The Wall Street Journal: Judges for lax border security

Posted on April 03, 2013

The Ninth Circuit ignores 127 years of precedent allowing U.S. agents to search those trying to enter the country.

By: Roy K. Altman

April 3, 2013 7:11 p.m. ET

On March 8, a federal appeals court stripped U.S. border agents of one of their most effective tools—the power to search, at random and indiscriminately, the thousands of computers that people bring into the country every single day.

In what the judges described as a “watershed” case, the Ninth Circuit Court of Appeals (sitting in California) created a new rule that will prohibit federal agents from stopping a person at the border and examining his or her computer unless the agents reasonably suspect that the computer contains evidence of a crime. The government would later have to prove this “reasonable suspicion” in court.

The Ninth Circuit’s new rule flies in the face of more than a century of Supreme Court jurisprudence and misapplies the balancing test that typically governs the legality of border searches or seizures. Most important, the rule will severely restrict the ability of federal agents to protect America’s borders.

David Klein

On April 6, 2007, Howard Cotterman was driving back into the U.S. from Mexico. At the border in Lukeville, Ariz., U.S. border agents ran Cotterman’s information through a law-enforcement database and discovered that he had been convicted of child molestation in 1992. The agents also learned that Cotterman was suspected of engaging in child sex tourism.

Based on this information, the agents searched Cotterman’s car and found two laptop computers and three digital cameras. During a preliminary search of these devices, the agents found that many of the computer files were password-protected. Hoping to complete a more thorough examination, the agents sent one camera and the two computers to the Immigration and Customs Enforcement office in Tucson.

Meanwhile, the agents let Cotterman go. In Tucson, a forensic examiner analyzed Cotterman’s computers and found 378 images of child pornography. Most of these were of Cotterman sexually molesting a girl who appeared to be between 7 and 10 years old.

After Cotterman was charged with possessing child pornography, he moved to suppress the evidence against him on grounds that the border agents lacked reasonable suspicion to search his computer. The trial court agreed and suppressed the evidence.

The government appealed the case to a three-judge panel of the Ninth Circuit, which reversed the trial court’s decision, holding that reasonable suspicion wasn’t required. But the Ninth Circuit decided to take the case “en banc”—with 11 of its 29 judges hearing the case together—and held by a vote of 8-3 that reasonable suspicion was necessary.

The Constitution’s Fourth Amendment usually requires that government agents obtain a warrant before they can search a person or his effects. But since 1886, the Supreme Court has repeatedly recognized an exception to the warrant requirement for searches that take place at the border. This exception has long permitted federal agents to conduct suspicionless searches involving, for example, vehicles crossing into the U.S. from Mexico, planes flying in from terror hot spots in the Middle East, and packages arriving from cocaine-manufacturing hubs like Colombia.

The Supreme Court has justified the border-search exception by pointing to the government’s powerful interest in protecting America’s borders from “unwanted persons or effects” (in the 2004 case United States v. Flores-Montano), and by recognizing that international travelers enjoy a diminished expectation of privacy when attempting to cross into the U.S.

In the 127 years since the Supreme Court first recognized the border-search exception, it has required a showing of reasonable suspicion for a border search in only one case. In United States v. Montoya de Hernandez , decided in 1985, the court held that, even at the border, U.S. agents must have reasonable suspicion of criminal activity before they may detain a person for 24 hours and conduct an invasive cavity search—an understandable standard.

But the justices have consistently refused to extend the Montoya de Hernandez exception to cases involving border searches of mere personal property. During the past 127 years, therefore, federal courts have upheld warrantless, suspicionless border searches of, among other things, a person’s car, gas tank, wallet and any containers (including anything that might be found in those containers).

In its recent Cotterman decision, the Ninth Circuit conceded that the Supreme Court had never applied the Montoya de Hernandez exception to personal property, but the judges decided anyway to extend the exception to border searches of a particular kind of property: laptop computers. They justified this departure from Supreme Court precedent on the grounds that, because computers can store large amounts of personal information, people who cross the border with computers should enjoy an enhanced expectation of privacy in the contents of those computers—though not in the contents of their cars, suitcases or any other pieces of personal property.

At first blush, the Ninth Circuit’s rationale seems sensible—computers do hold a lot of personal information. But that justification doesn’t pass the constitutional sniff test. As Judge Consuelo M. Callahan noted in her partial dissent in Cotterman, the Ninth Circuit’s new rule treats a person who saves child pornography to his computer differently from someone who prints it out and hides it in his briefcase.

More important, as Judge Callahan explained, the Ninth Circuit had previously rejected the notion that computers should receive more protection under the Fourth Amendment simply because of how much data they store. Which makes sense: The Fourth Amendment’s protections don’t wax or wane according to the size of the space to be searched or the amount of information to be seized. At the border, whether the government intends to search a wallet or an 18-wheeler, the analysis is the same: no suspicion is required.

Putting aside the logic of the Ninth Circuit’s new rule, its prescriptions seem hard to follow. If border crossers enjoy more privacy in their computers than in their cars or suitcases, how are border agents to interpret the hundreds of things in between?

May an agent search electronic devices with less storage space than a laptop—say, a cellphone or a thumbdrive—without reasonable suspicion? If so, to the extent that these devices have more storage capacity than a wallet, are people who carry them entitled to something more than no suspicion, but less than reasonable suspicion? What about someone who carries a laptop with extra storage space—is he entitled to a showing of probable cause? Do we really want to make it harder for customs agents to protect the country when it is ever easier to smuggle contraband (whether child pornography or plans for a terrorist attack) across borders?

The Ninth Circuit’s new rule cuts against 127 years of Supreme Court cases, and its implications render it unworkable. Fortunately, in 2005, the Fourth Circuit Court of Appeals (in Virginia) upheld federal agents’ authority to conduct suspicionless border searches of a person, his personal property and his laptop computer. Here’s hoping that the Supreme Court takes the opportunity presented by this “circuit split” to unplug the Ninth Circuit’s computer ruling.

Mr. Altman is an assistant U.S. attorney in Miami. His views are not necessarily those of the Justice Department, its agencies or affiliates.