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April 23, 2008

Ninth Circuit OKs Laptop Searches at the Border

The Ninth Circuit ruled on Monday that border control officers can search laptops of passengers upon their arrival in the United States from foreign destinations.  The case is United States v. Arnold.  Arnold came into the United States at Los Angeles after a 20 some hour flight from the Philippines.  Border agents noted his laptop and asked him to turn it on.  They then examined the contents and browsed two folders, one called Kodak Pictures, and another called Kodak Memories.  The latter folder contained a picture of two nude women.  Further examination revealed numerous pictures of what agents believed to be child pornography.  Arnold was charged with crimes prohibiting possession and transport of these images.

Arnold argued successfully in the District Court to suppress the evidence on the basis of the government not having reasonable suspicion to examine the laptop.  The government appealed.  Arnold argued that a computer is not like any other carrier.  From the Court of Appeals:

Arnold argues that the district court was correct in concluding
that reasonable suspicion was required to search his laptop
at the border because it is distinguishable from other containers
of documents based on its ability to store greater amounts
of information and its unique role in modern life.

Arnold argues that “laptop computers are fundamentally
different from traditional closed containers,” and analogizes
them to “homes” and the “human mind.” Arnold’s analogy of
a laptop to a home is based on his conclusion that a laptop’s
capacity allows for the storage of personal documents in an
amount equivalent to that stored in one’s home. He argues
that a laptop is like the “human mind” because of its ability
to record ideas, e-mail, internet chats and web-surfing habits.

The Ninth Circuit rejected these claims, noting that a laptop is no different from any other type of luggage a traveler may be carrying.  The government has quite a bit of leeway in border searches, limited only by those which offend human dignity, such as body cavity searches (unless there is reasonable suspicion).  From the Court of Appeals:

[8] Whatever “particularly offensive manner” might mean,
this search certainly does not meet that test. Arnold has failed
to distinguish how the search of his laptop and its electronic
contents is logically any different from the suspicionless border
searches of travelers’ luggage that the Supreme Court and
we have allowed. See Ross, 456 U.S. at 823; see also Vance,
62 F.3d at 1156 (“In a border search, a person is subject to
search of luggage, contents of pockets and purse without any
suspicion at all.”).

[9] With respect to these searches, the Supreme Court has
refused to draw distinctions between containers of information
and contraband with respect to their quality or nature for
purposes of determining the appropriate level of Fourth
Amendment protection. Arnold’s analogy to a search of a
home based on a laptop’s storage capacity is without merit.
The Supreme Court has expressly rejected applying the
Fourth Amendment protections afforded to homes to property
which is “capable of functioning as a home” simply due to its
size, or, distinguishing between “ ‘worthy and ‘unworthy’
containers.” California v. Carney, 471 U.S. 386, 393-94
(1985).

The Court reversed the District Court's grant of the motion to suppress.

April 23, 2008 | Permalink

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