United States v. Arnold, 454 F.Supp.2d 999 (C.D. Cal. 2006) (full-text).
Factual Background Edit
The defendant was returning from the Philippines when a custom agent chose him for secondary questioning after he had gone through the customs checkpoint. The customs agent ordered the defendant to “turn on the computer so she could see if it was functioning.” While the defendant’s luggage was being inspected, another customs agent searched the laptop’s contents and found pictures of nude adult women. The defendant was then detained for several hours while special agents from ICE conducted a more extensive search of the laptop and discovered material they believed to be child pornography.
Trial Court Proceedings Edit
The court first noted that non-routine searches are intrusions that implicate dignity and privacy interests. The court concluded that since “opening and viewing confidential computer files implicate dignity and privacy interests,” the search was non-routine and could be conducted only if justified by reasonable suspicions. After examining the circumstances surrounding the search, the court found that the customs agent had no justification for turning on the laptop, and thus granted the defendant’s motion to suppress the evidence procured from the laptop.
Though Arnold is the first case to formally characterize a laptop border search as non-routine, it did so only after finding a complete absence of cause to support the search. Therefore, Arnold is distinguishable from U.S. v. Romm because the challenge to the laptop search in Romm was not properly raised. Given the facts in Arnold, there was nothing found during the search of the defendant’s luggage to raise the requisite amount of reasonable suspicion to justify searching the defendant’s laptop.
Possible Future Developments Edit
Currently, Arnold is on appeal before the Ninth Circuit. If the Ninth Circuit affirms the lower court’s ruling, this could create a circuit split with the Fourth Circuit irrespective of the fact that the Fourth Circuit in Ickes did not formally characterize laptop searches as routine and found reasonable suspicion to support the search. Yet, there is an important difference between Ickes and Arnold: Ickes does not affirmatively require reasonable suspicion to support laptop searches, and so the door could be left open for random, suspicionless searches of electronic storage devices. Arnold would foreclose that possibility.
It is difficult to predict whether federal courts will conclude that laptop border searches require reasonable suspicion. At first glance, one can argue that there is a higher expectation of privacy surrounding the contents of laptops than the interior of a vehicle. Even when a vehicle search involves an onerous and time-consuming inspection of a gasoline tank, the expectation of privacy surrounding the vehicle and its contents does not appear to be as high as the contents of a laptop, which often contains private or otherwise privileged information. On the other hand, laptop searches are not as intrusive as a strip search or body cavity search, where the expectation of privacy is so high, and the search so invasive, that both clearly fall within the realm of non-routine.
Another consideration to take into account is the likelihood of illegal materials being smuggled into the United States through laptops and electronic storage devices. As stated in Ramsey, “[t]he border search exception is grounded in the recognized right of the sovereign to control . . . who and what may enter the country.” Laptops can present a problem to the national interest in controlling what enters the country because the vast and compact storage capacity of laptops can be used to smuggle illegal materials. In light of this, routine searches of laptops at the border may be justified because of the strong government interest in preventing the dissemination of child pornography and other forms of “obscene” material that are oftentimes contained in laptops.
Another justification may be to facilitate searches of laptops owned by suspected terrorists which may contain information related to a planned terrorist attack. On the other hand, if customs officials can conduct border searches of laptops without the need for reasonable suspicion, they may attempt to conduct targeted searches based on unconstitutional justifications. If a customs official could conduct a search without providing cause, it would be difficult to deter ethnic profiling because the official would not need to explain why he conducted the search.
These concerns illustrate why resolving the issues surrounding laptop border searches will involve striking a careful balance between national security and individual civil rights. Ultimately, the issue will turn on whether the federal courts will consider the privacy interest implicated in personal information to be higher than the privacy interest surrounding normal personal effects.
Considering the absence of a clear test to distinguish routine searches from non-routine searches, it is difficult to predict how the federal circuits will classify laptop searches. The reluctance of the lower courts to decide this issue arguably can be attributed to the lack of formal guidance available in distinguishing between the two classes of searches. Laptop searches may provide the Supreme Court a suitable vehicle in which to delineate the specific controlling factors that determine whether a search should be classified as either routine or non-routine.
- ↑ 454 F.Supp.2d at 1001.
- ↑ Id.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 1002. See also United States v. Flores-Montano, 541 U.S. 149, 152 (2004).
- ↑ 454 F.Supp.2d at 1003.
- ↑ Id. at 1007.
- ↑ Id.
- ↑ 455 F.3d at 997.
- ↑ 454 F.Supp.2d at 1007.
- ↑ 393 F.3d at 507.
- ↑ Chase, 503 F.2d 571 (strip searches require reasonable suspicion); Montoya de Hernandez, 473 U.S. 531 (alimentary canal search justified by reasonable suspicion).
- ↑ Ramsey, 431 U.S. at 611.
- ↑ See New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography does not enjoy First Amendment protections because the government has a compelling state interest in preventing the sexual abuse of children and that the distribution of child pornography is intrinsically related to that state interest).
- ↑ See Ickes, 393 F.3d at 506.