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Thursday, April 24, 2008

OK Computer: Ninth Circuit Finds No Reasonable Suspicion Required For Search Of Laptop At Customs

On July 17, 2005, forty-three-year-old Michael Arnold arrived at Los Angeles International Airport after a flight from the Philippines.  Arnold proceeded to customs, where Officer Laura Peng selected him for secondary questioning. Upon questioning, Arnold stated that he was on vacation for three weeks visiting friends in the Philippines.  Peng then inspected Arnold's luggage, which included his laptop computer and related equipment.  When the computer had booted up, Peng and Officer John Roberts clicked on Kodak folders on the computer, opened the files within them, and viewed photos in the files, including one that depicted two nude women. Roberts called in supervisors, who in turn called in special agents with the United States Department of Homeland Security, Immigration and Customs Enforcement. These agents questioned Arnold about the contents of his computer, detained him for several hours, and examined his computer equipment and found numerous images depicting what they believed to be child pornography. The officers seized the computer and equipment but released Arnold. Two weeks later, federal agents obtained a warrant to search the computer and apparently found child pornography, leading to several child pornography-related charges being leveled against Arnold.  Arnold moved to suppress the images found of his computer on the ground that they were found through a search conducted without reasonable suspicion, and the district court granted his motion.  On appeal, however, the Ninth Circuit reversed.

Why did they do so?  Well, generally, "[t]he luggage carried by a traveler entering the country may be searched at random by a customs officer ... no matter how great the traveler's desire to conceal the contents may be." United States v. Ross, 456 U.S. 798, 823 (1982).  As the Ninth Circuit noted, though, Arnold raised three arguments as to why reasonable suspicion should be required before search of laptop computers at customs:

     -(1) a laptop computer is distinguishable from other containers of documents based on its ability to store greater amounts of information and its unique role in modern life;   

     -(2)  laptop computers are similar to "homes" and the "human mind" and fundamentally different from traditional closed containers; and

     -(3) the risk is high with a laptop search that expressive material will be exposed.

The Ninth Circuit characterized Arnold's first argument as the argument that the principle that "as a search becomes more intrusive, more suspicion is needed” in the context of a search of the human body should be applied as a sliding intrusiveness scale to determine when reasonable suspicion is needed to search property.  The Ninth Circuit then rejected this argument, finding that it had expressly repudiated this type of "least restrictive means test" in the border search context.  The court further found that neither the "exceptional damage to property" exception nor the "particularly offensive manner" exception to the government's broad border search powers applied to the search of the laptop.  With regard to the latter exception, the court found that case law did not support a finding that a search which occurs in an otherwise ordinary manner, is "particularly offensive" simply due to the storage capacity of the object being searched.

With regard to Arnold's second argument, the Ninth Circuit noted that in Carney v. California, 471 U.S. 386 (1985), the Supreme Court rejected the argument that evidence obtained from a warrantless search of a mobile home should be suppressed because it was  "capable of functioning as a home."  It noted that the Supreme Court refused to treat a mobile home differently from other vehicles because

     -(1) a mobile home is “readily movable;" and

     -(2) "the expectation [of privacy] with respect to one's automobile is significantly less than that relating to one's home or office."

     The Ninth Circuit then found that beyond the simple fact that one cannot live in a laptop, Carney militated against the proposition that a laptop is a home because

     -(1) a laptop goes with the person, and, therefore is "readily mobile;" and

     -(2) one's “expectation of privacy [at the border] ... is significantly less than that relating to one's home or office."

Third, the Ninth Circuit rejected Arnold's First Amendment argument and sided with the Fourth Circuit's opinion in United States v. Ickes, 393 F.3d 501, 502 (4th Cir. 2005), where that court upheld a search of a defendant's van as he was entering the U.S. from Canada and rejected the defendant's argument that the court should carve out a First Amendment exception to the border search doctrine because such a rule would:

     -(1) protect terrorist communications "which are inherently 'expressive';"

     -(2) create an unworkable standard for government agents who "would have to decide-on their feet-which expressive material is covered by the First Amendment;" and

     -(3) contravene the weight of Supreme Court precedent refusing to subject government action to greater scrutiny with respect to the Fourth Amendment when an alleged First Amendment interest is also at stake.

I'm not especially comfortable with the court's ruling, but it seems to me that the three arguments raised by Arnold were lacking in merit.

-CM

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