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United States of America v. Howard Wesley

March 30, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
HOWARD WESLEY COTTERMAN, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding D.C. No.4:07-cr-01207-RCC-CRP-1

The opinion of the court was delivered by: Tallman, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

September 9, 2010-San Francisco, California

Before: Betty B. Fletcher, Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tallman;

Dissent by Judge B. Fletcher

OPINION

Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine. The district court considered the issue to be a simple matter of time and space. It concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. We disagree.

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. The border search doctrine is not so rigid as to require the United States to equip every entry point-no matter how desolate or infrequently traveled-with inspectors and sophisticated forensic equipment capable of searching whatever property an individual may wish to bring within our borders or be otherwise precluded from exercising its right to protect our nation absent some heightened suspicion.

Still, the line we draw stops far short of "anything goes" at the border. The Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim. Rather, we continue to scrutinize searches and seizures effectuated under the longstanding border search power on a case-by-case basis to determine whether the manner of the search and seizure was so egregious as to render it unreasonable.

Because we agree with the district court's conclusion that the federal agents acted reasonably, and find that neither the scope of the intrusion nor the duration of the deprivation was egregious, we reverse the district court's order suppressing hundreds of images and videos of child pornography found on Howard Cotterman's computer and remand the case to the district court for further proceedings consistent with our decision.

I A On Friday, April 6, 2007, at approximately 10 a.m., Howard and Maureen Cotterman drove from Mexico to the Lukeville, Arizona, Port of Entry ("POE") and presented themselves for admission into the United States with valid United States passports. Following protocol, the inspector checked both passports against the Customs and Border Protection ("CBP") electronic database and discovered a Treasury Enforcement Communication System ("TECS") alert on Cotterman's*fn1 name. The TECS alert-placed in the computer system by Immigration and Customs Enforcement ("ICE") agents in Long Beach, California, after Cotterman was convicted in 1992 for two counts of use of a minor in sexual conduct, two counts of lewd and lascivious conduct upon a child, and three counts of child molestation-informed the officer to be on the "lookout" for child pornography.*fn2 Because of the alert, the inspector sent the Cottermans to a secondary inspection area for a more thorough search, as authorized by statute and regulation. See 19 U.S.C. §§ 1433, 1582.*fn3

The Lukeville CBP officer assigned to secondary inspection called the Long Beach contact number listed on the TECS alert and spoke with an agent from the ICE Pacific Field Intelligence Office. The ICE agent told him to search anything that could contain evidence of child pornography or sex with children. During the vehicle search, CBP officers found two laptop computers and three digital cameras. Officer Antonio Alvarado was tasked with inspecting the laptops and cameras while other officers continued searching the vehicle. Officer Alvarado did not find any child pornography on the equipment. His inspection was limited, however, by the fact that many of Cotterman's files were password protected.

At approximately 12:00 or 12:30 p.m., Group Supervisor Craig Brisbine at the ICE office in Sells, Arizona, was notified about Cotterman. Agent Brisbine and the Sells Duty Agent, Mina Riley, responded from Sells at approximately 1:30 p.m. and arrived at the Lukeville POE at 3:00 or 3:30 p.m. Agent Riley testified that she and Agent Brisbine decided while en route that they would detain the Cottermans' laptops for forensic examination.

Upon arrival, Agents Brisbine and Riley administered Miranda warnings to Cotterman and Maureen and interviewed them separately. Nothing incriminating was said during the interviews. Cotterman offered to help the agents with his computer, but the agents declined to allow him access to any of the electronic equipment. Agent Riley testified that she did not allow Cotterman to touch the laptops because she was not trained in computer forensics and was concerned that (1) files could be deleted by Cotterman without her knowledge, (2) the laptops might be "booby trapped," or (3) there might be files she would be unable to see even with full access to the laptops.

At approximately 6:00 p.m., Agents Brisbine and Riley left the Lukeville POE with both laptops and one of the three digital cameras. The other two cameras were returned to the Cottermans, who were told that the laptops and camera were being taken to Tucson for further examination. The agents told the Cottermans that the examination would ideally be completed prior to the Cottermans' scheduled departure from Tucson.*fn4 Soon after the ICE agents departed, the Cottermans were also permitted to leave the POE.

Agent Brisbine delivered the detained laptops and camera to ICE Senior Special Agent & Computer Forensic Examiner John Owen at the ICE office in Tucson at approximately 11:00 p.m. on April 6, 2007. The following morning, Agent Owen used forensic computer software to make copies ("mirror images") of the three laptop hard drives-one hard drive in Maureen's computer and two drives in Cotterman's- and the digital memory card from the digital camera. Agent Owen first examined the digital data copied from the camera and determined that it did not contain any contraband. He released the camera to Cotterman in Tucson that same day. Next, Agent Owen used his forensic software to examine the data copied from the laptop hard drives. Agent Owen testified that the forensic scripts and procedures he utilizes to examine mirror images for contraband generally take several hours to run, so he often leaves them running overnight and examines the results the following morning.

On Sunday, Agent Owen began his personal examination of what he believed was Cotterman's laptop. He later became aware that he actually started with Maureen's laptop because it had been placed in Cotterman's laptop bag. He did not find any contraband on that laptop. He then began examining the second laptop. That evening, he discovered approximately seventy-five images of child pornography within the laptop's unallocated space.*fn5

Agent Owen called the Cottermans, who were still in Tucson, to inform them that they could pick up Maureen's laptop on Monday morning. He told Cotterman that he needed Cotterman's help to access the password-protected files on his laptop before it could be released. Cotterman agreed to provide the requested assistance the next day.

Maureen arrived at the Tucson ICE offices at 9:00 a.m. on Monday, April 9, 2007, to pick up her laptop. She told the ICE agents that Cotterman had business to take care of in Tucson and was unable to come in. Agent Brisbine spoke with Cotterman on the phone and again asked for the passwords to the laptop files. Cotterman then claimed that the computer had multiple users and he would have to contact his business partners to obtain the passwords. Maureen waited at the ICE office for more than two hours, ostensibly waiting for Cotterman to call with passwords so ICE could clear ...


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