United States v. Howard Wesley Cotterman

Howard Cotterman (defendant) and his wife, Maureen Cotterman, entered a port of entry and sought admission to the United States. A hit returned by the Treasury Enforcement Communications System (TECS), the information-sharing system operated by the United States Department of Homeland Security to prevent terrorism and protect the border, indicated that Howard had been convicted of child sex crimes 15 years earlier. Border inspectors searched the Cottermans’ car and found three cameras and two laptop computers. The inspectors did not find contraband, but certain files on Howard’s computer were password protected. Howard’s offer to help access the files on his computer was declined. United States Immigration and Customs Enforcement (ICE) agents seized the computers and a camera and took them to Tucson 170 miles away for forensic examination. Seventy-five images of child pornography were found on Howard’s computer. Nothing illegal was found on Maureen’s laptop. Maureen’s laptop was returned, but a copy of the data on the hard drive was made and retained and was still in ICE’s possession 17 months after the seizure. ICE field guidelines directed that seized electronic media not be retained longer than necessary to determine the media’s relevance to furthering ICE’s law-enforcement mission. Howard was indicted for child-pornography crimes and moved to suppress the evidence obtained from his laptop computer, arguing that the search of his computer 170 miles from the port of entry over a period of four days was a non-routine border search requiring reasonable suspicion. The government maintained that ICE conducted a border search and therefore did not need individualized suspicion to search the camera and computers. In addition to the search of Howard’s computer, the magistrate judge’s report and recommendation to the district court considered ICE’s retention of the copy of Maureen’s hard drive.