I’ve blogged a lot about the Ninth Circuit’s computer search decision in United States v. Cotterman, and I thought I would flag the cert petition that Cotterman filed on August 5th. Taken in isolation, the cert petition that was filed normally would be denied. But this case may be different for the reason I discussed in my most recent Cotterman post:
DOJ may be waiting for Cotterman’s petition. Recall that DOJ lost the big issue [before the en banc Ninth Circuit] but technically won the case — on a ground it refused to argue — raising the Camreta question of whether it could bring a petition seeking review of the CA9 opinion. In contrast, Cotterman lost and has said he would seek Supreme Court review; his due date for a petition is in August. If Cotterman files, DOJ can then take a position and perhaps not oppose Cotterman’s petition. That could trigger Supreme Court review without DOJ having to get into the Camreta issue.
It will be interesting to see DOJ’s response. At the time Cotterman came down, on March 8, I figured that DOJ would welcome Supreme Court review. Perhaps that’s correct. At the same time, with the flurry of recent news about NSA surveillance programs leading to significant push back against the Administration’s position, I’m not sure DOJ will think it a good time to ask the Justices to decide how the Fourth Amendment applies to searching physical computers at the border. (There’s no direct doctrinal connection, to be clear, but the atmospherics can make a difference.)