United States v. Cotterman

• Decision Date: 08 March 2013
• Docket Number: No. 09–10139.,09–10139.
• Citation: 709 F.3d 952
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Howard Wesley COTTERMAN, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

709 F.3d 952

UNITED STATES of America, Plaintiff–Appellant,

v.Howard Wesley COTTERMAN, Defendant–Appellee.

No. 09–10139.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc June 19, 2012.

Filed March 8, 2013.

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, AZ, for Appellant.

William J. Kirchner, Law Office of Nash & Kirchner, P.C., Tucson, AZ, 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, NY; Hanni M. Fakhoury, Electronic Frontier Foundation, San Francisco, CA, 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.

Appeal from the United States District Court for the District of Arizona, Raner C. Collins, District Judge, Presiding. D.C. No. 4:07–cr–01207–RCC–CRP–1.

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.

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, 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, 121 S.Ct. 2038, 150 L.Ed.2d 94 (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 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, 97 S.Ct. 1972, 52 L.Ed.2d 617 (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 History²

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 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 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. 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.

A grand jury indicted Cotterman for a host of...