U.S. v. Arnold

• Decision Date: 02 October 2006
• Docket Number: No. CR 05-00772ADDP.,CR 05-00772ADDP.
• Citation: 454 F.Supp.2d 999
• Parties: UNITED STATES of America, Plaintiff, v. Michael Timothy ARNOLD Defendant.
• Court: U.S. District Court — Central District of California

454 F.Supp.2d 999

UNITED STATES of America, Plaintiff, v. Michael Timothy ARNOLD Defendant.

No. CR 05-00772ADDP.

United States District Court, C.D. California.

October 2, 2006.

Joey L. Blanch, U.S. Attorneys, Los Angeles, CA, for Plaintiff.

Marilyn E. Bednarski, Kevin J. LaRue, Kaye, McLane & Bednarski, Pasadena, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

PREGERSON, District Judge.

This matter comes before the Court on defendant Michael Arnold's motion to suppress evidence. On July 17, 2005, Customs and Border Patrol ("CBP") Officers at Los Angeles International Airport ("LAX") searched Arnold's laptop, hard drive, compact discs ("CDs"), and memory stick. Following the search, Arnold was indicted for transportation of child pornography and possession of a computer hard drive and CDs containing images of child pornography. Arnold contends that the warrantless search of his computer equipment violated his Fourth Amendment rights.

In response to Arnold's motion, the government contends that the border search of information stored in a computer hard drive is not subject to Fourth Amendment protection. The government also argues that, even if the minimal Fourth Amendment standard of reasonable suspicion applies to such searches, its search of Arnold's laptop, hard drive, CDs and memory stick comported with that standard.

The question presented is whether the government can conduct a border search of the private and personal information stored on a traveler's computer hard drive or electronic storage devices without Fourth Amendment review. This is an issue of first impression in this Circuit. It is also an issue ripe for determination because technological advances permit individuals and businesses to store vast amounts of private, personal and valuable information within a myriad of portable electronic storage devices including laptop computers, personal organizers, CDs, and cellular telephones.

The Court concludes that Fourth Amendment protection extends to the search of this type of personal and private information at the border. While not physically intrusive as in the case of a strip or body cavity search, the search of one's private and valuable personal information stored on a hard drive or other electronic storage device can be just as much, if not more, of an intrusion into the dignity and privacy interests of a person. This is because electronic storage devices function as an extension of our own memory. They are capable of storing our thoughts, ranging from the most whimsical to the most profound. Therefore, government intrusions into the mind — specifically those that would cause fear or apprehension in a reasonable person — are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature.

The Court further concludes that the correct standard requires that any border search of the information stored on a person's electronic storage device be based, at a minimum, on a reasonable suspicion. To proceed with its search in this case, the government needed a reasonable suspicion that the confidential information stored on Arnold's computer equipment contained evidence of a crime. Based on the testimony presented at the hearing, the Court is not satisfied that the Government had a reasonable suspicion supported by objective, articulable facts to search Arnold's laptop, hard drive, and storage devices. Accordingly, the Court grants the motion to suppress.

I. BACKGROUND

The following facts are not in dispute:

On July 17, 2005, forty-three year-old Michael Arnold arrived at LAX after a nearly twenty-hour flight from the Philippines. He had flown coach and was tired from the flight. He was dressed in casual clothes, which were not ragged or worn. His hair was short, and he had a goatee.

After retrieving his luggage from the baggage claim, Arnold proceeded to customs. CBP Officer Laura Peng first saw Arnold while he was in line waiting to go through the customs checkpoint.

After Arnold went through the checkpoint, Peng selected him for secondary questioning. She asked Arnold where he had traveled, the purpose of his travel, and the length of his trip. Arnold stated that he had been on vacation for three weeks visiting friends in the Philippines.

Peng then inspected Arnold's luggage, which contained his laptop computer, a separate hard drive, a computer memory stick (also called a flash drive or USB drive), and six CDs. Peng instructed Arnold to turn on the computer so she could see if it was functioning. While the computer was booting up, Peng turned it over to her colleague, CBP Officer Roberts, and continued to inspect Arnold's luggage.

When the computer had booted up, its desktop displayed numerous icons and folders. Two folders were entitled "Kodak Pictures" and one was entitled "Kodak Memories." The CBP Officers clicked on the Kodak folders, opened the files, and viewed the photos on Arnold's computer.

During the search, Peng and Roberts viewed a photo that depicted two nude women.¹ Roberts called in supervisors, who in turn called in special agents with the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"). The ICE agents questioned Arnold about the contents of his computer and detained him for several hours. They examined the computer equipment and found numerous images depicting what they believed to be child pornography.

The officers seized the computer and storage devices and released Arnold. Two weeks later, federal agents received a warrant to search the computer and storage devices. The images found in their search, along with the images found in the initial airport search, are the subject of this motion.

II. DISCUSSION

A. The Fourth Amendment Requires the Government to Possess a Reasonable Suspicion to Perform a Search That implicates the privacy and Dignity Interests of a Person

The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. U.S. Const. amend IV. With few exceptions, warrantless searches are per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One of the exceptions is at the nation's border. United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985); United States v. Ramsey, 431 U.S. 606, 617, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977).

A border search is made in the enforcement of customs laws, as distinct from general law enforcement, and for the purposes of regulating the collection of duties and preventing the introduction of contraband into the United States. Montoya de Hernandez, 473 U.S. at 537, 105 S.Ct. 3304. The reasonableness of a border search is determined by balancing the need for a particular search against the invasion that the search entails. United States v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir.1970). Some searches are so intrusive that they require particularized suspicion to be reasonable. Id. at 879 (holding that border officials must have real suspicion directed specifically at that person to justify a strip search).

The balance is struck more favorably toward the government because of the lessened expectation of privacy and the need to protect the nation's, borders. United States v. Flores-Montano, 541 U.S. 149, 152, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004) (reasoning that "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border."). As a result of the heightened need of the government, the examination of items such as luggage, purses, wallets, and pockets is considered "routine" and requires no suspicion. Montoya de Hernandez, 473 U.S. at 538, 105 S.Ct. 3304; United States v. Vance, 62 F.3d 1152, 1156 (9th Cir.1995). Yet, the oft-quoted phrase "searches made at the border ... are reasonable simply by virtue of the fact that they occur at the border" belies the fact that highly intrusive searches are not reasonable merely because they take place at the border. Flores-Montano, 541 U.S. at 152-53, 124 S.Ct. 1582 (quoting Ramsey, 431 U.S. at 616, 97 S.Ct. 1972).

Although neither a warrant nor probable cause is needed for ordinary searches of persons and things crossing the border, cause is required for more intrusive border searches. Certain border searches are highly intrusive because they implicate the "dignity and privacy interests of the persons being searched." Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582. As a search becomes more intrusive, it must be justified by a correspondingly higher level of suspicion of wrongdoing. United States v. Aman, 624 F.2d 911, 912-13 (9th Cir.1980) (holding that to conduct a strip search, the authorities must have a "real suspicion" that the person is smuggling contraband and that "real suspicion" is "subjective suspicion supported by objective, articulable facts" (quoting United States v. Rodriguez, 592 F.2d 553, 556 (9th Cir.1979))).

Courts have found that certain "non-routine" or intrusive border searches require a heightened level of suspicion to be reasonable. Guadalupe-Garza, 421 F.2d at 879 (holding that border officials must have subjective suspicion supported by objective, articulable facts to justify a strip search); Henderson v. United States, 390 F.2d 805, 808 (1967) (holding that a body cavity search without a heightened level of suspicion is considered unreasonable). In addition, an invasive search must be limited in scope. United States v. Price, 472 F.2d 573, 574-75 (9th Cir.1973) (holding that after officers strip searched the defendant and dispelled their initial suspicion with respect to the bulge in defendant's waist, they were not justified to continue searching).

A search is reasonable in scope only if it is no more intrusive than necessary to obtain the truth respecting the suspicious circumstances. United States v....