Cotterman Cert Petition

NO. In the Supreme Court of the United States HOWARD W. COTTERMAN, v. Petitioner, UNITED STATES OF AMERICA, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR WRIT OF CERTIORARI WILLIAM J. KIRCHNER Counsel of Record Nash & Kirchner, P.C. P.O. Box 2310 Tucson, AZ 85702 (520) 792-1613 bkirchner@azbar.org Counsel for Petitioner Becker Gallagher ? Cincinnati, OH ? Washington, D.C. ? 800.890.5001 i QUESTION PRESENTED This is a landmark case about the sound functioning of appellate procedure, and about the authority of border officials to seize personal property. Here, border officials detained Petitioner Howard Cotterman and his wife over eight hours based on Howard being on a "lookout" list. Agents thoroughly searched the returning vacationers' belongings, interrogated them separately, and did further background checks, all of which dispelled any suspicions, including those that caused Howard to be on the list. Nevertheless, agents took the Cottermans' personal electronics and other belongings almost 200 miles away for analysis. In subsequent testimony no agent claimed to have had reasonable suspicion of wrongdoing at the time of the seizure, instead justifying it on the premise that they did not need any suspicion. The Ninth Circuit has now agreed with that premise, and then has gone further, finding reasonable suspicion was present, even though the prosecution abandoned that issue on appeal. Thus, this case presents the following question: Did the Ninth Circuit violate the Constitution, create circuit splits, contravene this Court's decisions, and subvert the appellate process by replacing the question presented by the parties with an issue that the prosecution deliberately abandoned, and by making a factual finding (i.e. that reasonable suspicion existed) for the first time on appeal that disregarded the factual findings of the district court and agents at the scene, and then by holding that a citizen's personal belongings may be seized at the border with no suspicion of wrongdoing? ii TABLE OF CONTENTS PAGE QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION . . . . . . . . . . . . . 1 CONSTITUTIONAL PROVISIONS AND RULES INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2 I. MATERIAL FACTS . . . . . . . . . . . . . . . . . . . . 2 II. PROCEDURAL BACKGROUND . . . . . . . . . 5 REASONS FOR GRANTING THE PETITION . . . 10 THE NINTH CIRCUIT'S EXTRAORDINARY RULING CONTRADICTS THIS C OURT ' S PRECEDENT , CONFLICTS WITH DECISIONS OF OTHER CIRCUITS, AND HAS DEPARTED SO FAR FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS THAT EXERCISING THIS COURT'S SUPERVISORY POWER IS WARRANTED. . . . . . . . . . . . . . . . . . . . . 10 iii I. THIS RULING ALLOWS BORDER OFFICIALS TO SEIZE THE BELONGINGS OF A MERICAN TRAVELERS FOR INDEFINITE PERIODS OF TIME, AND TAKE THEM UNLIMITED DISTANCES WITHOUT REASONABLE SUSPICION THAT ANY CRIME IS OCCURRING. . . . . . . . . . . . . . . . . . . . 11 A. This Is an Important Case That Has Been Wrongly Decided. . . . . . . . . . . . . . . . . . . 11 B. The Ninth Circuit's Opinion Conflicts With the Precedent of Other Circuits. . . 16 1. Reaching an abandoned issue . . . . . . 16 2. Evasive entry . . . . . . . . . . . . . . . . . . . 17 3. Customs clearance . . . . . . . . . . . . . . . 18 4. Reasonable suspicion instead of probable cause for forensic search . . 19 5. Analyzing a search far from the border as a true border crossing search . . . . 19 C. Misconstruing The Relevance of Customs Clearance Opens A Giant Loophole. . . . . . . . . . . . . . . . . . . . . . . 21 D. Summary . . . . . . . . . . . . . . . . . . . . . . 23 iv II. T H E N I N T H C I R C U I T ' S I M P R O P E R METHODOLOGY FOR FINDING REASONABLE SUSPICION THREATENS THE FREEDOM OF ALL A MERICANS AND U PSETS THE S OUND FUNCTIONING OF APPELLATE PROCEDURE, REQUIRING THE EXERCISE OF THIS COURT'S SUPERVISORY POWERS. . . . . . . . . . . . . . . . . . 23 A. The Ninth Circuit Deviated Markedly from Accepted and Usual Judicial Proceedings by Deciding this Case Based on an Abandoned Issue. . . . . . . . . . . . . . 25 B. The Ninth Circuit Violated This Court's Jurisprudence in Finding Reasonable Suspicion. . . . . . . . . . . . . . . . . . . . . . . . . 33 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 APPENDIX Appendix A: Opinion, in the United States Court of Appeals for the Ninth Circuit (March 8, 2013) . . . . . . . . . . App. 1 Appendix B: Order, in the United States District Court for the District of Arizona (February 24, 2009) . . . . . . App. 86 v Appendix C: Report and Recommendation, in the United States District Court for the District of Arizona (September 12, 2008) . . . . . App. 89 vi TABLE OF AUTHORITIES CASE CITATIONS: PAGE Alcaraz v. INS, 384 F.3d 1150 (9th Cir.2004) . . . . . . . . . . . . . . . 26 Ashwander v. TVA, 297 U.S. 288 (1936) . . . . . . . . . . . . . . . . . . . . . . 27 Brown v. Trustees, 891 F.2d 337 (1st Cir. 1989) . . . . . . . . . . . . . . . 17 Carducci v. Regan, 714 F.2d 171 (D.C.Cir.1983) . . . . . . . . . . . . . . . 28 City of Emeryville v. Robinson, 621 F.3d 1251 (9th Cir. 2010) . . . . . . . . . . . . . . 17 Clemens Trust v. Morgan Stanley, 485 F.3d 840 (6th Cir. 2007) . . . . . . . . . . . . . . . 17 Free Speech Coalition v. Attorney Gen., 677 F.3d 519 (3rd Cir. 2012) . . . . . . . . . . . . . . . 17 Gagnon v. Scarpelli, 411 U.S. 778 (1973) . . . . . . . . . . . . . . . . . . . . . . 33 Mayfield v. NASCAR, 674 F.3d 369 (4th Cir. 2012) . . . . . . . . . . . . . . . 17 Ornelas v. United States, 517 U.S. 690 (1996) . . . . . . . . . . . . . . . . . . . . . . 33 vii Payne v. Tennessee, 501 U.S. 808 (1991) . . . . . . . . . . . . . . . . . . . . . . 31 Powers v. Richards, 549 F.3d 505 (7th Cir. 2008) . . . . . . . . . . . . . . . 17 Raj v. LSU, 714 F.3d 322 (5th Cir. 2013) . . . . . . . . . . . . . . . 17 Soldal v. Cook County, 506 U.S. 56 (1992) . . . . . . . . . . . . . . . . . . . . . . . 14 Storey v. Cello Holdings, 347 F.3d 370 (2d Cir. 2003) . . . . . . . . . . . . . . . . 17 United States v. Aldaco, 477 F.3d 1008 (8th Cir. 2007) . . . . . . . . . . . . . . 17 United States v. Arvizu, 534 U.S. 266 (2002) . . . . . . . . . . . . . 24, 33, 34, 35 United States v. Bilir, 592 F.2d 735 (4th Cir. 1979) . . . . . . . . . . . . . . . 19 United States v. Caicedo-Guarnizo, 723 F.2d 1420 (9th Cir. 1984) . . . . . . . . . . . . . . 23 United States v. Cortez, 449 U.S. 411 (1981) . . . . . . . . . . . . . . . . . . . 33, 35 United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011) . . . . . . . . . . . 1, 6, 7 United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) . . . . . . . . . . . . . . . . 1 viii United States v. Davis, 430 F.3d 345 (6th Cir. 2005) . . . . . . . . . . . . . . . 13 United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988) . . . . . . . . . . . . . . . 19 United States v. Garcia, 672 F.2d 1349 (11th Cir. 1982) . . . . . . . . . . . . . 20 United States v. Johns, 469 US 478 (1985) . . . . . . . . . . . . . . . . . . . . 15, 16 United States v. Johnson, 256 F.3d 895 (9th Cir.2001) . . . . . . . . . . . . . . . . 26 United States v. Levy, 416 F.3d 1273 (11th Cir. 2005) . . . . . . . . . . . . . 17 United States v. Mendoza-Ortiz, 262 F.3d 882 (9th Cir. 2001) . . . . . . . . . . . . . . . 30 United States v. Place, 462 U.S. 696 (1983) . . . . . . . . . . . . . . . . . . . 13, 15 United States v. Ramsey, 431 U.S. 606 (1977) . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Resendiz-Ponce, 549 U.S. 102 (2007) . . . . . . . . . . . . . . . . . . . 27, 28 United States v. Roberts, 274 F.3d 1007 (5th Cir. 2001) . . . . . . . . . . . 16, 19 United States v. Romm, 455 F 3d 990 (9th Cir. 2006) . . . . . . . . . . . . . . . . 4 ix United States v. Ullah, 976 F.2d 509 (9th Cir.1992) . . . . . . . . . . . . . . . . 26 United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010) . . . . . . . . . . . . . . 17 United States v. Yang, 286 F.3d 940 (7th Cir. 2002) . . . . . . . . . . . . . . . 18 United States v. Yelloweagle, 643 F.3d 1275 (10th Cir. 2011) . . . . . . . . . . . . . 17 United States v. Zermeno, 66 F.3d 1058 (9th Cir. 1995) . . . . . . . . . . . . . . . . 5 RULE CITATIONS: PAGE Fed. R. App. P. 28(a)(9) . . . . . . . . . . . . . . . . . . . . . . 17 STATUTORY CITATIONS: PAGE 18 U.S.C. ? 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 18 U.S.C. ? 3731 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 28 U.S.C. ? 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. ?1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONSTITUTIONAL CITATIONS: PAGE U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . passim U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . 2, 33 1 Appellee Howard Cotterman respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINION BELOW A panel of the Court of Appeals for the Ninth Circuit issued a published opinion in this case reversing the District Court's decision. United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011). An en banc panel subsequently issued the ruling now sought to be reviewed in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013). The en banc decision is reprinted in the Appendix to this Petition at Appendix (hereinafter "App.") 1-85. STATEMENT OF JURISDICTION Because this case concerns a direct appeal in a federal criminal case, as set forth above, Title 28 U.S.C. ?1254(1) confers jurisdiction on this Court to review the matter on writ of certiorari. The Ninth Circuit Court of Appeals had jurisdiction under 28 U.S.C. ? 1291 from the entry of final judgment by the district court. The United States District Court for the District of Arizona had subject matter jurisdiction of this case under 18 U.S.C. ? 3231 because Defendant Howard Cotterman was charged with federal crimes. This petition is timely because on July 20, 2013 Justice Kennedy extended the time for filing this petition to and including August 5, 2013. 2 CONSTITUTIONAL PROVISIONS AND RULES INVOLVED This case involves violations of the Fourth Amendment to the United States Constitution, which provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .", and the Fifth Amendment to the United States Constitution, which provides, in relevant part: "No person shall . . . be deprived of life, liberty, or property, without due process of law . . .." STATEMENT OF THE CASE I. MATERIAL FACTS On April 6, 2007 at 10 a.m., the Cottermans entered the United States at Lukeville, Arizona, the main port-of-entry for tourists returning from Puerto Penasco, Mexico. (SER 139.) At the primary inspection point a Treasury Enforcement Communication System ("TECS") notation advised officers to search Howard's belongings for any evidence of sexual contact with a minor. (SER 80.)1 TECS, a database tracking individuals entering and exiting the country, returned a "lookout" under Operation Angel Watch Angel Wings, reporting that Howard was registered in California because of a 1992 sexual misconduct conviction. (SER 78.) 1 "SER" refers to the larger of two volumes of Appellant's Excerpt of Record (mistakenly entitled "Appellee's Supplemental Excerpt of Record") filed in the Ninth Circuit 8/31/09. 3 For two hours, three officers removed the Cottermans' belongings from their vehicle, scrutinized them all, including their personal electronic devices, and copied personal documents. Testimony established that Howard and Maureen each owned a laptop and ordinary digital camera. Maureen also owned a camcorder. (SER 69, 71-72, 82, 100.) The officers found nothing noteworthy except one password-protected file on Howard's computer, which testimony showed to be commonplace among law-abiding computer users. What they did find were typical family vacation pictures of activities such as whale watching. (SER 65, 69, 91.) Nevertheless, the Cottermans were detained at the port of entry all day. Around noon the border officers reported their findings to the ICE duty agent. (SER 87, 98-99.) They were told to discontinue their search and await the arrival of ICE supervising agents. Testimony at the suppression hearing showed that, before arriving at the border, the supervisors had already decided to seize the Cottermans' possessions, no matter what else happened. So the agents could have released the Cottermans without their computers during the noon hour; they chose not to do so, but instead to have the Cottermans wait. They did not send their computer expert, Agent Owen, to the border, although he had been alerted and had a laptop computer for remote analysis that was capable of examining internet history, unallocated space, and performing at the 4 border the tests he eventually performed days later. (SER 126, 132-33.)2 Supervisory agents arrived at the border around 3 p.m. and spent three hours debriefing the inspectors, running additional background checks on Howard, and interrogating the Cottermans separately, none of which revealed anything suspicious. (SER 69, 82-83.) Howard offered to help the agents access the computer, but they declined. (SER 91-92.) When questioned whether there was any evidence of violations of law, the agent in charge summed up the results of the full day border events by testifying "not at the border, no." (SER 173.) Despite the lack of suspicion, the agents seized the laptops, cameras, documents, and other items around sunset, and took them to Tucson, almost two hundred miles away from the border, testifying later that the seizure was justified "as part of ICE policy." (SER 162, 158, 179.) Agt. Owen analyzed Maureen's computer the following day, then examined Howard's computer two days later. His search of Howard's computer revealed photographs sufficient to constitute probable cause in a matter of hours. Six days later, and without a warrant, Owen had obtained enough evidence to indict.3 2 Tests that are customary and practicable at the border are described in United States v. Romm, 455 F 3d 990 (9th Cir. 2006). 3 The Ninth Circuit's Opinion relies on statements not properly in the record regarding the nature of the photographs. (App. 8.) The only citation the prosecution provided for these supposed "facts" was from the Government's own pleading. That is not a proper 5 II. PROCEDURAL BACKGROUND The defense moved to suppress, and the magistrate judge, after holding an evidentiary hearing, found the seizure and subsequent search to have violated the Fourth Amendment as an Extended Border search, which must be supported by reasonable suspicion. He held that the totality of the circumstances established in the hearing did not support a finding that the agents had reasonable suspicion when they seized the Cottermans' belongings. (App. 99-105.) Regarding reasonableness of the seizure, he noted that "no suspicion at all existed as to Mrs. Cotterman's computer, but it was seized anyway, and a copy of that computer memory is still maintained by the Government." (App. 108.) He further found, based on agent testimony, that the seizure was preordained ab initio, irrespective of suspicion. "The government agents in this case, following ICE policy... had been repeatedly and incorrectly instructed no suspicion was necessary." (Id.) On de novo review, the District Court concurred with the Magistrate Judge on all points and ordered the evidence suppressed. "The search could have been done, (while not necessarily to the convenience of the agents) at the border . . .." (App. 87.) "The defendant and his wife waited more than 8 hours at the border to be finally told the computer was going to be taken to source. See e.g. United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995) (Government's assertions in its pleadings are not evidence). 6 Tucson even though he offered to help access the computer at the border." (Id.) The prosecution appealed the suppression ruling to the Ninth Circuit, but did not, in its opening brief, challenge the ruling that reasonable suspicion was absent. On the contrary, the prosecution's own framing of the Issue Presented presupposed that the border authorities did not have reasonable suspicion in this case. In its Answering Brief, the defense expressly cited the prosecution's abandonment of the issue, and stated that the defense would therefore not address the issue. In its Reply, the prosecution did not dispute this contention, and still did not argue the issue of reasonable suspicion. Later, when questioned in oral argument before the three-judge panel, the prosecutor specifically stated that the Government "did not rely upon" and was "not pursuing" the issue of reasonable suspicion. A divided three-judge panel agreed with the district court that the border agents did not have reasonable suspicion of wrongdoing in this case, but instead took the property because they believed no suspicion was needed. Circuit Judge Tallman noted the district court's factual findings and that, "whatever abstract suspicious character these facts conveyed, that character was entirely mitigated by the circumstances of this particular case." The panel concluded that the seizure being predetermined "renders any fact other than Cotterman's TECS hit practically irrelevant." Cotterman, 637 F.3d at 1074 n.7. However, two judges on that initial panel held that border officials may 7 lawfully take a traveler's personal belongings far away from the border for days at a time without reasonable suspicion, even though the search they wanted to conduct could have been performed at the border. Thus, the three-judge panel decision effectively created a new doctrine allowing authorities to seize and remove any property that has not yet been officially cleared by Customs. In her dissent, Circuit Judge B. Fletcher asserted: "The 'sticking point' of this case...is whether the Government has authority to seize an individual's property...with no reason to suspect that the property contains contraband." Cotterman 637 F.3d at 1084. The defense sought en banc review. The Constitution Project, Electronic Frontier Foundation, and NACDL filed amicus curiae briefs. The petition and the amici focused on the majority's misreading of border search doctrines leading to unnecessary expansion of the Border Search Exception. The Constitution Project noted that the majority "gets things backwards" by misinterpreting the doctrines and ignoring "the balance struck by the extended border search exception." Constitution Project Amicus Brief at 14-18. The Ninth Circuit granted en banc review. During oral argument the court questioned the prosecution as to whether reasonable suspicion existed for a seizure, and the prosecution once again stated that the Government "did not rely" upon the issue of reasonable suspicion on appeal. However, shortly after oral argument, the en banc Court ordered the parties to submit supplemental briefing on whether the Court could address the issue of reasonable suspicion at that point in the case. It also ordered the parties to brief 8 the question of whether the record supported the district court's finding that there was no reasonable suspicion. Counsel were limited to 5000 words to address these two issues. The prosecution urged the Ninth Circuit to address the issue as it had initially presented it, and not decide the case based on reasonable suspicion. However, complying with the Ninth Circuit's order, it also argued that it was within the Court's power to address reasonable suspicion because so doing would not prejudice the defense. It also repeated its arguments briefed to the District Court that reasonable suspicion was present, ignoring much of the record that dealt with the investigation by the ICE agents at the border. The defense asserted that FRAP 28(a)(9) requires an appellant to raise its issues in its opening brief. The defense emphasized the "universally-accepted proposition that an appellant's failure to raise or adequately argue an issue in its opening brief constitutes abandonment of the issue." The defense further argued that a court may not and should not, at such a late point in the judicial process, replace the controversy properly before it with a non-issue that had been deliberately abandoned by a highly sophisticated litigant such as the United States Government. The defense also contended that the rulings of three courts below were correct that totality of the circumstances here did not support a finding of reasonable suspicion. 9 Almost nine months later4 the en banc court issued a fractionated opinion. The majority held that suspicion of wrongdoing is not required for border officials to take a traveler's personal property far from the border, so long as the search began at the border, and the property never cleared Customs. (App. 15-16.) However, the majority also held that border officials must have reasonable suspicion before conducting a comprehensive "forensic" search of computer equipment. It then went on to address the abandoned issue of reasonable suspicion, holding that the court could address the issue because it needed to resolve the suspicion standard, and the majority claimed the supplemental briefing prevented prejudice to the defense. Then, after three judicial reviews had rejected that claim, the majority held reasonable suspicion to be present at the border, contrary to every argument raised by any party in briefs or oral arguments prior to the Ninth Circuit's order for supplemental briefing. Two vigorous dissents took issue with various parts of these holdings, one implying, and one explicitly recommending, that this Court should grant certiorari in this matter. (App. 55, 56.) 4 One judge on the case, the Honorable Betty Fletcher, passed away during this time period. 10 REASONS FOR GRANTING THE PETITION THE NINTH CIRCUIT'S EXTRAORDINARY RULING CONTRADICTS THIS COURT'S PRECEDENT, CONFLICTS WITH DECISIONS OF OTHER CIRCUITS, AND HAS DEPARTED SO FAR FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS THAT EXERCISING THIS COURT'S SUPERVISORY POWER IS WARRANTED. The Ninth Circuit, en banc, itself observed that this is a "watershed case." (App. 4.) Indeed, it is. It allows border officials to arbitrarily deprive travelers of the basic right to return home with their personal belongings when there is not even articulable suspicion of crime afoot. In so doing, it conflates seizure with search, and privacy with possessory interests, and generally muddles the Border Search Exception, at points contradicting decades of border search doctrine. Compounding those problems, the Ninth Circuit has resurrected, without reason, a question that one party (the prosecution) deliberately and purposefully abandoned on appeal: whether there was reasonable suspicion of wrongdoing at the time the border officials seized the property. In finding reasonable suspicion, the Ninth Circuit panel has violated long-standing Fourth Amendment jurisprudence by failing to view the totality of the circumstances, and has failed to treat the parties impartially by deciding the case based on the abandoned issue. As the dissent noted, the ruling dispenses with well-settled, sensible, and binding principles, "lifts our anchor, and charts a course for muddy waters." (Dissent, App. 55.) The Ninth Circuit's ruling in this case has departed so far from 11 the accepted and usual course of judicial proceedings that this Court's supervisory power is urgently required. I. THIS RULING ALLOWS BORDER OFFICIALS TO SEIZE THE BELONGINGS OF AMERICAN TRAVELERS FOR INDEFINITE PERIODS OF TIME, AND TAKE THEM UNLIMITED DISTANCES WITHOUT REASONABLE SUSPICION THAT ANY CRIME IS OCCURRING. A. This Is an Important Case That Has Been Wrongly Decided. As noted above, the Ninth Circuit called this a "watershed case." The prosecution's appeal was premised on the claim that authorities may arbitrarily terminate a border search of personal property belonging to returning vacationers, seize their belongings, and move them far away from the border to be searched for an indefinite period, all without a reasonable suspicion that there is any unlawful activity going on, even though an adequate search is practicable the same day at the border. This en banc panel has now held that such arbitrary seizure is fully permissible, based solely on the fact that Customs has withheld clearance of the items. It has held that reasonable suspicion of wrongdoing must be found before the authorities may conduct a forensic search of travelers' personal electronics. These rulings will affect the day-to-day operations of Customs and Border Patrol officials nationwide, as well as the convenience and safety of hundreds, perhaps thousands, of travelers each year. 12 It is not disputed that travelers expect that, when returning to the United States, their possessions may be searched at the border, even though there is no reason to suspect they have done anything wrong. A much smaller number realize that, under a series of cases decided between 2001 and 2008, such a search may include powering up their electronic equipment and letting agents look through the files on it. Petitioner, for purpose of this case, does not take issue with those propositions. However, this case plunges far past border searches, deep into the realm of what no American would expect that our government could lawfully do. It holds that, even if the border officials find nothing amiss after searching a traveler's luggage for hours on end, they may nevertheless seize any item or items they wish, take them anywhere, and hold them for days, even weeks or months, all without any reasonable suspicion that any criminality is occurring. The Ninth Circuit held this despite the fact that the majority itself recognized that international travelers do not expect that they could be treated this way. (App. 27.) It is important to note here that, although the defense moved in this case to suppress the fruits of a search, suppression is required because the search resulted from an unreasonable seizure. Thus, the true issue here is the reasonableness of the seizure, not just the search, which was the basis of the parties' controversy in the Issue Presented to the Ninth Circuit by the prosecution. Of course, as acknowledged throughout this case, there is technically always a Fourth Amendment 13 "seizure" the moment border officials stop travelers and, in some instances, detain them while conducting an inspection. It is well-settled that such detentions are per se reasonable when they occur at the border. E.g. United States v. Ramsey, 431 U.S. 606, 616 (1977). However, just as with Terry stops, there comes a point when the passage of time or other circumstances may transform a seizure that was reasonable at its inception into an unreasonable intrusion. See, e.g., United States v. Place, 462 U.S. 696, 709 (1983) (holding that the 90-minute detention of luggage at an airport to await the arrival of a drug-detecting dog was unreasonable); see also United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005) ("while a Terry stop may be constitutionally permissible initially, it may become an impermissible 'seizure if it occurs over an unreasonable period of time or under unreasonable circumstances.'" That is what happened here. The initially-reasonable detention of the Cottermans and their household belongings as they crossed the border ripened into an unreasonable seizure when, after eight hours of detention, including hours of searching of their belongings and questioning by border inspectors and eventually ICE investigators, with nothing suspicious being found, the agents nevertheless took away their personal property. It bears repeating that when the agent in charge was questioned whether there was any evidence of wrongdoing, he testified "not at the border, no." At that point the agents nonetheless took the Cottermans' belongings far from the border for an extended period of time, essentially expanding the 14 initial seizure into a second, more prolonged seizure. That unreasonably prolonged second part of the seizure is the issue that was argued throughout the case below, from the magistrate judge, to the district court, to the court of appeals, through the en banc proceedings. Yet, in reading the Ninth Circuit's en banc opinion there is no real analysis of the difference between the search and the seizure in this case. Instead, the court conflated the two concepts into one category: privacy. "Because Cotterman never regained possession of his laptop, the fact that the forensic examination occurred away from the border, in Tucson, did not heighten the interference with his privacy." (App. 15.) (See also App. 3-6, 12, 14-15, 16-17, 19, 21-23, 27.) Privacy, however, was never the main focus here - possession has always been the primary issue. The issues of search and seizure are not identical. A seizure may violate the Fourth Amendment even if the owner's privacy was not invaded. Soldal v. Cook County, 506 U.S. 56, 69 (1992). It is self-evident that travelers wish to retain possession of the property they carry with them, which is why they go to the trouble of carrying it. Very often, they depend upon their belongings personally and professionally, both on the road and at repose during their travels. Sometimes, deprivation of a given item may be a trivial inconvenience; other times it may be more onerous - even life threatening. For example, seizure of a cell phone could prevent a traveler from securing accommodations, or travel connections, or even placing a 911 call. Similarly, laptop computers are important for both leisure and business travel. 15 Indeed, business trips commonly require the use of laptops, and the entire purpose of such trips would often be thwarted by their seizure. It is simply unreasonable to arbitrarily seize personal belongings for indefinite periods. Yet the Ninth Circuit has held that no suspicion of wrongdoing at all is needed for agents to seize and detain travelers' most personal belongings for indefinite periods of time. (App. 14-15.) This Court has declared that a seizure of personal property is "per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized." United States v. Place, 462 U.S. 696, 701 (1983). [Where] authorities have probable cause...the Court has interpreted the Amendment to permit seizure of the property pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. (Id.). In border cases, of course, that exception is the border search exception. Thus, while property may be detained for a suspicionless search upon crossing the border, outright seizure and removal demands more: probable cause followed by a warrant. Thus, the defense contends that probable cause is needed for seizure. See also United States v. Johns, 469 US 478, 16 485-88 (1985); United States v. Roberts, 274 F.3d 1007, 1017 (5th Cir. 2001). The en banc court's ruling encourages border officials to act unreasonably, seizing travelers' belongings arbitrarily. Permitting arbitrary seizure assures arbitrary abuse. This Court should grant certiorari to resolve this question of national importance as a part of addressing the question of an appellate court reviving an abandoned issue. B. The Ninth Circuit's Opinion Conflicts With the Precedent of Other Circuits. 1. Reaching an abandoned issue The fact that the Ninth Circuit resolved this case based on an issue that was abandoned by the appellant is discussed separately in Part II of this petition. It also deserves attention here, however, because it conflicts with the case law of other circuits. When an appellant fails to challenge in its opening brief a ruling made by the district court, all federal appellate courts consider the issue abandoned and will not address it 17 under Fed. R. App. P. 28(a)(9).5 This is the normal and accepted course of proceedings. Yet here, the Ninth Circuit has chosen to resurrect an issue that the Government abandoned, and thereby waived, not just once by failing to argue it in its opening brief, but again and again, in its reply brief, in oral argument, in its pleading at the en-banc petition stage, in oral argument before the en banc court, and finally in its supplemental brief, in which it still asked the Ninth Circuit not to address the issue so that the prosecution could get a clear ruling on the issue it first presented. Basing the outcome of a case on an issue that was deliberately abandoned and repeatedly disowned by a knowledgeable litigant for a strategic purpose, and doing so without explanation of why such an extraordinary action is needed, conflicts with the case law of all of the circuits. 2. Evasive entry A second conflict concerns the question of whether the Extended Border search doctrine applies only when 5 See, e.g., Brown v. Trustees, 891 F.2d 337, 352 (1st Cir. 1989); Storey v. Cello Holdings, 347 F.3d 370, 380 n. 6 (2d Cir. 2003); Free Speech Coalition v. Attorney Gen., 677 F.3d 519, 545 (3rd Cir. 2012); Mayfield v. NASCAR, 674 F.3d 369,376-77 (4th Cir. 2012); Raj v. LSU, 714 F.3d 322, 327 (5th Cir. 2013); Clemens Trust v. Morgan Stanley, 485 F.3d 840, 852-53 (6th Cir. 2007); Powers v. Richards, 549 F.3d 505, 512-13 (7th Cir. 2008); United States v. Aldaco, 477 F.3d 1008, 1016, n.3 (8th Cir. 2007); City of Emeryville v. Robinson, 621 F.3d 1251, 1262, n.10 (9th Cir. 2010); United States v. Yelloweagle, 643 F.3d 1275, 1280-84 (10th Cir. 2011); United States v. Levy, 416 F.3d 1273, 1278 (11th Cir. 2005); United States v. Wilson, 605 F.3d 985, 1025 (D.C. Cir. 2010). 18 the persons involved entered the country surreptitiously. The magistrate judge and district court both held that the search in this case was an Extended Border search, requiring reasonable suspicion because it took place so far from the border. (App. 87, 97-99.) In disagreeing with that analysis, the Ninth Circuit discussed the Extended Border doctrine at some length, and in so doing stated that an Extended Border search is "any search away from the border where entry is not apparent, but where the dual requirements of reasonable certainty of a recent border crossing and reasonable suspicion of criminal activity are satisfied." (App.13, emphasis added.) In fact, however, none of the other circuits that have enumerated the hallmarks of an Extended Border search have included a requirement that the entry of the vehicle be evasive or "not apparent." (See, e.g. United States v. Yang, 286 F.3d 940, 945 (7th Cir. 2002) (citing cases) "courts consider whether: (1) there is a reasonable certainty that a border crossing has occurred; (2) there is a reasonable certainty that no change in condition of the luggage has occurred since the border crossing; and (3) there is a reasonable suspicion that criminal activity has occurred.") In short, the Ninth Circuit has redefined the Extended Border doctrine in a way that conflicts with other circuits. 3. Customs clearance A third way in which the decision conflicts with existing jurisprudence is by stating that "the extended border search doctrine does not fit the search here" in part because "Cotterman's computer never cleared customs." (App. 15.) Contrary to the Ninth Circuit's 19 decision, however, the extended border doctrine does not conflict with the fact that the property never formally cleared Customs. That circumstance exists in many cases that are nevertheless analyzed under the Extended Border doctrine. See, e.g., United States v. Bilir, 592 F.2d 735 (4th Cir. 1979); United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988). As Judge Smith put it: "The majority asserts that this case cannot be analyzed as an extended border search because Cotterman's computer was never 'cleared' at the border prior to search. The majority is mistaken." (Dissent, App 74, citation omitted.) 4. Reasonable suspicion instead of probable cause for forensic search A fourth way in which this case conflicts with another circuit is in the requirement of reasonable suspicion for border authorities to conduct a "forensic search" of computer equipment at the border. (App. 27.) This is at odds with at least one other circuit, which has upheld a similar search for probable cause, rather than reasonable suspicion. See Roberts, 274 F.3d at 1017 (forensic search of computer taken away from the border was "justified on probable cause grounds.") 5. Analyzing a search far from the border as a true border crossing search A fifth way this case conflicts with the jurisprudence of other circuits is by inventing a new doctrine for circumstances already covered by existing jurisprudence. Over decades this Court and all of the circuits have developed a coherent framework of 20 analysis of border-related searches. Searches at a border crossing are permissible even if they are essentially random - they do not require any suspicion at all. The same is true for those places that serve as the functional equivalent of the border - airports, coastal waters, and shipping hubs for items consigned to common carriers. In those cases a search is not practicable or necessary where the item actually crosses the border (such as an airplane in mid-air), and therefore may be conducted at the first practicable point at which the item first comes to rest within the United States, or at the final destination for common-carrier shipments. Just as with a border crossing search, no suspicion of any kind is needed for those searches, because they are essentially border searches. Finally, there are Extended Border searches - those that take place after the first practicable point at which the conveyance could have been stopped and searched. These require reasonable suspicion. These three doctrines (border crossing, functional equivalent and extended) have heretofore comprised the universe of the border search exception. See United States v. Garcia, 672 F.2d 1349, 1366 (11th Cir. 1982) (analyzing and classifying the doctrines). The instant case fits clearly within the third category because it occurred after the first practicable point for a search. There has been no case cited at any time in this litigation, and there is no case known to counsel undersigned, where such a search was analyzed as a true border crossing search. Yet, the Ninth Circuit has refused to apply the Extended Border doctrine here. Instead, it has created a new doctrine - that the whole country is a "border crossing" so long as the search started at one. Moreover, it has done so needlessly, as 21 the Extended Border search doctrine fits this case neatly. In sum, the majority's analysis here conflicts with the jurisprudence of the other circuits as discussed above. The plethora of conflicts between this case and the holdings of other circuits is further reason to grant certiorari review. C. Misconstruing The Relevance of Customs Clearance Opens A Giant Loophole. The en banc court has held that the Tucson search was simply an extension of the border crossing search itself, and therefore lawful, simply because the property had not cleared Customs. (App. 16.) It is, however, circular reasoning to hold that agents may seize a person's property and move it far away for days on end simply because they themselves have not yet deigned to clear the property through Customs. The mere fact that agents unreasonably withhold clearance of a traveler's luggage for many hours in no way makes it ipso facto reasonable to then withhold clearance even longer to send the items far away for testing that could have been done at the border. The Ninth Circuit has essentially held that agents need no reason at all to withhold clearance of items. (App. 13-17.) This case therefore vests complete discretion in agents to arbitrarily withhold clearance, and thereby qualify any item for seizure and indefinite detention. Ultimately, the "no clearance" precept swallows the entire border exception rule, turning what is supposed to be a narrow exception - searches conducted at or 22 near the border - into ones that can be conducted hundreds, perhaps thousands of miles away, all with no reasonable suspicion of wrongdoing. It effectively makes the entire country, somehow a part of the "border." By labeling this a border search, the majority has conjured a sort of "floating border," whereby any item initially seized at the border, but not cleared there, can be transported thousands of miles away and searched anywhere, and at any time, simply because the government did not find anything (or enough) during its original search at the border. (Dissent, App. 74.) Thus, the border search exception has been bent beyond the breaking point by the Ninth Circuit's needless invention of a new doctrine for personal possessions that border officials seize without particularized suspicion. The ruling not only fails to resolve the real issues in question, it also reaches beyond the parameters of this particular case to turn the border crossing exception into a giant loophole. It allows the government to exploit its enormous border search power, expanding the reach of that power to the whole country, in violation of the Fourth Amendment. 23 D. Summary The Ninth Circuit's ruling is wrongly decided, conflicts with other circuits, and creates a loophole in the Border Search Doctrine that threatens to engulf the entire rule. "The majority dispenses with well-settled, sensible, and binding principles, lifts our anchor, and charts a course for muddy waters." (Dissent, App. 55, emphasis in original.) The ruling also upsets "the sensible balance between the legitimate privacy interests of the individual and society's vital interest in the enforcement of customs laws." United States v. Caicedo-Guarnizo, 723 F.2d 1420, 1423 (9th Cir. 1984). This Court should grant certiorari to correct the many problems and great mischief this case of national importance will cause. II. THE NINTH CIRCUIT'S IMPROPER METHODOLOGY FOR FINDING REASONABLE SUSPICION THREATENS THE FREEDOM OF ALL AMERICANS AND UPSETS THE S OUND F UNCTIONING OF A PPELLATE PROCEDURE, REQUIRING THE EXERCISE OF THIS COURT'S SUPERVISORY POWERS. Compounding the problems explained above, the Ninth Circuit has based the outcome of this case on a question that one party (the prosecution) deliberately and purposefully abandoned on appeal: whether there was reasonable suspicion of wrongdoing at the time the property was seized. In so doing the Ninth Circuit has contravened long-standing Fourth Amendment jurisprudence in several distinct, yet inextricably related ways, portending far-reaching and continuing harm. 24 First, the panel conjured reasonable suspicion where none actually existed according to agent testimony. Both the magistrate judge and the district judge found reasonable suspicion absent. That ruling was not challenged by the prosecution on appeal, and was affirmed by the three-judge appellate panel. Yet, the en banc panel went on to make its own sua sponte finding of reasonable suspicion on the flimsiest of grounds. In his dissent Judge Smith sounded the alarm: [the majority's] determination that reasonable suspicion exists under the exceedingly weak facts of this case undermines the liberties of U.S. citizens generally -- not just at the border, and not just with regard to our digital data -- but on every street corner, in every vehicle, and wherever else we rely on the doctrine of reasonable suspicion to safeguard our legitimate privacy interests. (App. 58.) In order to "find" reasonable suspicion for the first time at the en banc stage of an appeal, the majority has contradicted well-settled review standards, and this Court's precedent and teachings in United States v. Arvizu, 534 U.S. 266 (2002). Thus, the Ninth Circuit's en banc ruling will destabilize the Border Search Exception and raise questions about a variety of common border practices, leading the dissenting judges to point out the need for a "course correction" (App. 55) and to implore this Court to "grant certiorari." (App 56.) 25 A. The Ninth Circuit Deviated Markedly from Accepted and Usual Judicial Proceedings by Deciding this Case Based on an Abandoned Issue. Exercise of this Court's supervisory power is warranted by the Ninth Circuit's departure from the accepted and usual course of judicial proceedings by deciding this case based on an issue (reasonable suspicion) that had been intentionally and repeatedly abandoned by the appellant. The Ninth Circuit's reversal of the district court's order suppressing the evidence is the result of its resurrection of that issue. That issue must therefore be addressed as part and parcel of the issue presented by this case. To reach that conclusion, the en banc court ignored the question presented in the prosecution's opening brief, which was as follows: Whether the Authority to Search a Laptop Computer Without Reasonable Suspicion at a Border Point of Entry Permits Law Enforcement to Take it to Another Location to Be Forensically Examined, When it Has Remained in the Continuous Custody of the Government. Not only did the prosecution not ask the court to determine whether reasonable suspicion existed, it effectively conceded that reasonable suspicion was not present. (See Dissent, app. 72.) As noted above, when an appellant fails to challenge a ruling made by the district court, all appellate courts consider the issue abandoned under FRAP 28(a)(9), and 26 will not address it. (See footnote 5, supra.) Here, however, the en banc court sua sponte ordered both parties to brief the question, and then decided the case on that basis without ever explaining why it chose to do so. This is the Ninth Circuit's entire discussion as to why it was permissible for it to address this abandoned issue: We review de novo the ultimate question of whether a warrantless search was reasonable under the Fourth Amendment. United States v. Johnson, 256 F.3d 895, 905 (9th Cir.2001) (en banc). Our review necessarily encompasses a determination as to the applicable standard: no suspicion, reasonable suspicion or probable cause. That the government may hope for the lowest standard does not alter our de novo review, particularly when the issue was fully briefed and argued below. Further, we may consider an issue that has not been adequately raised on appeal if such a failure will not prejudice the opposing party. United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992). Where, as here, we "called for and received supplemental briefs by both parties," Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir.2004), the government's failure to address the issue does not prejudice Cotterman. (App. 9-10, emphasis added). At first blush this may seem to say that the court's de novo review requires it to decide the issue of reasonable suspicion. However, a closer examination reveals that this is logically false. The first part of this 27 purported "justification" is that determining what standard (i.e. amount of suspicion) is necessary for seizure is a component of the issue of whether a search is lawful. That is correct. However, the abandoned issue here was not the legal standard, but the factual existence or non-existence of reasonable suspicion. Neither the defense nor the prosecution have ever contested that the appellate court may decide the applicable legal standard of suspicion necessary for a search or seizure. Indeed, both sides asked the court to address that issue. In contrast, neither side asked the court to address the factual issue of whether reasonable suspicion existed here. Thus, what appears at first read to be the Court's principal justification for addressing the existence of reasonable suspicion, actually relates to the non-issue of the legal standard for search and seizure. The majority cited in passing United States v. Resendiz-Ponce, 549 U.S. 102 (2007). There this Court granted review of a constitutional issue (i.e. whether a constitutionally deficient indictment is structural error). Resendiz-Ponce, 549 U.S. at 116. This Court subsequently ordered the parties to file supplemental briefs regarding a different question (whether the word "attempt" in an indictment itself sufficiently alleged an overt act). The Court did this to avoid deciding the constitutional question that was originally presented. Resendiz-Ponce, 549 U.S. 102 at 103-04 citing Ashwander v. TVA, 297 U.S. 288, 347 (1936). Resendiz-Ponce is not on point. That case was decided in the context of a petition for certiorari, a discretionary form of review. The instant case was decided in the context of a direct "as of right" appeal. 28 18 U.S.C. ? 3731. In that context, it is not up to the appellate court to "grant" or "deny" review of a certain question, as is the case on discretionary review. Instead, it is the court's job to resolve the issue presented by the parties. "The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, Circuit Judge). Moreover, the situation here was the opposite of that in Resendiz-Ponce. The Ninth Circuit did address a constitutional issue (whether reasonable suspicion is needed before a person's belongings can be moved from the border and subjected to a forensic search). However, it then ordered briefing on an issue not raised by any party: whether reasonable suspicion existed on the facts of this case. Consequently, the reasoning that justified supplemental briefing in Resendiz-Ponce does not apply to this case. The supplemental briefing in Resindiz-Ponce appropriately supplemented the judicial process to decide the case. In this case the supplemental briefing subverted that process and, by so doing, set a precedent of abusing the power of supplemental briefing to revive an abandoned issue. The remainder of the Ninth Circuit's supposed justification can be summarized as follows: an appellate court may base the ultimate outcome of a case on an abandoned issue it if it does not prejudice either party. However, this is flawed as a "justification" for many reasons. 29 First, it is not credible to claim that Mr. Cotterman was not prejudiced here. He was severely prejudiced in a procedural sense in that the sequence of events prevented the defense from making the argument it would have made if the prosecution had contested the reasonable suspicion finding. Had that issue been properly presented in the Opening Brief, the defense strategy would have been fundamentally different. Introducing the reasonable suspicion issue at this late stage rendered irrelevant much of the briefs and oral arguments that preceded it. The defense made clear that the composition of its answering brief was based on the prosecution's abandonment of this issue. (A.B. 20-21.) The defense made numerous strategic choices based upon that abandonment. For example, had the Government raised the reasonable suspicion issue to begin with, the defense would undoubtedly have allocated far more of its Answering Brief to that issue than was available in the supplemental brief, which the Ninth Circuit limited to 5,000 words to cover two distinct and separate questions. Moreover, the defense would have concentrated on other arguments indicating that an even higher standard was required for seizure: probable cause. Instead, given the District Court's ruling and the prosecution's concession that reasonable suspicion was lacking, the defense chose to concede that reasonable suspicion was the applicable standard for a seizure. These kinds of long-range strategic decisions that the defense made years ago were not cured by limited supplemental briefing during the en banc proceedings. Thus, the "no prejudice" exception that the Ninth Circuit relied upon is not applicable here. 30 Howard Cotterman was even more severely prejudiced in a practical sense because, as Judge Smith put it, "the majority's finding of reasonable suspicion is the raison d'?tre for his conviction." (App. 73.) As he went on to state, "[I]t is clear to me that Cotterman has been severely prejudiced, because his conviction is based solely on an issue the government conceded, and that Appellant, and the lower courts, took for granted because it was not needed for a border search." (Id.) Second, there was no need to revive an abandoned issue here. The issue of whether reasonable suspicion was present was neither antecedent to the constitutional issue in this case nor was it jurisdictional. Third, the issue of reasonable suspicion is poorly suited to being the one on which the entire outcome of the case is based, because it was not even the real reason for the seizure. The magistrate judge found that the agents acted "presumptively without even considering whether they had reasonable suspicion to seize any of the electronic equipment that day." (App 102.) This was a factual finding, reviewed only for clear error.6 Moreover, as noted above, the supervisory agents conceded that there was no indication of wrongdoing at the border, even after hours of searching. On the contrary, the agents seized the 6 The Ninth Circuit failed to acknowledge that review of a ruling on a motion to suppress is not simply de novo. The district court's findings of fact should be reviewed for clear error. United States v. Mendoza-Ortiz, 262 F.3d 882, 885 (9th Cir. 2001). Here, the Ninth Circuit failed to identify the factual portions of the District Court's findings, and to apply deferential review to them. 31 Cottermans' property precisely because ICE policy said that they did not need reasonable suspicion to seize personal belongings. Yet the Ninth Circuit has chosen to make the entire case hinge on this hindsight-laden issue. Fourth, addressing an issue that was deliberately abandoned by a sophisticated and well-seasoned party for strategic reasons has adverse consequences for our judicial system. It sends the message that a favored party (i.e. the United States Government) may make a strategic choice in an attempt to strong-arm an appellate court to rule in a certain way, but the court will still protect that party from the consequences of its choice if the decision goes against them. The Government made its choice, and should abide by the consequences thereof, be they good or bad. Finally, the Ninth Circuit's opinion completely fails to explain why that court must or should address this issue, which the government declined to raise on appeal, and urged it not to address all the way through the en-banc stage. Even if a court may do so, if it is going to take such a highly unusual step, it should at least explain why it is doing so, when it and every other circuit refuses to address abandoned issues in just about every case. Since the rule of law depends upon the principle of "stare decisis", departures from past precedent like this one require "special justification," which is nowhere to be found in the majority opinion. See Payne v. Tennessee, 501 U.S. 808, 842 (1991) ("[E]ven constitutional cases, the doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some "special justification.") 32 Here, the majority has refused to apply the principle that abandoned arguments are waived, as all circuits have held. Why did the Ninth Circuit feel it had to ignore the Rules of Procedure and the mountain of precedent holding that an abandoned issue will not be addressed on appeal? Why did it need to give the prosecution yet another bite at the apple after it had spurned opportunities to address this issue in its opening brief, reply brief, two different oral arguments, and its response to the petition for rehearing en banc, and still asked the court to resolve the case without such a finding in the supplemental brief it filed pursuant to the court's order? Why reach so deep to save a litigant from its own deliberate choice? The answer is apparent: to manipulate the outcome of the case in a way unfavorable to Mr. Cotterman. The Ninth Circuit's decision was outcome-driven, made only for the purpose of preventing Mr. Cotterman from benefitting from the holding that reasonable suspicion was required for this search. Indeed, Judge Smith, a part of the panel, states that the majority's motivation here included "securing Cotterman's conviction." (Dissent, App. 72.) "It is the majority of our panel, not the government, that prosecuted the reasonable suspicion issue in this case." (Dissent, App. 73.) The majority in no way denied this. It is, therefore clear that the Ninth Circuit's action of resurrecting an abandoned issue violated the court's duty of rendering impartial justice under the law. Consequently, the Ninth Circuit's decision to make the entire case hinge on an issue abandoned by the prosecution was fundamentally unfair, and a radical departure from the usual and accepted course of 33 judicial proceedings. As such it violated the Due Process guarantee of the Fifth Amendment to the United States Constitution. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973) (citing fundamental fairness as "the touchstone of due process.") B. The Ninth Circuit Violated This Court's Jurisprudence in Finding Reasonable Suspicion. The Ninth Circuit decision also conflicts with prior decisions of this Court. The majority's finding that reasonable suspicion existed departs sharply from this Court's teachings and case law in two critical ways: it employs a flawed methodology, and it reaches an outcome that effectively redefines reasonable suspicion to be generalized and subjective. This Court has defined reasonable suspicion as "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). This assessment is to be made in light of "the totality of the circumstances." Id. at 417. Lower courts' factual findings underlying reasonable suspicion determinations are reviewed for clear error, giving "due weight to inferences drawn from those facts by resident judges and local law enforcement." Ornelas v. United States, 517 U.S. 690, 699 (1996). In Arvizu, 534 U.S. 266 (2002), this Court addressed "how reviewing courts should make reasonablesuspicion determinations." The reversal of the Ninth Circuit in Arvizu emphasized improper methodology that failed to fully take into account the totality of the 34 circumstances. Under Arvizu, reasonable suspicion analysis cannot cherry-pick which factors to consider. Yet that is just what the Ninth Circuit has done here, once again sending the wrong message to lower courts and law enforcement. Under the guise of a totality of the circumstances analysis, the majority piled on broad and subjective factors, counting multiple times what was really only one factor. The TECS record, the prior conviction, and the "Angel Watch" program are logically all one factor, as Judge Smith explained in his dissent. (See App. 77-78.) Most importantly, however, the panel failed to properly analyze the totality of these circumstances by continuing to rely on factors that had been dispelled by the ICE investigation at the border and the evidentiary hearing testimony. The eight-hour investigation at the border rebutted any concern that the ICE field office in Los Angeles may have had that Howard engaged in "sex tourism" on this trip. The thorough search of the couple's belongings was completely consistent with an ordinary family vacation. Though sex tourism may have been speculated months earlier by the TECS contact in Los Angeles (SER 85), the record contains no such belief on the part of the agents at the scene by the time the property was seized. Yet, the majority wrongly attributes such a belief to the "border agents." (App. 6.) Similarly, the existence of "frequent" international travel by Mr. Cotterman has been misrepresented as objective fact long after being overcome by the investigation at the border. (SER 78-79, 148, 164, 236.) There is nothing in the record regarding details of any previous travel that aroused any suspicion. The characterization of "frequent" is based on no specifics. Yet, the demand for specificity 35 "is the central teaching of this Court's Fourth Amendment jurisprudence." Cortez 449 U.S. at 418 citing Terry at 21 n.18. The majority disparages "nitpick[ing]" and claims to defer to the "agents' observations and experience." (App. 34.) Indeed, the ICE agents were highly experienced investigators. (SER 61-62, 160-61.) It is, however, the agents themselves who lacked suspicion. (SER 87, 98-99, 164, 173.) That conclusion was drawn by the magistrate judge, and affirmed by both the district judge and the initial appellate panel. Yet, at the en banc stage of the appeal, the majority failed to accord the district court and the law enforcement officials the deference they are due, defying this Court's repeated admonitions in Arvizu regarding the totality of the circumstances. As Judge Smith succinctly explained: The relevant inquiry here is what suspicion existed after all of Cotterman's electronics were searched, and he and his wife were interrogated separately, and every piece of evidence obtained corroborated the Cottermans' story about vacationing in Mexico. The only hint of suspicion remaining at that point-after the initial border search and interrogations-was the single password-protected file, which I agree with the majority is insufficient, by itself, to sustain a finding of reasonable suspicion. At the time the border patrol agents commenced the second search, 170 miles away from the border, any suspicions they may have initially harbored against Cotterman would have been largely 36 addressed by their interrogations of Cotterman and his wife, which produced nothing suspicious. (Dissent, App. 84.) The majority also blithely dismissed Mr. Cotterman's offer to help the agents access the computer, which the agents refused for fear he might tamper with it. (App. 32.) This ignored the fact that his offer was still an outward indication that there was nothing illegal in the password-protected file, and it provided a quick and easy way to establish, or dispel, reasonable suspicion at the border. (See Dissent, App., 84: "That the agents were unable to accept Cotterman's offer, however, does not change the reasonable inference that his offer was a genuine one.") Thus, the only basis for "reasonable suspicion" left here boiled down to the TECS alert. The majority almost acknowledged as much, stating that "the nature of the alert on Cotterman, directing agents to review media and electronic equipment for child pornography, justified conducting the forensic examination despite the failure of the first search to yield any contraband." (App. 32-33, emphasis added.) In other words, if you are on a government watch list your belongings can be seized at the border even if the reasons you were put on the list were nullified by an initial search at the border. Thus, the majority pins reasonable suspicion on the TECS alert, dismisses out of hand the numerous factors weighing against reasonable suspicion, and paves the way for a government database to target 'entire categories of people 37 without any individualized suspicion of the particular person to be stopped. (Dissent, App. 77.) In the absence of the requisite "particularized and objective basis," the TECS alert cannot justify an unconstitutional fishing expedition - using the Border Search exception to conduct a search that law enforcement could not do away from the border without violating the Fourth Amendment. Here, the Ninth Circuit has chosen to make the entire case hinge on what is essentially a nunc pro tunc decision by appellate judges substituting their own suspicions (inescapably infused with hindsight) for those of the officers at the scene. To use hindsight in this one case to justify seizures from innocent travelers in the future, sacrifices the very freedoms the Fourth Amendment is meant to protect. This Court should reverse the Ninth Circuit, not only to maintain the integrity of the "totality of the circumstances" analysis, but also to clarify what authorities may, and may not, do at the border. 38 CONCLUSION For the foregoing reasons this Court should grant this petition for a writ of certiorari and reverse the decision of the Ninth Circuit Court of Appeals. RESPECTFULLY SUBMITTED this 5th day of August, 2013. William J. Kirchner Counsel of Record Law Offices of Nash & Kirchner P.O. Box 2310 Tucson, AZ 85702 Phone: (520) 792-1613 FAX: (520) 628-1079 bkirchner@azbar.org Attorney for Howard Cotterman i APPENDIX TABLE OF CONTENTS Appendix A: Opinion, in the United States Court of Appeals for the Ninth Circuit (March 8, 2013) . . . . . . . . . . App. 1 Appendix B: Order, in the United States District Court for the District of Arizona (February 24, 2009) . . . . . . App. 86 Appendix C: Report and Recommendation, in the United States District Court for the District of Arizona (September 12, 2008) . . . . . App. 89 App. 1 APPENDIX A FOR PUBLICATION No. 09-10139 D.C. No. 4:07-cr-01207-RCC-CRP-1 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [Filed March 8, 2013] _________________________________ UNITED STATES OF AMERICA, ) Plaintiff-Appellant, ) ) v. ) ) HOWARD WESLEY COTTERMAN, ) Defendant-Appellee. ) _________________________________) OPINION Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding Argued and Submitted En Banc June 19, 2012--Pasadena, California Filed March 8, 2013 App. 2 Before: Alex Kozinski, Chief Judge, Sidney R. Thomas, M. Margaret McKeown, Kim McLane Wardlaw, Raymond C. Fisher, Ronald M. Gould, Richard R. Clifton, Consuelo M. Callahan, Milan D. Smith, Jr., Mary H. Murguia, and Morgan Christen, Circuit Judges.1 Opinion by Judge McKeown; Partial Concurrence and Partial Dissent by Judge Callahan; Dissent by Judge Milan D. Smith, Jr. *** [Court Staff Summary Section Omitted for Purposes of this Appendix] COUNSEL Dennis K. Burke, Christina M. Cabanillas, Carmen F. Corbin, John S. Leonardo, John J. Tuchi, United States Attorney's Office for the District of Arizona, Tucson, Arizona, for Appellant. William J. Kirchner, Law Office of Nash & Kirchner, P.C., Tucson, Arizona, for Appellee. David M. Porter, Malia N. Brink, National Association of Criminal Defense Lawyers, Washington, D.C.; Michael Price, Brennan Center for Justice, New York, New York; Hanni M. Fakhoury, Electronic Frontier 1 Judge Betty B. Fletcher was a member of the en banc panel but passed away after argument of the case. Judge Wardlaw was drawn as her replacement. App. 3 Foundation, San Francisco, California, for Amicus Curiae National Association of Criminal Defense Lawyers and Electronic Frontier Foundation. Christopher T. Handman, Mary Helen Wimberly, Hogan Lovells US LLP, Washington, D.C.; Sharon Bradford Franklin, The Constitution Project, Washington, D.C., for Amicus Curiae The Constitution Project. OPINION McKEOWN, Circuit Judge: Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW). As denizens of a digital world, they carry with them laptop computers, iPhones, iPads, iPods, Kindles, Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and sensitive information ranging from personal, financial, and medical data to corporate trade secrets. And, in the case of Howard Cotterman, child pornography. Agents seized Cotterman's laptop at the U.S.Mexico border in response to an alert based in part on a fifteen-year-old conviction for child molestation. The initial search at 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 images of child pornography discovered. App. 4 This watershed case implicates both the scope of the narrow border search exception to the Fourth Amendment's warrant requirement and privacy rights in commonly used electronic devices. The question we confront "is what limits there are upon this power of technology to shrink the realm of guaranteed privacy." Kyllo v. United States, 533 U.S. 27, 34 (2001). More specifically, we consider the reasonableness of a computer search that began as a cursory review at the border but transformed into a forensic examination of Cotterman's hard drive. Computer forensic examination is a powerful tool capable of unlocking password-protected files, restoring deleted material, and retrieving images viewed on web sites. But while technology may have changed the expectation of privacy to some degree, it has not eviscerated it, and certainly 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" within the Fourth Amendment's guarantee of "[t]he right of the people to be secure in their persons, houses, papers, and 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. Although courts have long recognized that border searches constitute a "historically recognized exception to the Fourth Amendment's general principle that a warrant be obtained," United States v. Ramsey, 431 U.S. 606, 621 (1977), reasonableness remains the touchstone for a warrantless search. Even at the border, we have rejected an "anything goes" approach. App. 5 See United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008) (en banc). Mindful of the heavy burden on law enforcement to protect our borders juxtaposed with individual privacy interests in data on portable digital devices, we conclude that, under the circumstances here, reasonable suspicion was required for the forensic examination of Cotterman's laptop. Because border agents had such a reasonable suspicion, we reverse the district court's order granting Cotterman's motion to suppress the evidence of child pornographyobtained from his laptop. I. FACTUAL BACKGROUND HISTORY2 AND PROCEDURAL Howard Cotterman and his wife were driving home to the United States from a vacation in Mexico on Friday morning, April 6, 2007, when they reached the Lukeville, Arizona, Port of Entry. During primary inspection by a border agent, the Treasury Enforcement Communication System ("TECS")3 returned a hit for Cotterman. The TECS hit indicated that Cotterman was a sex offender--he had a 1992 conviction for two counts of use of a minor in sexual conduct, two counts of lewd and lascivious conduct 2 The facts related here are drawn from the record of the evidentiary hearing held before the magistrate judge. 3 The TECS is an investigative tool of the Department of Homeland Security that keeps track of individuals entering and exiting the country and of individuals involved in or suspected to be involved in crimes. App. 6 upon a child, and three counts of child molestation--and that he was potentially involved in child sex tourism. Because of the hit, Cotterman and his wife were referred to secondary inspection, where they were instructed to exit their vehicle and leave all their belongings in the car. The border agents called the contact person listed in the TECS entry and, following that conversation, believed the hit to reflect Cotterman's involvement "in some type of child pornography." The agents searched the vehicle and retrieved two laptop computers and three digital cameras. Officer Antonio Alvarado inspected the electronic devices and found what appeared to be family and other personal photos, along with several password-protected files. Border agents contacted Group Supervisor Craig Brisbine at the Immigration and Customs Enforcement ("ICE") office in Sells, Arizona, and informed him about Cotterman's entry and the fact that he was a sex offender potentially involved in child sex tourism. The Sells Duty Agent, Mina Riley, also spoke with Officer Alvarado and then contacted the ICE Pacific Field Intelligence Unit, the office listed on the TECS hit, to get more information. That unit informed Riley that the alert was part of Operation Angel Watch, which was aimed at combating child sex tourism by identifying registered sex offenders in California, particularly those who travel frequently outside the United States. She was advised to review any media equipment, such as computers, cameras, or other electronic devices, for potential evidence of child pornography. Riley then spoke again to Alvarado, who told her that he had been able to review some of the photographs on the Cottermans' computers but had App. 7 encountered password-protected files that he was unable to access. Agents Brisbine and Riley departed Sells for Lukeville at about 1:30 p.m. and decided en route to detain the Cottermans' laptops for forensic examination. Upon their arrival, they gave Cotterman and his wife Miranda warnings and interviewed them separately. The interviews revealed nothing incriminating. During the interview, Cotterman offered to help the agents access his computer. The agents declined the offer out of concern that Cotterman might be able to delete files surreptitiously or that the laptop might be "booby trapped." The agents allowed the Cottermans to leave the border crossing around 6 p.m., but retained the Cottermans' laptops and a digital camera.4 Agent Brisbine drove almost 170 miles from Lukeville to the ICE office in Tucson, Arizona, where he delivered both laptops and one of the three digital cameras to ICE Senior Special Agent & Computer Forensic Examiner John Owen. Agent Owen began his examination on Saturday, the following day. He used a forensic program to copy the hard drives of the electronic devices. He determined that the digital camera did not contain any contraband and released the camera that day to the Cottermans, who had traveled to Tucson from Lukeville and planned to stay there a few days. Agent Owen then used forensic software that often must run for several hours to examine copies of the laptop hard drives. He began his personal examination 4 The other two cameras were returned to the Cottermans. App. 8 of the laptops on Sunday. That evening, Agent Owen found seventy-five images of child pornography within the unallocated space of Cotterman's laptop.5 Agent Owen contacted the Cottermans on Sunday evening and told them he would need Howard Cotterman's assistance to access password-protected files he found on Cotterman's laptop. Cotterman agreed to provide the assistance the following day, but never showed up. When Agent Brisbine called again to request Cotterman's help in accessing the passwordprotected files, Cotterman responded that the computer had multiple users and that he would need to check with individuals at the company from which 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 onward to Sydney, Australia. On April 11, Agent Owen finally managed to open twenty-three password-protected files on Cotterman's laptop. The files revealed approximately 378 images of child pornography. The vast majority of the images were of the same girl, approximately 7-10 years of age, taken over a two-to three-year period. In many of the images, Cotterman was sexually molesting the child. Over the next few months, Agent Owen discovered hundreds more pornographic images, stories, and videos depicting children. 5 "Unallocated space is space on a hard drive that contains deleted data, usually emptied from the operating system's trash or recycle bin folder, that cannot be seen or accessed by the user without the use of forensic software. Such space is available to be written over to store new information." United States v. Flyer, 633 F.3d 911, 918 (9th Cir. 2011). App. 9 A grand jury indicted Cotterman for a host of offenses related to child pornography. Cotterman moved to suppress the evidence gathered from his laptop and the fruits of that evidence. The magistrate judge filed a Report and Recommendation finding that the forensic examination was an "extended border search" that required reasonable suspicion. He found that the TECS hit and the existence of passwordprotected files on Cotterman's laptop were suspicious, but concluded that those facts did not suffice to give rise to reasonable suspicion of criminal activity. The district judge adopted the Report and Recommendation and granted Cotterman's motion to suppress. In its interlocutory appeal of that order, the government characterized the issue as follows: "Whether the authority to search a laptop computer without reasonable suspicion at a border point of entry permits law enforcement to take it to another location to be forensically examined, when it has remained in the continuous custody of the government." A divided panel of this court answered that question in the affirmative and reversed. United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011). The panel concluded that reasonable suspicion was not required for the search and that "[t]he district court erred in suppressing the evidence lawfully obtained under border search authority." Id. at 1084. In dissent, Judge Betty B. Fletcher wrote that "officers must have some level of particularized suspicion in order to conduct a seizure and search like the one at issue here." Id. (B. Fletcher, J., dissenting). By a vote of a majority of nonrecused active judges, rehearing en banc was ordered. 673 F.3d 1206 (9th Cir. 2012). Following en banc oral argument, we requested supplemental App. 10 briefing on the issue of whether reasonable suspicion existed at the time of the search. II. WAIVER The government argued below that the forensic examination was part of a routine border search not requiring heightened suspicion and, alternatively, that reasonable suspicion justified the search. Before the district court, the government maintained "the facts of this case clearly establish that there was reasonable suspicion." However, having failed to obtain a favorable ruling on that ground, the government did not challenge on appeal the conclusion that there was no reasonable suspicion. Rather, it sought a broad ruling that no suspicion of any kind was required. Cotterman thus argued in his answering brief that the government had waived the issue--an assertion that the government did not address in its reply brief. Cotterman contends that the government has abandoned and conceded the issue of reasonable suspicion and that this court may not address that issue. We disagree. We review de novo the ultimate question of whether a warrantless search was reasonable under the Fourth Amendment. United States v. Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (en banc). Our review necessarily encompasses a determination as to the applicable standard: no suspicion, reasonable suspicion or probable cause. That the government may hope for the lowest standard does not alter our de novo review, particularly when the issue was fully briefed and argued below. Further, we may consider an issue that has not been adequately raised on appeal if such a App. 11 failure will not prejudice the opposing party. United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). Where, as here, we "called for and received supplemental briefs by both parties," Alcarez v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004), the government's failure to address the issue does not prejudice Cotterman. See also United States v. Resendiz-Ponce, 549 U.S. 102, 103-04 (2007). III. THE BORDER SEARCH The broad contours of the scope of searches at our international borders are rooted in "the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country." Ramsey, 431 U.S. at 616. Thus, border searches form "a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause." Seljan, 547 F.3d at 999 (internal quotation marks and citation omitted). Because "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border," United States v. FloresMontano, 541 U.S. 149, 152 (2004), border searches are generally deemed "reasonable simply by virtue of the fact that they occur at the border." Ramsey, 431 U.S. at 616. 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 "[b]alanced against the sovereign's interests." United States v. Montoya de Hernandez, 473 U.S. 531, 539 (1985). That balance "is qualitatively different . . . than in the interior" and is "struck much more favorably to App. 12 the Government." Id. at 538, 540. Nonetheless, the touchstone of the Fourth Amendment analysis remains reasonableness. Id. at 538. The reasonableness of a search or seizure depends on the totality of the circumstances, including the scope and duration of the deprivation. See United States v. Jacobsen, 466 U.S. 109, 124 (1984); see also United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982). In view of these principles, the legitimacy of the initial search of Cotterman's electronic devices at the border is not in doubt. Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter the country. It was, in principle, akin to the search in Seljan, where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable. 547 F.3d at 1004. Similarly, we have approved a quick look and unintrusive search of laptops. United States v. Arnold, 533 F.3d 1003, 1009 (9th Cir. 2008) (holding border search reasonable where "CBP officers simply 'had [traveler] boot [the laptop] up, and looked at what [he]had inside.'") (second alteration in original).6 Had the search of Cotterman's laptop ended with Officer Alvarado, we would be inclined to conclude it was 6 Although the Arnold decision expressed its conclusion in broad terms, stating that, "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," Arnold, 533 F.3d at 1008, the facts do not support such an unbounded holding. As an en banc court, we narrow Arnold to approve only the relatively simple search 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. App. 13 reasonable even without particularized suspicion. See id. But the search here transformed into something far different. The difficult question we confront is the reasonableness, without a warrant, of the forensic examination that comprehensively analyzed the hard drive of the computer. A. The Forensic Examination Was Not An Extended Border Search Cotterman urges us to treat the examination as an extended border search that requires particularized suspicion. Although the semantic moniker "extended border search" may at first blush seem applicable here, our jurisprudence does not support such a claim. We have "define[d] an extended border search as any search away from the border where entry is not apparent, but where the dual requirements of reasonable certainty of a recent border crossing and reasonable suspicion of criminal activity are satisfied." United States v. Guzman-Padilla, 573 F.3d 865, 878-79 (9th Cir. 2009) (internal quotation marks and citations omitted). The key feature of an extended border search is that an individual can be assumed to have cleared the border and thus regained an expectation of privacy in accompanying belongings. See United States v. Abbouchi, 502 F.3d 850, 855 (9th Cir. 2007) ("Because the delayed nature of an extended border search . . . necessarily entails a greater level of intrusion on legitimate expectations of privacy than an ordinary border search, the government must justify an extended border search with reasonable suspicion that the search may uncover contraband or evidence of criminal activity.") (internal quotation marks omitted) (emphasis added). App. 14 Cotterman's case is different. Cotterman was stopped and searched at the border. Although he was allowed to depart the border inspection station after the initial search, some of his belongings, including his laptop, were not. The follow-on forensic examination was not an "extended border search." A border search of a computer is not transformed into an extended border search simply because the device is transported and examined beyond the border. To be sure, our case law has not always articulated the "extended border search" doctrine with optimal clarity. But the confusion has come in distinguishing between facts describing a functional border search and those describing an extended border search, not in defining the standard for a search at the border. See, e.g., United States v. Cardona, 769 F.2d 625, 628 (9th Cir. 1985) ("We have recently recognized the difficulty of making sharp distinctions between searches at the functional equivalent of the border and extended border searches."). The "functional equivalent" doctrine effectively extends the border search doctrine to all ports of entry, including airports. See AlmeidaSanchez v. United States, 413 U.S. 266, 273 (1973). A routine customs search at the "functional equivalent" of the border is "analyzed as a border search" and requires neither probable cause nor reasonable suspicion. Seljan, 547 F.3d at 999. This case involves a search initiated at the actual border and does not encounter any of the difficulties surrounding identification of a "functional" border. As to the extended border search doctrine, we believe it is best confined to cases in which, after an apparent border crossing or functional entry, an attenuation in the time App. 15 or the location of conducting a search reflects that the subject has regained an expectation of privacy.7 In his dissent, Judge Smith advocates applying the extended border search doctrine because the forensic examination occurred 170 miles from the border and days after Cotterman's entry. Moving the laptop to a specialized lab at a distant location might highlight that the search undertaken there was an extensive one, but it is not the dispositive factor here. Because Cotterman never regained possession of his laptop, the fact that the forensic examination occurred away from the border, in Tucson, did not heighten the interference with his privacy. Time and distance become relevant to determining whether there is an adequate nexus to a recent border crossing only after the subject or items searched have entered. See Villasenor, 608 F.3d at 471 (explaining that reasonableness of extended border search depends on "whether the totality of the surrounding circumstances, including the time and distance elapsed" establish that items to be searched have recently entered the country) (internal quotation marks omitted). Cotterman's computer never cleared customs so entry was never effected. In short, the 7 This characterization is consistent with how our circuit and others have articulated the doctrine. See, e.g., United States v. Villasenor, 608 F.3d 467, 471-72 (9th Cir. 2010); United States v. Yang, 286 F.3d 940, 945-46 (7th Cir. 2002); United States v. Hyde, 37 F.3d 116, 120 n.2 (3d Cir. 1994); United States v. Santiago, 837 F.2d 1545, 1548 (11th Cir. 1988); United States v. Gaviria, 805 F.2d 1108, 1112 (2d Cir. 1986); United States v. Niver, 689 F.2d 520, 526 (5th Cir. 1982); United States v. Bilir, 592 F.2d 735, 739-40 (4th Cir. 1979). App. 16 extended border search doctrine does not fit the search here. B. Forensic Examination At The Border Requires Reasonable Suspicion It is the comprehensive and intrusive nature of a forensic examination--not the location of the examination--that is the key factor triggering the requirement of reasonable suspicion here.8 See Cotterman, 637 F.3d at 1086-87 n.6 (B. Fletcher, J., dissenting) (recognizing that "[a] computer search in a forensic lab will always be equivalent to an identical search at the border. The duration of a computer search is not controlled by where the search is conducted. The duration of a computer search is controlled by what one is looking for and how one goes about searching for it.") (emphasis in original). The search would have been every bit as intrusive had Agent Owen traveled to the border with his forensic equipment. Indeed, Agent Owen had a laptop with forensic software that he could have used to conduct an examination at the port of entry itself, although he testified it would have been a more time-consuming effort. To carry out the examination of Cotterman's laptop, Agent Owen used computer forensic software to copy the hard drive and then analyze it in its entirety, including data that ostensibly had been deleted. This painstaking analysis is akin to reading a diary line by 8 The concurrence goes to great lengths to "refute any such notion" that location and duration contributed to our holding reasonable suspicion required here. Concurrence at 40-43. We see no reason for such an exegesis; our opinion is clear on the point that these factors are not at issue. App. 17 line looking for mention of criminal activity--plus looking at everything the writer may have erased.9 Notwithstanding a traveler's diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment's reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the "dignity and privacy interests of the person being searched" at the border will on occasion demand "some level of suspicion in the case of highly intrusive searches of the person." Flores-Montano, 541 U.S. at 152. Likewise, the Court has explained that "some searches of property are so destructive," "particularly offensive," or overly intrusive in the manner in which they are carried out as to require particularized suspicion. Id. at 152, 154 n.2, 155-56; Montoya de Hernandez, 473 U.S. at 541. The Court has never defined the precise dimensions of a reasonable border search, instead pointing to the necessity of a case-by-case analysis. A s w e h a v e emphasized, "[r]easonableness, when used in the context of a border search, is incapable of comprehensive definition or of mechanical application." Duncan, 693 F.2d at 977 (internal quotation marks and citation omitted). 9 Agent Owen used a software program called EnCase that exhibited the distinctive features of computer forensic examination. The program copied, analyzed, and preserved the data stored on the hard drive and gave the examiner access to far more data, including password-protected, hidden or encrypted, and deleted files, than a manual user could access. App. 18 Over the past 30-plus years, the Supreme Court has dealt with a handful of border cases in which it reaffirmed the border search exception while, at the same time, leaving open the question of when a "particularly offensive" search might fail the reasonableness test. The trail begins with United States v. Ramsey, where the Court reserved judgment on this question: "We do not decide whether, and under what circumstances, a border search might be deemed 'unreasonable' because of the particularly offensive manner in which it is carried out." 431 U.S. at 618 n.13. Of note, the Court cited two cases, albeit nonborder cases, as examples: Kremen v. United States, 353 U.S. 346, 347-48 (1957) (holding unconstitutional an exhaustive warrantless search of a cabin and seizure of its entire contents that were moved 200 miles away for examination) and Go-Bart Importing Co. v. United States, 282 U.S. 344, 358 (1931) (condemning as "lawless invasion of the premises and a general exploratory search" a warrantless "unlimited search, ransackingthe desk, safe, filing cases and other parts of [an] office"). Less than ten years later, in 1985, the Court observed that it had "not previously decided what level of suspicion would justify a seizure of an incoming traveler for purposes other than a routine border search" and then went on to hold in the context of an alimentary canal search that reasonable suspicion was required for "the detention of a traveler at the border, beyond the scope of a routine customs search and inspection." Montoya de Hernandez, 473 U.S. at 540-41. The Court's reference to "routine border search" was parsed in a later case, Flores-Montano, where the Court explained that "the reasons that might App. 19 support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over to vehicles," and, more specifically, to the gas tank of a car. 541 U.S. at 152. Accordingly, the Court rejected a privacy claim vis-a-vis an automobile gas tank. We are now presented with a case directly implicating substantial personal privacy interests. The private information individuals store on digital devices--their personal "papers" in the words of the Constitution--stands in stark contrast to the generic and impersonal contents of a gas tank. See, e.g., United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring) (expressing "doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year"). We rest our analysis on the reasonableness of this search, paying particular heed to the nature of the electronic devices and the attendant expectation of privacy. The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler's luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages--the equivalent of five floors of a typical academic library. See Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 542 (2005) (explaining that an 80 GB hard drive is equivalent to 40 million pages or one floor of an App. 20 academic library); see also LexisNexis, How Many Pages in a Gigabyte?, http://www.lexisnexis.com/ applieddiscovery/lawlibrary/whitePapers/ADI_FS_Pa gesInAGigabyte.pdf. Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.10 The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment's specific guarantee of the people's right to be secure in their "papers." U.S. Const. amend. IV. The express listing of papers "reflects the Founders' deep concern with safeguarding the privacy of thoughts and ideas--what we might call freedom of conscience--from invasion by the government." Seljan, 547 F.3d at 1014 (Kozinski, C.J., dissenting); see also New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986). These records are expected to be kept private and this expectation is "one that society is prepared to recognize 10 We are puzzled by the dissent's speculation about "how many gigabytes of storage [one must] buy to secure the guarantee that reasonable suspicion will be required before one's devices are searched." Dissent at 68. We discuss the typical storage capacity of electronic devices simply to highlight the features that generally distinguish them from traditional baggage. Indeed, we do not and need not determine whether Cotterman's laptop possessed unusually large or simply "average" capacity in order to resolve that the forensic examination of it required reasonable suspicion. App. 21 as 'reasonable.'" Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).11 Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person's digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files. The present case illustrates this unique aspect of electronic data. Agents found incriminating files in the unallocated space of Cotterman's laptop, the space where the computer stores files that the user ostensibly deleted and maintains other "deleted" files retrieved from web sites the user has visited. Notwithstanding the attempted erasure of material or the transient 11 The dissent's discussion about Facebook and other platforms where the user voluntarily transmits personal data over the Internet, often oblivious to privacy issues, Dissent at 65-66, is a red herring. Of course, willful disclosure of electronic data, like disclosure of other material, undercuts an individual's expectation of privacy. But there was no such disclosure here. Nor does the border search implicate such an affirmative disclosure. App. 22 nature of a visit to a web site, computer forensic examination was able to restore the files. It is as if a search of a person's suitcase could reveal not only what the bag contained on the current trip, but everything it had ever carried. With the ubiquity of cloud computing, the government's reach into private data becomes even more problematic.12 In the "cloud," a user's data, including the same kind of highly sensitive data one would have in "papers" at home, is held on remote servers rather than on the device itself. The digital device is a conduit to retrieving information from the cloud, akin to the key to a safe deposit box. Notably, although the virtual "safe deposit box" does not itself cross the border, it may appear as a seamless part of the digital device when presented at the border. With access to the cloud through forensic examination, a traveler's cache is just a click away from the government. As Justice Scalia wrote, "It would be foolish to contend that the degree of privacy secured to citizens 12 "The term 'cloud computing' is based on the industry usage of a cloud as a metaphor for the ethereal internet. . . . An external cloud platform is storage or software access that is essentially rented from (or outsourced to) a remote public cloud service provider, such as Amazon or Google. . . . By contrast, an internal or private cloud is a cluster of servers that is networked behind an individual or company's own firewall." David A. Couillard, Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing, 93 Minn. L. Rev. 2205, 2216 (2009) (internal citations omitted). App. 23 by the Fourth Amendment has been entirely unaffected by the advance of technology." Kyllo, 533 U.S. at 33-34. Technology has the dual and conflicting capability to decrease privacy and augment the expectation of privacy. While the thermal imaging device in Kyllo threatened to expose the hour at which "the lady of the house" took her daily "sauna and bath," id. at 38, digital devices allow us to carry the very papers we once stored at home. The point is technology matters. The Department of Homeland Security has acknowledged as much in the context of international travelers: Where someone may not feel that the inspection of a briefcase would raise significant privacy concerns because the volume of information to be searched is not great, that same person may feel that a search of their laptop increases the possibility of privacy risks due to the vast amount of information potentially available on electronic devices. DHS, Privacy Impact Assessment for the Border Searches of Electronic Devices 2 (Aug. 25, 2009), available at http://www.dhs.gov/xlibrary/assets/privacy /privacy_pia_cbp_laptop.pdf. This is not to say that simply because electronic devices house sensitive, private information they are off limits at the border. The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must account for differences in property. See Samson v. California, 547 U.S. 843, 848 (2006) ("Under our general Fourth App. 24 Amendment approach, we examine the totality of the circumstances to determine whether a search is reasonable . . . .") (internal quotation marks, citation, and alterations omitted) (emphasis added). Unlike searches involving a reassembled gas tank, FloresMontano, 541 U.S. at 150, or small hole in the bed of a pickup truck, United States v. Chaudhry, 424 F.3d 1051, 1054 (9th Cir. 2005), which have minimal or no impact beyond the search itself--and little implication for an individual's dignity and privacy interests--the exposure of confidential and personal information has permanence. It cannot be undone. Accordingly, the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property. After their initial search at the border, customs agents made copies of the hard drives and performed forensic evaluations of the computers that took days to turn up contraband. It was essentially a computer strip search. An exhaustive forensic search of a copied laptop hard drive intrudes upon privacy and dignity interests to a far greater degree than a cursory search at the border. It is little comfort to assume that the government--for now--does not have the time or resources to seize and search the millions of devices that accompany the millions of travelers who cross our borders. It is the potential unfettered dragnet effect that is troublesome. We recognize the important security concerns that prevail at the border. The government's authority to protect the nation from contraband is well established and may be "heightened" by "national cris[e]s," such as App. 25 the smuggling of illicit narcotics, Montoya de Hernandez, 473 U.S. at 538, the current threat of international terrorism and future threats yet to take shape. But even in the face of heightened concerns, we must account for the Fourth Amendments rights of travelers. Id. at 539. The effort to interdict child pornography is also a legitimate one. But legitimate concerns about child pornography do not justify unfettered crime-fighting searches or an unregulated assault on citizens' private information. Reasonable suspicion is a modest, workable standard that is already applied in the extended border search, Terry stop,13 and other contexts. Its application to the forensic examination here will not impede law enforcement's ability to monitor and secure our borders or to conduct appropriate searches of electronic devices. Nor does applying this standard impede the deterrent effect of suspicionless searches, which the dissent contends is critical to thwarting savvy terrorists and other criminals. Dissent at 63. The Supreme Court has never endorsed the proposition that the goal of deterring illegal contraband at the border suffices to justify any manner of intrusive search. Rather, reasonableness remains the touchstone and the Court has expressed support for the deterrence value of suspicionless searches of a routine nature, such as vehicle checkpoints near the border. See United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976) ("We note here only the substantiality of the public interest in the 13 Terry v. Ohio, 392 U.S. 1, 30 (1983). App. 26 practice of routine stops for inquiry at permanent checkpoints, a practice which the Government identifies as the most important of the traffic-checking operations.") (emphasis added). In practical terms, suspicionless searches of the type approved in Arnold will continue; border officials will conduct further, forensic examinations where their suspicions are aroused by what they find or by other factors. Reasonable suspicion leaves ample room for agents to draw on their expertise and experience to pick up on subtle cues that criminal activity may be afoot. See United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000).14 We have confidence in the ability of law enforcement to distinguish a review of computer files from a forensic examination. We do not share the 14 The greatest obstacle to ferreting out contraband at the border has always been the sheer number of international travelers. Any contention that national security will be critically hampered by stripping border agents of a critical law enforcement tool--suspicionless forensic examinations of electronics--is undermined by the fact that, as a matter of commonsense and resources, it is only when reasonable suspicion is aroused that such searches typically take place. See, e.g., Chaudhry, 424 F.3d at 1054 (B. Fletcher, J., concurring) ("As a practical matter, border agents are too busy to do extensive searches (removing gas tanks and door panels, boring holes in truck beds) unless they have suspicion."). As Judge Callahan acknowledges in her separate opinion, the record suggests that "remote and/or intensive searches of electronic devices crossing the border do not occur all that often." Concurrence at 50 n.11. The reference that only a small fraction of travelers at the border have their devices searched simply reinforces our point--our ruling will not place an undue burden on border agents who already rely on a degree of suspicion in referring travelers to secondary inspection. App. 27 alarm expressed by the concurrence and the dissent that the standard we announce will prove unmanageable or give border agents a "Sophie's choice" between thorough searches and Bivens actions. Concurrence at 48-49; Dissent at 65. Determining whether reasonable suspicion is required does not necessitate a "complex legal determination[]" to be made on a "moment-by-moment basis." Dissent at 61. Rather, it requires that officers make a commonsense differentiation between a manual review of files on an electronic device and application of computer software to analyze a hard drive, and utilize the latter only when they possess a "particularized and objective basis for suspecting the person stopped of criminal activity." Tiong, 224 F.3d at 1140 (internal quotation marks omitted). International travelers certainly expect that their property will be searched at the border. What they do not expect is that, absent some particularized suspicion, agents will mine every last piece of data on their devices or deprive them of their most personal property for days (or perhaps weeks or even months, depending on how long the search takes). United States v. Ramos-Saenz, 36 F.3d 59, 61 n.3 (9th Cir. 1994) ("Intrusiveness includes both the extent of a search as well as the degree of indignity that may accompany a search."). Such a thorough and detailed search of the most intimate details of one's life is a substantial intrusion upon personal privacy and dignity. We therefore hold that the forensic examination of Cotterman's computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment. App. 28 IV. REASONABLE SUSPICION Reasonable suspicion is defined as "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). This assessment is to be made in light of "the totality of the circumstances." Id. at 417. "[E]ven when factors considered in isolation from each other are susceptible to an innocent explanation, they may collectively amount to a reasonable suspicion." United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007). We review reasonable suspicion determinations de novo, reviewing findings of historical fact for clear error and giving "due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996). In the district court and in supplemental briefing, the government argued that the border agents had reasonable suspicion to conduct the initial search and the forensic examination of Cotterman's computer. We agree. The objective facts reflect that both the agents at the border and the agents who arrived later from Sells based their decision to search Cotterman's belongings on the TECS hit. Officer Alvarado was told by those in charge of administering the TECS database that he should search Cotterman's property because the TECS hit indicated "that [Cotterman] appeared to [have] been involved in some type of child pornography." Agent Riley also looked up Cotterman's criminal record and understood that he had a prior conviction for child pornography. As it turned out, Cotterman's previous App. 29 conviction was not for pornography, but for child molestation. Nonetheless, the agents' understanding of the objective facts, albeit mistaken, is the baseline for determining reasonable suspicion. See Liberal v. Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011) ("Even if an officer makes a mistake of fact, that mistake 'will not render a stop illegal, if the objective facts known to the officer gave rise to a reasonable suspicion that criminal activity was afoot.'" (quoting United States v. Mariscal, 285 F.3d 1127, 1131 (9th Cir. 2002))). By itself, Cotterman's 1992 conviction for child molestation does not support reasonable suspicion to conduct an extensive forensic search of his electronic devices. "Although a prior criminal history cannot alone establish reasonable suspicion . . . it is permissible to consider such a fact as part of the total calculus of information in th[at] determination[]." Burrell v. McIlroy, 464 F.3d 853, 858 n.3 (9th Cir. 2006). The TECS alert was not based merely on Cotterman's conviction--the agents were aware that the alert targeted Cotterman because he was a sex offender "who travel[ed] frequently out of the country" and who was "possibly involved in child sex tourism." Further, Agent Riley testified that an examination of Cotterman's passport confirmed that he had traveled in and out of the country frequently since his conviction in 1992. In further support of reasonable suspicion, the government asserts that Mexico, from which the Cottermans were returning, is "a country associated App. 30 with sex tourism."15 The ICE field office specifically informed Agent Riley that the alert was part of Operation Angel Watch, which targeted individuals potentially involved in sex tourism and alerted officials to be on the lookout for laptops, cameras and other paraphernalia of child pornography. See 156 Cong. Rec. S9581-03 (daily ed. Dec. 14, 2010) (describing Operation Angel Watch as a program "help[ing] ICE [to] identify travel patterns of convicted sex offenders who may attempt to exploit children in foreign countries"). Cotterman's TECS alert, prior childrelated conviction, frequent travels, crossing from a country known for sex tourism, and collection of electronic equipment, plus the parameters of the Operation Angel Watch program, taken collectively, gave rise to reasonable suspicion of criminal activity. To these factors, the government adds another--the existence of password-protected files on Cotterman's computer.16 We are reluctant to place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files. Law enforcement 15 It is ironic that the dissent expresses concern that, by factoring in the incidence of crime in particular countries, "thousands of individuals . . . will now be forced to reconsider traveling to entire countries . . . or will need to leave all their electronic equipment behind, to avoid arousing a 'reasonable' suspicion," Dissent at 78, when, if forensic examination of those travelers' electronics occurs at the border, the dissent would require no suspicion at all. 16 Agent Riley testified that Alvarado told her that he had "encounter[ed] some files that were password protected," while Agent Alvarado testified that he found one file. App. 31 "cannot rely solely on factors that would apply to many law-abiding citizens," Berber-Tinoco, 510 F.3d at 1087, and password protection is ubiquitous. National standards require that users of mobile electronic devices password protect their files. See generally United States Department of Commerce, Computer Security Division, National Institute of Standards and Technology, Computer Security (2007) (NIST Special Publication 800-111). Computer users are routinely advised--and in some cases, required by employers--to protect their files when traveling overseas. See, e.g., Michael Price, National Security Watch, 34-MAR Champion 51, 52 (March 2010) ("[T]here is one relatively simple thing attorneys can do [when crossing the border] to protect their privacy and the rights of their clients: password-protect the computer login and any sensitive files or folders."). Although password protection of files, in isolation, will not give rise to reasonable suspicion, where, as here, there are other indicia of criminal activity, password protection of files may be considered in the totality of the circumstances.17 To contribute to reasonable suspicion, encryption or password protection of files must have some relationship to the suspected criminal activity. Here, making illegal files difficult to access makes perfect sense for a suspected holder of child pornography. When combined with the 17 We do not suggest that password protecting an entire device--as opposed to files within a device--can be a factor supporting a reasonable suspicion determination. Using a password on a device is a basic means of ensuring that the device cannot be accessed by another in the event it is lost or stolen. App. 32 other circumstances, the fact that Officer Alvarado encountered at least one password protected file on Cotterman's computer contributed to the basis for reasonable suspicion to conduct a forensic examination. The existence of the password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of Cotterman's computer. The search was necessarily protracted because of the password protection that Cotterman employed. After Cotterman failed to provide agents with the passwords to the protected files and fled the country, it took Agent Owen days to override the computer security and open the image files of child pornography. Although we must take into account factors weighing both in favor and against reasonable suspicion, Cotterman's innocent explanation does not tip the balance. See Tiong, 224 F.3d at 1140 (recognizing that "innocent possibilities . . . do not undermine reasonable suspicion"). The dissent suggests that Cotterman's offer at the border "to help the agents access his computer" counsels against a finding of reasonable suspicion. Dissent at 80. The agents were appropriately wary of such an offer due to concerns that Cotterman could tamper with the devices. Nor did the agents' discovery of vacation photos eliminate the suspicion that Cotterman had engaged in criminal activity while abroad or might be importing child pornography into the country. Because the first examination of Cotterman's laptop, by Officer Alvarado, turned up nothing incriminating, Cotterman urges that any suspicion prompted by the TECS alert was dispelled by this initial failure. But the nature of the alert on Cotterman, directing agents to review App. 33 media and electronic equipment for child pornography, justified conducting the forensic examination despite the failure of the first search to yield any contraband. Collectors of child pornography can hardly be expected to clearly label such files and leave them in readily visible and accessible sections of a computer's hard drive, particularly when they are traveling through border crossings, where individuals ordinarily anticipate confronting at least a cursory inspection. Officer Alvarado, who was responsible for conducting the initial search, was specifically looking for photographs as described in the TECS hit but testified that he had only a slightly above-average familiarity with laptops. He could do no more than open a file, look at it and see if he could access it. He testified that "[i]f [he] encountered something that [he] could not access, then [he] would reference it to somebody that may have that ability to look at [it]." That is precisely what occurred here. Officer Alvarado came across passwordprotected files but, unable to open them, moved on to other files. Alvarado told Agent Riley about the password protection, and she and Agent Brisbine decided to seize the computers for further examination. The border agents "certainly had more than an inchoate and unparticularized suspicion or hunch" of criminal activity to support their decision to more carefully search for evidence of child pornography. Montoya de Hernandez, 473 U.S. at 542 (internal quotation marks and citation omitted). An alert regarding possession of this type of criminal contraband justified obtaining additional resources, here available in Tucson, to properly determine whether illegal files were present. App. 34 Unlike the dissent, we credit the agents' observations and experience in acting upon significant myriad factors that support reasonable suspicion. It is not our province to nitpick the factors in isolation but instead to view them in the totality of the circumstances. For the above reasons, we conclude that the examination of Cotterman's electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment. Cotterman's motion to suppress therefore was erroneously granted. REVERSED. CALLAHAN, Circuit Judge, concurring in part, dissenting in part, and concurring in the judgment, with whom CLIFTON, Circuit Judge, joins, and with whom M. SMITH, Circuit Judge, joins as to all but Part II.A: Whether it is drugs, bombs, or child pornography, we charge our government with finding and excluding any and all illegal and unwanted articles and people before they cross our international borders. Accomplishing that Herculean task requires that the government be mostly free from the Fourth Amendment's usual restraints on searches of people and their property. Today the majority ignores that reality by erecting a new rule requiring reasonable suspicion for any thorough search of electronic devices entering the United States. This rule flouts more than a century of Supreme Court precedent, is unworkable and unnecessary, and will severely hamstring the government's ability to protect our borders. App. 35 I therefore dissent from Part III of the majority's opinion. I concur in Parts I, II, and IV, and in particular the majority's conclusion in Part IV that the government had reasonable suspicion to conduct the forensic examination of Howard Cotterman's electronic devices. I therefore also concur in the judgment. I. Over the last 125 years, the Supreme Court has explained that the United States and its people have a "paramount interest" in national self-protection and an "inherent" right to exclude illegal and "unwanted persons and effects." United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004); see also United States v. Montoya de Hernandez, 473 U.S. 531, 537-40 (1985); United States v. Ramsey, 431 U.S. 606, 616-18 (1977); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971); Carroll v. United States, 267 U.S. 132, 154 (1925); Boyd v. United States, 116 U.S. 616, 623 (1886). Accordingly, "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border." Flores-Montano, 541 U.S. at 152. To effectuate this interest, the Supreme Court has recognized a broad exception to the Fourth Amendment's requirement of probable cause or a warrant for searches conducted at the border. Under that exception, searches of people and their property at the United States borders and their functional equivalents are per se reasonable, meaning that they typically do not require a warrant, probable cause, or even reasonable suspicion. Montoya de Hernandez, 473 U.S. at 538; see also Flores-Montano, 541 U.S. at App. 36 152-53; Ramsey, 431 U.S. at 616-18; United States v. Seljan, 547 F.3d 993, 999-1000 (9th Cir. 2008) (en banc), cert. denied, 129 S. Ct. 1368 (2009). In the long time that the Court has recognized the border search doctrine, the Court has found just one search at the border that required reasonable suspicion. See Montoya de Hernandez, 473 U.S. at 541 (upholdingthe 24-hour detention of a woman suspected of smuggling illegal drugs in her digestive system, followed by a pregnancy test and rectal examination, based on reasonable suspicion). In the remaining cases, the Court consistently has described the government's border search authority in very broad terms1 and 1 See, e.g., Flores-Montano, 541 U.S. at 152 ("The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border."); id. at 153 ("It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity."); Ramsey, 431 U.S. at 617 ("This interpretation, that border searches were not subject to the warrant provisions of the Fourth Amendment and were 'reasonable' within the meaning of that Amendment, has been faithfully adhered to by this Court."); id. at 620 ("The bordersearch exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country."); ThirtySeven (37) Photographs, 402 U.S. at 376 ("[A traveler's] right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search. Customs officers characteristically inspect luggage and their power to do so is not questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country."); Carroll, 267 U.S. at 154 ("Travelers may be so stopped in crossing an international boundary because of national self-protection App. 37 overturned the lower courts' attempts to cabin that authority.2 The Court also repeatedly has gone out of its way to explain that border searches generally are exempt from the limits it imposes on domestic searches. See, e.g., Flores-Montano, 541 U.S. at 154 ("[O]n many occasions, we have noted that the expectation of privacy is less at the border than it is in the interior."); Montoya de Hernandez, 473 U.S. at 539-40 ("But not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border." (internal and external citations omitted)); United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 125 (1973) ("Import restrictions and searches of persons or packages at the national borders reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in."). Even in Montoya de Hernandez the Court described the government's border search authority expansively. See 473 U.S. at 539-40, 542-44. 2 See, e.g., Flores-Montano, 541 U.S. at 152-55 (overturning the Ninth Circuit's conclusion that the border search of a gas tank required reasonable suspicion); Ramsey, 431 U.S. at 616-22 (overturning the D.C. Circuit's conclusion that the search of international mail required probable cause); Thirty-Seven (37) Photographs, 402 U.S. at 376 (relying in part on border search doctrine to overturn lower court's decision that statute barring the importation of obscene material was unconstitutional). App. 38 rest on different considerations and different rules of constitutional law from domestic regulations.").3 II. It is against this legal backdrop that we must assess the constitutionality of the government's search in this case. As with all searches subject to Fourth Amendment review, the constitutionality of a border search turns on whether it is reasonable. See Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) ("[T]he ultimate touchstone of the Fourth Amendment is 'reasonableness.'"). Under the border search doctrine, suspicionless border searches are per se reasonable. However, the Supreme Court has identified three situations in which they might not be per se reasonable, i.e., at least reasonable suspicion is required: 3 See also City of Indianapolis v. Edmond, 531 U.S. 32, 47-48 (2000) (explaining that decision barring domestic drug interdiction checkpoints "does not affect the validity of border searches or searches at places like airports"); United States v. Ross, 456 U.S. 798, 823 (1982) (explaining that while the Fourth Amendment gives protection to containers in domestic vehicles,"[t]he luggage carried by a traveler entering the country may be searched at random by a customs officer"); Torres v. Puerto Rico, 442 U.S. 465, 472-74 (1979) (distinguishing between United States-Puerto Rico border and international borders in holding unconstitutional the search of a traveler's luggage without "articulable suspicion"); United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) ("Except at the border and its functional equivalents, officers on roving patrol may stop vehicles" only with reasonable suspicion they contain illegal aliens); Almeida-Sanchez v. United States, 413 U.S. 266, 272-76 (1973) (distinguishing searches of vehicles at the border from a search that occurred 25 miles away); Carroll, 267 U.S. at 151-54 (distinguishing between interior and border searches of vehicles and persons). App. 39 (1) "highly intrusive searches of the person;" (2) destructive searches of property; and (3) searches conducted in a "particularly offensive" manner. FloresMontano, 541 U.S. at 152-56 & n.2. Although its opinion is not entirely clear, the majority appears to rely on the first and third exceptions to hold that the search at issue in this case required reasonable suspicion. (There is no claim that the government damaged or destroyed Cotterman's property.) But the exception for "highly intrusive searches of the person," Flores-Montano, 541 U.S. at 152, cannot apply here; "papers," even private ones in electronic format, are not a "person." See id. ("The reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over to vehicles."). That leaves the exception for searches conducted in a "particularly offensive" manner. Id. at 154 n.2. The majority relies primarily on the notion that electronic devices are special to conclude that reasonable suspicion was required. Majority at 20-28. The majority is mistaken. A. The majority correctly concludes that the government's forensic search in Tucson was not an extended border search, as the border agents retained custody of Cotterman's laptop.4 Id. at 9, 14-15. The 4 I agree with the majority that this case does not involve an extended border search. Unlike a border search, an extended App. 40 majority also states that "[i]t is the comprehensive and intrusive nature of a forensic examination--not the location of the examination--that is the key factor triggering the requirement of reasonable suspicion here." Majority at 17. The inclusion of the word "key" might be read to imply that some other factor, such as the location and duration of the search, contributed to its purported unreasonableness. I write to refute any such notion. First consider the facts. The border agents took Cotterman's electronic devices to the nearest computing center (to Tucson, where Cotterman and his wife were already traveling), before clearing them for entry into the United States. The computer specialist moved the search ahead of his other work and border search takes place at a location "away from the border where entry is not apparent, but where the dual requirements of reasonable certainty of a recent border crossing and reasonable suspicion of criminal activity are satisfied." United States v. Guzman-Padilla, 573 F.3d 865, 878-79 (9th Cir. 2009) (internal quotation marks and citation omitted), cert. denied, 131 S. Ct. 67 (2010). Reasonable suspicion is required precisely because the individual has regained an expectation of privacy by moving away from the border. See United States v. Villasenor, 608 F.3d 467, 471-72 (9th Cir.), cert. denied, 131 S. Ct. 547 (2010); United States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986). Here, there was no attenuation between Cotterman's border crossing and the forensic search of his electronic property; the government conducted that search before clearing the property for entry and before Cotterman could regain an expectation of privacy in that property. See 19 U.S.C. ? 1499 (providing that imported goods are permitted entry only after Customs clears them); United States v. Alfonso, 759 F.2d 728, 734 (9th Cir. 1985) ("Extended border searches occur after the actual entry has been effected and intrude more on an individual's normal expectation of privacy."). App. 41 conducted it over the weekend. Although the forensic search lasted five days, it took only 48 hours to discover the initial 75 images of child pornography. The agents were reasonably reluctant to rely on Cotterman's offer to help, since he might have deleted or otherwise made unrecoverable any contraband that his devices contained. The agents returned the devices as soon as they cleared them. Now consider the law. The Supreme Court has upheld the constitutionality of a police search of packages retrieved from an automobile, even though the police conducted their search three days after the police stopped the vehicle and at the police station. United States v. Johns, 469 U.S. 478, 485-88 (1985). The Court rejected the argument that "searches of containers discovered in the course of a vehicle search are subject to temporal restrictions not applicable to the vehicle search itself." Id. at 485. Although Johns involved a domestic automobile search based on probable cause, it still stands for the proposition, equally applicable to this case, that "the legality of the search was determined by reference to the [applicable] exception to the warrant requirement." Id. In the border search context, the Supreme Court, in upholding the lengthy detention of a person reasonably suspected of smuggling drugs in her digestive system at an airport, addressed whether that detention was "reasonably related in scope to the circumstances which justified it initially." Montoya de Hernandez, 473 U.S. at 542. The Court explained that: (1) "courts should not indulge in unrealistic second-guessing" when answering this question, as "[a]uthorities must be allowed to graduate their response to the demands of App. 42 any particular situation;" (2) the Court consistently has "refused to charge police with delays in investigatory detention attributable to the suspect's evasive actions;" and (3) "we have also consistently rejected hard-andfast time limits." Id. at 542-43 (quotation marks and citations omitted). The Court emphasized that, at the international border, "the Fourth Amendment balance of interests leans heavily to the Government" because the government is charged not just with investigating crime but with "protecting this Nation from entrants who may bring anything harmful into this country." Id. at 544. Finally, any "length" or "discomfort" associated with a border search does not offend the Fourth Amendment when it "result[s] solely from the method by which [a traveler] cho[oses] to smuggle [contraband] into this country." Id. Any suggestion that the government's search here was "particularly offensive" due to the location and duration of the search runs counter to the Supreme Court's admonitions in Johns and Montoya de Hernandez. It also effectively requires the government to supply every port of entry with the equipment and staff needed to conduct forensic electronic searches, or at least to have such equipment and staff waiting at a nearby location. Such a requirement is unreasonable, particularly since the record in this case suggests that a forensic search of Cotterman's electronic devices at the border station would have taken longer than the search at the Tucson computing center.5 See United 5 The district court found that the government could have conducted the forensic search at the Lukeville border station. United States v. Cotterman, No. CR 07-1207-TUC-RCC, 2009 WL App. 43 States v. Hill, 459 F.3d 966, 974-75 (9th Cir. 2006), cert. denied, 127 S. Ct. 1863 (2007) (discussing problems inherent in requiring police to bringwith them equipment to search electronic media); cf. Johns, 469 U.S. at 486-87 (explaining that requiring police officers to immediately inspect all packages "would be of little benefit to the person whose property is searched"). B. The majority's opinion turns primarily on the notion that electronic devices deserve special consideration because they are ubiquitous and can store vast quantities of personal information. That idea is fallacious and has no place in the border search context. The Supreme Court has been willing to distinguish only between border searches of people and property, not between different types of property. In 2004, in Flores-Montano, the Court explained that 465028, at *1 (D. Ariz. Feb. 24, 2009). The court presumably based this finding on testimony that the computer specialist who conducted the forensic examination had a specially-equipped laptop. However, the specialist testified that using his laptop at the border station, rather than transporting Cotterman's electronic devices to the Tucson computer center, would have taken "a lot longer" because the laptop was "not nearly as extensive as what I have in my lab," the "processor in my laptop is much slower" than the lab equipment, and "I could only do one computer at a time with the laptop." Technical difficulties also could have slowed down an examination conducted at the border station. App. 44 the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" search of a vehicle, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles. 541 U.S. at 152. We have since applied Flores-Montano to hold that any distinction between "routine" and "nonroutine" searches does not apply to searches of property, and that there can be no "least restrictive means" test for border searches. United States v. Chaudhry, 424 F.3d 1051, 1054 (9th Cir. 2005), cert. denied, 547 U.S. 1083 (2006); United States v. CortezRocha, 394 F.3d 1115, 1122-23 (9th Cir. 2004), cert. denied, 546 U.S. 849 (2005).6 Put another way, the Supreme Court--and, reluctantly, this court--have refused to adopt a sliding "intrusiveness" scale for border searches of property. Thus, the Court has all but 6 In 1985, the Supreme Court wrote about the government's "plenary authority to conduct routine searches and seizures at the border." Montoya de Hernandez, 473 U.S. at 537 (emphasis added); see also id. at 541 n.4 ("Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches.") (emphasis added). We unfortunately seized on the word "routine" to establish a sliding scale of intrusiveness, with more intrusive (i.e., less "routine") searches requiring reasonable suspicion. See, e.g., United States v. MolinaTarazon, 279 F.3d 709, 711-13 (9th Cir. 2002). Flores-Montano plainly repudiated that approach. App. 45 held that property that crosses the border, whatever it is, does not merit Fourth Amendment protection. Of course, Flores-Montano, Chaudhry, and CortezRocha involved vehicles or parts of vehicles, not electronic devices, and the other border search cases that have reached the Supreme Court all involved containers of some sort. See, e.g., Ramsey, 431 U.S. at 616-22 (mail); Thirty-Seven (37) Photographs, 402 U.S. at 376 (luggage). And yes, the Court has left open the possibility that a border search might be "''unreasonable' because of the particularly offensive manner in which it is carried out.'" Flores-Montano, 541 U.S. at 154 n.2 (quoting Ramsey, 431 U.S. at 618 n.13). But is the mere fact that Cotterman chose to save his child pornography electronically, rather than print it out on paper, enough to invoke that exception? The two courts of appeals--including this court--that have had occasion to address whether electronic devices deserve special consideration have correctly concluded that they do not. In United States v. Arnold, 533 F.3d 1003, 1008-10 (9th Cir. 2008), cert. denied, 555 U.S. 1176 (2009), we held that laptops are like other property, relying on the reasoning and language in Flores-Montano, Chaudhry, and CortezRocha discussed above (among other cases). Similarly, in United States v. Ickes, 393 F.3d 501, 503-07 (4th Cir. 2005), the Fourth Circuit upheld an extensive border search of the defendant's laptop that revealed child pornography. Notably, the court held that the border agents had reasonable suspicion to search the defendant's laptop, but explained why that did not matter: App. 46 The agents did not inspect the contents of Ickes's computer until they had already discovered marijuana paraphernalia, photo albums of child pornography, a disturbing video focused on a young ball boy, and an outstanding warrant for Ickes's arrest. As a practical matter, computer searches are most likely to occur where--as here--the traveler's conduct or the presence of other items in his possession suggest the need to search further. However, to state the probability that reasonable suspicions will give rise to more intrusive searches is a far cry from enthroning this notion as a matter of constitutional law. The essence of border search doctrine is a reliance upon the trained observations and judgments of customs officials, rather than upon constitutional requirements applied to the inapposite context of this sort of search. Id. at 507. Thus, the Fourth Circuit has recognized what the majority does not: electronic devices are like any other container that the Supreme Court has held may be searched at the border without reasonable suspicion.7 Though we are not bound by Arnold nor Ickes in this en banc proceeding, we are bound by what the Supreme Court has said: in the unique context of border searches, property is property and we may not chip away at the government's authority to search it by adopting a sliding scale of intrusiveness. It's the border, not the technology, that "matters." Majority at 7 I agree with Judge Smith that the majority's opinion appears to create an imprudent split with the Fourth Circuit. See Dissent at 58. App. 47 24; cf. Ramsey, 431 U.S. at 620 ("It is clear that there is nothing in the rationale behind the border-search exception which suggests that the mode of entry will be critical."). Logic and commonsense, not just Supreme Court precedent, reveal the flaws in the majority's opinion. The fact that electronic devices are capable of storing a lot of personal information does not make an extensive search of them "particularly offensive." We have squarely rejected the idea that the "intrusiveness" of a search depends in whole or in part on the nature of the property being searched. In United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), we specifically rebuffed the argument that computers are special for Fourth Amendment purposes by virtue of how much information they store; "neither the quantity of information, nor the form in which it is stored, is legally relevant in the Fourth Amendment context." Id. at 888; see also California v. Carney, 471 U.S. 386, 393-94 (1985) (rejecting applying Fourth Amendment protection to property (a mobile home) that is "capable of functioning as a home" simply on account of the property's size or "worth[iness]" as a container); United States v. Payton, 573 F.3d 859, 864 (9th Cir. 2009) ("Giberson held that computers were not entitled to a special categorical protection of the Fourth Amendment."); Kyllo v. United States, 533 U.S. 27, 41(2001) (Stevens, J., dissenting) (explaining that Fourth Amendment exceptions and distinctions based solely on a type of technology are "unwise[ ] and inconsistent with the Fourth Amendment"). While Giberson and Carney involved domestic searches, their reasoning applies equally in the border App. 48 search context. If the government may search the contents of a briefcase, car, or mobile home that transits the border, there is no reason it should not also be able to search the contents of a camera, tablet, or laptop that enters the country. All of those things are capable of storing, and often do store, private information. See Ross, 456 U.S. at 823 ("The luggage carried by a traveler entering the country may be searched at random by a customs officer; the luggage may be searched no matter how great the traveler's desire to conceal the contents may be." (emphasis added)). The majority points out that electronic devices can and usually do store much more private information than their non-electronic counterparts. Majority at 17-24. But "a port of entry is not a traveler's home," Thirty-Seven (37) Photographs, 402 U.S. at 376, even if a traveler chooses to carry a home's worth of personal information across it.8 Moreover, a 8 The element of choice is crucial. The fact that border searches occur at fixed times and checkpoints makes them inherently less intrusive; a person "with advance notice of the location of a permanent checkpoint has an opportunity to avoid the search entirely, or at least to prepare for, and limit, the intrusion on her privacy." Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 463 (1990) (Stevens, J., dissenting); see also Montoya de Hernandez, 473 U.S. at 544 ("Respondent's detention was long, uncomfortable, indeed, humiliating; but both its length and its discomfort resulted solely from the method by which she chose to smuggle illicit drugs into this country."). The element of choice goes to the more fundamental issue of whether someone can have any reasonable expectation of privacy when he or she voluntarily carries electronic equipment across the border. Border officers are permitted to examine a written diary, and someone who wants to keep the contents of a diary secret App. 49 bright-line rule distinguishing electronic from nonelectronic devices--of the sort the Supreme Court has made clear has no place in Fourth Amendment jurisprudence, Ohio v. Robinette, 519 U.S. 33, 39 (1996)--is arbitrary; there is no reason someone carrying a laptop should receive greater privacy protection than someone who chooses (or can only afford) to convey his or her personal information on paper. In short, today the court erects a new bright-line rule: "forensic examination" of electronic devices "at the border requires reasonable suspicion." Majority at 17; see also id. at 21 n.10. The majority never defines "forensic," leaving border agents to wonder exactly what types of searches are off-limits.9 Even if the majority means to require reasonable suspicion for any type of digital forensic border search, no court has ever should know not to take it across the border. The same should be true for personal data stored on a laptop or other electronic device rather than a written diary. Moreover, the fact that the Fourth Amendment does not apply in foreign countries further weakens any claim to a reasonable expectation of privacy in property that crosses the United States border. Carrying an electronic device outside the United States almost always entails carrying it into another country, making it subject to search under that country's laws. Travelers expect these intrusions, or at least their possibility. 9 See Darrin J. Behr, Anti-Forensics: What it Does and Why You Need to Know, 255 N.J. Law. 9, 10 (Dec. 2008) ("Due to the fact that there are hundreds of digital forensic investigation procedures developed all over the world, digital forensics has yet to be defined."). App. 50 erected so categorical a rule, based on so general a type of search or category of property, and the Supreme Court has rightly slapped down anything remotely similar. The majority invites--indeed, requires--the Court to do so again.10 III. The majority's holding contravenes Supreme Court precedent, defies logic and commonsense, and is unworkable. It is also unnecessary and will impair the federal government's ability to protect our borders. As Judge Smith points out in his dissent, "[b]order patrol agents process hundreds of thousands of travelers each day and conduct thousands of searches on electronic devices each year." Dissent at 61-62 (citation omitted). All the evidence in this case suggests that the government does not have the resources--time, personnel, facilities, or technology--to exhaustively search every (or even a majority) of the electronic devices that cross our borders. Cf. Ickes, 393 F.3d at 507. Unless we somehow manage to solve our fiscal problems, and unless the government somehow manages to acquire better technology at a faster pace than the rest of us, these restraints will continue. That means border agents must prioritize who, what, and how they search. By and large, border agents will conduct forensic electronic searches of people who, like 10 I note that a case currently pending in the Sixth Circuit appears to raise similar issues as this case. See United States v. Stewart, No. 12-1427 (6th Cir. filed Apr. 5, 2012); see also United States v. Stewart, 715 F. Supp. 2d 750 (E.D. Mich. 2010). App. 51 Howard Cotterman, the agents reasonably suspect may be trying to carry illegal articles into, or themselves illegally enter, the country.11 That agents typically will have reasonable suspicion is, of course, "a far cry from enthroning this notion as a matter of constitutional law." Ickes, 393 F.3d at 507. The majority finds this reality check to be of "little comfort[;] [i]t is the potential unfettered dragnet effect that is troublesome." Majority at 25. But that abstract risk, which exists with any exception to the Fourth Amendment, does not justify a bright-line rule requiring reasonable suspicion for any thorough search of electronic devices entering the United States. See Robinette, 519 U.S. at 39 ("[W]e have consistently eschewed bright-line rules, instead emphasizing the 11 Testimony from the suppression hearing in this case suggests that remote and/or intensive searches of electronic devices crossing the border do not occur all that often. For example, the computer specialist who conducted the forensic search of Cotterman's laptop testified that the search was the first one he was asked to conduct in his 18 months on the job at the Tucson computer center. (He added that at his previous post at San Francisco International Airport, forensic searches were done right at the airport.) Similarly, one of the border agents testified that this was the first case he was aware of in which electronic devices were turned over to Immigrations and Customs Enforcement for forensic examination, and that even cursory reviews of laptops for information about illegal drug trading occurred "no more than five" times during agent's three-plus years at the Lukeville border station. See Michael Chertoff, Secretary of Homeland Security, Searches Are Legal, Essential, USA Today, July 16, 2008 ("Of the approximately 400 million travelers who entered the country last year, only a tiny percentage were referred to secondary baggage inspection for a more thorough examination. Of those, only a fraction had electronic devices that may have been checked."). App. 52 fact-specific nature of the reasonableness inquiry."); see also Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them."). Moreover, border agents are not free to undertake "unfettered crime-fighting searches or an unregulated assault on citizens' private information." Majority at 26. As I explained in my concurrence in Seljan, Congress and the Executive Branch have (and have exercised) the authority to restrict when and how border agents conduct searches. See Seljan, 547 F.3d at 1012 (Callahan, J., concurring) (citing, e.g., 19 U.S.C. ? 1583; 19 C.F.R. ? 145.3(b)-(c)); see also Yule Kim, Cong. Research Serv. RL34404, Border Searches of Laptop Computers and Other Electronic Storage Devices, 13-14 (2009) (describing recent legislative proposals to limit border searches of electronic devices). In a similar vein, Justice Breyer has noted that "Customs keeps track of the border searches its agents conduct, including the reasons for the searches. This administrative process should help minimize concerns that [border] searches might be undertaken in an abusive manner." Flores-Montano, 541 U.S. at 156 (Breyer, J., concurring) (internal citation omitted).12 12 See also U.S. Customs & Border Protection, Directive No. 3340049, Border Search of Electronic Devices Containing Information, 3-9 (2009) (describing procedures for, and limits on, border searches of electronic devices). App. 53 Apart from being unnecessary, the majority's new limits on the government's border search authority will make it much harder for border agents to do their jobs, for at least two reasons. First, it is common knowledge that border agents at security checkpoints conduct more thorough searches not simply of those persons who arouse suspicion but also of a percentage of travelers on a random basis. Otherwise, a person who appears entirely innocent will have nothing to fear and will not be deterred from carrying something that should not be brought into the country. A checkpoint limited to searches that can be justified by articulable grounds for "reasonable suspicion" is bound to be less effective. Second, courtesy of the majority's decision, criminals now know they can hide their child pornography or terrorist connections in the recesses of their electronic devices, while border agents, fearing Fourth Amendment or Bivens actions, will avoid conducting the searches that could find those illegal articles. The result will be that people and things we wish to keep out of our country will get in--a result hardly in keeping with our "inherent authority to protect, and a paramount interest in protecting," the "territorial integrity" of the United States. FloresMontano, 541 U.S. at 153. The border search doctrine must account for the fact that border agents may need time and forensics to bypass "evasive actions" a criminal has taken to hide contraband or other illegal articles from plain view. Montoya de Hernandez, 473 U.S. at 542-43. I would rather leave those difficult decisions "to the discretion of the officers in the field who confront myriad circumstances we can only begin to imagine from the relative safety of our chambers." App. 54 United States v. Williams, 419 F.3d 1029, 1034 (9th Cir.), cert. denied, 546 U.S. 1081 (2005).13 IV. The border search exception to the Fourth Amendment may be just that--an exception--but it is, and must be, a mighty one. The government's right and duty to protect our nation's territorial integrity demand that the government have clear authority to exclude--and thus to find--those people and things we have decided are offensive, threatening, or otherwise unwanted. Recognizing this, the Supreme Court has only once required reasonable suspicion for border searches in the 125 years it has been reviewing them. In the remaining cases, the Court has eschewed bright13 The majority insists that reasonable suspicion is a "modest, workable standard" that is applied in domestic stops of automobiles "and other contexts," and that still allows "agents to draw on their expertise and experience." Majority at 26, 27 n.14. The majority is wrong for at least three reasons. First, in making this argument, the majority reveals that it does not appreciate the crucial differences between domestic and border searches, despite those differences being spelled out in a century of case law. Those differences range from the legitimate expectation of privacy that people have in their property to the constraints government officials face in searching it. Second, a reasonable suspicion standard injects unnecessary judicial review where previously it was absent. Third, just because border agents could apply the reasonable suspicion standard does not mean they are, or should be, constitutionally compelled to do so. See Ickes, 393 F.3d at 507; cf. Seljan, 547 F.3d at 1011 (Callahan, J. concurring) (explaining that requiring border agents to apply a First Amendment exception to border searches "would require them to engage in the sort of decision-making process that the Supreme Court wished to avoid in sanctioning expansive border searches"). App. 55 line rules, balancing tests, and sliding intrusiveness scales, alluding to the possibility of, but never finding, a "particularly offensive" search. The fact that electronic devices can store large amounts of private information, or that the government can search them forensically, does not make a thorough search of such devices "particularly offensive." Rather, the Supreme Court and this court have wisely avoided making the reasonableness of a search turn on the nature of the property being searched, for the many reasons discussed above. The result has been a clear, wellunderstood, efficient, and effective rule that border searches are per se reasonable. Regrettably the majority, dispensing with these well-settled, sensible, and binding principles, lifts our anchor and charts a course for muddy waters. Now border agents, instead of knowing that they may search any and all property that crosses the border for illegal articles, must ponder whether their searches are sufficiently "comprehensive and intrusive," Majority at 17, to require reasonable suspicion, and whether they have such suspicion. In most cases the answer is going to be as clear as, well, mud. We're due for another course correction. M. SMITH, Circuit Judge, dissenting, with whom CLIFTON and CALLAHAN, Circuit Judges, join with respect to Part I: I respectfully dissent. Until today, federal courts have consistently upheld suspicionless searches of electronic storage devices at the border. See United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008), cert. denied, 555 U.S. 1176 (2009) ("[R]easonable App. 56 suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border."); see also United States v. Ickes, 393 F.3d 501, 507 (4th Cir. 2005) (no finding of reasonable suspicion required to search personal computers and disks at border); United States v. Linarez-Delgado, 259 Fed. Appx. 506, 508 (3d Cir. 2007); United States v. McAuley, 563 F. Supp. 2d 672, 677-78 (W.D. Tex. 2008); United States v. Bunty, 617 F. Supp. 2d 359, 365 (E.D. Pa. 2008). Yet the majority ignores these cases, rewrites long standing Fourth Amendment jurisprudence, and, in narrowing Arnold, creates a circuit split. While I share some of the majority's concerns about the steady erosion of our personal privacy in this digital age, the majority's decision to create a reasonable suspicion requirement for some property searches at the border so muddies current border search doctrine that border agents will be left to divine on an ad hoc basis whether a property search is sufficiently "comprehensive and intrusive" to require reasonable suspicion, or sufficiently "unintrusive" to come within the traditional border search exception. Requiring border patrol agents to determine that reasonable suspicion exists prior to performing a basic forensic examination of a laptop or other electronic devices discourages such searches, leaving our borders open to electronically savvy terrorists and criminals who may hereafter carry their equipment and data across our borders with little fear of detection. In fact, the majority opinion makes such a legal bouillabaisse out of the previously unambiguous border search doctrine, that I sincerely hope the Supreme Court will grant certiorari, and reverse the holding in this case App. 57 regarding the level of suspicion necessary to search electronic devices at the border, for the sake of our national security, and the consistency of our national border search law. The Supreme Court rejected our last attempt to narrow the border search exception, cautioning us not to create "complex balancing tests" for border searches of property except in the rarest of cases, where the search is "so destructive as to require" reasonable suspicion. United States v. Flores-Montano, 541 U.S. 149, 152, 156 (2004) (rejecting our proposed reasonable suspicion requirement in United States v. MolinaTarazon, 279 F.3d 709, 713-17 (9th Cir. 2002)). "Time and again" the Court has concluded that border searches are "'reasonable simply by virtue of the fact that they occur at the border.'" Id. at 152-53 (quoting United States v. Ramsey, 431 U.S. 606, 616 (1977)). Despite the Court's clear ruling on the issue, the majority again seeks to whittle away at the border search exception, this time by conjuring a reasonable suspicion requirement for border searches that employ computer software to search an electronic storage device. Why the use of computer software to analyze a hard drive triggers a reasonable suspicion requirement while a "manual review" of the same hard drive requires no suspicion, is left unexplained. Although technology may serve as a useful proxy for the intrusiveness of a search today, in the future even cursory searches might be more efficiently conducted by the use of such technology. Under the majority's reasonable suspicion standard, individuals' privacy rights are only as secure as the sophistication of the government's current search mechanism. App. 58 Moreover, the task of distinguishing these "comprehensive and intrusive" laptop searches from the "unintrusive search" of a laptop affirmed in Arnold, 533 F.3d at 1008, or the search of a private letter affirmed in United States v. Seljan, 547 F.3d 993, 1003 (9th Cir. 2008) (en banc), leaves border patrol officers with a difficult choice: either protect our nation from those who mean us harm, or risk their own jobs and livelihood in a Bivens action, or disciplinary proceedings. Apart from being administratively impractical, the majority's reasonable suspicion requirement disregards well established border search jurisprudence, and undermines vital national security interests. Ironically, the majority did not even need to consider the border search doctrine in this case because the search at issue in this case did not occur at the border. Separately, but importantly, the majority's application of the reasonable suspicion requirement to Cotterman is also troubling. The majority purports to be concerned with travelers' "personal privacy and dignity," but its determination that reasonable suspicion exists under the exceedingly weak facts of this case undermines the liberties of U.S. citizens generally--not just at the border, and not just with regard to our digital data--but on every street corner, in every vehicle, and wherever else we rely on the doctrine of reasonable suspicion to safeguard our legitimate privacy interests. I. The Border Search Doctrine The majority heralds this as a "watershed" case that requires a narrowing of the border search exception to App. 59 accommodate the privacy interests allegedly created by new technologies. Yet despite the majority's attempts to avoid the fact, the border search exception is clear and inflexible. The Supreme Court has repeatedly affirmed the breadth of the border search doctrine, extending a reasonable suspicion requirement only to: (1) "highly intrusive searches of the person"; (2) "searches of property [that] are so destructive as to require" reasonable suspicion; and (3) searches carried out in a "particularly offensive manner"--of which the Court has yet to find an example. Flores-Montano, 541 U.S. at 152, 154 n.2, 156 (quotations and citations omitted) (emphasis added). The majority misconstrues these narrowly-defined exceptions, reading Flores-Montano to require reasonable suspicion whenever a search of property is deemed "overly intrusive." Majority at 18-19. Yet, the exceptions articulated in Flores-Montano are far more circumscribed--applying not to "overly intrusive" searches of property, like the search of Cotterman's computer, but only to "highly intrusive searches of the person." Flores-Montano, 541 U.S. at 152 (emphasis added). The majority's adoption of a reasonable suspicion requirement to "comprehensive forensic examination[s]" of property is irreconcilable with Flores-Montano. Majority at 6. We have consistently rejected a reasonable suspicion requirement for border searches of expressive materials, such as papers and their modern-day equivalent--the data contained on electronic storage devices. See, e.g., Seljan, 547 F.3d at 1003 ("An envelope containing personal correspondence is not uniquely protected from search at the border."); Arnold, App. 60 533 F.3d at 1008 ("[R]easonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border."). The majority states that its en banc decision narrows Arnold to permit only "relatively simple" border searches of laptops, and "not to countenance suspicionless forensic examinations." Majority at 14 n.6. In narrowing Arnold, however, the court creates a circuit split regarding the application of reasonable suspicion to border searches of electronic devices. See United States v. Ickes, 393 F.3d 501 (4th Cir. 2005); see also United States v. Linarez-Delgado, 259 Fed. Appx. 506, 508 (3d Cir. 2007). For instance, in Ickes (as in Arnold) the defendantappellant argued that a reasonable suspicion requirement was necessary for laptop searches at the border because otherwise "any person carrying a laptop computer [] on an international flight would be subject to a search of the files on the computer hard drive." Ickes, 393 F.3d at 506-07. The Fourth Circuit rejected this argument, noting that "[a]s a practical matter, computer searches are most likely to occur where--as here--the traveler's conduct or the presence of other items in his possession suggest the need to search further. However, to state the probability that reasonable suspicions will give rise to more intrusive searches is a far cry from enthroning this notion as a matter of constitutional law. The essence of border search doctrine is a reliance upon the trained observations and judgments of customs officials, rather than upon constitutional App. 61 requirements applied to the inapposite context of this sort of search." Id. at 507 (emphasis added). The Third Circuit similarly rejected a reasonable suspicion requirement for border searches of electronic data, albeit in an unpublished opinion. See United States v. LinarezDelgado, 259 Fed. Appx. 506, 508 (3d Cir. 2007) ("Data storage media and electronic equipment, such as films, computer devices, and videotapes, may be inspected and viewed during a reasonable border search.") (citing Ickes, 393 F.3d 501). Because the majority has narrowed our holding in Arnold that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," Arnold, 533 F.3d at 1008, the Ninth Circuit stands alone, as it so often does. The majority likens the search of Cotterman's laptop to a "computer strip search," Majority at 25, and proceeds to conflate the law regarding property searches with that regarding "highly intrusive searches of the person." Flores-Montano, 541 U.S. at 152. However, the "reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over" to laptops, which know no dignity or shame, and thus have neither of those interests. FloresMontano, 541 U.S. at 152 (emphasis added). Moreover, even genuine strip searches do not necessarily require reasonable suspicion at the border. See United States v. Montoya de Hernandez, 473 U.S. 531, 541 n.4 (1985) (expressly declining to decide "what level of suspicion, App. 62 if any, is required for . . . strip, body cavity, or involuntary x-ray searches") (emphasis added). The majority's decision to insulate electronic storage devices from the border search exception unsettles the border search doctrine, places inappropriate burdens on law enforcement, reduces deterrence, and raises serious national security concerns. It also ignores the realities of electronic data transmission and the reduced privacy expectations that accompany much of this data, particularly at the border where "[t]he government's interest in preventing the entry of unwanted persons and effects is at its zenith." FloresMontano, 541 U.S. at 152. A. Burdens on Law Enforcement The majority's holding cripples law enforcement at the border by depriving border patrol agents of the clear administrative guidance they need to carry out core law enforcement activities. "Officers who interact with those suspected of violating the law have an essential interest in readily administrable rules." Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1522 (2012). Yet the majority's holding requires border patrol agents to determine on a case-by-case and moment-by-moment basis whether a search of digital data remains "unintrusive," a la Arnold, or has become "comprehensive and intrusive," a la Cotterman. Majority at 14, 17. Requiring law enforcement to make such complex legal determinations on the spot, and in the face of potentially grave national security threats, strips agents of their necessary discretion and deprives them of an efficient and administrable rule. App. 63 The majority dismisses the burden its reasonable suspicion requirement places on law enforcement, asserting that agents can simply "draw on their expertise and experience" to make the necessary judgment calls. Majority at 26. Yet rather than actually deferring to this expertise and experience, the majority forces border patrol agents to justify their decisions under a heightened standard that has never before been applied to border searches of property. Border patrol agents process hundreds of thousands of travelers each day and conduct thousands of searches on electronic devices each year.1 Identifying national security and criminal threats at the border requires a high level of experience and discretion in order to recognize and respond to the ever-changing tactics of those who seek to enter our country with nefarious intent. In recognition of these crucial interests, the border search exception provides law enforcement with broad discretion to conduct border searches of property without resorting to case-by-case determinations of reasonable suspicion-- determinations border patrol agents are ill-equipped to handle. See generally Florence, 132 S. Ct. at 1522 (rejecting reasonable suspicion requirement for prison strip-searches under this rationale). Moreover, as a practical matter, suspicionless border searches of property make sense, in light of the sheer number of individuals crossing the border with electronic devices each day. See United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976) (requiring reasonable suspicion for 1 Department of Homeland Security Privacy Office, Annual Report to Congress 54 (2009). App. 64 vehicle checkpoints near the Mexican border "would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car"). Given these realities of law enforcement at the border, a reasonable suspicion requirement for all "overly intrusive" electronic searches is simply not practicable. B. National Security Concerns The majority's decision to insulate electronic devices from search at the border creates serious national security concerns. An "ever present threat exists from the potential for terrorists to employ the same s m uggling and transportation netw or k s , infrastructure, drop houses, and other support" as other illegal aliens. U.S. Customs and Border Protection, National Border Patrol Strategy 5 (2005). The Department of Homeland Security has found that border searches of electronic storage devices are "essential" for "detect[ing] evidence relating to terrorism and other national security matters."2 Terrorists rely on electronic storage devices, for example, to copy and alter passports and other travel documents.3 By providing special privacy protections for electronic devices at the border, the majority eliminates the powerful deterrent of suspicionless searches and significantly aids technologically savvy 2 U.S. Customs and Border Protection, Border Search of Electronic Devices Containing Information, CBP Directive No. 3340-049 ? 1 (2009). 3 Thomas R. Eldridge, et al., 9/11 and Terrorist Travel: Staff Report of the National Commission on Terrorist Attacks Upon the United States 60 (2004). App. 65 terrorists and criminals who rely on encryption and other surreptitious forms of data storage in their efforts to do harm. See Martinez-Fuerte, 428 U.S. at 557 (rejecting reasonable suspicion requirement for vehicle checkpoints near the Mexican border because to hold otherwise "would largely eliminate any deterrent to the conduct of well-disguised smuggling operations"). The majority contends that the goal of deterrence does not justify "any manner of intrusive search" at the border. Majority at 26. Although I certainly agree with the majority that a policy objective like deterrence cannot justify an otherwise unconstitutional "highly intrusive search[] of the person" at the border, FloresMontano, 541 U.S. at 152, the crucial role of deterrence cannot, and should not, be understated. In fact, the Supreme Court recently affirmed the importance of deterrence in upholding suspicionless strip searches--the apotheosis of an intrusive search. Florence, 132 S. Ct. at 1516 (rejecting reasonable suspicion requirement for prison strip searches and reasoning that "deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions"). The suspicionless strip search upheld in Florence, which included a close visual inspection of "the buttocks or genital areas," was unquestionably more intrusive than the so-called "computer strip search" at issue here. Id. at 1515. The majority contends that the deterrence function of suspicionless searches will not be hampered by the requirement of reasonable suspicion because, "as a matter of commonsense and resources, it is only when reasonable suspicion is aroused that such searches typically take place." Majority at 27 n.14. This is, of App. 66 course, the very argument rejected by the Fourth Circuit in Ickes. See Ickes, 393 F.3d at 507 ("As a practical matter, computer searches are most likely to occur where--as here--the traveler's conduct or the presence of other items in his possession suggest the need to search further. However, to state the probability that reasonable suspicions will give rise to more intrusive searches is a far cry from enthroning this notion as a matter of constitutional law."). In addition to undermining deterrence, a reasonable suspicion requirement will likely disincentivize agents to conduct laptop searches in close cases. See Florence, 132 S. Ct. at 1522 ("To avoid liability" if required to find reasonable suspicion, "officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population."). Border patrol agents accused of conducting an "unreasonable" search face very real consequences--as federal officials, for example, they may be sued in their individual capacities for civil damages, as part of a Bivens4 action. See Ronald J. Sievert, Meeting the Twenty-First Century Terrorist Threat Within the Scope of Twentieth Century Constitutional Law, 37 Hous. L. Rev. 1421, 1424 (2000). The majority's reasonable suspicion requirement saddles border patrol agents with a "Sophie's choice" between securing our nation, and protecting their own livelihoods. These misaligned incentives create unnecessary risk, not just for a prison 4 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). App. 67 population, as in Florence, 132 S. Ct. at 1522, but for our entire nation. C. Expectation of Privacy in Electronic Data at the Border The majority suggests that travelers at the border have a heightened expectation of privacy in their electronic storage devices, due to the "uniquely sensitive nature of [this] data." Majority at 25. There is no question that searches of electronic data are protected by the Fourth Amendment, but we have never found this data to be immune from the border search exception. In fact, these electronic storage devices are hardly a bastion of privacy. When connected to the Internet, they transmit a massive amount of intimate data to the public on an almost constant basis, rendering it unremarkable that they can be searched at the border, where "[t]he government's interest in preventing the entry of unwanted persons and effects is at its zenith." FloresMontano, 541 U.S. at 152. Indeed, Facebook, for example, now has more than 500 million users, who share more than 25 billion pieces of data each month.5 Those who opt out of social networking sites are no less susceptible to the ubiquitous Internet cookie, which collects data on users' Internet activities to share or sell with other 5 Jeffrey Rosen, The Deciders: Facebook, Google, and the Future of Privacy and Free Speech, in Constitution 3.0: Freedom and Technological Change (Constitution 3.0) 76 (Jeffrey Rosen & Benjamin Wittes eds., Brookings Institution Press 2011). App. 68 organizations. Max Stul Oppenheimer, Consent Revisited, 13 No. 12 J. Internet L. 3, 4 (2010). Until recently, a federally funded data accumulation system allowed clients to "search tens of billions of data records on individuals and businesses in mere seconds."6 Considering the steady erosion of our privacy on the Internet, searches of electronic storage devices may be increasingly akin to a well-placed Internet search. Ironically, the majority creates a zone of privacy in electronic devices at the border that is potentially greater than that afforded the Google searches we perform in our own homes, and elsewhere. The majority muses that "[a] person's digital life ought not be hijacked simply by crossing the border," Majority at 22, but it fails to explain why electronic data deserves special protections when we have never extended such protections to the same data in written form. See Seljan, 547 F.3d at 1003 ("An envelope containing personal correspondence is not uniquely protected from search at the border."); see also United States v. Tsai, 282 F.3d 690, 696 (9th Cir. 2002) (no reasonable suspicion needed to search a traveler's briefcase); United States v. Grayson, 597 F.2d 1225, 1228-29 (9th Cir. 1979) (no reasonable suspicion needed to search papers found in a shirt pocket); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967) (no reasonable suspicion needed to search a traveler's "purse, wallet, or pockets"). The documents 6 Christopher Slobogin, Is the Fourth Amendment Relevant?, in Constitution 3.0 18 (citing Laura K. Donohue, Anglo-American Privacy and Surveillance, 96 J. Crim. L. & Criminology 1059, 1150-51 (2006)). App. 69 carried on today's smartphones and laptops are different only in form, but not in substance, from yesterday's papers, carried in briefcases and wallets. The majority contends that electronic devices hold data of a "uniquely sensitive nature" and that, inexplicably, these devices have the "capability to . . . augment the expectation of privacy." Majority at 23, 25. Under the majority's reasoning, the mere process of digitalizing our diaries and work documents somehow increases the "sensitive nature" of the data therein, providing travelers with a greater expectation of privacy in a diary that happens to be produced on an iPad rather than a legal pad. Such artificial and arbitrary distinctions cannot serve as a reasonable basis for determining privacy rights at the border. The majority attempts to distinguish electronic devices from papers by the vast amount of data they can hold, noting that "[a] car full of packed suitcases . . . cannot hold a candle to the sheer, and everincreasing, capacity of digital storage." Majority at 21. Yet, "case law does not support a finding that a search which occurs in an otherwise ordinary manner, is 'particularly offensive' simply due to the storage capacity of the object being searched." Arnold, 533 F.3d at 1010. The majority contends that it "discuss[es] the typical storage capacity of electronic devices simply to highlight the features that generally distinguish them from traditional baggage." Majority at 21 n.10. Yet why the majority would bother to distinguish between the storage capacities of electronic devices and traditional luggage is a mystery, unless to support its enhanced protections for electronic devices based on their greater storage capacity. App. 70 Mapping our privacy rights by the amount of information we carry with us leads to unreasonable and absurd results. Under the majority's reasoning, a Mini Cooper filled with documents is entitled to less privacy protection at the border than a stretch RollsRoyce filled with documents; a pickup truck filled with documents is entitled to less protection than an 18 wheeler filled with documents. It appears that those who cannot afford a 64 gigabyte iPad, or the "average" 400 gigabyte hard drive discussed by the majority, Majority at 20, will alone be subject to suspicionless searches. The majority's reasoning also protects the rich (who can generally afford more sophisticated devices) to a greater extent than the poor (who are presumably less able to afford those more capable devices.) See United States v. Ross, 456 U.S. 798, 822 (1982) ("[A] traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim[s] an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case."). If our privacy interests are to be dictated by the quantity of data we possess, the question then becomes, how many gigabytes of storage must one buy to secure the guarantee that reasonable suspicion will be required before one's devices are searched? The majority gives us no firm basis for deciding how much storage space is necessary--32 gigabytes? 64 gigabytes? 400 gigabytes? Who knows? Moreover, the majority's test must constantly change to accommodate the everincreasing capacity of electronic storage and new technologies. Before we know it, today's "average" 400 gigabyte hard drive will look like yesterday's diary next to tomorrow's "average" 2 terabyte hard drive. App. 71 The majority asserts that our "reasonableness determination must account for differences in property." Majority at 24. This assertion has no basis in law, however, since Flores-Montano distinguished not between types of property, but between searches of property and "searches of the person." Flores-Montano, 541 U.S. at 152 (emphasis added). In any event, it appears that the majority's reasonableness requirement accounts not for "differences in property," as it suggests, but rather for differences in the intrusiveness of a particular property search. As discussed supra, however, these intrusiveness-based tests have no place in border searches of property and have been explicitly rejected by the Supreme Court as "[c]omplex balancing tests." Flores-Montano, 541 U.S. at 152. The majority additionally speculates about the privacy implications of searching an external cloud platform, which may "includ[e] the same kind of highly sensitive data one would have in 'papers' at home." Majority at 23. I share the majority's keen interest in the Fourth Amendment implications of this burgeoning technology, but the reasonableness of cloud computing has no bearing on the case at hand, absent any facts that Cotterman utilized such a platform, or that such a platform was searched. II. Waiver There is another important issue in this case that is separate from the majority's new standard for border searches. Specifically, I refer to the majority's finding that there was reasonable suspicion to search Cotterman's computer and other electronic devices, App. 72 miles from the border. In its zeal to cripple the application of the current border search doctrine, while still securing Cotterman's conviction, the majority turns on their heads all the parties' arguments about reasonable suspicion as to Cotterman, and the findings made by the lower courts concerning that suspicion. First, the majority now stakes its holding on a finding of reasonable suspicion--despite the fact that the government knowingly and unequivocally conceded on appeal any argument that the computer search was supported by reasonable suspicion. Second, the majority's determination that reasonable suspicion was required under the border search exception is contrary to every argument raised by either party in its briefs prior to our request for supplemental briefing. Third, even the majority seems to concede that the search of Cotterman's own computer that actually occurred at the border did not involve a computer with sufficient storage capacity, and was not sufficiently intrusive, to require reasonable suspicion, under its "new" border search doctrine. Thus, it need not have treated, nor altered, the current border search exception. Fourth, the Magistrate Judge's Report and Recommendation, adopted by the District Judge, did not conclude that reasonable suspicion was required under the border search exception. Despite all the above, the majority upholds Cotterman's conviction on grounds that the government had reasonable suspicion to extensively search his computer 170 miles from the border. Being mindful that the government has the burden of proof in this case, not the majority of our panel, I would have heeded the government's strategic, good faith decision App. 73 to abandon on appeal its argument that reasonable suspicion existed.7 The majority claims that Cotterman has not been prejudiced--despite the fact that the majority's finding of reasonable suspicion is the raison d'?tre for his conviction--because Cotterman was allowed to file a supplemental brief on the matter after oral argument. Although I concede that what the majority did is technically permissible, see U.S. Nat'l Bank of Oregon v Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law") (citations and quotations omitted), it is clear to me that Cotterman has been severely prejudiced, because his conviction is based solely on an issue the government conceded, and that Appellant, and the lower courts, took for granted because it was not needed for a border search. It is the majority of our panel, not the government, that prosecuted the reasonable suspicion issue in this case. III. Extended Border Search The extended border search doctrine applies to "searches that do not occur at the time of entry or in the immediate vicinity of the border." United States v. Alfonso, 759 F.2d 728, 735 (9th Cir. 1985). Because 7 When asked during oral argument why it failed to argue reasonable suspicion on appeal, the government acknowledged that the issue was a "close" one. App. 74 these searches "intrude more on an individual's normal expectation of privacy," reasonable suspicion is required. Id. at 734. The majority's mutation of the border search exception is especially unnecessary given that this search did not occur at the border, but rather 170 miles away from the border and five days after the border was crossed. Indeed, the majority concedes that the government could have performed the forensic computer search at the border, but instead chose to transport Cotterman's electronics more than 170 miles away. By labeling this a border search, the majority has conjured a sort of "floating border," whereby any item initially seized at the border, but not cleared there, can be transported thousands of miles away and searched anywhere, and at any time, simply because the government did not find anything (or enough) during its original search at the border. Because the search at issue occurred neither "at the time of entry or in the immediate vicinity of the border," it is more appropriately analyzed as an extended border search. See Alfonso, 759 F.2d at 735. The majority asserts that this case cannot be analyzed as an extended border search because Cotterman's computer was never "cleared" at the border prior to search. Majority at 15. The majority is mistaken. In United States v. Cardona, 769 F.2d 625, 628 (9th Cir. 1985), we applied the extended border search doctrine to a search of a Federal Express package that occurred twenty-four hours before the scheduled border crossing, and 3,000 miles from the border. See 769 F.2d at 628 ("Considering the distance and time factors of the present case, we conclude that App. 75 the facts of this case should be analyzed under the extended border search doctrine."). While this case presents issues we have not yet addressed in the context of an extended border search, United States v. Alfonso is squarely on point. In Alfonso, the government conducted an initial, cursory search of a ship upon its arrival at the Los Angeles harbor. Alfonso, 759 F.2d at 732. Thirty-six hours later, while still docked at the port, officials conducted a second, more intrusive search. Id. Tasked with determining whether the second search was an extended border search or a search at the functional equivalent of the border, we noted that "the instant case illustrates the difficulty of making sharp distinctions in this area." Id. at 735. We determined that "[a]lthough we have no difficulty in relating this site with the border, we shall, because of the time factor--the lapse of thirty-six hours in conducting the searches--examine the facts under the rules of extended border search." Id. at 734. The majority suggests that cases like Alfonso are distinguishable from the case at issue because those cases wrestled with distinguishing between a functional border search and an extended border search, whereas this case involves distinguishing between a traditional border search and an extended border search. This is a distinction without a difference since, as the majority acknowledges, there is no operative difference between border searches and searches that occur at the functional equivalent of the border, at least for purposes of determining whether a search is an extended border search. App. 76 I would hold that the search which took place 170 miles from the border, five days after crossing--a much greater lapse than the thirty-six hours in Alfonso--requires this case to be analyzed as an extended border search. Additionally, the reasonable suspicion requirement already applies to extended border searches, in recognition of the fact that such searches "intrude more on an individual's normal expectation of privacy." Id. As such, the extended border search doctrine is aptly suited to address the privacy expectations at issue in this case. IV. Reasonable Suspicion Irrespective of the government's concession of the issue, the evidence in this case falls woefully short of reasonable suspicion. "[R]easonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion." United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). We assess reasonable suspicion under the totality of the circumstances, "tak[ing] into account both factors weighing for and against reasonable suspicion." United States v. ManzoJurado, 457 F.3d 928, 938 (9th Cir. 2006). We "will defer to officers' inferences only when such inferences rationally explain how the objective circumstances 'aroused a reasonable suspicion that the particular person being stopped had committed or was about to commit a crime.'" Manzo-Jurado, 457 F.3d at 934-35 (quoting Montero-Camargo, 208 F.3d at 1129) (alterations omitted). "Reasonable suspicion may not be based on broad profiles which cast suspicion on entire categories of people without any individualized App. 77 suspicion of the particular person to be stopped." United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2001) (internal quotations and citations omitted). I agree with the majority that reasonable suspicion was not needed to conduct the initial search of Cotterman's computer at the border, and that we analyze reasonable suspicion only as to the second search (the majority would say a continuation of the initial search,) which took place 170 miles from the border and several days after the border crossing. The majority's reasonable suspicion finding appears to be based solely on the TECS alert: it states that "the nature of the alert on Cotterman, directing agents to review media and electronic equipment for child pornography, justified conducting the forensic examination despite the failure of the first search to yield any contraband." Majority at 33. Thus, the majority pins reasonable suspicion on the TECS alert, dismisses out of hand the numerous factors weighing against reasonable suspicion, and paves the way for a government database to target "entire categories of people without any individualized suspicion of the particular person to be stopped." Sigmond-Ballesteros, 285 F.3d at 1121 (internal quotations and citations omitted) (emphasis added). The majority considers the TECS alert to be a sufficient basis for reasonable suspicion, but in reality, it is nothing more than a mechanism that automatically flags all individuals who are registered sex offenders in California--no matter the nature of the sex offense or how old the App. 78 conviction--who travel frequently.8 California is home to more than 106,000 sex offenders.9 Some of these individuals are required to register as sex offenders for life. Depending on how many of them travel frequently, a TECS hit could affect tens of thousands of Californians--many with decades-old convictions. The TECS database clearly hits on "a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure." Reid v. Georgia, 448 U.S. 438, 441 (1980). By allowing reasonable suspicion to rest entirely on the TECS alert, the majority rules that a decades-old conviction can serve as a basis to deprive a person of his or her property for an indefinite period, so that a "border search" may be conducted hundreds of miles from the border. The majority suggests that the TECS alert informed border patrol agents of the nature of Cotterman's 8 The TECS alert is part of Operation Angel Watch, a program that targets California residents who are registered sex offenders based on the suspicion that those individuals who travel internationally are engaging in child sex tourism. The majority at one point improperly lists "the parameters of the Operation Angel Watch program" as an independent factor supporting reasonable suspicion. Majority at 30-31. We must look solely at the underlying facts supporting reasonable suspicion--i.e., Cotterman's status as a sex offender and his frequent travel--rather than the database or mechanisms used to deliver that information. 9 Press Release, National Center for Missing and Exploited Children, Number of Registered Sex Offenders in the US Nears Three-Quarters of a Million (Jan. 23, 2012). App. 79 conviction. In fact, the TECS hit did not state the nature of Cotterman's conviction, although one agent mistakenly recollected that "it stated that [Cotterman] appeared to [sic] been involved in some type of child pornography." Curiously, another agent stated that a criminal history check on Cotterman revealed that "that he had a prior conviction pertaining to child pornography." In fact, and despite the erroneous contentions of the referenced agents, Cotterman had no prior child pornography conviction; he had a 15-yearold conviction for sexual conduct with a minor. While we generally give "due weight to inferences drawn" by law enforcement, Ornelas v. United States, 517 U.S. 690, 699 (1996), the case for deference is questionable here in the absence of any rational explanation as to how the officers could have read the TECS alert and criminal history check, neither of which listed a conviction for child pornography, and come away thinking that Cotterman was guilty of that offense. See Manzo-Jurado, 457 F.3d at 934-35 ("[W]e will defer to officers' inferences only when such inferences rationally explain how the objective circumstances aroused a reasonable suspicion."); see also Liberal v. Estrada, 632 F.3d 1064, 1078 (9th Cir. 2011) (mistake of fact must be reasonable). All things considered, the fact that an individual with a 15-year-old sex conviction was also a frequent traveler appears to be a rather weak lynchpin for reasonable suspicion. Yet, other than Cotterman's prior conviction and travels, the factors cited by the majority are far too generalized to provide even an indicia of suspicion that Cotterman was involved in sex tourism. For instance, the majority considers Cotterman's "collection of electronic equipment" to be a factor App. 80 supporting reasonable suspicion. In today's world, the fact that Cotterman and his wife each carried a laptop and digital camera when traveling internationally, as well as one video camera between them,10 is no more evidence of "sex tourism" than of any other kind of tourism. Similarly, the fact that Cotterman was returning from Mexico fails to support a finding of reasonable suspicion. Mexico is a popular travel destination for Californians, including those who travel to Mexico for its beaches, culture and weather, and not for its sex tourism. Travel to Mexico simply does not support reasonable suspicion without more specific evidence that Cotterman traveled to a particular establishment, city, or even region, associated with sex tourism. See United States v. Irving, 452 F.3d 110, 114, 124 (2d Cir. 2006) (finding reasonable suspicion based on knowledge that suspect, a convicted pedophile and the subject of criminal investigation, had visited an orphanage in Mexico and had luggage with children's books and drawings). According to the Department of Justice, American sex tourism is a problem not only in Mexico, but also in Southeast Asia, Central and South America, and, to a lesser extent, Eastern Europe.11 Under the majority's application of reasonable suspicion, an individual who committed a sex offense 30 years ago cannot visit the Charles Bridge in Prague, the Cristo Redentor in Rio de Janeiro, or even the "lost 10 11 The video camera was apparently Mrs. Cotterman's. U.S. Department of Justice, The National Strategy for Child Exploitation Prevention and Interdiction, A Report to Congress 36 (2010). App. 81 city" of Machu Picchu, without arousing a "reasonable" suspicion of sex tourism. Someone who was convicted of tax evasion 15 years ago, or any other kind of conviction listed on a federal database, and particularly one that involved the use of a computer, should also probably avoid visiting Switzerland or Luxemburg under the majority's new standard. The bottom line is that thousands of individuals--many with decades-old convictions--will now be forced to reconsider traveling to entire countries or even continents, or will need to leave all their electronic equipment behind, to avoid arousing a "reasonable" suspicion. Perhaps the most concerning aspect of the majority's opinion, especially given its stated stance on privacy rights at the border, is its readiness to strip former sex offenders and others convicted of past crimes (and who are, theoretically, entitled to be presumption of innocence) of even the most basic of privacy rights, such as the right to password-protect their electronic devices. The majority acknowledges that "it is commonplace for business travelers, casual computer users, students and others to password protect their files" and that "password protection is ubiquitous." Majority at 31. It avers that "[n]ational standards require that users of mobile electronic devices password protect their files," and that "[c]omputer users are routinely advised--and in some cases, required by employers--to protect their files when traveling overseas." Majority at 31 (emphasis added). Yet because border patrol agents encountered a single password-protected file on Cotterman's computer, the majority considers password protection App. 82 a factor contributing to reasonable suspicion.12 Worse still, the majority contends that it is justified in considering the password-protected file because "making illegal files difficult to access makes perfect sense for a suspected holder of child pornography." Majority at 32. I fail to see how the agents had reasonable suspicion that Cotterman's computer contained "illegal files" based solely on his 15-year-old sex offense, travel to Mexico with his wife, and the "ubiquitous" act of password-protection. Indeed, as the majority acknowledges, making legal files difficult to access makes "perfect sense" for anyone, even former sex offenders. I would find a password-protected file to be not at all suspicious, unless we want to start basing reasonable suspicion on locked diaries and briefcases. Registered sex offenders face numerous consequences as a result of their convictions, but the law has never before punished them for using "ubiquitous" and "commonplace" password-protection. Yet under the majority's analysis, an individual traveling to Southeast Asia for business, who happens to be subject to one of TECS's broad-based alerts, and who follows his company's security protocols, should expect to have his electronic equipment seized and transported hundreds of miles away.13 12 The unequivocal testimony of Agent Antonio Alvarado confirms that only a single password-protected file was discovered on Cotterman's computer at the border. 13 The majority finds ironic my concern about the expansiveness of its reasonable suspicion standard, since at the border, I would advocate for no suspicion at all. The majority is correct that at the App. 83 Moreover, the majority fails to consider reasonable suspicion in light of the totality of the circumstances because it dismisses without explanation numerous factors that weigh against a finding of reasonable suspicion in this case. See Manzo-Jurado, 457 F.3d at 938 (the reasonable suspicion determination must "take[] into account both factors weighing for and against reasonable suspicion.") (emphasis added). At the time the border patrol agents commenced the second search, 170 miles away from the border, any suspicions they may have initially harbored against Cotterman would have been largely addressed by their interrogations of Cotterman and his wife, which produced nothing suspicious. An initial search of Cotterman's computer and the digital cameras turned up nothing more than a single password protected file and photos of "whale hunting and various excursions," all of which corroborated Cotterman's story about vacationing in Mexico. Also during this initial search, one of the border patrol agents did a records check and discovered that Cotterman's conviction for the sex offense had occurred more than 15 years ago. Cotterman was fully cooperative and even offered to help the agents access his computer. The majority contends that Cotterman's offer to help does not weigh against a finding of reasonable suspicion because the agents declined Cotterman's offer based on the possibility--however slight--that Cotterman could border, my concern is simply with following Flores-Montano and maintaining national security. I view the majority's application of its reasonable suspicion requirement as a separate issue, and my concern there is that the majority has so diluted the reasonable suspicion requirement as to undermine the rights of U.S. citizens generally. App. 84 "booby trap" the devices. That the agents were unable to accept Cotterman's offer, however, does not change the reasonable inference that his offer was a genuine one. Accordingly, it is irrelevant whether there was reasonable suspicion for the initial search, because I agree with the majority that reasonable suspicion was not required. The relevant inquiry here is what suspicion existed after all of Cotterman's electronics were searched, and he and his wife were interrogated separately, and every piece of evidence obtained corroborated the Cottermans' story about vacationing in Mexico. The only hint of suspicion remaining at that point--after the initial border search and interrogations--was the single password-protected file, which I agree with the majority is insufficient, by itself, to sustain a finding of reasonable suspicion. See Manzo-Juardo, 457 F.3d at 935 ("[T]o establish reasonable suspicion, an officer cannot rely solely on generalizations that, if accepted, would cast suspicion on large segments of the lawabiding population."). V. Conclusion Reasonable suspicion has no place in property searches at the border, as the Supreme Court has consistently held. See Flores-Montano, 541 U.S. at 152-53 ("Time and time again, we have stated that searches made at the border, pursuant to the longstanding 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."). Imposing a reasonable suspicion requirement here forces courts App. 85 and border patrol agents to engage in just the "sort of decision-making process that the Supreme Court wished to avoid in sanctioning expansive border searches." Seljan, 547 F.3d at 1011 (citation omitted) (Callahan, J. concurring). Rather than rewrite the border search exception, as the majority does, I would affirm the district court's application of the extended border search doctrine to Cotterman's case, which appears most appropriate given the extensive lapse in distance and time between the first and the second search. Additionally, I would hold the government to its burden of proof in determining that reasonable suspicion was absent here. Under the doctrine of this case, the majority sweeps in thousands of innocent individuals whose electronic equipment can now be taken away from the border and searched indefinitely, under the border search exception. I respectfully dissent. App. 86 APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CR 07-1207-TUC-RCC [Filed February 24, 2009] ___________________________ United States of America, ) ) Plaintiff, ) ) vs. ) ) Howard Wesley Cotterman, ) ) Defendant. ) ___________________________) ORDER This case presents a unique challenge to the concept of a border search. The magistrate did an excellent job in analyzing the facts of this case. This court has reviewed the entire case de novo and comes to the following conclusions. 1. The search can only be justified by way of a border search because there was no probable cause at all to allow the search of the computer. App. 87 2. The decision to search was based upon a TECS hit out of California that was based upon the fact that the defendant had a 15 year old child molestation conviction, and something called Operation Angel Watch directed the search. 3. The search could have been done, (while not necessarily to the convenience of the agents) at the border because the technician could have traveled down from Tucson with his laptop computer to do the analysis. 4. The defendant and his wife waited more than 8 hours at the border to be finally told that the computer was going to be taken to Tucson even though he offered to help access the computer at the border. This offer was declined by the agents. 5. The search of the computer took at least 48 hours to yield results. 6. It cannot be said in this case that Tucson became the functional equivalent of the border. 7. Because Tucson did not become the functional equivalent of the border some 170 miles away, the Court agrees with the Magistrate Judge that the evidence should be suppressed, and adopts the Report and Recommendation. Therefore, IT IS ORDERED ADOPTING the Magistrate Judge's Report and Recommendation (#58). App. 88 IT IS FURTHER ORDERED AS FOLLOWS: 1. GRANTING Defendant's Motion to Suppress (#17) 2. The Government shall return the copy of Mrs. Cotterman's computer and retain no copy of it. 3. The Government shall return the copies of the Cotterman's personal papers that were photocpied at the border and retain no copies. DATED this 23rd day of February, 2009. /s/ Raner C. Collins Raner C. Collins United States District Judge App. 89 APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CR 07-1207-TUC-RCC (CRP) [Filed September 12, 2008] ____________________________________ UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) HOWARD WESLEY COTTERMAN, ) ) Defendant. ) ____________________________________) REPORT AND RECOMMENDATION Defendant has filed a Motion to Suppress Evidence (Doc 17) seeking to suppress all evidence seized from him by Customs Inspections at the Lukeville Port of Entry. The Government opposes the Motion. (Doc 39). This Court recommends that the District Judge, after his independent review and consideration, enter an order GRANTING the Motion for the reasons set forth in this Report. App. 90 STATEMENT OF FACTS Howard and Maureen Cotterman entered the Lukeville Port of Entry ("POE") seeking admission to the United States on April 6, 2007 at 9:57 a.m. In primary, a Treasury Enforcement Communication System ("TECS") hit was observed based on Mr. Cotterman's convictions for child sex crimes in 1992. Based on the TECS hit, the Cottermans were referred to secondary. At secondary, the Cottermans were told to exit the car, leave all their belongings in the car and they were not to touch those belongings until they were allowed to leave. (TR 31). The Cottermans were told to wait in the small lobby at the POE. They were not handcuffed, but since they could not access their car, for pragmatic purposes they were not free to leave. Two border inspectors searched the contents of the Cotterman's car for one and a half to two hours. Among other things, they found three cameras and two laptop computers which they turned over to Agent Alvarado for inspection. The inspectors also found personal papers, possibly financial records or time-share information, which they photocopied. Those photocopies are still maintained in the case agent's file. (TR 29). Agent Alvarez examined the cameras and laptops, but was unable to discover any contraband. However, on one of the computers, certain files were password protected. Agent Alvarez then went on to attend to other duties. App. 91 The TECS hit was referred through the ICE chain of command and finally assigned to Sells duty agent Mina Riley. Agent Riley and her supervisor, Agent Craig Brisbine, traveled to Lukeville, arriving about 3:30 p.m. At Lukeville, Ms. Riley interviewed Mr. and Mrs. Cotterman separately. Mr. Cotterman offered to assist in accessing his computer, but Agent Riley declined due to concerns that Mr. Cotterman might be able to sabotage the computer. (TR 38, 50). Two computers and one camera were seized. Agent Brisbine drove the laptop computers and camera to Tucson, arriving between 10:30 p.m. and 11:00 p.m. He turned the equipment over to John Owen for forensic evaluation, which Owen began immediately. The Cottermans were finally allowed to leave Lukeville at approximately 6:00 p.m. Owen continued the forensic examination on Saturday and Sunday. On Saturday he determined there was no contraband on the camera, and it was returned that day to the Cottermans. On Sunday it was determined that there was no contraband on Mrs. Cotterman's laptop. However, 75 images of child pornography were found on Mr. Cotterman's laptop in unallocated space. Mrs. Cotterman's laptop was returned Monday morning. However, a copy of the laptop was made by Owen and is still in his file, even though nothing illicit was found on her computer. (TR 63). Mr. Cotterman was asked to come to the Tucson ICE office and provide the passwords. Mr. Cotterman indicated he would have to call some business associates to get the App. 92 password(s), and would be in later. Actually, at noon on Monday, Howard Cotterman boarded a plane for Mexico, ultimately traveling to first Japan, and then Australia. As of Monday morning, Agent Brisbine did not believe he had probably cause to arrest Howard Cotterman. (TR 37). Agent Riley testified that she determined before she arrived in Lukeville that the Cotterman's computers would be taken to Tucson for forensic evaluation. (TR 40). Agent Alvarado believed he was required to turn over the computers to the ICE agents to be taken for forensic evaluation because of the instructions from Pacific Intel in connection with the TECS hit. (TR 100-101). Agent Brisbine determined that "one way or another" those computers were going to Tucson because ICE field guidelines, Exhibit L, required it. (TR 115). Forensic specialist Owen was at work in Tucson on April 6, 2007, and was notified at work sometime around lunch that the laptop computers would be brought in. (TR 73). He was not asked to travel to Lukeville. POSITIONS OF THE PARTIES Defendant argues that the search of his laptop 170 miles from the port of entry over a period of four days is a non-routine border search requiring reasonable suspicion. (Motion, p 4). Defendant argues that searching a laptop is the equivalent of a body cavity search because a laptop is likely to hold an individual's most private thoughts and information. Defendant also argues First Amendment interests are implicated. (Motion, p 5). Defendant also argues that the statutory App. 93 authority for customs officers to seize contraband, 19 U.S.C. ? 482, requires that the officer find contraband before making the seizure. (Motion, p 7). Additionally, Defendant argues that a search warrant should have been obtained prior to conducting the forensic exam of the laptops. (Motion, p 9). The Government's primary argument is that this was a border search and thus no individualized suspicion was required to conduct the search of the camera and computers. (Response, pp 9-10). The Government argues that the border search authority justified the warrantless forensic exam of the computers without reasonable suspicion. (Response, pp 11-13). The Government offers several other arguments that are circular or not supported by the facts. For instance, the Government argues that once the items were properly seized they can be searched: Here by statute and case law, the agents had a duty to seize the items for further examination. Once properly seized, the further forensic exam of these items was proper and the evidence found is admissible. (Response, p 14.) This argument begs the question, were the items properly seized? The Government also argues that exigent circumstances justified the seizure and forensic examination of the computers. The exigent circumstance was the need to identify the victim and ensure her safety. (Response, p 17). Here again, the App. 94 Government puts the cart before the horse. The Government had no information that there was a potential victim until after several days of computer forensic examination. The Government also argues that after the agents found contraband, they were authorized by statute to secure the items for trial. (Response, p 18). This is correct, but once again avoids the issue raised by Defendant's Motion, did the agents discover the contraband without violating the Defendant's Constitutional rights? Finally, the Government argues that Defendant abandoned the compact discs ("cds") and laptop computer when he fled to Australia. Having abandoned the property, the Government argues he has no standing to bring this motion. ANALYSIS Border Search Requirements In United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), the Ninth Circuit Court of Appeals held that reasonable suspicion was not required to search a laptop computer belonging to an international traveler arriving at Los Angeles International Airport. The Court noted that "searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment." Arnold, 523 F.3d at 945. The Fourth Circuit came to the same conclusion. United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). Two other similar cases supported the legal doctrine that under the App. 95 border search exception, a computer or computer diskettes ("cds") could be searched at an international border, or its functional equivalent without probable cause, reasonable suspicion, or a warrant. United States v. Romm, 455 F.3d 990 (9th Cir. 2006); United States v. Roberts, 274 F.3d 1007 (5th Cir. 2001). All four of these cases are distinguished from this case because evidence of child pornography was discovered physically at the border within a few hours of examining the laptop. In Arnold, ICE agents questioned Arnold for several hours and "examined the computer equipment and found numerous images depicting what they believed to be child pornography." Arnold, 523 F.3d at 943. They released Arnold, seized the laptop and memory devices, and two weeks later obtained a search warrant, presumably to justify a full computer forensic examination. Id. In Ickes, customs officers discovered video footage of a tennis match that focused excessively on a young ball boy, as well as photo albums of nude, or semi-nude, provocatively posed prepubescent boys. While in custody at the port of entry, Ickes admitted he stored child pornography on the computer. Ickes, 393 F.3d at 503. In Romm, Canadian border agents discovered child pornography on Romm's laptop and excluded him from entry into Canada. Romm was detained until he could be put on the next flight to Seattle. Canadian border agents informed U.S. Customs of when Romm would be arriving and what contraband he had in his possession. ICE conducted a preliminary analysis of Romm's laptop App. 96 at Seattle-Tacoma International Airport and discovered 10 images of child pornography. Thereafter, while still at Sea-Tac Airport, Romm confessed to downloading child pornography on the computer in question. Romm, 455 F.3d at 994-995. In Roberts, customs agents in Houston were advised by customs agents in Lake Charles, Louisiana and a sheriff's deputy from Natchitoches, Louisiana, that Roberts would be traveling from the international airport in Houston to Paris, and that Roberts would be carrying cds containing child pornography in his shaving kit. At a preliminary inspection at the Houston airport, customs investigators found six cds in Roberts' shaving kit. Roberts soon thereafter admitted there was child pornography on the computer diskettes. Roberts, 274 F.3d at 1009-1010. In all four of these cases, evidence of child pornography was found at the border inspection station or the international airport and within a matter of hours. In this case, the first evidence of child pornography was discovered 170 miles from the Lukeville port of entry, and at least two days afer the Cottermans entered the United States. This case poses the question, can the government seize property at the border, move it far away from the border and hold the property for days, weeks or months without any heightened scrutiny? Under those circumstances, the law requires the Government to have reasonable suspicion before extending the search in both distance and time away from the border. App. 97 The Government argues that the search was neither offensive nor unreasonable, so reasonable suspicion is not required. It is true that the conduct of the officers was reasonable and in fact responsive to ICE field guidelines. (Exhibit L. Response, p 16). Moreover, there was no destruction of Defendant's property. This is not a case of a body cavity search where reasonable suspicion would be required because of the personal intrusiveness of the search. United States v. Montoya deHernandez, 473 U.S. 531, 105 S.Ct. 3304 (1985). Defendant argues that searching his laptop is the equivalent of a more intrusive search that requires reasonable suspicion, because the First Amendment is implicated by this incursion into his most private matters. (Motion, p 5). However, in Ickes, the Court reasoned there was no First Amendment exception to the border search doctrine. Ickes, 393 F.3d at 506. The Court in Arnold, found this reasoning persuasive. Arnold, 523 F.3d at 941. The Government's position is that under the facts of this case, the search of Defendant's laptop required no suspicion at all under the border search exception. In oral argument at the end of the evidentiary hearing, AUSA Mihok warned the Court that a time and distance restriction on border searches would be establishing new law. Given the parties' briefing, the Court assumed that to be correct. It is not. Extended Border Searches Under certain circumstances, searches that take place away from the border or remote in time from the initial inspection can still be considered border App. 98 searches. This involves two related doctrines: the functional equivalent of the border and the extended border search doctrine. United States v. Alfonso, 759 F.2d 728, 734 (9th Cir. 1985). The most common example of the functional equivalent of a border search is at airports for flights arriving directly from or traveling directly to a foreign country. Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982). A search at the functional equivalent of a border requires no warrant, probable cause or any suspicion. Id. When a search is removed in time and place from the border, the courts have repeatedly held that this represents a greater intrusion on the person requiring that under the totality of the circumstances, customs officers had reasonable suspicion of criminal activity in order to justify the search, the so-called "extended border search." United States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986); United States v. Cardona, 769 F.2d 625, 628 (9th Cir. 1985); United States v. Alfonso, 759 F.2d 728, 734 (9th Cir. 1985); United States v. Bilir, 592 F.2d 735, 740-741 (9th Cir. 1979). As the Court in Alfonso stated: We recognize, of course, that time and place are relevant, since the level of suspicion for extended border searches is stricter than the standard for ordinary border searches. Extended border searches occur after the actual entry has been effected and intrude more on an individual's normal expectation of privacy. Therefore, App. 99 extended border searches must be justified by "reasonable suspicion" that the subject of the search was involved in criminal activity, rather than simply mere suspicion or no suspicion. Alfonso, 759 F.2d at 734. In Alfonso, the search took place thirty-six hours after the ship docked at Los Angeles harbor. At some point, the discrepancy in time and distance will become so great that it is no longer an extended border search, thus requiring probable cause and a warrant. Again, there is no bright line test, but an examination of the totality of circumstances, including time, distance and law enforcement efforts is required. Alfonso, 759 F.2d at 736; United States v. Sahanaja, 430 F.3d 1049, 1054-1055 (9th Cir. 2005). For instance, had the forensic examiner in this case placed the Cottermans electronics equipment at the end of the queue, conducting the examination in a month or two, it could be argued the search was so removed in time as to no longer be an extended border search. We need not reach that question here, where the facts show reasonable diligence and speed in conducting the computer forensic examination. Therefore, the Government need only show reasonable suspicion, not probable cause, to justify the search in this case. Reasonable Suspicion Reasonable suspicion is more than mere suspicion, but less than probable cause. Reasonable suspicion exists when an officer is aware of specific, articulable facts, which together with objective and reasonable inferences, form a basis for suspecting that the App. 100 particular person to be detained has committed or is about to commit a crime. United States v. Salinas, 940 F.2d 393, 394 (9th Cir. 1991), See also Terry v. Ohio, 392 U.S. 1, 21 (1968) (To justify a warrantless search, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.") The determination whether reasonable suspicion exists must be based on "the totality of the circumstances - the whole picture." United States v. Cortez, 449 U.S. 411, 417 (1981). The facts are to be interpreted in light of a trained officer's experience, and the whole picture must be taken into account. United States v. Sokolow, 490 U.S. 1, 8 (1989). In a motion to suppress the Government bears the burden of proving a warrantless search satisfies the constitutional protections of the Fourth Amendment against unreasonable searches and seizures. Vale v. Louisiana, 399 U.S. 30, 34 (1970). To protect against unreasonable searches and seizures the Government must prove probable cause to a judge or magistrate prior to the search or it must prove the warrantless search fell within "a few specifically established and well-delineated exceptions". Mincey v. Arizona, 437 U.S. 385, 390 (1978). In Alfonso, reasonable suspicion was based on a confidential informant's information, which was confirmed in part by a federal wiretap, thirty-six hours of extensive surveillance of suspicious activity by people connected with the ship, and two separate stops of people leaving the ship with containers holding large amounts of cocaine. Alfonso, 759 F.2d at 731-733. In Sahanaja, ICE agents suspected a package contained App. 101 contraband because the described contents were different from what the package appeared to hold, an odor coming from the package, the fact that the mail carriers who handled the package became nauseated, the ostensible recipient's refusal to open the package in the presence of postal employees and the multiple inquiries by different people who were not the addressee concerning the package. Sahanaja, 430 F.3d at 1054. In this case, there are only two circumstances that support any suspicion; the TECS hit reflecting Howard Cotterman's 1992 conviction for child molestation and the existence of password protected files on his laptop computer. After almost two hours of searching the Cotterman's car and electronic equipment, no basis for suspicion was determined, other than the existence of the password protected files. Using password protection can be for legitimate purposes as well as nefarious purposes. In fact, the witnesses at the hearing conceded that legitimate use of password protection on laptop computers was commonplace. It is clear that the TECS hit alone does not establish reasonable suspicion. The fact that password protection has innocent explanations does not necessarily negate this from being considered in determining reasonable suspicion. However, in this case, the additional fact of password protected files on Howard Cotterman's computer does not amount to reasonable suspicion for three reasons. First, it is undisputed that Howard Cotterman offered to open the files at the Lukeville port of entry. Second, the facts App. 102 show that Officer Riley had determined that she was taking both laptops in for a forensic evaluation before she left Sells to travel to Lukeville. (TR 40; p See also Exhibit B, Kelly Witness Statement, p 12) ("[Riley] informed us she and another agent were in route to our Port, and would be there in approximately two hours to interview subjects and taken (sic) into custody the laptops.") Third, perhaps most importantly, the customs officers also seized Mrs. Cotterman's laptop, which was not password protected. That these officers acted so presumptively, without even considering whether they had reasonable suspicion to seize any of the electronic equipment that day, is consistent with ICE field guidelines, reenforced by the boilerplate on the Custom and Border Protection Witness Statements. Exhibit L, admitted without objection, is a March 15, 2007, Memorandum to field special agents from Marcy M. Foreman, Director, Office of Investigations for ICE. The subject of the memo is "Field Guidance on Handling Detained or Seized Electronic Media from Persons of National Security Interest at Ports of Entry." The memo makes clear that electronic media may be seized at the border without any individualized suspicion. ICE may review, copy, image, detain or seize, and disseminate electronic media if a violation of law is immediately evident, if further review by ICE is needed to make such a determination, or if technical assistance (e.g. translation services) is deemed necessary ... An ICE JTTF duty agent and/or ICE Computer Forensics Agent ("CFA") may conduct App. 103 a cursory search of the subjects' electronic media and detain or image the electronic media to conduct a more thorough search. Exhibit L, p 2. The guidelines do not advise that a search remote in time or distance from the border entry requires, at a minimum, reasonable suspicion.1 Rather the memo emphasizes use of the authority to conduct border searches without particularized suspicion. Here, the agents responded in compliance with the field guidelines. Riley, the JTFF duty agent, seized the laptops to be transported to CFA Owens for computer forensic analysis at a remote location. In addition to the field guidelines relying on border search authority, the CBP Witness Statement form emphasizes Border Search Authority in boilerplate at the end of each statement. See Exhibits A and B. Moreover, Agent Alvarado testified the TECS hit alone meant the digital media would be taken to Tucson. (TR 100-101). Certainly, Pacific Intel had no information other than the 15 year old criminal conviction. The Government's disregard of the Fourth Amendment in connection with border searches of electronic media is emphasized by the Government's continued possession of a copy of Mrs. Cotterman's hard drive. At the hearing, Mr. Owen suggested some vague, speculative ways in which the hard drive could possibly, but apparently not actually, contain probative 1 On the first page of Exhibit L is reference to the statutory authority for warrantless search if "there is a reasonable cause to suspect a basis for denying admission to the United States." Exclusion was never an issue as the Cottermans were U.S. citizens with valid passports. App. 104 information. (TR, pp 76-77, 79). If there is probative information on the hard rive, seventeen months is more than enough time to determine that. The Government apparently believes that returning Mrs. Cotterman's laptop eliminates the intrusion on her privacy. Obviously, keeping a copy of the hard drive with no viable basis does violate Mrs. Cotterman's privacy interests as well as the field guidelines directive that the electronic media seized "shall not be retained by ICE longer than is necessary to determine its relevance to furthering the law enforcement mission of ICE." Exhibit L, p 2. At this point in time, any incriminating evidence found now on the copy of Mrs. Cotterman's hard drive would be inadmissible because that hard drive was not subject to seizure for containing contraband. United States v. Cardona, 769 F.2d at 629 (cashier's checks, not in bearer form, found in valid extended border search were not seized because they were not contraband, but were photocopied because the checks were not subject to seizure the photocopies were inadmissible).2 In this case there is no evidence to support a determination of reasonable suspicion to seize any equipment. Nor did any government agent involved in this case ever consider whether reasonable suspicion existed, since they believed ICE policy and the TECS hits required the computers be sent to Tucson for forensic evaluation. Because the agents did not have 2 Photocopies were made of the Cottermans personal records found in their vehicle and are maintained in the agency file to this day despite not being related in any way to child pornography. (TR 29). App. 105 reasonable suspicion to seize any of the Cotterman's property, unless the abandonment argument prevails, the motion to suppress should be granted. Additionally, the Government should be ordered to return the copy of Mrs. Cotterman's hard drive and the copies of the Cotterman's personal documents. Abandonment The Government argues that Mr. Cotterman abandoned his property on September 9, 2007 when he fled to Australia. While it is not clear, the Government appears to argue, or perhaps more correctly, imply that a case of computer discs was abandoned by the Defendant. The Government's main argument is that Howard Cotterman abandoned the laptop when he fled the jurisdiction Monday, April 9, 2007 at noon. The case for this proposition is United States v. Garcia, 516 F.2d 318 (9th Cir. 1975), in which Garcia, after being referred to secondary at a fixed checkpoint, sped up and drove away in an attempt to elude law enforcement. The Court in Garcia held that even if the initial stop and referral to secondary was illegal, Garcia's flight from law enforcement was an adequate basis for his arrest and the search of the car. Id. at 319-320. The Garcia decision has no relevance to this case. In this case, the laptop computer was seized from Mr. Cotterman at the border on April 6, 2007, and transported to Tucson that same day. Prior to Cotterman fleeing to Australia, the Government found 75 images of child pornography in the unallocated hard App. 106 drive space of the computer on Sunday afternoon. At that point in time, the computer was contraband, was required to be seized, and could not be returned. The Government's argument that Howard Cotterman's flight from the jurisdiction deprived him of standing to bring this motion fails. The Government's second argument is that "10 additional CDs that there left at the Lukeville POE by the Cotterman's (sic) were located shortly after their departure on April 6, 2007, and held at the DHS-CBP/ICE office in Lukeville." (Response, p 6). Those CDs were referred to Agent Riley in July of 2007, and subsequently forwarded to Agent Owen. Id. During his examination of the CDs, Owen found child pornography on one of the ten CDs. Defendant describes this as an "uncontroverted fact" that establishes Cotterman has no standing to challenge the CDs as evidence. (Response, p 15). The entire factual presentation by the Government on this point is as follows: Q (By Assistant United States Attorney): Was there also a case with CDs? A (By Agent Riley): Yes, there was. Q (By Assistant United States Attorney): And where was that? A (By Agent Riley): That case was located a couple of months after the incident by one of the inspectors at the port of entry in the bathroom. Q (By Assistant United States Attorney): And were those items - was - was that case with CDs also forwarded for - forwarded to you eventually? App. 107 A (By Agent Riley): Yes, it was. The items were forwarded to me from the inspectors at the port of entry, and at that time I immediately turned them over to John Owen for forensic review. (TR 17). On cross-examination, Agent Riley conceded that she did not know who discovered the CDs, how they were discovered or how the CDs got there. (TR 42-44). Moreover, there were two different versions of where the CDs were found, one stating in the bathroom and the other stating in a drawer. Id. Far from being an uncontroverted fact, the Government has fallen well short of satisfying its burden of proof that the Cottermans abandoned the CDs. The facts more likely establish that one or more government agents mishandled and misplaced the CDs at the border. After all, there was no testimony that the agents tried to return the CDs. For these reasons, the Government's arguments that the CDs and laptops were abandoned should be rejected. RECOMMENDATION In a border search, time and distance do matter. In the Alfonso case, thirty-six hours was too long. Certainly, 170 miles is too far. Therefore, based on both extended time and distance, the computer forensic search in this case was an extended border search requiring reasonable suspicion of criminal activity before taking the computers away from the port of entry. The government agents in this case, following App. 108 ICE policy to the letter, never considered whether reasonable suspicion existed because they had been repeatedly and incorrectly instructed no suspicion was necessary. No suspicion at all existed as to Mrs. Cotterman's computer, but it was seized anyway, and a copy of that computer memory is still maintained by the Government. No reasonable suspicion existed as to Mr. Cotterman's computer. The only suspicion was Mr. Cotterman's 15 year old child sex crime conviction and password protection on certain files, which he offered to access. Moreover, the Government has not factually established that the Cottermans abandoned any of the property in issue. For these reasons, it is the Report and Recommendation of this Court that District Judge Collins, after his independent review and consideration, enter an order as follows: 1. The Motion to Suppress Evidence be GRANTED. (Doc 17). 2. The Government be ordered to return the copy of Mrs. Cotterman's computer and retain no copy of it. 3. The Government be ordered to return the copies of the Cotterman's personal papers that were photocopied at the border and retain no copies. Pursuant to 28 U.S.C. ? 636(b), any party may serve and file written objections within ten days of being served with a copy of the Report and Recommendation. If objections are not timely filed, they may be deemed waived. The parties are advised that any objections App. 109 filed are to be identified with the following case number: cr-07-1207-RCC. The Clerk is directed to mail a copy of the Report and Recommendation to Plaintiff and counsel for Defendant. DATED this 12th day of September, 2008. /s/ Charles R. Pyle CHARLES R. PYLE UNITED STATES MAGISTRATE JUDGE