{"id":2009,"date":"2008-05-28T08:31:29","date_gmt":"2008-04-22T10:40:42","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-04-22T10:40:42","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2009","title":{"rendered":"CA9: Customs search of laptop does not require individualized suspicion"},"content":{"rendered":"

The Ninth Circuit reversed a holding of the District Court<\/a> that a customs search of defendant’s laptop at LAX Customs was unreasonable. A laptop is no different than luggage, and applying a higher standard to it, the same standard as a search of the person, is not justified. United States v. Arnold<\/a>, 523 F.3d 941 (9th Cir. 2008):<\/p>\n

Courts have long held that searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment. Searches of the following specific items have been upheld without particularized suspicion: (1) the contents of a traveler’s briefcase and luggage, United States v. Tsai<\/em>, 282 F.3d 690, 696 (9th Cir. 2002); (2) a traveler’s “purse, wallet, or pockets,” Henderson v. United States<\/em>, 390 F.2d 805, 808 (9th Cir. 1967); (3) papers found in containers such as pockets, see United States v. Grayson<\/em>, 597 F.2d 1225, 1228-29 (9th Cir. 1979) (allowing search without particularized suspicion of papers found in a shirt pocket); and (4) pictures, films and other graphic materials. See United States v. Thirty-Seven Photographs<\/em>, 402 U.S. 363, 376, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971); see also 12,200-Ft. Reels of Super 8MM. Film<\/em>, 413 U.S. 123, 124-25, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973) (“Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations.”).<\/p>\n

Nevertheless, the Supreme Court has drawn some limits on the border search power. Specifically, the Supreme Court has held that reasonable suspicion is required to search a traveler’s “alimentary canal,” United States v. Montoya de Hernandez<\/em><\/a>, 473 U.S. 531, 541, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985), because “‘[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusion [beyond the body’s surface] on the mere chance that desired evidence might be obtained.'” Id.<\/em> at 540 n.3 (quoting Schmerber v. California<\/em><\/a>, 384 U.S. 757, 769, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)). However, it has expressly declined to decide “what level of suspicion, if any, is required for nonroutine border searches such as strip, body cavity, or involuntary x-ray searches.” Id.<\/em> at 541 n.4 (emphasis added). Furthermore, the Supreme Court has rejected creating a balancing test based on a “routine” and “nonroutine” search framework, and has treated the terms as purely descriptive. See United States v. Cortez-Rocha<\/em>, 394 F.3d 1115, 1122 (9th Cir. 2005).<\/p>\n

Other than when “intrusive searches of the person” are at issue, Flores-Montano<\/em><\/a>, 541 U.S. at 152 (emphasis added), the Supreme Court has held open the possibility, “that some searches of property are so destructive as to require” particularized suspicion. Id.<\/em> at 155-56 (emphasis added) (holding that complete disassembly and reassembly of a car gas tank did not require particularized suspicion). Indeed, the Supreme Court has left open the question of “‘whether, and under what circumstances, a border search might be deemed ‘unreasonable’ because of the particularly offensive manner in which it is carried out.'” Id.<\/em> at 155 n.2 (quoting Ramsey, 431 U.S. at 618 n.13).<\/p>\n

C<\/strong><\/p>\n

In any event, the district court’s holding that particularized suspicion is required to search a laptop, based on cases involving the search of the person, was erroneous. Its reliance on such cases as United States v. Vance<\/em>, 62 F.3d 1152, 1156 (9th Cir. 1995) (holding that “[a]s the search becomes more intrusive, more suspicion is needed” in the context of a search of the human body), to support its use of a sliding intrusiveness scale to determine when reasonable suspicion is needed to search property at the border is misplaced. United States v. Arnold<\/em>, 454 F. Supp. 2d 999, 1002-04 (C.D. Cal. 2006).<\/p>\n

The Supreme Court has stated that “[c]omplex 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.” Flores-Montano<\/em>, 541 U.S. at 152. Arnold argues that the district court was correct to apply an intrusiveness analysis to a laptop search despite the Supreme Court’s holding in Flores-Montano<\/em>, by distinguishing between one’s privacy interest in a vehicle compared to a laptop. However, this attempt to distinguish Flores-Montano<\/em> is off the mark. The Supreme Court’s analysis determining what protection to give a vehicle was not based on the unique characteristics of vehicles with respect to other property, but was based on the fact that a vehicle, as a piece of property, simply does not implicate the same “dignity and privacy” concerns as “highly intrusive searches of the person.” Flores-Montano<\/em>, 541 U.S. at 152.<\/p>\n

Furthermore, we have expressly repudiated this type of “least restrictive means test” in the border search context. See Cortez-Rocha<\/em>, 394 F.3d at 1123 (refusing to fashion a “least restrictive means test for border control vehicular searches, and … refus[ing] to tie the hands of border control inspectors in such a fashion”). Moreover, in both United States v. Chaudhry<\/em>, 424 F.3d 1051, 1054 (9th Cir. 2005) (finding the distinction between “routine” and “non-routine” inapplicable to searches of property) and Cortez-Rocha<\/em>, 394 F.3d at 1122-23, we have recognized that Flores-Montano<\/em> rejected our prior approach of using an intrusiveness analysis to determine the reasonableness of property searches at the international border.<\/p><\/blockquote>\n

Comment:<\/em> These laptop border search cases have generated blog entries showing the concern of business travelers, even those without child porn, noted here<\/a> and here<\/a> back in February.<\/p>\n","protected":false},"excerpt":{"rendered":"

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