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9th Circuit Appeals Court: 4th Amendment Applies At The Border

9th Circuit Appeals Court: 4th Amendment Applies At The Border

Old Mar 10, 13, 10:39 am
  #16  
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Originally Posted by Global_Hi_Flyer View Post
Before anyone celebrates, there is still a gaping hole in the decision that DHS can drive a truck through:


Link to article

A prior conviction for a different crime should not translate into reasonable suspicion that triggers a search. Under that judgement, a prior DUI conviction could, in theory, trigger a search of a hard drive for information related to growing marijuana.

"One strike and you're out".
+1

Exactly.

This judgment may have the force of law in the 9th district for now, but unless you have a corporation with a deep legal bench behind you, CBP can (and most likely will) continue to do as they please. This was one court case, and the judge still (IMHO) gave them them too much credit for making an 'honest' mistake about the plaintiff's criminal background that gave them grounds for their search.

'Reasonable suspicion' will continue unchanged, but for the few rare individuals (corporate backing, ACLU involvement, etc.), it may be easier to pursue redress after the fact (assuming your computer/camera/etc hasn't been destroyed in the process of examination and that you can afford to be without them for months).

I thought the court's definition of 'border' was somewhat inconsistent with other CBP practices. IIRC, CBP can stop people anywhere at any time within 100 miles of the border and ask for proof of citizenship. Failure to provide that proof can (and has) led to bogus claims (sometimes including alleged dog alerts) of reasonable suspicion, usually resulting in retaliatory actions. IIRC, the courts have upheld these Constitution-free border zone searches way past the border.
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Old Mar 10, 13, 1:05 pm
  #17  
 
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Originally Posted by catocony View Post
LAX is notorious for sending males traveling alone from Southeast Asia to secondary. Now, if the ruling is interpreted as "male traveler X has a sex crimes conviction, and is returning to a country known for sex tourism, then they can confiscate the computer/camera/USB/flash/hard drives/whatever to investigate kiddy porn", that's one thing.

If it's interpreted as "male traveler X is returning is returning to a country known for sex tourism, then they can confiscate the computer/camera/USB/flash/hard drives/whatever to investigate kiddy porn" is very different. They'll still be pulling guys aside and demanding access to their gear, and confiscating gear if not provided. The excuse that will be given is that it's an evil guy returning from a "sex tourism" country. Which, compared to the hypocritical US, is pretty much every other country on the planet.
but it can now be litigated. in practical terms, and in the long run, this should result in search decisions becoming more reasonable, especially when systemically unreasonable rationales are ruled out.
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Old Mar 10, 13, 6:05 pm
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Originally Posted by fwoomp View Post
True, although maybe by that time there will be a clear civil libertarian majority on the SC. (A girl can dream, right?)

In any case, it was nice to read something in the news this morning that didn't infuriate me!
^^^
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Old Mar 11, 13, 1:59 am
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In the case before the court, officers in Lukeville, Ariz., stopped Howard Cotterman as he came across the border and checked his name through records, discovering he had prior convictions for sex offenses, including child molestation. The officers found laptops and cameras in his vehicle and looked for child pornography, but they were blocked by his password protection.
Does it bother anyone else that a US citizen is subject to a criminal records check when he tries to re-enter his own country?

Further, I assume the criminal check is done at the immigration counter. So then how is that info communicated to the Customs agent responsible for searching his luggage? Does the immigration agent put a red "X" (or maybe an "XXX") on his CBP declaration? Do they call over an customs inspector and say, "This one's a convicted pervert. Give him the rubber-glove search!"?

It's great that the courts decided this, but this little glimpse under the covers raises even more questions for me.

ETA: I read the decision. It's a Charlie Foxtrot. I imagine the child pornographer will appeal the decision (since it overturns his conviction based on an issue that the government conceded in earlier appeals) and the Supreme Court will not allow the decision to stand in its current form.

In a nutshell, three judges rule one way on the case, then the entire court decided to re-hear the case because they didn't like the decision. They ignore the issues briefed by the parties, and went back and overturned the decision based on an issue that had been conceded earlier. Both the concurrence and the dissent make it clear that the majority opinion have basically made a horrible mess of all border search precedent. Further, as far as I can tell, the majority managed to extend the border search doctrine by asserting that any property seized at the border, then transported to a remote location away from the border and then more intensively searched still qualifies for a border search exception. Oh joy. Won't it be great if that is the only part of the ruling that stands?

Apparently the majority was quite struck by the issue that the forensic search of the computer files located the porn in the deleted files (unallocated space). Their concern is that it is incredibly difficult to decide 'what to take' on you laptop when you cross the border. Even stuff you decided not to 'take' by deleting it is still recoverable in a "forensic" computer search. They analogized it to being able to search everything that had ever been carried in a suitcase. The also considered cloud storage, and said that a laptop would essentially be a 'key to a safe deposit box' that would allow searches of material that was never taken across the border. There is some real-life logic there. I guess if a CBP agent finds a safe deposit box key in your possessions, they are not permitted to go find the bank and open the box as part of the border search. But that shred of sense seems to be buried in a hot mess.

Last edited by janetdoe; Mar 11, 13 at 3:26 am
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Old Mar 11, 13, 3:04 am
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Originally Posted by janetdoe View Post
Does it bother anyone else that a US citizen is subject to a criminal records check when he tries to re-enter his own country?

Further, I assume the criminal check is done at the immigration counter. So then how is that info communicated to the Customs agent responsible for searching his luggage? Does the immigration agent put a red "X" (or maybe an "XXX") on his CBP declaration? Do they call over an customs inspector and say, "This one's a convicted pervert. Give him the rubber-glove search!"?

It's great that the courts decided this, but this little glimpse under the covers raises even more questions for me.

It bothers me, but it's not at all surprising. If a policeman pulls you over - for anything - they run your license plate and look for warrants without ever actually talking to you first. In many ways, CBP is like a traffic stop. It's just what happens.

Used to be, borders weren't enforced at all. Now it's just another part of the police state.
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Old Mar 11, 13, 10:28 am
  #21  
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This is a step in the right direction. I wonder if the SG wants to risk it with SCOTUS.
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Old Mar 11, 13, 12:50 pm
  #22  
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Originally Posted by janetdoe View Post
ETA: I read the decision. It's a Charlie Foxtrot. I imagine the child pornographer will appeal the decision (since it overturns his conviction based on an issue that the government conceded in earlier appeals) and the Supreme Court will not allow the decision to stand in its current form.

In a nutshell, three judges rule one way on the case, then the entire court decided to re-hear the case because they didn't like the decision. They ignore the issues briefed by the parties, and went back and overturned the decision based on an issue that had been conceded earlier. Both the concurrence and the dissent make it clear that the majority opinion have basically made a horrible mess of all border search precedent. Further, as far as I can tell, the majority managed to extend the border search doctrine by asserting that any property seized at the border, then transported to a remote location away from the border and then more intensively searched still qualifies for a border search exception. Oh joy. Won't it be great if that is the only part of the ruling that stands?

Apparently the majority was quite struck by the issue that the forensic search of the computer files located the porn in the deleted files (unallocated space). Their concern is that it is incredibly difficult to decide 'what to take' on you laptop when you cross the border. Even stuff you decided not to 'take' by deleting it is still recoverable in a "forensic" computer search. They analogized it to being able to search everything that had ever been carried in a suitcase. The also considered cloud storage, and said that a laptop would essentially be a 'key to a safe deposit box' that would allow searches of material that was never taken across the border. There is some real-life logic there. I guess if a CBP agent finds a safe deposit box key in your possessions, they are not permitted to go find the bank and open the box as part of the border search. But that shred of sense seems to be buried in a hot mess.
I don't think you read the decision very well.



The decision recognized the realities of the situation and sought to bring the reality in line with the law. Personally, (& IAAL, although not in the US) I though it was an excellent decision. It requires they show intent and reason. No more random fishing expeditions. The only part I have any qualms about is they didn't say anything about time limits - if someone has a conviction X number of years ago then how years for X to be a valid reason to claim suspicion of related-Y? I don't see that as reasonably being open ended, although obviously the government will argue otherwise.
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Old Mar 11, 13, 1:52 pm
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There is a good discussion of the case and the legal implications on Jonathan Turley's blog:

http://jonathanturley.org/2013/03/10...-review-makes/
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Old Mar 12, 13, 3:04 am
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Originally Posted by SeriouslyLost View Post
I don't think you read the decision very well.

The decision recognized the realities of the situation and sought to bring the reality in line with the law. Personally, (& IAAL, although not in the US) I though it was an excellent decision. It requires they show intent and reason. No more random fishing expeditions. The only part I have any qualms about is they didn't say anything about time limits - if someone has a conviction X number of years ago then how years for X to be a valid reason to claim suspicion of related-Y? I don't see that as reasonably being open ended, although obviously the government will argue otherwise.
No, the decision recognized the realities of the situation and tried to change/manipulate/carve out an exception to the current law to allow a decision that was not supported by precedent.

Don't get me wrong, I think the majority made a valiant attempt to try to correct a clear injustice in border-search doctrine while not allowing scum of the earth to walk free, and I truly hope SCOTUS buys their argument.

But when both the concurring and the dissenting opinions condemn the decision's total disregard for precedent, saying the majority is trying to carve out a new exception where SCOTUS has consistently refused to place any limitations or distinctions, I don't hold out much hope for SCOTUS upholding the ruling. Plus they weakened the standard of reasonable suspicion and expanded the definition of a 'border search'.

So there is a risk for a lose/lose/lose for American citizens: SCOTUS could rule that electronic data is still a fully seizable/searchable possession as long as 1) it is intercepted at the border, regardless of where and how it is searched and 2) there is a vague suspicion based on travel destination and mischaracterized criminal history as reported by another government agency.

Last edited by janetdoe; Mar 12, 13 at 3:23 am
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Old Mar 12, 13, 4:19 am
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Originally Posted by janetdoe View Post
No, the decision recognized the realities of the situation and tried to change/manipulate/carve out an exception to the current law to allow a decision that was not supported by precedent.

.....

So there is a risk for a lose/lose/lose for American citizens: SCOTUS could rule that electronic data is still a fully seizable/searchable possession as long as 1) it is intercepted at the border, regardless of where and how it is searched and 2) there is a vague suspicion based on travel destination and mischaracterized criminal history as reported by another government agency.
IANAL.

In the long run, exceptions and carve outs generally lead to a loss of liberty. I have learned to become concerned when seeing these words in relation to a court decision. The fact that a search and seizure of ones computer (the modern equivalent of papers and effects) at the border is not considered unreasonable is because of a past exception or carve out.
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Old Dec 2, 13, 5:50 am
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There is talk that the US Supreme Court may take this case:

http://www.politico.com/story/2013/1...410.html?hp=t1
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