I've blogged before about the practice sometimes used in child pornography investigations of waiting until a suspect has an international flight and then searching the suspect's computers at the airport under the Fourth Amendment's border search exception. (Read the details here, and for more on the border search exception, read here.) In light of those posts, I thought I might point out that a district court in L.A. has taken a different course, ruling that border searches of computers are "non routine" under Ninth Circuit precedent and therefore require reasonable suspicion before they are constitutionally reasonable.

  The case is United States v. Arnold, --- F.Supp.2d ----, 2006 WL 2861592 (C.D.Cal. Oct 2, 2006), decided by District Judge Dean Pregerson. An excerpt:

[T]the oft-quoted phrase "searches made at the border ... are reasonable simply by virtue of the fact that they occur at the border" belies the fact that highly intrusive searches are not reasonable merely because they take place at the border. Flores-Montano, 541 U.S. at 152-53 (quoting Ramsey, 431 U.S. at 616).

Although neither a warrant nor probable cause is needed for ordinary searches of persons and things crossing the border, cause is required for more intrusive border searches. Certain border searches are highly intrusive because they implicate the "dignity and privacy interests of the persons being searched." Flores-Montano, 541 U.S. at 152. As a search becomes more intrusive, it must be justified by a correspondingly higher level of suspicion of wrongdoing. United States v. Aman, 624 F.2d 911, 912-13 (9th Cir.1980) (holding that to conduct a strip search, the authorities must have a "real suspicion" that the person is smuggling contraband and that "real suspicion" is "subjective suspicion supported by objective, articulable facts". . ..

A search is reasonable in scope only if it is no more intrusive than necessary to obtain the truth respecting the suspicious circumstances. United States v. Palmer, 575 F.2d 721, 723 (9th Cir.1978). The objective facts must bear some reasonable relationship to the degree of suspicion. Price, 472 F.2d at 547. For example, to conduct a body cavity search, which is considered a "serious invasion of personal privacy and dignity," a "clear indication" of possession of narcotics must exist. Henderson, 390 F.2d at 808 (citing Rivas v. United States, 368 F.2d 703, 710 (9th Cir.1996)).

Hence, an invasive border search must be limited in scope, and the scope must meet the reasonableness standard of the Fourth Amendment. Price, 472 F.2d at 574. In the Ninth Circuit, such non-routine searches require at least reasonable suspicion. United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir.1994); see also United States v. Ek, 676 F.2d 379, 382 (9th Cir.1982) (holding that there must be a "clear indication" or "plain suggestion" that the person is carrying contraband in his or her body to conduct a body cavity search). In the case of non-routine, invasive searches that implicate personal privacy and dignity, customs agents must possess a reasonable suspicion.

The Supreme Court recognized in Flores-Montano that highly intrusive searches of persons implicate dignity and privacy interests. Likewise, opening and viewing confidential computer files implicates dignity and privacy interests. Indeed, some may value the sanctity of private thoughts memorialized on a data storage device above physical privacy. See United States v. Molina-Tarazon, 279 F.3d 709, 716 (9th Cir.2002) (recognizing that "government intrusions into the mind--specifically those that would cause fear or apprehension in a reasonable person--are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature"), rev'd on other grounds, Flores-Montano, 541 U.S. 149, 124 S.Ct. 1582, 158 L.Ed.2d 311.

The government argues that the officers searched Arnold's tangible property, not his person, and therefore the search was routine and did not require reasonable suspicion. However, as the Court recognized during the evidentiary hearing, the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object.

A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, including diaries, personal letters, medical information, photos and financial records. Attorneys' computers may contain confidential client information. Reporters' computers may contain information about confidential sources or story leads. Inventors' and corporate executives' computers may contain trade secrets. In this case, Arnold kept child pornography on his laptop and in his storage devices; however, "[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." Montoya de Hernandez, 473 U.S. at 548 (Brennan, J., dissenting).

  The interesting question is whether the Ninth Circuit will agree, a question that the Ninth Circuit didn't need to get to in the earlier Romm decision because the defendant had waived the argument in that case. If the Ninth Circuit does agree with Judge Pregerson that computer searches are "non routine," there's a decent chance that this case would be the first computer search and seizure case to get to the Supreme Court. (Incidentally, if there are any law students reading this who are looking for student note topics, this issue is worth considering.)