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NINTH CIRCUIT EXPANDS BORDER SEARCH INLAND

May 11 2011
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Extended Border Search Doctrine: Suspicionless Searches of Computers and Cameras Need not be Conducted at Time and Place of Entry
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was a case of “first impression” for the Ninth Circuit Court of Appeals—the case of United States v. Howard Cotterman, a repeat sex offender who was arrested at a “border stop” in Lukeville, Arizona in April of 2007. Cotterman, and his wife Maureen, tried to reenter the United States from Mexico at Lukeville. Both had valid U.S. passports. As part of border reentry protocol, an inspector ran a check of the passports through Border and Custom Protection. This routine check produced a Treasury Enforcement Communication System alert on Howard Cotterman’s name—an alert which had been placed in the system by U.S. Immigration and Customs enforcement. The alert stemmed from Cotterman’s 1992 convictions in Long Beach, California for illegal sexual misconduct with a child and child sexual molestation. The ICE alert instructed border inspectors to be on the “lookout” for child pornography.

The ICE alert, as reasoned by the Ninth Circuit, was sufficient probable cause under 19 U.S.C. §§ 1433 and 1582 to direct the Cottermans to a “secondary inspection area” for a more “thorough search” of their vehicle and belongings. The Lukeville border inspection officer then called Long Beach ICE authorities who had placed the “alert” and was instructed to “search anything” that could contain child pornography. A subsequent search of the Cotterman’s vehicle revealed two laptop computers and three digital cameras. Border inspector Antonio Alvarado was given the task of inspecting the laptops while other agents searched the vehicle. Alvarado’s preliminary search did not reveal any child pornography, but his suspicions were aroused because many of Cotterman’s files were “password protected.”

These suspicions were conveyed to Craig Brisbine, an ICE supervisor in Sells, Arizona, who, along with Agent Mina Riley, went to the Lukeville “port of entry” station. During their trip to Lukeville, the two agents made a decision to detain Cotterman’s laptops for “forensic examination.” Shortly after their arrival, agents Brisbine and Riley gave the Cottermans their “Miranda rights” warnings, after which the couple were interviewed separately. Neither provided any incriminating evidence, although Cotterman did offer to help the agents with his computer—an offer rejected by the agents. Agent Riley said she rejected Cotterman’s offer because she was not trained in computers and feared (1) Cotterman could delete files without her knowing it, (2) the laptops could be “booby trapped,” and (3) there might be files she could not see even with full access to the laptops.

Later that afternoon Agents Brisbine and Riley left the Lukeville station with the laptops and one of the digital cameras. Cotterman was informed, when given the other two cameras, that the laptops and camera were being sent to Tucson for “further examination.” The Cottermans were then allowed to leave the Lukeville station. The seized laptops/camera were then turned over to John Owen, an ICE “Computer Forensic Examiner,” who used software to make copies of the laptops hard drives, including the one belonging to Maureen’s computer. Owen first examined the camera and found no evidence of wrongdoing. He released the camera to Cottermans in Tucson. The agent then turned his attention to the copies made of the laptops’ hard drives. He did not find any evidence of wrongdoing on Maureen’s laptop hard drive but his examination of Cotterman’s hard drive revealed evidence of approximately 75 images of child pornography.

Agent Owen then informed the Cottermans, who were staying in Tucson, that they could come by the ICE office and pick up Maureen’s hard drive. Owen informed Cotterman that he would need Cotterman’s assistance in accessing several of password protected files. Cotterman agreed to provide the assistance. The following morning Maureen arrived at the ICE office to pick her hard drive at which time she informed the agents that her husband could not come because he had business to take care of. Agent Brisbine then spoke with Cotterman by telephone and informed him that the agents still needed his assistance in accessing the “password protected” files. Cotterman responded by telling Brisbine that the laptops had multiple users and he would have to contact his business partners in order to obtain those passwords.

The following day the Tucson ICE office learned that Cotterman had boarded a flight to Mexico with a final destination in Sydney, Australia following his phone conversation with Agent Brisbine. The next day Agent Owen was able to bypass Cotterman’s security system protecting 23 files in which he discovered 378 images of child pornography. 360 of those images involved the same 7 to 10 year old child and many of the images depicted Cotternman sexually molesting the child. Hundreds of other files were stories and videos of children.

In June 2007 Cotterman was indicted by a federal grand jury for production of child pornography, possession of child pornography, importation of obscene material, transportation of obscene material, and unlawful flight to avoid prosecution. Following the indictment Cotterman was arrested by Australian authorities and extradited back to Arizona.

In April 2008 Cotterman filed a motion to suppress the evidence discovered on his laptop or any “fruits” derived from that evidence. A federal magistrate conducted a hearing at which testimony was provided by Agents Riley, Owen and Alvarado. Two weeks later the magistrate judge submitted a report to the U.S. District Court judge assigned to the case recommending that Cotterman’s motion be granted in its entirety. The magistrate judge 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 reasonably particularized suspicion.” The magistrate judge concluded that the Tucson ICE agents did not have reasonable suspicion that the laptops contained evidence of criminal activity.

U.S. District Court Judge Raner Collins agreed. The judge made two factual findings which formed the basis of the appeal before the Ninth Circuit: “that the search of the laptop could have been conducted at the border and that it took place at least forty-eight hours to yield results.”

On appeal the Government did not contest Judge Collins’ factual finding that the ICE agents in Tucson did not have a “reasonable particularized suspicion” of criminal activity necessary to support the “extended border search doctrine.” The Government confined itself to the premise that it did not need to establish a reasonable particularized suspicion because the ICE alert on Cotterman justified both its initial search of the Cottermans’ vehicle, the seizure of the laptops, and the subsequent extended border search of those laptops in Tucson.

The Ninth Circuit began its analysis by saying there is no question about the Government’s authority to conduct border searches, nor is there room for disagreement over the “Government’s paramount interest in protecting our country from people and property it does not desire within its borders.” Against this backdrop the Ninth Circuit concluded:

“Thus, there is no legitimate question as to whether the border search doctrine justified the initial detention of Cotterman and his property. Cotterman himself concedes, albeit reluctantly, that had the Government elected to transport its personnel and specialized computer forensic equipment to the border to perform the search, the border search doctrine likewise would have applied. The sticking point is whether the inherent power of the Government to subject incoming travelers to inspection before entry also permits the Government to transport property not yet cleared for entry away from the border to complete its search. Cotterman claims it does not. We cannot agree.

“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. In light of our jurisprudence, this analysis is far too rigid and simplistic. ‘Despite its name, a border search need not take place at the actual international border … Rather, the border search doctrine applies to searches and seizures that occur hundreds or thousands of miles from the physical border.’ [F]or example, we held that the border search doctrine permitted the suspicionless search and seizure of a UPS sorting facility in Louisville, Kentucky—a location that sits much farther than 170 miles from the nearest border.

“In addition, while permitting searches at those great distances, we have declined to apply the doctrine to some searches that occur within a few miles of the border. If the border search doctrine was constrained as simply as Cotterman contends, this disparate treatment would be quite arbitrary. Our jurisprudence makes perfect sense, however, when one considers that the border search doctrine is guided—like all Fourth Amendment jurisprudence—by reason and practicality, not inflexible rules of time and space.

“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’s intrusion that occurs when an individual is detained and searched at a location beyond the border where he had a narrow expectation of privacy in the object searched.

“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. In that regard Cotterman’s claim is quite different from each of the cases in which we required the Government to demonstrate reasonable suspicion. Unlike the defendants in those cases, Cotterman’s detention and initial search occurred at the border itself—a point at which travelers do not have a normal expectation of privacy, but rather must expect to have their privacy intruded upon.

“[Thus], 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. 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 custody 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 alleviate the self-protection concerns of the sovereign. He never breathed that deep sigh of relief that follows from realization that he had faced all the rigors of inspection and that nothing more would impede his travels.

“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 constitutionally protected expectation of privacy that their property will not be removed from the border for search and, therefore, the Government must either staff every POE [port of entry] with the equipment and personnel needed to fully search all incoming property or otherwise be forced to blindly shut its eyes and hope for the best absent some particularized suspicion. We find this position untenable.”

We must depart company with this final conclusion drawn by the Ninth Circuit. We cannot accept that Cotterman’s 1992 child sex convictions established a “reasonably particularized suspicion” to seize and search his personal laptop and camera for evidence of child pornography. The 1992 convictions were not related to child pornography – they involved sexual misconduct with a minor. But more to the point: we find it difficult to accept that once his vehicle, his person, his camera, and the two laptops had been examined at the border and revealed no evidence of criminal activity, the Government somehow maintained a compelling interest to seize the laptops and camera and transport them 170 miles inland for a more thorough search absent any reasonable suspicion that they contained evidence of child pornography.

And clearly the following observations made by the Ninth Circuit demonstrate that the appeals court itself also had reservations about the Government’s action in the Cotterman case:

“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 manner of the search and seizure was so egregious as to render it unreasonable.”

We suspect that the evidence was so overwhelming and compelling against Cotterman that the Ninth Circuit could not accept the district court’s finding that all the evidence of obvious guilt should be suppressed. But we feel that constitutional protections should not be guided solely by the evidence of guilt: the quantity of the evidence should not override the quality of the constitutional protection. The guilty enjoy constitutional protections as equally as the innocent. The more our courts divert from this traditional constitutional jurisprudence, the weaker our constitution becomes. We understand the Ninth Circuit faced a hard call, but at the end of the day, the appeals court did more damage than good to the constitutional protection against unreasonable searches and seizures.

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    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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