EFTA00314991.pdf

Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sere. 2531, 2013 Daily Journal =. 3018 Callahan, Circuit Judge, filed opinion concurring in part, 11 -I KeyCite Yellow Flag - Negative Treatment dissenting in part, and concurring in the judgment, with whom Declined to Extend by United States v. Hassanshahi. Clifton, Circuit Judge, joined, and with whom M. Smith, December I. 2014 Circuit Judge, joined in part. 709 F.3d 952 United States Court of Appeals, M. Smith, Circuit Judge, filed dissenting opinion, with whom Ninth Circuit. Clifton and Callahan, Circuit Judges, joined in part. UNITED STATES of America, Plaintiff—Appellant, v. West Headnotes (27) Howard Wesley COTTERMAN, Defendant—Appellee. [1] Customs Duties No. 09-10139. I Argued and Submitted En P- Searches and Seizures Banc June 19, 2012. I Filed March 8, 2013. Searches and Seizures Synopsis iis• Fourth Amendment and reasonableness in Background: Defendant was charged with production of general child pornography, transportation and shipping of child Border searches constitute a historically pornography, receipt of child pornography, possession recognized exception to the Fourth Amendment's of child pornography, importation of obscene material, general principle that a warrant be obtained, transportation of obscene material, and unlawful flight but reasonableness remains the touchstone for a to avoid prosecution. The United States District Court warrantless search. U.S.C.A. Const.Amend. 4. for the District of Arizona, 2009 WL 465028, Raner C. Cases that cite this headnote Collins, J., granted defendant's motion to suppress evidence. Government filed interlocutory appeal. The Court of Appeals, 637 F.3d 1068. reversed and remanded. The Court of Appeals [2] Criminal Law granted rehearing en banc. 673 F.3d 1206. Review De Novo The ultimate question of whether a warrantless search was reasonable under the Fourth Holdings: The Court of Appeals, McKeown, Circuit Judge, Amendment is reviewed de novo. U.S.C.A. held that: Const.Amend. 4. Cases that cite this headnote [1 ] extended border search doctrine did not apply to seizure and forensic examination of defendant's laptop computer; [3] Criminal Law [2] forensic examination of defendant's computer that Specification of errors comprehensively analyzed its hard drive required showing of The Court of Appeals may consider an issue that reasonable suspicion; and has not been adequately raised on appeal if such a failure will not prejudice the opposing party. [3] border agents had reasonable suspicion to conduct initial search and subsequent forensic examination of defendant's Cases that cite this headnote computer that comprehensively analyzed hard drive. [4] Criminal Law Reversed. P- Specification of errors WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. EFTA00314991  Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 Government's failure to address issue on appeal more favorably to the government. U.S.C.A. of whether there was reasonable suspicion for Const.Amend. 4. border search, after addressing issue before district court, did not prejudice defendant, and Cases that cite this headnote thus Court of Appeals could consider issue, where Court of Appeals called for, and received, [8] Searches and Seizures supplemental briefs by both parties. U.S.C.A. P- Scope, Conduct, and Duration of Const.Amend. 4. Warrantless Search 2 Cases that cite this headnote The reasonableness of a search or seizure depends on the totality of the circumstances, including the scope and duration of the [5] Customs Duties deprivation. U.S.C.A. Const.Amend. 4. 4' Searches and Seizures Searches and Seizures 2 Cases that cite this headnote Necessity of and preference for warrant, and exceptions in general [9] Customs Duties The broad contours of the scope of searches p- Time and distance factors; checkpoints at international borders are rooted in the long- Extended border search doctrine, which standing right of the sovereign to protect encompassed any search away from border itself by stopping and examining persons where entry was not apparent, but where and property crossing into the country; thus, dual requirements of reasonable certainty of border searches form a narrow exception to recent border crossing and reasonable suspicion the Fourth Amendment prohibition against of criminal activity were satisfied, did not warrantless searches without probable cause. apply to seizure and forensic examination of U.S.C.A. Const.Amend. 4. defendant's laptop computer after defendant had been stopped and searched at border; although 4 Cases that cite this headnote device had been transported and subjected to extended and extensive examination beyond [6] Customs Duties border, computer never cleared customs and P- Searches and Seizures search would have been every bit as intrusive Because the government's interest in preventing had it been conducted at border. U.S.C.A. the entry of unwanted persons and effects is Const.Amend. 4. at its zenith at the international border, border 10 Cases that cite this headnote searches are generally deemed reasonable simply by virtue of the fact that they occur at the border. U.S.C.A. Const.Amend. 4. [10] Customs Duties 4'- Time and distance factors; checkpoints 4 Cases that cite this headnote The key feature of an extended border search is that an individual can be assumed to have cleared [7] Customs Duties the border and thus regained an expectation of P- Searches and Seizures privacy in accompanying belongings. U.S.C.A. Even at the border, individual privacy rights Const.Amend. 4. are not abandoned but balanced against the 2 Cases that cite this headnote sovereign's interests; that balance is qualitatively different than in the interior and is struck much WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00314992  Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 [11] Customs Duties Cases that cite this headnote 4— Time and distance factors; checkpoints Customs Duties [14] Customs Duties Airports and airplanes 46... Scope and Nature; Successive or The "functional equivalent" doctrine effectively Secondary, Searches extends the border search doctrine to all ports Obscenity of entry, including airports; a routine customs P- Computers; electronic transmission search at the "functional equivalent" of the After seizure at border, forensic examination border is analyzed as a border search and requires of defendant's computer that comprehensively neither probable cause nor reasonable suspicion. analyzed its hard drive required showing of U.S.C.A. Const.Amend. 4. reasonable suspicion; although government had 2 Cases that cite this headnote legitimate concerns about child pornography, such concerns did not justify unfettered crime-fighting searches or unregulated assault [12] Customs Duties on citizens' private information. U.S.C.A. Time and distance factors; checkpoints Const.Amend. 4. The extended border search doctrine, which encompasses any search away from border Cases that cite this headnote where entry was not apparent, but where dual requirements of reasonable certainty of recent [15] Searches and Seizures border crossing and reasonable suspicion of 6'- Persons, Places and Things Protected criminal activity were satisfied, is best confined The Fourth Amendment's specific guarantee of to cases in which, after an apparent border the people's right to be secure in their "papers" crossing or functional entry, an attenuation encompasses financial records, confidential in the time or the location of conducting a business documents, medical records, and search reflects that the subject has regained an private emails on personal electronic devices. expectation of privacy. U.S.C.A. Const.Amend. U.S.C.A. Const.Amend. 4. 4. Cases that cite this headnote 3 Cases that cite this headnote [16] Searches and Seizures [13] Customs Duties fia Persons. Places and Things Protected Time and distance factors; checkpoints The express listing of papers under the Fourth Under the extended border search doctrine, Amendment reflects the Founders' deep concern which encompasses any search away from with safeguarding the privacy of thoughts border where entry was not apparent, but where and ideas, what might be called freedom of dual requirements of reasonable certainty of conscience, from invasion by the government; recent border crossing and reasonable suspicion these records are expected to be kept private of criminal activity were satisfied, time and and this expectation is one that society is distance become relevant to determining whether prepared to recognize as reasonable. U.S.C.A. there is an adequate nexus to a recent border Const.Amend. 4. crossing only after the subject or items searched have entered. U.S.C.A. Const.Amend. 4. Cases that cite this headnote WeStlaWNPS © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00314993  Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 "Reasonable suspicion" is defined as a [17] Searches and Seizures particularized and objective basis for suspecting 4. Expectation of privacy the particular person stopped of criminal activity. The uniquely sensitive nature of data on U.S.C.A. Const.Amend. 4. electronic devices carries with it a significant expectation of privacy and thus renders an 9 Cases that cite this headnote exhaustive exploratory search more intrusive than with other forms of property. U.S.C.A. [21] Arrest Const.Amend. 4. 0— Collective knowledge 4 Cases that cite this headnote The assessment of reasonable suspicion is to be made in light of the totality of the circumstances; even when factors considered in isolation from [18] Customs Duties each other are susceptible to an innocent 4- Searches and Seizures explanation, they may collectively amount to a The government's authority to protect the reasonable suspicion. U.S.C.A. Const.Amend. 4. nation from contraband crossing its borders may be heightened by national crises, such as 5 Cases that cite this headnote the smuggling of illicit narcotics, the threat of international terrorism, and future threats [22] Criminal Law yet to take shape, but even in the face of 4— Review De Novo heightened concerns, a court must account for Criminal Law the Fourth Amendments rights of travelers. Evidence wrongfully obtained U.S.C.A. Const.Amend. 4. The Court of Appeals reviews reasonable Cases that cite this headnote suspicion determinations de novo, reviewing findings of historical fact for clear error and giving due weight to inferences drawn from [19] Customs Duties those facts by resident judges and local law Scope and Nature; Successive or enforcement officers. U.S.C.A. Const.Amend. 4. Secondary Searches Reasonable suspicion to search personal 2 Cases that cite this headnote electronic devices at the border requires that officers make a commonsense differentiation [23] Customs Duties between a manual review of files on the Scope and Nature; Successive or electronic device and application of computer Secondary, Searches software to analyze a hard drive, and utilize the latter only when they possess a particularized and Obscenity objective basis for suspecting the person stopped 0. Particular cases of criminal activity. U.S.C.A. Const.Amend. 4. Border agents had reasonable suspicion to conduct initial search and subsequent forensic 10 Cases that cite this headnote examination of defendant's computer that comprehensively analyzed hard drive after [20] Arrest seizing it at border, where defendant had prior 0. Reasonableness; reason or founded conviction for child molestation, he traveled suspicion, etc frequently to country associated with sex tourism, and computer contained password- protected files; although defendant had offered to WestlawNexts © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00314994  Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 open files, computer contained vacation photos, and initial examination did not turn up anything Cases that cite this headnote incriminating, agents appropriately were wary of offer of assistance due to concerns that defendant [27] Customs Duties could tamper with computer and reasonable 6*, Scope and Nature; Successive or suspicion otherwise had not been eliminated. Secondary Searches U.S.C.A. Const.Amend. 4. Obscenity 3 Cases that cite this headnote 4- Scope of search Existence of password•protected files was relevant to assessing reasonableness of scope and [24] Arrest duration of search of defendant's computer after 4- Reasonableness; reason or founded its seizure at border; search necessarily had been suspicion, etc protracted because of password protection that Although a prior criminal history cannot alone defendant had employed, and after defendant establish reasonable suspicion, it is permissible refused to provide agents with passwords to to consider such a fact as part of the total calculus protected files and fled country, it took agent of information in that determination. U.S.C.A. days to override computer security and open Const.Amend. 4. image files of child pornography. U.S.C.A. Const.Amend. 4. 4 Cases that cite this headnote Cases that cite this headnote [25] Customs Duties 4'- Particular Objects or Products Although password protection of files, in isolation, will not give rise to reasonable Attorneys and Law Firms suspicion justifying border search, where there •956 Dennis K. Burke, Christina M. Cabanillas, Carmen are other indicia of criminal activity, password F. Corbin, John S. Leonardo, John J. Tuchi, United States protection of files may be considered in the Attorney's Office for the District of Arizona, Tucson, AZ, for totality of the circumstances; to contribute to Appellant. reasonable suspicion, encryption or password protection of files must have some relationship William J. Kirchner, Law Office of Nash & Kirchner, M. to the suspected criminal activity. U.S.C.A. Tucson, AZ, for Appellee. Const.Amend. 4. David M. Porter, Melia N. Brink, National Association Cases that cite this headnote of Criminal Defense Lawyers, Washington, Michael Price, Brennan Center for Justice, New York, NY; Hanni [26] Customs Duties M. Fakhoury, Electronic Frontier Foundation, San Francisco, P- Particular Objects or Products CA, for Amicus Curiae National Association of Criminal Defense Lawyers and Electronic Frontier Foundation. Password protecting an entire device, as opposed to files within a device, cannot be a factor Christopher T. Handman, Mary Helen Wimberly, Hogan supporting a reasonable suspicion, such as would Lovells US LLP, Washington, M.; Sharon Bradford justify border search; using a password on a Franklin, The Constitution Project, Washington, ■., for device is a basic means of ensuring that the Amicus Curiae The Constitution Project. device cannot be accessed by another in the event it is lost or stolen. U.S.C.A. Const.Amend. 4. WeStlaWNPA" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00314995  Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 requirement and privacy rights in commonly used electronic Appeal from the United States District Court for the District devices. The question we confront "is what limits there are of Arizona, Raner C. Collins, District Judge, Presiding. M. upon this power of technology to shrink •957 the realm of No. 4:07-cr-01207-RCC-CRP-I. guaranteed privacy." Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). More specifically, Before: ALEX KOZINSKI, Chief Judge, SIDNEY R. we consider the reasonableness of a computer search that THOMAS, M. MARGARET McKEOWN, KIM McLANE began as a cursory review at the border but transformed into WARDLAW, RAYMOND C. FISHER, RONALD M. a forensic examination of Cotterman's hard drive. GOULD, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., MARY H. Computer forensic examination is a powerful tool capable MURGUIA, and MORGAN CHRISTEN, Circuit Judges. I of unlocking password-protected files, restoring deleted material, and retrieving images viewed on web sites. But 1 Judge Betty B. Fletcher was a member of the en bane while technology may have changed the expectation of panel but passed away after argument of the case. Judge privacy to some degree, it has not eviscerated it, and certainly Wardlaw was drawn as her replacement. not with respect to the gigabytes of data regularly maintained as private and confidential on digital devices. Our Founders were indeed prescient in specifically incorporating "papers" Opinion by Judge McKEOWN; Partial Concurrence and within the Fourth Amendment's guarantee of "[Otte right of Partial Dissent by Judge CALLAHAN; Dissent by Judge the people to be secure in their persons, houses, papers, and MILAN D. SMITH, JR. effects." U.S. Const. amend. IV. The papers we create and maintain not only in physical but also in digital form reflect our most private thoughts and activities. OPINION McKEOWN, Circuit Judge: [I] Although courts have long recognized that border searches constitute a "historically recognized exception to Every day more than a million people cross American the Fourth Amendment's general principle that a warrant be borders, from the physical borders with Mexico and Canada obtained," United States v. Ramsey, 431 U.S. 606, 621, 97 to functional borders at airports such as Los Angeles (LAX), S.Ct. 1972, 52 L.Ed.2d 617 (1977), reasonableness remains Honolulu (HNL), New York (JFK, LGA), and Chicago the touchstone for a warrantless search. Even at the border, we (ORD, MDW). As denizens of a digital world, they carry have rejected an "anything goes" approach. See United States with them laptop computers, iPhones, iPads, iPods. Kindles, v. Seljan, 547 F.3d 993. 1000 (9th Cir.2008) (en banc). Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and Mindful of the heavy burden on law enforcement to protect sensitive information ranging from personal, financial, and our borders juxtaposed with individual privacy interests in medical data to corporate trade secrets. And, in the case of data on portable digital devices, we conclude that, under the Howard Cotterman, child pornography. circumstances here, reasonable suspicion was required for the forensic examination of Cotterman's laptop. Because border Agents seized Cotterrnan's laptop at the U.S.-Mexico border agents had such a reasonable suspicion, we reverse the district in response to an alert based in part on a fifteen-year- court's order granting Cotterman's motion to suppress the old conviction for child molestation. The initial search at evidence of child pornography obtained from his laptop. the border turned up no incriminating material. Only after Cotterman's laptop was shipped almost 170 miles away and subjected to a comprehensive forensic examination were I. FACTUAL BACKGROUND AND PROCEDURAL images of child pornography discovered. HISTORY 2 The facts related here are drawn from the record of the This watershed case implicates both the scope of the narrow evidentiary hearing held before the magistrate judge. border search exception to the Fourth Amendment's warrant WeStlaWNeXt" © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00314996  Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sew. 2531, 2013 Daily Journal =. 3018 Howard Cotterman and his wife were driving home to the Agents Brisbine and Riley departed Sells for Lukeville United States from a vacation in Mexico on Friday morning. at about 1:30 and decided en route to detain the April 6, 2007, when they reached the Lukeville, Arizona, Port Cottermans' laptops for forensic examination. Upon their of Entry. During primary inspection by a border agent, the arrival, they gave Cotterman and his wife Miranda warnings Treasury Enforcement Communication System ("TECS") 3 and interviewed them separately. The interviews revealed returned a hit for Cotterman. The TECS hit indicated that nothing incriminating. During the interview, Cotterman Cotterman was a sex offender—he had a 1992 conviction for offered to help the agents access his computer. The agents two counts of use of a minor in sexual conduct, two counts declined the offer out of concern that Cotterman might be of lewd and lascivious conduct upon a child, and three counts able to delete files surreptitiously or that the laptop might be of child molestation—and that he was potentially involved "booby trapped." in child sex tourism. Because of the hit, Cotterman and his wife were referred to secondary inspection, where they were The agents allowed the Cottermans to leave the border instructed to exit their vehicle and leave all their belongings crossing around 6 E., but retained the Cottermans' laptops in the car. The border agents called the contact person listed and a digital camera. 4 Agent Brisbine drove almost 170 miles in the TECS entry and, following that conversation, believed from Lukeville to the ICE office in Tucson, Arizona, where the hit to reflect Cotterman's involvement "in some type of he delivered both laptops and one of the three digital cameras child pornography." The agents searched the vehicle and to ICE Senior Special Agent & Computer Forensic Examiner retrieved two laptop computers and three digital cameras. John Owen. Agent Owen began his examination on Saturday, Officer Antonio Alvarado inspected the electronic devices the following day. He used a forensic program to copy the and found *953 what appeared to be family and other hard drives of the electronic devices. He determined that the personal photos, along with several password-protected files. digital camera did not contain any contraband and released the camera that day to the Cottermans, who had traveled 3 The TECS is an investigative tool of the Department to Tucson from Lukeville and planned to stay there a few of Homeland Security that keeps track of individuals days. Agent Owen then used forensic software that often entering and exiting the country and of individuals must run for several hours to examine copies of the laptop involved in or suspected to be involved in crimes. hard drives. He began his personal examination of the laptops on Sunday. That evening, Agent Owen found seventy-five Border agents contacted Group Supervisor Craig Brisbine at the Immigration and Customs Enforcement ("ICE') office images of child pornography within the unallocated space of in Sells, Arizona, and informed him about Cotterman's entry Cotterman's laptop. 5 and the fact that he was a sex offender potentially involved in child sex tourism. The Sells Duty Agent, Mina Riley, 4 The other two cameras were returned to the Cottermans. also spoke with Officer Alvarado and then contacted the 5 "Unallocated space is space on a hard drive that contains ICE Pacific Field Intelligence Unit, the office listed on the TECS hit, to get more information. That unit informed Riley deleted data, usually emptied from the operating system's trash or recycle bin folder, that cannot be seen or that the alert was part of Operation Angel Watch, which accessed by the user without the use of forensic software. was aimed at combating child sex tourism by identifying Such space is available to be written over to store new registered sex offenders in California, particularly those who information." United States v. Flyer. 633 F.3d 911. 918 travel frequently outside the United States. She was advised (9th Cir.201 I). to review any media equipment, such as computers, cameras, Agent Owen contacted the Cottermans on Sunday evening or other electronic devices, for potential evidence of child and told them he would need Howard Cotterrnan's assistance pornography. Riley then spoke again to Alvarado, who told to access password-protected files he found on Cotterman's her that he had been able to review some of the photographs laptop. Cotterman agreed to provide the assistance the on the Cottermans' computers but had encountered password- following day, but never showed up. When Agent Brisbine protected files that he was unable to access. called again to request Cotterman's help in accessing the password-protected files, Cotterman responded that the WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00314997  Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 computer had multiple users and that he would need to we requested supplemental briefing on the issue of whether check with individuals at the *959 company from which reasonable suspicion existed at the time of the search. he had retired in order to get the passwords. The agents had no further contact with Cotterman, who boarded a flight to Mexico from Tucson the next day, April 9, and then flew H. WAIVER onward to Sydney, Australia. On April II, Agent Owen The government argued below that the forensic examination finally managed to open twenty-three password-protected was part of a routine border search not requiring heightened files on Cotterman's laptop. The files revealed approximately suspicion and, alternatively, that reasonable suspicion 378 images of child pornography. The vast majority of the justified the search. Before the district court, the government images were of the same girl, approximately 7-10 years of maintained "the facts of this case clearly establish that age, taken over a two-to three-year period. In many of the there was reasonable suspicion." However, having failed to images, Cotterman was sexually molesting the child. Over obtain a favorable ruling on that ground, the government did the next few months, Agent Owen discovered hundreds more not challenge on appeal the conclusion that there was no pornographic images, stories, and videos depicting children. reasonable suspicion. Rather, it sought a broad ruling that no suspicion of any kind was required. Cotterman thus argued in A grand jury indicted Cotterman for a host of offenses his answering brief that the government had waived the issue related to child pornography. Cotterman moved to suppress —an assertion that the government did not address in its reply the evidence gathered from his laptop and the fruits of brief. Cotterman contends that the government has abandoned that evidence. The magistrate judge filed a Report and and conceded the issue of reasonable suspicion and that this Recommendation finding that the forensic examination court may not address that issue. We disagree. was an "extended border search" that required reasonable suspicion. He found that the TECS hit and the existence [21 [3] [4] We review de novo the ultimate question of of password-protected files on Cotterman's laptop were whether a warrantless search *960 was reasonable under suspicious, but concluded that those facts did not suffice to the Fourth Amendment. United States v. Johnson, 256 F.3d give rise to reasonable suspicion of criminal activity. The 895, 905 (9th Cir.200 I ) (en banc). Our review necessarily district judge adopted the Report and Recommendation and encompasses a determination as to the applicable standard: granted Cotterman's motion to suppress. no suspicion, reasonable suspicion or probable cause. That the government may hope for the lowest standard does not In its interlocutory appeal of that order, the government alter our de novo review, particularly when the issue was fully characterized the issue as follows: "Whether the authority briefed and argued below. Further, we may consider an issue to search a laptop computer without reasonable suspicion that has not been adequately raised on appeal if such a failure at a border point of entry permits law enforcement to take will not prejudice the opposing party. United States v. Ullah. it to another location to be forensically examined, when it 976 F.2d 509, 514 (9th Cir.1992). Where, as here, we "called has remained in the continuous custody of the government." for and received supplemental briefs by both parties,"Alcaraz A divided panel of this court answered that question in v. INS, 384 F.3d 1150, 1161 (9th Cir.2004), the government's the affirmative and reversed. United States v. Cottertnan. failure to address the issue does not prejudice Cotterman. See 637 F.3d 1068 (9th Cir.20 I I ). The panel concluded that also United States v. Resendiz-Ponce, 549 U.S. 102, 103-04, reasonable suspicion was not required for the search and 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). that "[t]he district court erred in suppressing the evidence lawfully obtained under border search authority." Id. at 1084. III. THE BORDER SEARCH In dissent, Judge Betty B. Fletcher wrote that "officers [5] [6] The broad contours of the scope of searches at our must have some level of particularized suspicion in order international borders are rooted in "the long-standing right to conduct a seizure and search like the one at issue here." of the sovereign to protect itself by stopping and examining M. (B. Fletcher, J., dissenting). By a vote of a majority of persons and property crossing into this countly." Ramsey. nonrecused active judges, rehearing en banc was ordered. 673 431 U.S. at 616, 97 S.Ct. 1972. Thus, border searches form F.3d 1206 (9th Cir.2012). Following en banc oral argument, "a narrow exception to the Fourth Amendment prohibition WeStlaWNeff © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00314998  Horowitz. Adam 11 24 2015 For Educational Use Only U.S. v. Cotterman, 709 F.3d 952 (2013) 13 Cal. Daily Op. Sent 2531, 2013 Daily Journal =. 3018 against warrantless searches without probable cause." Seljan, 547 F.3d at 999 (internal quotation marks and citation 6 Although the Arnold decision expressed its conclusion omitted). Because "[t]he Government's interest in preventing in broad terms, stating that. "reasonable suspicion is the entry of unwanted persons and effects is at its zenith at not needed for customs officials to search a laptop or the international border," United States v. Flores-Montano, other personal electronic storage devices at the border." 541 U.S. 149, 152, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004), Arnold, 533 F.3d at 1008, the facts do not support such border searches are generally deemed "reasonable simply by an unbounded holding. As an en bane court, we narrow virtue of the fact that they occur at the border." Ramsey, 431 Arnold to approve only the relatively simple search U.S. at 616. 97 S.Ct. 1972. at issue in that case, not to countenance suspicionless forensic examinations. The dissent's extensive reliance on Arnold is misplaced in the en banc environment. [71 [8] This does not mean, however, that at the border "anything goes." Seljan, 547 F.3d at 1000. Even at the border, individual privacy rights are not abandoned but A. The Forensic Examination Was Not An Extended Border Search "[b]alanced against the sovereign's interests." United States t'. Montoya de Hernandez, 473 U.S. 531, 539, 105 S.Ct. [9] [10] Cotterman urges us to treat the examination as an 3304, 87 L.Ed.2d 381 (1985). That balance "is qualitatively extended border search that requires particularized suspicion. Although the semantic moniker "extended border search" different ... than in the interior" and is "struck much more favorably to the Government." Id. at 538, 540, 105 S.Ct. may at first blush seem applicable here, our jurisprudence 3304. Nonetheless, the touchstone of the Fourth Amendment does not support such a claim. We have "define[d] an extended border search as any search away from the border analysis remains reasonableness. Id. at 538, 105 S.Ct. 3304. The reasonableness of a search or seizure depends on the where entry is not apparent, but where the dual requirements totality of the circumstances, including the scope and duration of reasonable certainty of a recent border crossing and reasonable suspicion of criminal activity am satisfied." of the deprivation. See United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see also United States v. Guzman-Padilla. 573 F.3d 865, 878-79 (9th United States v. Duncan, 693 F.2d 971, 977 (9th Cir.1982). Cir.2009) (internal quotation marks and citations omitted). The key feature of an extended border search is that an In view of these principles, the legitimacy of the initial search individual can be assumed to have cleared the border and of Cotterman's electronic devices at the border is not in thus regained an expectation of privacy in accompanying belongings. See United States v. Abbouchi, 502 F.3d 850, 855 doubt. Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter (9th Cir.2007) ("Bec