United States v. Cotterman

709 F.3d 952 (9th Cir. 2012)


D and his wife were driving home to the United States when border agents discovered D was a sex offender from a 15-year-old conviction. The charges indicated he was potentially involved in child sex tourism. The agents searched the vehicle and retrieved two laptop computers and three digital cameras. An officer inspected the electronic devices and found what appeared to be family and other personal photos, along with several password-protected files. D and his wife were given Miranda warnings, and each was interviewed. D offered to help the agents access his computer. D was allowed to leave the border crossing, but D laptops and a digital camera were retained. The equipment was delivered 170 miles away to a forensic examiner who kept the equipment for prolonged periods of time. Eventually, they found seventy-five images of child pornography within the unallocated space of D's laptop. Agents finally managed to open twenty-three password-protected files on D's laptop. The files revealed approximately 378 images of child pornography. In many of the images, D was sexually molesting the child. Over the next few months, Agents discovered hundreds more pornographic images, stories, and videos depicting children. D was indicted for child pornography.  D moved to suppress the evidence gathered from his laptop and the fruits of that evidence. The magistrate judge held that the forensic examination was an 'extended border search' that required reasonable suspicion. He found that the prior conviction and the existence of password-protected files on D's laptop were suspicious, but concluded that those facts did not suffice to give rise to reasonable suspicion of criminal activity. The district judge adopted the Report and Recommendation and granted D's motion to suppress. P appealed.