E.D.Mich.: Border search of computer with special software was reasonable

Defendant arrived at the Detroit airport on a flight from Cancun, and his body language showed he was too nervous. He consented to a search of his camera and computer, and the CBP was looking for child pornography. They called for a child porn investigator of their own, and he arrived about 2¼ hours later. He found an image or two of child erotica, and they decided to let defendant enter after about four hours, but they kept the computer. It was sent to the CBP near the airport and later searched with a program designed to isolate potential child porn images without having to do a detailed forensic search of the computer. The four hour detention at Customs wasn’t unreasonable and did not make a routine entry non-routine. The limited warrantless forensic search of the computer with special software wasn’t unreasonable. United States v. Feiten, 2016 U.S. Dist. LEXIS 30331 (E.D.Mich. March 9, 2016):

To the extent that Defendant objects to Special Agent Raterman’s use of the OS Triage software, his argument fails. Having conceded that a manual search of his laptop would be permissible, he must also concede that the forensic preview using the OS Triage software was permissible. The OS Triage is actually less invasive of personal privacy than is a search done by hand. A border agent inspecting a computer manually, “page-by-page” in an electronic format, would access any document or program stored on the device, but a forensic preview using OS Triage merely “allows a ‘thumbnail’ preview of pictures and videos on a computer and can identify which of those pictures and videos have file names that match known file names of child pornography.” (Dkt. # 27, Pg. ID 120 (emphasis added).) Contrary to Defendant’s assertions, “OS Triage cannot locate deleted files or files that may be stored in carved or unallocated space nor can it access files that have been password-protected or retrieve images viewed on non-pornography related websites.” (Id.). Furthermore, as Special Agent Raterman explained at the suppression hearing, OS Triage maintains the integrity of the files previewed, while a manual search can actually alter key evidentiary aspects of each file inspected, such as the date and time the file was last viewed. The use of such software, therefore, amounts to an exercise of electronic restraint on the part of border agents, appropriately “tethered” to its interest of preventing the introduction of contraband into the United States.

Even when considering the more intrusive “complete forensic exam” performed between February 16 and March 16, 2016, (Dkt. #26, Pg. ID 73) the court can locate no justification for finding that the government acted inappropriately in not obtaining a warrant. The laptop was still at the border or its equivalent, having not yet been legally admitted to the United States. In fact, at the suppression hearing, Special Agent Raterman testified that the laptop remains at the border today and has still not been admitted to the United States. Customs officials were therefore empowered with plenary authority to search for contraband.