have been accomplished by ‘less intrusive’
would have only extended the deprivation. To the contrary, we simply do
not think that such action was constitutionally required, even if it was pos-
sible.
UNITED STATES v. COTTERMAN 4231
means does not, in itself, render the search unreason-
able.” Authorities must be allowed “to graduate their
response to the demands of any particular situation.”
Id. (some alterations in original) (citations omitted). Applying
these directives, the Court concluded that the more than
sixteen-hour detention of a person was not unreasonable,
given that the Government had no practical alternative other
than to “turn her loose into the interior carrying the reason-
ably suspected contraband drugs.” Id. at 542-43.; cf. Flores-
Montano, 431 U.S. at 155-56 (refusing to require reasonable
suspicion to conduct intrusive searches of vehicles); Arnold,
533 F.3d at 1008 (extending the Flores-Montano rule to
searches of computers).
With this framework in mind, we turn to the record to see
if the forty-eight hour detention in our case was reasonably
related in scope to the circumstances that justified the initial
detention at the border. See Montoya de Hernandez, 473 U.S.
at 542. Testimony at the suppression hearing established the
following uncontested facts: (1) ICE agents in Sells were
informed of the situation at the Lukeville POE at approxi-
mately 12:30 p.m. on Friday, April 6, 2007; (2) it took Agent
Brisbine four or five hours to drive back from Lukeville to
Tucson with the laptops due to a car accident blocking the
main highway; (3) the process of using the equipment in Tuc-
son to find the pictures in the unallocated space took several
hours and ran overnight from Saturday to Sunday; (4) Agent
Owen’s laptop contained some forensic software, but the pro-
gram would have run much slower off his laptop than off the
specialized computers in his forensic laboratory, and he
would not have been able to concurrently run the program on
both of Cotterman’s computers at the same time; and (5)
Agent Owen would have had to return to Tucson if any prob-
lems arose during a search at the Lukeville POE.
In addition, whereas computer searches of this kind might
normally take weeks or months, Agent Owen worked all
4232 UNITED STATES v. COTTERMAN
weekend, which was not his typical work schedule, to ensure
the Cottermans could continue their trip home without delay.
As Judge Pyle concluded, “the facts show reasonable dili-
gence and speed in conducting the computer forensic exami-
nation.”
[14] As the record clearly refutes Cotterman’s claim that
the contraband could have been discovered in a matter of
hours, his argument hinges on a determination that the time
it took for the agents to return from the Lukeville POE to
Tucson—the only time that would not have been implicated
if Agent Owen had traveled to the Lukeville POE—was suffi-
cient to render the detention unreasonable. We cannot con-
clude that it was. Rather, our common sense and experience
inform us that the decision to transport the property to the lab-
oratory, instead of transporting the laboratory to the property,17
resulted in a shorter deprivation. Furthermore, even if we
were to contravene the Court’s guidance and indulge in “unre-
alistic second-guessing,” contra Montoya de Hernandez, 473
U.S. at 542-44, the difference in time would be so inconse-
quential that it could not render the search unreasonable.
IV
In sum, this case presents a factual scenario unlike any we
have previously seen. What is clear from our precedent and
that of the Supreme Court, though, is that the border search
doctrine is flexible enough to meet the evolving demands
inherent in securing our nation’s borders. The Fourth Amend-
ment does not require the United States to categorically dem-
onstrate reasonable suspicion in every case in which property
initially searched at the border—and not cleared for entry or
released from the Government’s control—is relocated to a
17
This also would have forced the Cottermans to either stay in their car
in Lukeville or drive back and forth from Sells or Tucson to Lukeville to
collect their belongings rather than simply picking them up in the city in
which they were already planning to stay.
UNITED STATES v. COTTERMAN 4233
secondary site for further inspection. Rather, the reasonable-
ness of such searches is better analyzed on a case-by-case
basis to determine whether the scope or duration of the intru-
sion was constitutionally unreasonable.
[15] In this case, the initial search and seizure was justified
by the Government’s broad sovereign authority to secure our
borders, e.g., Montoya de Hernandez, 473 U.S. at 537 (ple-
nary authority to conduct searches and seizures at the border),
and Arnold has already clarified that the Government may
search the contents of a computer at the border without partic-
ularized suspicion. 533 F.3d at 1008. We see no basis to dis-
tinguish this case from our prior jurisprudence simply because
the complexity of Cotterman’s computer necessitated its relo-
cation to a forensic computer laboratory to allow the Govern-
ment to conduct an adequate search.18 Id. at 1006, 1008-10;
Hill, 459 F.3d at 975; see Flores-Montano, 431 U.S. at
155-56. We further hold that the duration of the deprivation
satisfied the common-sense standard established in Montoya
de Hernandez, 473 U.S. at 542-44, and that continuing the
search by transporting the property to the Tucson forensic lab-
oratory could not therefore amount to an unreasonable consti-
tutional deprivation. The district court erred in suppressing
the evidence lawfully obtained under border search authority.
REVERSED and REMANDED.
18
To the extent that the dissent’s arguments to the contrary are not
squarely foreclosed by Flores-Montano, 431 U.S. at 152, we point out that
each was considered and rejected in Arnold. 533 F.3d at 1006, 1008-10
(“Arnold has failed to distinguish how the search of his laptop and its elec-
tronic contents is logically any different from the suspicionless border
searches of travelers’ luggage that the Supreme Court and we have
allowed. . . . [C]ase 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.” (citing Califor-
nia v. Acevedo, 500 U.S. 565, 576 (1991))).
4234 UNITED STATES v. COTTERMAN
B. Fletcher, Circuit Judge, dissenting:
I respectfully dissent. The “sticking point” of this case is
not whether the Government’s authority “to subject incoming
travelers to inspection for entry also permits the Government
to transport property not yet cleared for entry away from the
border to complete its search.” Maj. Op. at 4219-20. The real
issue, as this case is framed by the government and the major-
ity, is whether the Government has authority to seize an indi-
vidual’s property in order to conduct an exhaustive search that
takes days, weeks, or even months, with no reason to suspect
that the property contains contraband.1 In other words, the
problem with this case is not that the Government searched
Cotterman’s computer in Tucson as opposed to Lukeville.
The problem is that the Government seized Cotterman’s lap-
top so it could conduct a computer forensic search, a time
consuming and tremendously invasive process, without any
particularized suspicion whatsoever.
To the contrary, I would hold that officers must have some
level of particularized suspicion in order to conduct a seizure
and search like the one at issue here, because (1) seizing one’s
personal property deprives the individual of his valid posses-
sory interest in his property, and (2) authorizing a generalized
computer forensic search (untethered to any particularized
1
I do not assume, as does the majority, that Customs and Border Protec-
tion officers lacked reasonable suspicion to seize Cotterman’s laptop. Op.
at 4216-17. On appeal, the Government abandoned its argument before the
district court that officers had reasonable suspicion that Cotterman’s lap-
top contained child pornography on account of (1) Cotterman’s prior con-
viction for a child-related sex-offense; (2) the presence of password
protected files on Cotterman’s computer; and (3) the fact that Cotterman
was returning from a lengthy trip to Mexico. Accordingly, I express no
view on the presence of reasonable suspicion. I suspect, though, that the
Government’s decision not to appeal the district court’s adverse ruling on
reasonable suspicion stems in part from its eagerness to secure our sweep-
ing approval of suspicionless border seizure and search of electronics
equipment. See United States v. Chaudhry, 424 F.3d 1051, 1054 (9th Cir.
2005) (B. Fletcher, J., specially concurring).
UNITED STATES v. COTTERMAN 4235
suspicion) permits the Government to engage in the type of
generalized fishing expeditions that the Fourth Amendment is
designed to prevent.
The “touchstone” of our Fourth Amendment analysis, even
at the border, must be reasonableness, but with recognition
that the “Fourth Amendment’s balance of reasonableness is
qualitatively different at the international border than in the
interior.” United States v. Montoya de Hernandez, 473 U.S.
531, 538 (1985). “Balanced against the sovereign’s interests
at the border are the Fourth Amendment rights of . . . . [the
individual, who is] entitled to be free from unreasonable
search and seizure.” Id. at 539.
The Supreme Court has recognized that a traveler has a
Fourth Amendment interest in maintaining possession of his
personal property. In United States v. Place, 462 U.S. 696,
708 (1983), the Court explained that “detention of luggage
within the traveler’s immediate possession . . . intrudes on
both the suspect’s possessory interest in his luggage as well
as his liberty interest in proceeding with his itinerary.” Those
interests exist, albeit with less force, at the border. See, e.g.,
United States v. Flores-Montano, 541 U.S. 149, 155 (2004).2
While a traveler cannot have a reasonable expectation that his
2
I disagree with the majority’s conclusion that Flores-Montano permits
as “routine” all property deprivations at the border that are not highly
destructive or offensive. See Maj. Op at 4219 n. 9 (“[P]roperty deprivation
at the border remains routine regardless of the ‘degree of instrusiveness’
of a search . . . . Only highly destructive or offensive property searches
may suffice to render a deprivation non-routine.”). Flores-Montano con-
sidered whether the disassembly and reassembly of a gas tank was permis-
sible at the border. 541 U.S. at 141. The Court recognized that such a
procedure interfered with a motorist’s possessory interest in his property,
but concluded that the degree of interference caused by a “brief procedure
that can be reversed without damaging the safety or operation of the vehi-
cle” was justified by the Government’s interest in protecting the border.
541 U.S. at 155. Flores-Montano did not address the situation at issue
here: whether, without reasonable suspicion, a total deprivation of the
traveler’s possessory interests for an indefinite period is permissible.
4236 UNITED STATES v. COTTERMAN
property will not be searched at the border,3 I submit that a
traveler does have a reasonable expectation that his property
will not be searched in a manner that requires it to be taken
away from him for weeks or months, unless there is some
basis for the Government to believe that the property contains
contraband. Cf. United States v. Thirty-Seven (37) Photo-
graphs, 402 U.S. 363, 376 (1971) (A traveler’s “right to be let
alone neither prevents the search of his luggage nor the sei-
zure of unprotected, but illegal, materials when his possession
of them is discovered during such a search”) (emphasis
added).
The majority appears to recognize that border searches
“conducted in a particularly offensive manner” run afoul of
the Fourth Amendment. Maj. Op. at 4226, 4227. In consider-
ing whether this search was particularly offensive, the major-
ity focuses on the efficiency of Government officials
performing the search and on the necessity of transport. Maj.
Op. at 4227-29. No one disputes that the CPB officers in this
case were diligent. The majority fails, however, to substan-
tively analyze the nature of the search itself, and so overlooks
the fact that computer forensic searches are highly invasive,
and a computer forensic search unlimited by any suspicion of
particular criminal activity even more so.
Computers store libraries worth of personal information,
including substantial amounts of data that the user never
intended to save and of which he is likely completely unaware
3
As the majority acknowledges, United States v. Arnold, 533 F.3d 1003,
1008 (9th Cir. 2008) does not control. Op. at 4231. Though Arnold held
that “reasonable suspicion is not needed for customs officials to search a
laptop or other personal electronic storage devices at the border,” it did not
involve the type of search and seizure at issue here. Id. at 1008. In Arnold,
officials at the border examined the visible files on the computer and
found child pornography. Id. at 1005. Notably, the officers did not seize
the computer for an indefinite period until after they identified contraband,
and they obtained a warrant before conducting an exhaustive forensic
search of all the computer’s data. Id.
UNITED STATES v. COTTERMAN 4237
(for example, browsing histories and records of deleted files
in unallocated space). See United States v. Flyer, No. 08-
10580, Slip Op at 2419, 2429 (9th Cir. Feb. 8, 2011); United
States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162,
1176 (9th Cir. 2010) (en banc). Computers offer “windows
into [our] lives far beyond anything that could be, or would
be, stuffed into a suitcase for a trip abroad.” David K. Shipler,
Can You Frisk a Hard Drive?, N.Y TIMES, Feb. 20, 2011, at
WK5. The majority gives the Government a free pass to copy,
review, categorize, and even read all of that information in the
hope that it will find some evidence of any crime.
An exceptionally invasive search of property can constitute
a search conducted in a particularly offensive manner. See
United States v. Ramsey, 431 U.S. 606, 618 n.13 (1977)
(reserving the question of whether a search at the border con-
ducted in a particularly offensive manner violates the Consti-
tution); Kremen v. United States, 353 U.S. 346, 347 (1957)
(holding unconstitutional a search where officers with a war-
rant to arrest two individuals transported the entire contents of
a home to San Francisco for an “exhaustive” search); Go-Bart
Importing Co. v. United States, 282 U.S. 344, 356-58 (1931)
(holding unconstitutional a search where officers with a war-
rant to arrest individuals seized office papers, under threat of
force, in order to conduct a “general exploratory search in the
hope that evidence of a crime might be found”), abrogated on
other grounds as discussed in Arizona v. Gant, 129 S. Ct.
1710, 1724 (2009).4 Given the exhaustive nature of computer
forensic searches, I would hold that such searches are “con-
ducted in a particularly offensive manner” unless they are
guided by an officer’s reasonable suspicion that the computer
contains evidence of a particular crime.
4
Kremen and Go-Bart do not involve border searches. Nevertheless, the
Supreme Court cited both cases in Ramsey as support for the proposition
that a search at the border conducted in a particularly offensive manner
would violate the Fourth Amendment. 431 U.S. at 618 n.3.
4238 UNITED STATES v. COTTERMAN
The majority purports to limit the Government’s authority,
stating that courts will continue to consider “whether a deten-
tion remained ‘reasonably related in scope to the circum-
stances which justified it.’ ” Maj. Op. at 4230, citing Montoya
de Hernandez, 473 U.S. at 542. This begs the question—what
circumstances justify the seizure and search? In Montoya de
Hernandez, the Government had reasonable suspicion that the
traveler was smuggling drugs in her alimentary canal; there-
fore, the detention was reasonable, but only for as long as
required to determine that the traveler was or was not smug-
gling drugs. See 473 U.S. at 542-44. Here, the majority autho-
rizes seizure of personal property to permit the Government
to “fully allay its concerns” about the property. Maj. Op. at
4222. In a search designed to fully allay the Government’s
concerns, the scope of the search will be determined by the
Government’s desire to be thorough,5 and the length of the
seizure by the Government’s convenience.6 The majority
essentially allows the Government to set its own limits—
surely the Fourth Amendment demands more.
5
The Government could seek to ensure that there is no child pornogra-
phy or information about terrorist plots on the computer. But it could also
translate any documents in a foreign language, ensure that none of the
seemingly innocuous pictures are actually encrypted messages, verify the
licenses on any music or movies on the computer, review financial logs
for evidence of insider trading, read email correspondence to ensure that
there is no communication with known criminals—the list of possible
“concerns” is endless, particularly where the Government expressly seeks
to use its border search power to uncover evidence of crimes unrelated to
contraband smuggling or national security. See United States Customs and
Border Protection Directive No. 3340-049, August 20, 2009.
6
The majority suggests that conducting a forensic search in a distant lab
is faster than or equivalent to conducting a search at the border. Maj. Op.
at 4232. That misses the point. 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 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. See Orin S. Kerr, Searches and Sei-
zures in a Digital World, 119 HARV. L.REV. 531, 544 (2005) (“[A]nalysis
of a computer hard drive takes as much time as the analyst has to give
it.”).
UNITED STATES v. COTTERMAN 4239
I add my voice to the chorus lamenting the apparent demise
of the Fourth Amendment. See, e.g., United States v. Pineda-
Moreno, 617 F.3d 1120, 1121 (9th Cir. 2010) (Kozinski, J.,
in a dissent from denial of rehearing en banc joined by Rein-
hardt, Wardlaw, Paez and Berzon); United States v. Seljan,
547 F.3d 993, 1014-19 (9th Cir. 2008) (en banc) (Kozinski,
J., dissenting). I dissent.