Facts
- Howard Cotterman and his wife, Maureen Cotterman, drove to a United States port of entry seeking admission.
- A Treasury Enforcement Communications System (TECS) hit indicated Howard had been convicted of child sex crimes about 15 years earlier and alerted officers to watch for possible child pornography.
- Border inspectors referred the Cottermans to secondary inspection and searched their vehicle.
- Inspectors found two laptop computers and three digital cameras.
- A cursory review did not reveal contraband, but inspectors noticed certain files on Howard’s laptop were password protected.
- Howard offered to help access the password-protected files, but the offer was declined.
- Immigration and Customs Enforcement (ICE) agents seized both laptops and one camera and transported them about 170 miles to Tucson for a forensic examination.
- The forensic work occurred off-site and took place over multiple days; investigators ultimately found about 75 images of child pornography on Howard’s laptop.
- No illegal material was found on Maureen’s laptop; the laptop was returned to her.
- ICE nonetheless made and retained a complete copy of Maureen’s hard drive, and the copy remained in government custody about 17 months later.
- ICE field guidance stated that seized electronic media should not be kept longer than needed to determine whether it furthered ICE’s law-enforcement mission.
- Howard was indicted for federal child-pornography offenses and moved to suppress the evidence obtained from the forensic search of his laptop; the magistrate judge’s report also addressed the retained copy of Maureen’s hard drive.
Issues
- Whether an off-site, multi-day forensic examination of a laptop seized at the border is a non-routine border search that requires at least reasonable suspicion under the Fourth Amendment.
- If reasonable suspicion is required, whether the government had reasonable suspicion to conduct the forensic examination of Howard Cotterman’s laptop.
- Whether the government’s continued retention of a complete forensic copy of Maureen Cotterman’s hard drive, after finding no contraband on her laptop, was an unreasonable seizure.
Decision
- The district court granted Howard Cotterman’s motion to suppress, adopting the magistrate judge’s recommendation in substantial part.
- The court treated the off-site, multi-day forensic examination conducted far from the port of entry as a non-routine border search that required reasonable suspicion.
- The court concluded the government did not show reasonable suspicion sufficient to justify the forensic examination when it was initiated; the TECS hit reflecting old convictions and the presence of password-protected files did not, without more, supply a current, particularized basis for the intensive search performed.
- As to Maureen Cotterman, the court found that keeping a full copy of her hard drive long after agents found nothing illegal on her laptop violated the Fourth Amendment.
- The court ordered the government to return or destroy the retained copy of Maureen’s hard-drive data.
Legal Principles
- Routine searches at the international border generally may be conducted without a warrant and without individualized suspicion.
- Border searches that are non-routine in scope or manner may require at least reasonable suspicion.
- A comprehensive forensic examination of electronic storage, conducted off-site and over an extended time, can be treated as non-routine because of the privacy interests implicated by the volume and type of information stored on computers.
- Reasonable suspicion must rest on specific, articulable facts tied to current suspected wrongdoing; an old criminal record and generic indicators such as password protection, standing alone, may be insufficient to justify an intensive forensic review.
- Even when a device is lawfully seized, continuing to hold property (or a complete data copy) after the government determines it contains no contraband and lacks an ongoing law-enforcement need can amount to an unreasonable seizure; internal agency guidance on retention may inform the reasonableness analysis.
Conclusion
In United States v. Howard Wesley Cotterman, the district court suppressed child-pornography evidence found through a multi-day, off-site forensic examination of a laptop seized at the border because it treated the search as non-routine and concluded the government lacked reasonable suspicion to conduct it, and the court also ruled that ICE’s long-term retention of a complete forensic copy of Maureen Cotterman’s hard drive—after finding nothing illegal—was unreasonable and required return or destruction of the copied data.