The saga of the searchable laptop continues with a decision out of the District of Arizona in United States v. Cotterman, via Orin at VC.  When last we left our border searches of laptop computers, our government had formalized its policy to seize at will, without probable cause, and detain as long as necessary.  After all, it was a border search and, despite the total lack of nexus between the rationale for permitting a warrantless search at the border and the government’s purpose in inspecting laptops for dirty pictures, it did under the dog lick theory.

In the Cotterman case, agents seized a computer at the Mexico-Arizona border and wanted to search it, but they apparently didn’t have a trained analyst nearby. As a result, they let the computer owner go on into the U.S., and in the meantime they drove the computer to a government forensic analyst in Tucson, about 170 miles away. The analyst in Tucson searched the computer two days later and found child pornography.

The Court held that by removing the computer from the place of the seizure to a distant location for the search, the agents lost the benefit of a border search and were required to show cause.

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.

Try as I might, I can’t make any sense of this rationale.  While search and seizure ordinarily happens at the same relative time and place, it seems that the court has accepted the proposition that the critical act is the seizure.  If the seizure was lawful at the border, and that no cause is required for the seizure, then any spatial and temporal issues are subject only to reasonableness review.  Adding more confusion, applying the markedly unhelpful “totality of the circumstances” test, the court then inexplicably waters down its own point by holding that mere reasonable suspicion is require, rather than probable cause, when they moved the laptop 170 miles away.

It seems that the court would have been on far firmer ground to conclude that the free ride given to border searches should require that both search and seizure happen contemporaneously, and that any need by the government for distant experts is the government’s problem, not the traveler whose laptop has been seized without cause.  Why the traveler should be denied his property for a moment longer than necessary remains unexplained, except by governmental convenience.  Then again, so much of our law is grounded on making things more convenient for the government that we’ve gotten pretty used to this as an explanation and rarely bother to question it as a rationale.

Of course, the true issue is the propriety of seizing laptops at the border for reasons wholly disconnected from the reason for border searches in the first place, but let’s not harp today on remembering the rubric while forgetting the rationale.  Let’s instead focus on how one bad idea breeds broader confusion and further irrationality. 

When Cotterman was allowed entry into the Land of the Free, it was sans laptop.  Whether his laptop sat in a room at the border or went by pigeon to a computer analyst a thousand miles away seems to be of absolutely no consequence to Cotterman.  Either way, his laptop was out of his hands and he was denied possession and use of it.  While the temporal component may make a difference to the person denied his property, the spatial component doesn’t seem to have any impact at all.

On the other hand, it seems as if the most obvious comparison, unmarked pills seized from a traveler at the border, was ignored.  Are they legal or illicit.  Are they prescribed or abused.  Do the border agents take the traveler’s word for what they are, or do they find out for sure.  The true content requires a chemist’s attention.  As most borders lack a constantly available chemist, substances seized are sent to labs for testing.  Does this ruling apply to limit the distance to the lab where such substances are sent?  Does it matter to the traveler (or the court) where the lab is physically located when determining the constitutionality of the seizure?  Not as far as I’m aware.

While laptop computers continue to strain the developed legal concepts around search and seizure, and while courts still can’t bring themselves to address the root of the problem, unrestrained border searches, we will continue to find courts trying desperately to ram square pegs into round holes.  Will a circuit, or even the Supremes, take this issue by the horns and address it at the point where the problem arises, or will courts continue to try to sneak around the back to circumvent the problem?  Time will tell, but I’m not hopeful.