One of the fun aspects of computer search and seizure law is that computers often allow facts that just don’t come up very often in traditional cases. The new facts raise intriguing and new questions that test the basis of existing law, forcing courts to choose which principles of preexisting law should apply to the new facts. A border search opinion from last week, United States v. Cotterman, provides a fascinating example.
In the Cotterman case, agents seized a computer at the Mexico-Arizona border and wanted to search it, but they apparently didn’t have a trained analyst nearby. As a result, they let the computer owner go on into the U.S., and in the meantime they drove the computer to a government forensic analyst in Tucson, about 170 miles away. The analyst in Tucson searched the computer two days later and found child pornography.
Here’s the question: Does the border search exception apply to the search of the computer that was seized at the border but actually searched in Tucson two days later? The question is interesting because searches and seizures ordinarily occur at the same place. If evidence is seized at the border, it normally will be searched at the border. Under the border search exception, no cause is required. The dynamics of computer searches are different. A comprehensive search for evidence of a computer generally requires a careful analysis at a lab by a trained forensic analyst. Asa result, computers normally are seized in one place and then searched later on in a different place. So what happens when the location of the search and seizure diverge? Should the law follow the location of the seizure or location of the search? If the law follows the former, the computer can be searched without cause; if it follows the latter, some cause must first be established.
In the Cotterman case, the court ruled that the law should follow the time and place of the search rather than the seizure. By bringing the computer to the forensic analyst instead of the analyst to the computer, the border search exception didn’t apply. The court focused on Ninth Circuit caselaw involving “extended border searches,” which have ruled that as time and space passes from the initial border crossing, a search can only be justified based on reasonable suspicion — and that only after more time/space passes from the border is a search no longer even an “extended border search.” From the opinion:
When a search is removed in time and place from the border, the courts have repeatedly held that this represents a greater intrusion on the person requiring that under the totality of the circumstances, customs officers had reasonable suspicion of criminal activity in order to justify the search, the so-called