Privacy Rights Left Behind at the Border: The Exhaustive, Exploratory Searches Effectuated in United States V. Cotterman

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I. INTRODUCTION

Advances in computer technology have allowed more information to be stored digitally and have permitted a greater number of people to own a personal computer. Additionally, legal professionals increasingly use digital information as sources for evidence in criminal cases.1 The use of computers presents new questions and problems for traditional Fourth Amendment searchand-seizure doctrines.2 For example, does the information storagecapacity of computers, and the highly personal information stored therein heighten personal privacy interests in computers above those in traditional documents? Additionally, should the government be limited in its electronic searches of personal computers or in its ability to recover deleted or discarded information on a personal computer? Courts confronted with cases regarding searches and seizures of computers need to adequately recognize and carefully analyze the new and unique characteristics of computers, or else the courts will fail to respect the proper balance between individual citizens' privacy interests and the government's interests in enforcing the law.

In United States v. Cotterman,3 the Ninth Circuit failed to recognize a proper balance of Fourth Amendment interests and erred in holding that a border search of a laptop in a forensic computer laboratory is constitutional absent reasonable suspicion.4 The court failed to adequately weigh individual privacy interests against the government's interests in performing its Fourth Amendment reasonableness evaluation. The court also failed to recognize that a forensic search of a computer is particularly offensive. The Ninth Circuit should have recognized the distinct privacy interests that are violated by a forensic computer examination and should have required reasonable suspicion.

II. FOURTH AMENDMENT RESTRICTION ON SEARCHES AND SEIZURES AND THE BORDERSEARCH DOCTRINE

The Fourth Amendment protects individuals from unreasonable searches and seizures.5 Generally, a search or seizure is unreasonable unless government agents have probable cause that a crime has been, or is being, committed.6 However, many exceptions to the general rule exist. For example, some searches require only reasonable suspicion of the commission of a crime,7 which is a lower standard of proof than probable cause.8 Other searches require no suspicion at all.9

The exception to the probable-cause requirement pertinent to Cotterman is the border-search doctrine. Two Supreme Court cases and one Ninth Circuit case have developed the border-search doctrine regarding searches of computers and whether reasonable suspicion is required. This Note discusses the basics of the bordersearch doctrine and these cases below.

To begin, the premise of the border-search doctrine is that "searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border."10 The rationale for the doctrine is that border searches and seizures "are justified by the national interests of the sovereign state in preventing the entry of undesirable persons and prohibited goods."11 Additionally, individuals have a lower expectation of privacy at the border because a reasonable person understands that she is subject to customs inspections when entering a country.12 While the Constitution permits routine border searches and seizures without any particularized suspicion, some nonroutine searches and seizures at the border require reasonable suspicion.13

A. Reasonable Suspicion at the Border: Montoya de Hernández

In United States v. Montoya de Hernández, the Supreme Court held that reasonable suspicion justified detention - or temporary seizure - of a traveler "beyond the scope of a routine customs search and inspection," in which the traveler was suspected of alimentarycanal smuggling. …