The Laptop, Child Pornography and the Border Search

This post examines an opinion from the U.S. District Courtf or the Northern District of Georgia:  U.S. v. Touset, 2016 WL 1048047 (2016).  The judge begins the opinion, as judges usually do, by explaining how the prosecution arose:

In September 2014, Xoom, a money transmitter company, identified a group of persons suspected of trading or producing child pornography based on frequent transfers of small amounts of money to countries associated with sex tourism and child pornography, including the Philippines, Thailand, and the Dominican Republic. Tr. of Evidentiary Proceedings Held on September 30, 2015 [Doc. 38] (`Tr.’) at 27-29. Xoom notified the National Center for Missing and Exploited Children (`NCMEC’) and Yahoo! of its suspicions, the latter because individuals signed up for Xoom's service were using an e-mail address provided by Yahoo! Id. at 27, 29-31.
 Yahoo! began its own investigation based on the information received from Xoom, and identified the e-mail account `ilovyousomuch0820 @yahoo.com’ as one that had distributed, received, or possessed a file containing child pornography. Id. at 31-32. The customer who created that account gave Yahoo! a phone number in the Philippines associated with this account. Id. at 32. In September or early October 2014, Yahoo! made `cyber tips’ concerning its investigation to NCMEC, which in turn notified the Cyber Crime Center, a branch of Homeland Security. Id. at 33. In response to a summons from the Cyber Crime Center, Western Union found that the telephone number associated with the Yahoo! e-mail account was linked to a Western Union account, and identified Defendant with an address at a post office box in Marietta, Georgia, as having sent money to the relevant Western Union account. Id. at 34-35. Prior to December 21, 2014, government investigators determined Defendant had made three payments through Western Union to the entity with the telephone number: $35 on March 31, 2013; $35 in April 2013; and $37 in July 2013. Id. at 61-62. 

U.S. v. Touset, supra.

The opinion goes on to explain that,

[b]ased upon this knowledge, Homeland Security Investigations (`HIS’) placed a look-out on Defendant so that, if he re-entered the United States from abroad, his luggage and electronic media would be searched at the border. Id. at 37. On December 21, 2014, Defendant returned to the United States from Europe. Id. at 10, 38. Officer Derek Escobar of Customs and Border Protection (`CBP’ or `Customs’), on duty at the Atlanta airport, received information that Defendant was under investigation for possible possession of child pornography, and was instructed to do a thorough inspection of baggage and electronic media Defendant was attempting to bring into the country. Id. at 8. Defendant's electronic media consisted of two iPhones, a camera, two laptops, two external hard drives, and two tablets; Officer Escobar inspected the iPhones and camera and returned them to Defendant after finding no child pornography on them. Id. at 11-12. However, Officer Escobar did not have the knowledge, equipment, or training to thoroughly inspect the laptops and hard drives; he called his supervisor and was instructed to retain these items. Id. at 9, 12, 22. Defendant was not personally detained, and was free to leave after roughly thirty minutes. Id. at 13

U.S. v. Touset, supra.

The prefatory part of the opinion concludes by explaining that, on January 6, 2015, 

government investigators found child pornography on Defendant's laptop computer that was retained at the airport; at that point, the agents considered the items to be seized. Id. at 65-66. On January 28, 2015, HIS Special Agent Dianna Ford obtained and executed a federal search warrant for Defendant's residence based on the evidence of child pornography found on the electronic devices taken from Defendant at the airport. Id. at 41; Appl. and Aff. for Search Warrant [Doc. 29-1]. On the day of the home search, Defendant was arrested on an arrest warrant; he was informed of and waived his Miranda rights and made statements to law enforcement officers. Tr. at 47-49, 68.

U.S. v. Touset, supra.

The issues the Judge addresses in this opinion all derive from three motions Touset filed after being charged:  “Defendant's Motion to Suppress Search and Seizure of Device(s)”; “Defendant's Motion to Suppress Search of Defendant's Residence with a Warrant”; and “Defendant's Motion to Suppress Statements and the Fruits thereof”.  U.S. v. Touset, supra.  As Wikipedia explains, in the United States, motions to suppress are based on the protections of the Fourth Amendment:

In the United States, the motion to suppress stems from the exclusionary rule. As the court stated in Simmons v. United States: `In order to effectuate the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures, this Court long ago conferred upon defendants in federal prosecutions the right, upon motion and proof, to have excluded from trial evidence which had been secured by means of an unlawful search and seizure.'

The District Court Judge began this part of the opinion by explaining that the

Fourth Amendment provides that `[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ U.S. CONST. amend. IV. The Fourth Amendment protects citizens from random government intrusion on their privacy. One significant exception to the Fourth Amendment's restrictions occurs at the country's borders. Routine searches of travelers and their belongings at an international border `are not subject to any requirement of reasonable suspicion, probable cause or warrant. . . .’ United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). Customs agents have been given broad authority to search vehicles and persons upon their entry into the United States, including their personal effects, to prevent unlawful merchandise from being brought into the United States. United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (`The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.’); United States V. Alfaro-Moncada, 607 F.2d 720, 728 (U.S. Court of Appeals for the 11<sup>th</sup> Circuit 2010) (`At the border, an individual has a lesser expectation of privacy, the government has a greater interest in searching, and the balance between the interests of the government and the privacy right of the individual is struck more favorably to the government’). An airport is considered the functional equivalent of a border. United States v. Richards, 638 F.2d 765, 771 (U.S. Court of Appeals for the 5^th Circuit 1981).

U.S. v. Touset, supra.

The judge went on to explain the scope of the border search exception to the Fourth Amendment’s default requirement that officers obtain a search warrant to search and/or seize property:

Customs has statutory authority to conduct `border searches’ to search and examine any vehicle or person for merchandise that might be introduced into the United States in any manner contrary to law. 19 U.S. Code §§ 482, 1581. This authority includes the examination of potentially obscene material. 19 U.S. Code § 1305. `Merchandise’ is not to be delivered from the custody of Customs until it has been inspected, appraised, or examined, and found to be in compliance with the laws of the United States. 19 U.S. Code § 1499(a)(1). Although probable cause is not required to conduct a search at the border, the Fourth Amendment does include a reasonableness requirement, which considers the nature and scope of the search. Montoya de Hernandez, 473 U.S. at 538 (holding that searches or seizures that are especially intrusive, such as detention of suspected alimentary canal smugglers, require at least reasonable suspicion to search the canal). When considering a border search of a computer, the U.S. Court of Appeals for the Ninth Circuit has held that agents must have reasonable suspicion to perform a computer forensics analysis of a passenger's electronic devices. United States v. Cotterman, 709 F.3d 952, 968 (U.S. Court of Appeals for the 9th Circuit 2013).
 Reasonable suspicion is defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). Although the Eleventh Circuit has yet to address this issue, the Court finds this standard to be appropriate, and that the circumstances here were such that the officers did have reasonable suspicion to conduct a forensic search of Defendant's devices

U.S. v. Touset, supra.

The judge then took up the question posed above, i.e., whether the officers had reasonable suspicion to search Touset’s “devices.” Before we get into that, I need to note how the issue of reasonable suspicion was handled in the U.S. Court system:  As is often the case, the U.S. District Court Judge referred that issue to a U.S. Magistrate Judge to conduct an initial assessment and submit a “Report and Recommendation” to the District Court Judge that found that reasonable suspicion either existed or it did not.  The Magistrate Judge’s Report and Recommendation apparently found that reasonable suspicion existed, because the District Court Judge’ opinion explains that

[d]efendant first objects to the R&R by contending that the information the government possessed at the time Defendant entered the country was insufficient to establish a reasonable suspicion of criminal activity. Def.'s Objs. at 9-14. The Magistrate Judge found a reasonable suspicion for the detainment and forensic search of Defendant's property because `[t]he collective information of the officers allowed the reasonable inference that Touset had made three small payments through Western Union to an entity in the Philippines, a country known for child exploitation, which entity used an email address that had previously received or sent child pornography.’ R&R at 8.
 However, Defendant contends that `[n]othing in that factual predicate offers a particularized reason to believe that Defendant was engaged in criminal activity’ at the time he entered the country. Def.'s Objs. at 9. He asserts that `the foundation of the Magistrate's finding of a reasonable suspicion rests exclusively on the unsupported assumption that the entity receiving Defendant's payments is the same entity that used an email address which contained a single image of suspected child pornography’ and that `there is no evidence known to the government that Defendant ever communicated electronically, as a sender or a recipient, with the suspected email address whatsoever.’ Id. at 12 (record citations omitted) (emphasis in original).

U.S. v. Touset, supra.

The District Court Judge's opinion goes on to explain that the 

Defendant states that the `reasonable suspicion standard only relates to ongoing or imminent crime.’ Id. at 13. . . . He contends that, here, the information regarding the payments is not related to his border crossing and not indicative of ongoing or imminent criminal activity. Id. . . . Further, he states, at the time, there was no evidence that he had been involved in criminal activity or had been involved with child pornography. Id., at 13-14. The Court concludes there was sufficient information to constitute reasonable suspicion. See United States v. Furukawa, No. 06-145(DSD/AJB), 2006 WL 3330726, at *5 (D. Minn. Nov. 16, 2006) (finding reasonable suspicion existed where an alert indicated that `defendant may have purchased access to a [sic] Internet site that contained child pornography’). Reasonable suspicion is a relatively low standard. Montoya de Hernandez, supra. `Although a mere 'hunch' does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.’ Navarette v. California,134 S. Ct. 1683, 1687 (2014).
 Based on the information discussed, the Cyber Crime Center issued a look-out for the defendant should he come into the United States at a port of entry, and it requested that customs officers detain any electronic devices that he was bringing into the country. The defendant's laptops, hard drives, and tablets were detained based on this reasonable suspicion of criminal activity. As another court has held, `persons who deal in child pornography tend to carry at least some of it with them when they travel,’ leading to the logical inference that Defendant would have had some child pornography in his possession at the border.   See United States v. Verma, No. H-08-699-1, 2010 WL 1427261, at *4 (S.D. Tex. Apr. 8, 2010).

U.S. v. Touset, supra.

The District Court Judge went on to explain that the defendant

urges the Court to find a lack of reasonable suspicion based, in part, on the contention that his recent border crossing was not related to any suspicion of criminal activity. Def.'s Objs. at 13. However, other courts have upheld border searches requiring reasonable suspicion even when the relevant international travel was not clearly related to the suspicion of criminal activity. See, e.g., United States v. Saboonchi, 990 F. Supp. 2d 536, 571 (U.S. District Court for the District of Maryland 2014) (finding reasonable suspicion existed based on investigation of defendant's potential export violations related to the Islamic Republic of Iran to conduct forensic search of his devices after his return to Buffalo, New York, from a day trip to the Canadian side of Niagara Falls).
 As one Magistrate Judge has concluded, `[t]here is . . . little doubt that preventing the flow of contraband across the United States' borders, which would include illicit images of child pornography, falls within the purview of customs enforcement.’ United States v. Smasal, 2015 WL 4622246, at *10 (D. Minn. June 19, 2015) (recommending denial of motion to suppress) (citing U.S. v. Flores-Montano, 541 U.S. 149 152-53 (2004); United States v. Alfonso, 759 F.2d 728, 735 (U.S. Court of Appeals for the 9<sup>th</sup> Circuit 1985)). `That interdiction of contraband can serve both customs and law enforcement purposes does not negate the validity of a search at the border or its functional equivalent.’ Id. (citing Flores-Montano, 541 U.S. at 150). Further, to the extent that Defendant suggests that the search was motivated by general law enforcement concerns, rather than customs enforcement, the Supreme Court has held that `concerns about improper motives and pretext do not justify subjective inquiries’ in the Fourth Amendment context, and that `[e]fficient and evenhanded application of the law demands that we look to whether the [defendant's] arrest is objectively justified, rather than to the motive of the arresting officer.’ Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011); see also Whren v. United States, 517 U.S. 806(1996) (`[W]e have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers. . . .’).
 The Court finds that the search was justified by reasonable suspicion of criminal activity by Defendant. Defendant's objection is OVERRULED.

U.S. v. Touset, supra.

The District Court Judge therefore adopted the Magistrate Judge’s Report and Recommendation and  denied Touset’s motions to suppress.  U.S. v. Touset, supra.