Federal Judiciary

Crossing the Border? Leave Your Laptop at Home

By Robert Loblaw

U.S. v. Arnold, 06-50581 (9^th Cir., April 21, 2008)

On the way back from a three-week vacation in the Philippines, defendant Michael Arnold was selected for secondary screening by Customs officials at Los Angeles airport. One officer asked Arnold to turn on his laptop to determine whether it was functioning. After his laptop was booted up, another officer started clicking through Arnold?s files, including one labeled Kodak pictures and another labeled “Kodak Memories.” The officer saw a picture with nude women, so he turned Arnold?s laptop and electronic storage devices over to his supervisors. They conducted a full search and found child pornography.

Arnold filed a motion to suppress the illegal images. He faced a high burden, because border searches of closed containers are almost universally upheld. But Arnold argued that a laptop should be entitled to greater protection, because it is less like a closed container and more like a home or a human mind. The district court agreed and suppressed the results of the search.

On appeal, a panel of the Ninth Circuit reverses. Writing for the Court, Judge O?Scannlain takes Arnold?s analogy a step further, arguing that a laptop is less like a home and more like an automobile for Fourth Amendment purposes. Indeed, in California v. Carney, the Supreme Court rejected similar claims about a search of a mobile home. Judge O?Scannlain draws on this decision, explaining,

Here, beyond the simple fact that one cannot live in a laptop, Carney militates against the proposition that a laptop is a home. First, as Arnold himself admits, a laptop goes with the person, and, therefore is “readily mobile.” . . . Second, one?s “expectation of privacy [at the border] . . . is significantly less than that relating to one?s home or office.”

Finally, Arnold argued that using the legal images on his computer as a basis for conducting a more intensive search violates the First Amendment. But Judge O?Scannlain rejects this suggestion, pointing to a decision from the Fourth Circuit that upheld a child pornography search based on the fact that the defendant had a video of a young boy playing tennis on his camera. That court concluded that carving out First Amendment rights at the border would hamper law enforcement and help the terrorists. The panel is persuaded by the Fourth?s analysis and declines to create a circuit split on this issue.

Full post as published by Decision of the Day on April 21, 2008 (boomark / email).