CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 23, 2008

Ninth Circuit Upholds Border Laptop Searches without Individualized Suspicion

From The 9th U.S. Circuit Court of Appeals ruled Monday that border control agents who found child porn on a traveler's laptop didn't violate the man's right to be free from unreasonable searches.

"We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," Judge Diarmuid O'Scannlain wrote. O'Scannlain went on to say that the defendant "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."

He was joined by Judge Milan Smith Jr. and U.S. District Judge Michael Mosman, sitting by designation from Oregon.

The ruling appears to be the second upholding computer searches by border guards. The first, U.S. v. Ickes, 393 F.3d 501, was handed down by the Virginia-based 4th U.S. Circuit Court of Appeals in 2005. It involved a man who tried to drive into the United States from Canada with child porn on his computer.

In Monday's case, Michael Arnold, who was 43 at the time, was pulled aside for secondary questioning upon arriving at Los Angeles International Airport from the Philippines on July 17, 2005. Customs agents examined the contents of his laptop computer, Monday's ruling noted, and found "numerous images depicting what they believed to be child pornography."

A federal grand jury later charged Arnold with possessing and transporting child porn and with traveling to a foreign country with the intention of having sex with children.

However, U.S. District Judge Dean Pregerson of Los Angeles suppressed the evidence after finding that customs agents violated Arnold's Fourth Amendment right against unreasonable searches. He held that they didn't have reasonable suspicion to search the contents of Arnold's laptop.

In reversing, the 9th Circuit ruled that Pregerson erred in holding that a "particularized suspicion" was necessary before a laptop computer could be searched. The court also rejected Arnold's claim that the border agents had exceeded their authority by conducting a search in a "particularly offensive manner." Read Full Article. [Brooks Holland]

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