[Orin Kerr, April 21, 2008 at 9:55pm] Trackbacks
Ninth Circuit Allows Suspicionless Computer Searches at the Border:
The Ninth Circuit has (finally) handed down United States v. Arnold ( Page Not Found ); the court ruled that there is no Fourth Amendment requirement of “reasonable suspicion” to search a laptop computer at the border. The decision overturns the opinion of District Judge Dean Pregerson that I blogged about here back in 2006 ( The Volokh Conspiracy - District Court Holds That Border Searches of Computers Require Reasonable Suspicion: ). The unanimous appellate opinion by Judge O’Scannlain reasons that the greater storage capacity of computers does not make computer searches at the international border sufficiently different from other searches involving physical items:
[quote] Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed.
With respect to these searches, the Supreme Court has refused to draw distinctions between containers of information and contraband with respect to their quality or nature for purposes of determining the appropriate level of Fourth Amendment protection. [u]Arnold[/u]'s analogy to a search of a home based on a laptop's storage capacity is without merit. The Supreme Court has expressly rejected applying the Fourth Amendment protections afforded to homes to property which is "capable of functioning as a home" simply due to its size, or, distinguishing between "'worthy' and 'unworthy' containers." [u]California v. Carney[/u], 471 U.S. 386, 393-94 (1985).
In Carney, the Supreme Court rejected the argument that evidence obtained from a warrantless search of a mobile home should be suppressed because it was "capable of functioning as a home." [u]Id[/u]. at 387-88, 393-94. The Supreme Court refused to treat a mobile home differently from other vehicles just because it could be used as a home. [u]Id[/u]. at 394-95. The two main reasons that the Court gave in support of its holding, were: (1) that a mobile home is "readily movable," and (2) that "the expectation [of privacy] with respect to one's automobile is significantly less than that relating to one's home or office." [u]Id[/u]. at 391 (quotation marks omitted).
Here, beyond the simple fact that one cannot live in a laptop, Carney militates against the proposition that a laptop is a home. First, as Arnold himself admits, a laptop goes with the person, and, therefore is "readily mobile." [u]Carney, 471 U.S. at 391[/u]. Second, one's "expectation of privacy [at the border] . . . is significantly less than that relating to oneï¿½??s home or office." [u]Id[/u].
Moreover, case law does not support a finding that a search which occurs in an otherwise ordinary manner, is "particularly offensive" simply due to the storage capacity of the object being searched. See [u]California v. Acevedo, 500 U.S. 565, 576 (1991)[/u] (refusing to find that "looking inside a closed container" when already properly searching a car was unreasonable when the Court had previously found "destroying the interior of an automobile" to be reasonable in [u]Carroll v. United States, 267 U.S. 132 (1925)[/u]).
Because there is no basis in the record to support the contention that the manner in which the search occurred was "particularly offensive" in light of other searches allowed by the Supreme Court and our precedents, the district courtï¿½??s judgment cannot be sustained.[/quote]
I think this result is correct based on existing precedents and the record in this case, although Judge O’Scannlain’s suggestion that storage capacity is irrelevant strikes me as too broad. Storage capacity is relevant to the Fourth Amendment’s particularity requirement, for example: The particularity requirement is closely attuned to the scope of the place being searched. And as I argued in this article ( http://www.harvardlawreview.org/issues/119/Dec05/Kerr.pdf ), I think storage capacity is relevant to how the courts approach the plain view exception (not an issue raised in this case).
In addition, California v. Carney ( CALIFORNIA v. CARNEY | FindLaw ) strikes me as a puzzling case to rely on here. The issue in Arnold is not whether a computer actually is a home, but rather whether the storage capacity of computers and the type of information they contain makes searching a computer particularly invasive for purposes of the border search exception. I think it’s likely to correct that the answer is no, at least based on the record of this case, but I don’t see how the Carney case is particularly relevant. (Hat tip: How Appealing)[/i]