Legal Commentary

Update on United States v. Cotterman, Ninth Circuit Case Applying the Border Search Exception to Computers

By Orin Kerr

Back in 2009, I blogged about a fascinating Fourth Amendment district court decision involving how the border search exception applies to computers, United States v. Cotterman. Cotterman deals with how the government can execute a border search of a computer given that forensic searches of computers can take a long time and require considerable expertise. In particular, can federal agents seize the computer and bring it to the expert, and hold the computer for the travel time and forensic time, while still fitting within the border search exception? Or, to put it another way, if the government seizes a computer at the border, and the law permits an immediate search without suspicion at the border, what are the limits on how long the government can hold the computer and where they can bring it before triggering a suspicion requirement?

In my long blog post on the case, I predicted that the government would probably appeal and the Ninth Circuit would probably reverse. I just took a look at what has happened since then, and the Government did indeed appeal. The case was argued on September 9, 2010, and it drew a good panel for the defendant: Betty Fletcher, Tallman, and Rawlinson. You can listen to the oral argument here; it?s a pretty interesting discussion. Given the three months since the argument, the decision could come down any day now.

Notably, the government has declined on appeal to argue that there was reasonable suspicion. DOJ has done this before in Ninth Circuit border search cases. By declining to argue reasonable suspicion, DOJ ensures that if it loses on the legal standard, it loses the case. That way it can seek review of adverse decisions in the Supreme Court, which tends to take a different view of the border search exception than the Ninth Circuit often does. Otherwise, the Ninth Circuit can keep cases away from the Supreme Court by ruling against the government on the legal standard but then in favor of the government on the result. For more on this dynamic, see my 2005 post, The Ninth Circuit, the Fourth Amendment, and Border Searches.

If the Ninth Circuit rules in favor of the defendant, I?m not sure this particular case would be certworthy. I don?t know how the different lower courts have dealt with the Ninth Circuit?s ?extended border search? doctrine, which is the doctrinal category here. If there?s a split on that, then this could be a vehicle for DOJ to challenge that doctrine. But if there?s no split on that, then the facts of this case are of first impression in a relevant sense, and the Court would be more likely to wait the 2?3 years it will take for the Fifth Circuit or some other court to disagree with the Ninth on how the doctrine applies to computer searches specifically. Either way, this particular variation on the border search doctrine ? specifically, the permitted length and location of seizure of computers under the border search exception ? is an issue worth watching and might end up in the Supreme Court sooner rather than later.

Full post as published by The Volokh Conspiracy on January 17, 2011 (boomark / email).