United States v. Touset, 17-11561

• Decision Date: 23 May 2018
• Docket Number: No. 17-11561,17-11561
• Citation: 890 F.3d 1227
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Karl TOUSET, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

890 F.3d 1227

UNITED STATES of America, Plaintiff-Appellee,

v.Karl TOUSET, Defendant-Appellant.

No. 17-11561

United States Court of Appeals, Eleventh Circuit.

May 23, 2018

Paul Jones, Jane Elizabeth McBath, Lawrence R. Sommerfeld, U.S. Attorney Service—Northern District of Georgia, 75 Ted Turner Dr. SW Suite 600, Atlanta, GA 30303 for Plaintiff-Appellee.

Larry David Wolfe, Bingzi Hu, L. David Wolfe, PC, 101 Marietta St. NW Suite 3325, Atlanta, GA 30303-2716 for Defendant-Appellant.

Before WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and CORRIGAN,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal presents the question whether the Fourth Amendment requires reasonable suspicion for a forensic search of an electronic device at the border. U.S. Const. amend. IV. Karl Touset appeals the denial of his motions to suppress the child pornography found on electronic devices that he carried with him when he entered the country and the fruit of later searches. We recently held that the Fourth Amendment does not require a warrant or probable cause for a forensic search of a cell phone at the border. United States v. Vergara , 884 F.3d 1309 (11th Cir. 2018). Touset argues that, in the light of the decision of the Supreme Court in Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), reasonable suspicion was required for the forensic searches of his electronic devices. But our precedents about border searches of property make clear that no suspicion is necessary to search electronic devices at the border. Alternatively, the border agents had reasonable suspicion to search Touset’s electronic devices. We affirm.

I. BACKGROUND

After a series of investigations by private organizations and the government suggested that Karl Touset was involved with child pornography, border agents forensically searched his electronic devices after he arrived at the Atlanta airport on an international flight. Xoom, a company that transmits money, identified several people it suspected were involved with child pornography based on a pattern of "frequent low money transfers to" individuals in "source countries for sex tourism and child pornography," including the Philippines. Xoom alerted the National Center for Missing and Exploited Children and notified Yahoo because some of the people it suspected were involved with child pornography used Yahoo email and messenger accounts.

Yahoo then conducted its own investigation into the accounts identified by Xoom and found a file with child pornography in the account for the email address iloveyousomuch0820@yahoo.com. This email account listed a phone number in the Philippines. Yahoo then sent tips to the National Center, which notified the Cyber Crime Center of the Department of Homeland Security.

While performing its own investigation, the Cyber Center subpoenaed transaction data related to the iloveyousomuch0820@yahoo.com email account and the Philippine phone number associated with it from several companies that transmit money. One of those companies, Western Union, provided information about an account associated with the Philippine phone number. The information established that an account that listed Touset’s name and a post office box in Marietta, Georgia, had sent three payments to the account associated with the Philippine phone number. In March 2013, the account associated with Touset sent a payment of $35 to the account associated with the Philippine phone number; in April 2013, it sent another payment of $35; and in July 2013, it sent a payment of $37. Based on this information, the Department placed a "look-out" on Touset so that his luggage and electronic devices would be searched when he returned to the country.

After Touset arrived on an international flight at the airport in Atlanta, Georgia, on December 21, 2014, Derek Escobar, an officer of the Customs and Border Protection Agency, inspected Touset’s luggage. Touset had two iPhones, a camera, two laptops, two external hard drives, and two tablets. Escobar manually inspected the iPhones and the camera, found no child pornography, and returned those devices to Touset. But the Agency detained the remaining electronic devices, and computer forensic analysts at the Department later searched them. Forensic searches revealed child pornography on the two laptops and the two external hard drives.

Based on that information, Dianna Ford, a special agent of the Department, obtained a warrant to search Touset’s home in Marietta, Georgia. Ford and about 14 other agents executed the warrant on January 28, 2015. During the execution of the warrant, Ford and another agent read Touset his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and recorded an interview with him. Ford arrested Touset after that interview.

Evidence obtained by the government established that Touset purchased thousands of images of child pornography. Over the course of several years, Touset sent more than $55,000 to the Philippines for pornographic pictures, videos, and webcam sessions. In some webcam sessions, he instructed prepubescent girls to display and manipulate their genitals. Touset also created an Excel spreadsheet that documented the names, ages, and birthdates of those young girls as well as his notes about them.

A grand jury indicted Touset on three counts: knowingly receiving child pornography, 18 U.S.C. § 2252(a)(2) & (b)(1) ; knowingly transporting and shipping child pornography, 18 U.S.C. § 2252(a)(1) & (b)(1) ; and knowingly possessing a computer and computer-storage device containing child pornography, 18 U.S.C. § 2252(a)(4)(B) & (b)(2). Touset initially pleaded not guilty to the charges.

Touset filed motions to suppress the evidence obtained from his electronic devices at the border, as well as the fruit of those searches. After an evidentiary hearing at which Escobar and Ford testified, the magistrate judge recommended denying Touset’s motions to suppress. The magistrate judge explained that the parties agreed that the government "needed reasonable suspicion of criminal activity in order to lawfully detain for further analysis and search [Touset’s] electronic devices." The magistrate judge found that reasonable suspicion was present because "[t]he collective information of the officers allowed the reasonable inference that Touset had made three small payments through Western Union to an entity in the Philippines, a country known for child exploitation," and that entity "used an email address that had previously received or sent child pornography." And the magistrate judge rejected Touset’s argument that, because his most recent payment to the Western Union account associated with the Philippine phone number occurred about one and a half years before his electronic devices were searched, that evidence was stale. Instead, the magistrate judge found that the evidence of Touset’s payments was not stale because "[f]iles on a computer are less likely than other types of contraband to disappear over time and can often be recovered even if they are deleted."

The district court adopted the magistrate judge’s report and recommendation over Touset’s objections. The district court relied on the decision of the Ninth Circuit in United States v. Cotterman , 709 F.3d 952, 968 (9th Cir. 2013) (en banc), and concluded that reasonable suspicion is required for a forensic search of electronic devices at the border. The district court found that reasonable suspicion existed for the detention and forensic search of Touset’s electronic devices. And the district court agreed with the magistrate judge that the evidence was not stale.

Touset pleaded guilty to knowingly transporting child pornography, but reserved his right to appeal the denial of his motion to suppress. The government dismissed the other two counts. And the district court sentenced Touset to 120 months of imprisonment and supervision for life.

II. STANDARD OF REVIEW

"Because rulings on motions to suppress involve mixed questions of fact and law, we review the district court’s factual findings for clear error, and its application of the law to the facts de novo ." United States v. Ransfer , 749 F.3d 914, 921 (11th Cir. 2014) (quoting United States v. Bervaldi , 226 F.3d 1256, 1262 (11th Cir. 2000) ). We construe "all facts ... in the light most favorable to the prevailing party below." Id. (quoting Bervaldi , 226 F.3d at 1262 ). And "[t]he individual challenging the search bears the burdens of proof and persuasion." United States v. Newsome , 475 F.3d 1221, 1224 (11th Cir. 2007) (citation and internal quotation marks omitted).

III. DISCUSSION

We divide our discussion in two parts. First, we explain that the Fourth Amendment does not require any suspicion for forensic searches of electronic devices at the border. Second, we explain that, in the alternative, the searches of Touset’s electronic devices were supported by reasonable suspicion.

A. The Fourth Amendment Permits Forensic Searches of Electronic Devices at the Border Without Suspicion.

The Fourth Amendment to the Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...." U.S. Const. amend. IV. Ordinarily, "reasonableness requires the obtaining of a judicial warrant." United States v. Vergara , 884 F.3d 1309, 1312 (11th Cir. 2018) (alteration adopted) (quoting Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) ). But border searches are different. Id.

As we recently reiterated, searches at the border of the country " ‘never’ require probable cause or a warrant." Id. (quoting United States v. Ramsey , 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) ). The First Congress—the same one that proposed the Fourth Amendment—empowered customs officials to stop and search without a warrant any vessel or cargo...