Does the Border Search Doctrine Apply To Searching Computers if the Government Moves the Computer Away from the Border Before Searching It?:
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 "extended border search." United States v. Whiting, 781 F.2d 692, 695 (9th Cir.1986); United States v. Cardona, 769 F.2d 625, 628 (9th Cir.1985); United States v. Alfonso, 759 F.2d 728, 734 (9th Cir.1985); United States v. Bilir, 592 F.2d 735, 740-741 (9th Cir.1979). As the Court in Alfonso stated: "We recognize, of course, that time and place are relevant, since the level of suspicion for extended border searches is stricter than the standard for ordinary border searches. Extended border searches occur after the actual entry has been effected and intrude more on an individual's normal expectation of privacy. Therefore, extended border searches must be justified by "reasonable suspicion" that the subject of the search was involved in criminal activity, rather than simply mere suspicion or no suspicion." Alfonso, 759 F.2d at 734. In Alfonso, the search took place thirty-six hours after the ship docked at Los Angeles harbor.
  At some point, the discrepancy in time and distance will become so great that it is no longer an extended border search, thus requiring probable cause and a warrant. Again, there is no bright line test, but an examination of the totality of circumstances, including time, distance and law enforcement efforts is required. Alfonso, 759 F.2d at 736; United States v. Sahanaja, 430 F.3d 1049, 1054-1055 (9th Cir.2005). For instance, had the forensic examiner in this case placed the Cottermans electronics equipment at the end of the queue, conducting the examination in a month or two, it could be argued the search was so removed in time as to no longer be an extended border search. We need not reach that question here, where the facts show reasonable diligence and speed in conducting the computer forensic examination. Therefore, the Government need only show reasonable suspicion, not probable cause, to justify the search in this case.
  Because the court concluded that the government lacked reasonable suspicion, the motion to suppress was granted.

  I find this analysis unpersuasive, and I think that if the Government appeals — which I would guess it will, given the ICE guidelines allowing what it did — the Ninth Circuit will very likely reverse. The Ninth Circuit cases concluding that the place of the search were relevant were all cases in which the search occurred at the same place as the seizure. It makes sense that the location of the seizure would matter: The idea behind the border search exception is that expectations of privacy vary based on location, so the the law should adjust the threshold of cause to correspond to the extent of the experienced intrusion.

  But location doesn't seem to matter when a computer is taken from a suspect at the border and searched offsite. To be sure, the computer is seized, and the duration of the seizure must be constitutionally reasonable. Cf. United States v. Van Leeuwen, 397 U.S. 249 (1970). But the location of the search has no obvious relevance to the intrusion experienced by the defendant, who doesn't know where the computer is searched or in all likelihood even care. Indeed, it often happens that agents in one district will ship off a computer to another district for analysis: It would be quite odd if the courts based the legality of the search on where the forensic analysis just happened to be done. Why does it matter that the computer went to the analyst instead of the analyst to the computer given that the owner of the computer was elsewhere?