9th Circuit OKs Border Guards' Search of Traveler's Laptop

4-22-2008 New Jersey:

The 9th U.S. Circuit Court of Appeals ruled Monday that border control agents who found child porn on a traveler's laptop didn't violate the man's right to be free from unreasonable searches.

"We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," Judge Diarmuid O'Scannlain wrote.

O'Scannlain went on to say that the defendant "has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers' luggage that the Supreme Court and we have allowed."

He was joined by Judge Milan Smith Jr. and U.S. District Judge Michael Mosman, sitting by designation from Oregon.

The ruling appears to be the second upholding computer searches by border guards. The first, U.S. v. Ickes, 393 F.3d 501, was handed down by the Virginia-based 4th U.S. Circuit Court of Appeals in 2005. It involved a man who tried to drive into the United States from Canada with child porn on his computer.

In Monday's case, Michael Arnold, who was 43 at the time, was pulled aside for secondary questioning upon arriving at Los Angeles International Airport from the Philippines on July 17, 2005. Customs agents examined the contents of his laptop computer, Monday's ruling noted, and found "numerous images depicting what they believed to be child pornography."

A federal grand jury later charged Arnold with possessing and transporting child porn and with traveling to a foreign country with the intention of having sex with children.

However, U.S. District Judge Dean Pregerson of Los Angeles suppressed the evidence after finding that customs agents violated Arnold's Fourth Amendment right against unreasonable searches. He held that they didn't have reasonable suspicion to search the contents of Arnold's laptop.

In reversing, the 9th Circuit ruled that Pregerson erred in holding that a "particularized suspicion" was necessary before a laptop computer could be searched. The court also rejected Arnold's claim that the border agents had exceeded their authority by conducting a search in a "particularly offensive manner."

"There is nothing in the record," O'Scannlain wrote, "to indicate that the manner in which the [customs] officers conducted the search was 'particularly offensive' in comparison with other lawful border searches. According to Arnold, the [customs] officers simply 'had me boot (the laptop) up, and looked at what I had inside.'"

Los Angeles-based U.S. Attorney Thomas O'Brien praised the decision in a prepared statement.

"The government needs to have the ability," he said, "to restrict harmful material from entering the country, whether that be weapons used by terrorists, dangerous narcotics or child pornography."

Marilyn Bednarski, who represented Arnold, said the case has been widely followed "because laptops are so much a part of our lives, and the level of intrusion [allowed by the 9th Circuit ruling] into what we keep stored in our laptops is extraordinary."

Bednarski, a partner in Pasadena, Calif.'s Kaye, McLane & Bednarski, said she plans to seek an en banc review by the 9th Circuit. She said she could understand that customs agents need to turn on a laptop computer to make sure it's not a bomb or a container full of illegal substances. But opening files bothered her.

"What this decision allows [border agents] to do without limits," she said, "is keep opening up and keep reading forever."

The ruling is U.S. v. Arnold, 08 C.D.O.S. 4533. ..more.. by Law.com