Case Report – Propriety of border crossing laptop search affirmed on appeal

23 Apr

Yesterday, the Ninth United States Circuit Court of Appeals overturned much-discussed order to suppress evidence obtained in a border crossing laptop search.

The case involves a traveller named Michael Arnold, who was routinely selected for secondary questioning after returning from a three week vacation in the Philippines. A border agent turned on Arnold’s computer and discovered photos of two nude women in folders on his desktop.  She called in other officials, who then questioned Arnold and examined his computer some more, and ultimately seized the computer after finding what they believed was child pornography.  Based on these facts, in 2006 a district court judge granted Arnold’s motion to suppress on a finding that there was no reasonable suspicion for the search.

The appeal from the lower court’s order centered on whether the Fourth Amendment requires the United States government to meet a “reasonable suspicion” standard in conducting border crossing laptop searches because laptops are different than other closed containers.  The Court’s description of Arnold’s argument nicely highlights its significance:

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.

This was similar to an argument rejected by the Fourth Circuit Court of Appeals in a 2006 border crossing laptop search case called Ickes and reserved on by the Ninth Circuit Court of Appeals in a 2006 border crossing laptop search case called Romm

In Arnold’s case, the Ninth Circuit Court of Appeals flatly rejected the laptop argument as contrary to United States Supreme Court jurisprudence, which it read as weighing against any analysis that would differentiate between the types of property searched at border crossings.  In short, it held that property is property. It also held that Arnold had not adduced any evidence to support a finding that the search fit within the “exceptional damage to property” or “particularly offensive manner” exceptions to the United States government’s broad power to search property at its borders.

Law.com reports that an appeal may be in order.

United States v. Arnold, 08 C.D.O.S. 4533.

 

 

 

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