S.D.Tex.: Border search of computer for child porn was reasonable

Defendant was under investigation for trafficking in child pornography when he traveled to Colombia. On his return, he was selected for secondary screening, and officers looked at his laptop computer, finding child pornography. This border search was reasonable, even without reasonable suspicion, which the court finds there was. United States v. Verma, 2010 U.S. Dist. LEXIS 34559 (S.D. Tex. April 8, 2010):

Here, Verma argues that the search of his computer and CD-ROMs at the airport was non-routine, in part because the agents brought in a forensic expert with “accompanying electronic equipment” to conduct a thorough search of the computer. At the outset, the court notes that the testimony does not support this characterization of the search. The forensic agent examining the computer–ICE Agent David Harrison–testified that the search he performed at the airport was a surface review of the files on the computer, and not, as Verma argues, a thorough forensic search of the computer. Moreover, the court finds that reviewing the files of a computer does not rise to the level of “invasion of the privacy and dignity of the individual” to make the search non-routine. See Kelly, 302 F.3d at 294.

Even had the search of the computer been as exhaustive as Verma claims, the court is not convinced it would be considered non-routine. The search of an object carried by the traveler threatens the dignity interest of the traveler far less than searches of the body of the traveler himself. Additionally, there is precedent to suggest that the thoroughness of the search is not dispositive. The Supreme Court, as recently as 2004, held that the search of a vehicle’s gas tank was routine when the customs agents called in a mechanic who “raised the car on a hydraulic lift, loosened the straps and unscrewed the bolts holding the gas tank to the undercarriage of the vehicle, and then disconnected some hoses and electrical connections. After the gas tank was removed, the inspector hammered off bondo (a putty-like hardening substance that is used to seal openings) from the top of the gas tank.” Flores-Montano, 541 U.S. at 151. The forensic examination of a computer would be achieved far more easily with less lasting damage than suffered by the car in Flores-Montano. Accord United States v. McAuley, 563 F. Supp. 2d 672, 677 (W.D. Tex. 2008) (drawing parallels to the search of a car’s gas tank when finding the search of a computer’s hard drive to be routine). The search did not invade Verma’s body or damage his computer. Therefore, the search at issue in the instant case is routine.

However, even if it were non-routine, the search would still be constitutional. A warrantless non-routine border search requires a reasonable suspicion of wrongdoing to be constitutional. Rivas, 157 F.3d at 367. Here, the agents had the requisite particularized and objective basis for suspecting Verma of transporting child pornography. First, they had already traced downloaded files containing child pornography to Verma’s IP address at his home. And, second, they knew that persons who deal in child pornography tend to carry at least some of it with them when they travel.