Search Limits for Kiddie Porn Debated in the 9th

(CN) - The government urged an en banc panel of the 9th Circuit to uphold its lengthy search of the laptop a pedophile tried carrying over the Mexico-Arizona border.

While searching the computer at the Lukeville, Ariz., Port of Entry in 2007, agents discovered that its owner, Howard Cotterman, had been convicted in 1992 of having sex with a minor.

Deciding that they needed to do a more thorough search, the agents seized the computer and sent it to Tucson, 170 miles away. Some of the child pornography that investigators eventually found on Cotterman's hard drive depicted him sexually molesting a child.

After fleeing to Australia, Cotterman was extradited and charged in Arizona for producing, transporting and possessing child pornography.

He later tried to suppress the evidence by claiming that the search had required reasonable suspicion because it was an "extended border" search.

U.S. District Judge Raner Collins in Tucson agreed. While the agents could seize and search the laptop at the border without reasonable suspicion, Collins said their transportation of the device to Tucson and two-day probe constituted an extended border search.

In the case's first appeal, the 9th Circuit reversed with an expansive reading of the border doctrine.

"We find no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry - and not yet admitted or released from the sovereign's control - to be transported to a secondary site for adequate inspection," Judge Richard Tallman wrote for a three-judge panel.

After the Pasadena-based federal appeals court agreed to rehear the matter en banc, Assistant U.S. Attorney Carmen Corbin told the court last week a border search should be limited only to whether the search is "particularly offensive."

A regular border search becomes an extended border search only after the item has cleared customs, she said. This was not the case for Cotterman's laptop.

Judge William Fletcher seemed surprised by the argument.

"I never dreamed that the government was taking the position that this was not an extended border search," Fletcher said. "You are actually claiming that the border is elastic, and as long as you want to keep the computer, wherever you want to take it as long as it hasn't cleared customs, that's OK?"

Corbin confirmed, but disputed the idea that she was calling the border elastic.

She also disagreed when Fletcher asked if she was trying "to significantly expand the law of border searches in this case."

Judge M. Margaret McKeown later took the government's position even further.

"So that means that, really, since there's no reasonable suspicion at play now in our analysis, every single electronic device coming into the country at all the borders and all the functional equivalents are subject to extended search outside the border, under your position?"

Corbin said that the 9th Circuit's 2008 ruling in United States v. Arnold had already "decided that computers and electronic devices can be searched at the border without reasonable suspicion."

Defense attorney William Kirchner argued that the "limiting principal [to the border doctrine] is seizure."

"The whole reason for the border search exception is tied to the place where it occurs, at the border, where the government's power is at its zenith, and where every traveler knows they are probably going to be stopped and detained for a while, where their property is going to be looked at, everyone expects that," he said.

But once the property is seized and moved, the nature of the search changes, he said.

"I think what they are trying to do is create an artificial distinction that doesn't make sense in the real world," the Tucson-based attorney argued. "To say that they started a search, and now they can take it, and the border envelops it like a cocoon where ever it goes, that is not the real world. What happens in the real world is people can tell when their goods have been taken away from them, and that's exactly what happened in this case."

Chief Judge Alex Kozinski seemed to disagree. He focused on the government's position that the case hinges on an item's clearance through customs.

"If you ever ship anything, you know it takes days sometimes at the border to clear customs," Kozinski said.

"It sits at the border sometimes for days on end while some customs agent clears it," he added. "This is the way it is, what's so different about somebody hauling it on their person?"

Kirchner said the difference is the "reasonable expectation of the person."

For more information about the case, Courthouse News has copies of the appellate briefs filed by Cotterman and the government.

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