IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT COURT OF CALIFORNIA

UNITED STATES OF AMERICA,	:	CASE NO. 3:09-cr-XXXX-XXXX
	:
Plaintiff	:	NOTICE OF MOTION AND MOTION TO SUPPRESS; MEMORANDUM OF POINTS AND AUTHORITIES
v.	:
	:
	:	HON. JEFFREY S. WHITE
XXXX XXXX XXXX,	:
	:
Defendant.	:

TO THE ABOVE ENTITLED COURT AND COUNSEL FOR THE PEOPLE:
PLEASE TAKE NOTICE that on [DATE] at [TIME], or as soon thereafter as the matter may be heard in the courtroom of Department [DEPT] of the above-entitled court, the defendant will move this Court for an Order suppressing all evidence seized during the warrantless searches of his computer conducted after it was seized during a border search conducted on January 27, 2009.
This motion is made on the grounds that the introduction of such evidence before the trier of fact would violate the defendant's right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution.
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The motion is based on this Notice of Motion, on the attached Memorandum of Points and Authorities served and filed herewith, on such supplemental memoranda of points and authorities as hereafter may be filed with the court, on all papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing on this motion.
Dated: March ___, 2010

Respectfully Submitted,
UNITED DEFENSE GROUP

By: /s/ Eric A. Chase
Eric A. Chase, Esq.
Attorneys for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES

I.
STATEMENT OF FACTS

The Defendant expects that the following facts would be elicited at a hearing on this motion:

On January 27, 2009, XXXX XXXX disembarked at the San Francisco International Airport from a flight that originated in Seoul, South Korea. While he was proceeding through baggage control, he was directed to the secondary examination area, where he was questioned by United States Customs and Border Protection Officer S. Edwards. After Officer Edwards learned that Mr. XXXX had returned from a stint teaching English to children in South Korea, he examined two of Mr. XXXX's bags. He found a plastic bag containing condoms and a vitamin bottle containing unidentified pills. When questioned about the bottle's contents, Mr. XXXX stated that the bottle contained over-the-counter male enhancement pills he had purchased in Korea.
CBPO Edwards then requested an examination of the electronic media found in Mr. XXXX's luggage, consisting of a laptop computer, a digital camera with memory card, two CD-Rs and two DVD-Rs. Senior CBPO Swanlow and Chief CBPO Low approved the media examination. Upon conducting the examination, CBPO Edwards discovered one image of an adolescent female, who appeared nude and covered in mud at an unidentified beach. No items whose character was of a perceived contraband nature were discovered on any other piece of media. Officer Edwards seized the laptop and returned the other items. Mr. XXXX left the airport.
Over the following months, Customs officials removed Mr. XXXX's computer from San Francisco International Airport and conducted two offsite forensic examinations of the computer, the first on February 12, 2009, and again on July 14, 2009. During this time, Mr. XXXX continued to assert his ownership interest in the computer, as he had his attorney, Edgar Page, engage in civil proceedings to fight its forfeiture. The two warrantless forensic searches of the computer resulted in the discovery of additional images of suspected child pornography. These images form the factual basis of the charges brought against Mr. XXXX. Because agents of U.S. Customs and Border Protection conducted these searches in violation of Mr. XXXX's Fourth Amendment rights, he respectfully requests that evidence seized as a result of those searches be suppressed

II.
MR. XXXX HAD A REASONABLE EXPECTATION OF PRIVACY IN HIS COMPUTER AND THE FILES CONTAINED THEREON

A. Mr. XXXX had a reasonable expectation of privacy in his computer's files at the time of its search at San Francisco International Airport

A person can assert a reasonable expectation of privacy in an item only where he manifested a subjective expectation of privacy in the item that society accepts as objectively reasonable. California v. Greenwood, 486 U.S. 35, 39 (1988). A person has a reasonable expectation of privacy in a container over which he asserts ownership. The Supreme Court resolved the question about what types of containers deserve Fourth Amendment protections, in United States v. Ross, 456 U.S. 798, 822 (1982), when it reaffirmed the point initially made in Robbins v. California, 45 U.S. 420 (1981):

[J]ust as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case.

The Ninth Circuit has recognized that the reasonable expectation of privacy recognized in containers extends to the files stored inside a computer. United States v. Heckenkamp, 482 F.3d 1142, 1147 (2007). Therefore, Mr. XXXX had a reasonable expectation of privacy in the laptop computer when it was initially seized by CBPO Edwards at the San Francisco International Airport.

B. Mr. XXXX did not lose that reasonable expectation of privacy after the authorities seized the computer.

In California v. Greenwood, supra at 40, the Supreme Court decided that society does not recognize an objectively reasonable expectation that contents of trash containers left at a curb for collection would remain private, because those containers have been abandoned. Years before that, the Ninth Circuit had recognized that a person who has voluntarily abandoned property can claim no expectation of privacy in its contents. United States v. Jackson, 544 F.2d 407, 409 (1976), citing Abel v. United States, 362 U.S. 217, 240-41 (1960). The Jackson Court determined that a defendant who told authorities that a suitcase was not his after he was illegally arrested had not voluntarily abandoned that suitcase, and so held that he had standing to challenge its search. Id. In so holding, it framed the analysis as follows:

Abandonment is primarily a question of intent, and intent may be inferred from words, facts, and other objective facts. [Citations] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.

Id.
Mr. XXXX continued to express an interest in his computer, even after it was seized, as he had his attorney attempt to obtain its return by contesting the civil forfeiture proceeding. He had by no means relinquished his interest in the computer. Therefore, even after its seizure by CBPO Edwards, Mr. XXXX continued to have standing to challenge the legality of its search.

III.
CBPO OFFICERS NEEDED A WARRANT TO CONDUCT OFFSITE FORENSIC SEARCHES OF MR. XXXX'S COMPUTER

A. The forensic examinations of the computer did not occur at the border or its functional equivalents, so the border exception does not apply.

The Fourth Amendment protects individuals against unreasonable searches and seizures, and generally requires either of those actions to be done pursuant to a warrant supported by probable cause. However, the "border exception" allows an agent to search a person and his belongings without requiring a warrant or probable cause. Carroll v. United States, 267 U.S. 132, 154 (1925). That exception is limited, however, to searches at the border or its functional equivalent. In recognizing the border exception's limitations, the Supreme Court reversed the conviction of a defendant whose vehicle was stopped and searched by an INS agent while traveling on a road in the United States, "that lies at all points at least 20 miles north of the Mexican border," finding that the search could not be justified as a border search. Almeida-Sanchez v. United States, 413 U.S. 266, 272-273 (1973).
After CBPO Edwards seized the computer and sent Mr. XXXX on his way, and sent the computer to an off-site facility for forensic searches, the computer was no longer at the border or its functional equivalent. Therefore the border search exception to the warrant requirement no longer applied. At that point, it was not only reasonably practicable, but entirely appropriate, for the authorities to seek a warrant to conduct further searches of Mr. XXXX's computer. Once the authorities had the computer in their possession, they should have had no problem obtaining a warrant.
At least one district court within the Ninth Circuit has already recognized that an offsite forensic examination of a computer seized at the border must be supported by a warrant. United States v. Cotterman, 2009 U.S.Dist. LEXIS 14300, at 1-2 (D. Ariz., February 24, 2009). The Cotterman Court granted the defendant's motion to suppress, noting that, while the search of the defendant's computer would have been a justifiable border search if it had been done at the border at which the defendant was stopped, it could not be justified as a border search where the agents took the computer to a facility in Tucson, AZ, 170 miles away from the border, and conducted the forensic search there.
The procedure of seizing a computer, then obtaining a warrant for a later forensic search, had been followed, for example, in Arnold, supra, 533 F.3d at 1005, where, "The officers seized the computer and storage devices but released [the petitioner]. Two weeks later, federal agents obtained a warrant." (Emphasis added.) Indeed, that appears to be the normal procedure in other federal districts as well. See, e.g. United States v. Wu, 2010 U.S.Dist. LEXIS 4439, at 6 (D.Mass., Jan. 21, 2010) and United States v. Pickett, 2009 U.S. Dist. LEXIS 69710, at 2-3 (E.D.La., Sept. 16, 2008), where the agents obtained a search warrant even after obtaining a signed consent to search the computer.
That the first forensic examination of Mr. XXXX's computer was conducted sixteen days after the seizure, and the second forensic examination was conducted nearly six months after the initial seizure is powerful evidence that the authorities could have applied for a search warrant. They had six months to prepare an affidavit in support and bring it before a magistrate. That they did not suggests either a total disregard for the law or a recognition that the image that formed the basis for the initial seizure would not, without more, result in a finding of probable cause by a disinterested magistrate.
The fact is that the two later forensic searches did not occur either at the border or its functional equivalent. Therefore, the border exception to the probable cause and warrant requirement did not apply to those searches. Without first obtaining a warrant to conduct those searches, then, they were illegal, and evidence seized pursuant to them should be suppressed.

B. The border exception to the warrant requirement exists to keep undesirable people and contraband items out of the United States.

The border exception is not only an exception to the warrant requirement; it is also an exception to the requirement of probable cause. As the Supreme Court stated in United States v. Ramsey, 431 U.S. 606, 626 (1977):

That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.

The Ramsey Court quoted Carroll v. United States, supra at 153, which distinguished searches of travelers entering the country from searches of those traveling within the United States by stating, "Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in." Ramsey, supra, 431 U.S. at 618.
Thus, even though the Ramsey Court noted that the border exception to the Fourth Amendment is not a type of exigency exception, it arises from the same sort of necessity: the only way for agents of the United States Government to make sure that unwanted persons and contraband items are kept from entering the stream of persons and items within the United States is to allow government agents to question persons and search their belongings at the national borders. There is no other way to protect our national interest: once those unwanted people and contraband items have entered the United States, the damage to national security is already done.

C. The location and timing of the subsequent searches rendered them something other than border searches, for which a warrant supported by probable cause was required.

Just as no exigency exists once police have secured a home in which evidence is believed to be hidden, the need to protect national security from a person bringing contraband materials into the country has come to an end once the container suspected of holding contraband has been seized. The Supreme Court reiterated in Mincey v. Arizona, 437 U.S. 385, 393 (1978) that the scope of a warrantless search must be strictly circumscribed by the exigencies that justify its initiation. Citing Terry v. Ohio, 392 U.S. 1, 25-26 (1968).
To validate a subsequent forensic search of a computer, conducted in a laboratory miles from the "functional equivalent of the border" at which the initial search was conducted, weeks or months after that search, would be to create another exception to the warrant requirement, as that search can in no way be considered a "border search." The Mincey Court declined to adopt the Arizona Supreme Court's "murder scene" exception to the warrant requirement and instead held that evidence seized by homicide investigators who conducted an extensive, warrantless search of the home of a defendant after he engaged police in a fatal gun battle should have been suppressed because the search was not supported by any exception to the warrant requirement, even though police there had probable cause to believe that evidence of a crime was to be found at the home. In so holding, it noted Justice White's eloquent explanation of the warrant requirement:

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."

Id. at 395, quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948).
This fundamental concern-that the decision whether to invade a person's private belongings be left, whenever practical, to the disinterested, objective discretion of a magistrate - underlies the "general rule" reiterated by the Ross Court, that, "'[in] cases where the securing of a warrant is reasonably practicable, it must be used,'" Ross, supra, at 807, quoting Carroll v. United States, supra at 156.
In the context of the purpose of a border search - that is, to prevent undesirable people and items from entering the United States - it is not reasonably practicable for agents to obtain a warrant, especially where they may not have probable cause or even reasonable suspicion about the targets of their searches. As such, cases upholding a warrantless search under a border exception relate generally to an initial search of a person or container. See, e.g. United States v. Ramsey, 431 U.S. 606 (1977); United States v. Seljan, 547 F.3d 993 (9th Cir. 2009); Arnold, supra; United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2007); United States v. Romm, 455 F.3d 990 (9th Cir. 2006); United States v. Sahanaja, 430 F.3d 1049 (9th Cir. 2005); United States v. Cortez-Rocha, 394 F.3d 1115 (9th Cir. 2005); United States v. Sutter, 340 F.3d 1022 (9th Cir. 2003); United States v. Hernandez, 314 F.3d 430 (9th Cir. 2002); United States v. Okafor, 285 F.3d 842 (2002); United States v. Caicedo-Guarnizo, 723 F.2d 1420 (9th Cir. 1984).
Even in the few cases where a subsequent search was authorized as a border search, those searches, such as the secondary search held to be a valid border search in United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994), which, "occur[ed] minutes after he crossed the border and 60 feet from the Customs Office door," the searches were considered border searches because they were, "so spatially and temporally close  to [the border] that they are considered border searches." In contrast, the searches that resulted in the discovery of the alleged child pornography in this case occurred at an offsite facility, in one case two weeks, and in the second, several months after the initial search. Thus, these searches were not border searches at all, and therefore had to be done pursuant to a warrant. Because they were not, the evidence obtained pursuant thereto should be suppressed.

IV.
CUSTOMS AND BORDER PROTECTION OFFICERS DID NOT HAVE PROBABLE CAUSE TO SEIZE MR. XXXX'S COMPUTER

A. The image described by CBPO Edwards did not alone give probable cause.

The Fourth Amendment states:

The right of the 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.

The Supreme Court noted in Mincey v. Arizona, 437 U.S. 385, 390 (1978) that, "The Fourth Amendment proscribes all unreasonable searches and seizures..." (Emphasis added.) Thus, even if CBPO Edwards was entitled by the border exception to search Mr. XXXX's computer without any suspicion that it contained contraband, she must have had probable cause to believe that Mr. XXXX's computer contained evidence of a crime or contraband in order to thereafter seize it.
Section 2256 of Title 18 of the United States Code contains definitions relating to child pornography offenses. The relevant portion of sub-paragraph 8 of that section defines "child pornography" as:

(8) "child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where -

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct...

Subsection 2 defines "sexually explicit conduct" to include "lascivious exhibition of the genitals or pubic area of any person". Thus, to constitute "child pornography", an image must at the very least show the lascivious exhibition of a minor's genitals. CBPO Edwards only reported viewing, "an image of an adolescent female, who was nude and covered in mud at an unknown beach."
The Ninth Circuit noted in United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006) that "Child pornography is a particularly repulsive crime, but not all images of nude children are pornographic." The Hill Court upheld a magistrate's determination that a description of two images in an affidavit accompanying an application for a warrant to search a computer established probable cause to believe that the computer would contain child pornography. It quoted the descriptions from the warrant affidavit:

Image 1

Is a color picture of a female, white, approximately 15 years old, with long dark brown hair. The female is in a room standing between a couch and a coffee table. There is a framed  picture on the wall above the couch. She is wearing only a long blouse and pair of socks. The blouse is open and she is exposing her breast and pubic area to the camera, which she is facing while leaning to her left.

Image 2

Is a color picture of a [sic in affidavit] two females, white, approximately 7-9 years of age, both with dirty blond hair. These females are standing on a beach during the daytime. The shorter of the two females is standing to the right of the picture while the other female is standing behind her. Both females are facing the camera askew and wearing only a robe, which is open exposing the undeveloped breast and pubic area of both girls. They both are turning their faces away from the camera preventing the viewer from seeing their faces.

Id. at 968-969.
The Hill Court recognized the utility of a test first enunciated in United States v. Dost, to determine whether images there, "were 'so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.'" Hill, supra, 459 F.3d at 972, quoting United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987.) It quoted the Dost factors:

(1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Hill, supra, 459 F.3d at 971, quoting United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
The image described by Officer Edwards was unlike the images in Hill and others held to give probable cause for the issuance of a warrant. Unlike those images, the description of the image here does not indicate any focus on the child's genitalia. There is no indication that there was anything sexually suggestive about the child's pose, or the location - indeed, the description only referred to the girl as standing, at an unnamed beach. Although the description noted that the child was nude, it also described her as "covered in mud", a state that is generally not suggestive of sexual coyness or a willingness to engage in sexual activity. Most importantly, the description does not indicate that the child's genitals or pubic region are even exposed-it is possible that they were covered by the same mud that apparently covered the rest of the child.
Taking all of the Dost factors into account, it does not appear from the description of the image that it was so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur. Instead, this image is like the one determined not to give rise to a finding of probable cause in United States v. Battershell, 457 F.3d 1048, 1051 (9th Cir. 2006): "[A] young female (8-10 YOA) naked in a bathtub."¹There is certainly not enough in that description to make clear that the picture contained the essential element of child pornography as stated by the Ninth Circuit in United States v. Weigand, 812 F.2d 1239, 1245 (1987): "[A]n assault upon the humanity of the person pictured, making that person a mere means serving the voyeur's purposes."
In addition, the description of the female as an "adolescent" does not clearly identify her as a "minor" as defined in 18 U.S.C. §2256, that is, "any person under the age of eighteen years." Merriam Webster defines "adolescent" as:

adjective

: developing from childhood to maturity; growing up

: of or characteristic of adolescence; youthful, exuberant, immature, unsettled, etc.

noun

: a boy or a girl from puberty to adulthood; teenage person

Webster's New World College Dictionary Copyright ©2009 by Wiley Publishing, Inc., Cleveland, Ohio.
Dorland's Medical Dictionary for Health Consumers, in turn, defines "adolescence" as "the period between puberty and the completion of physical growth, roughly from 11 to 19 years of age." Dorland's Medical Dictionary for Health Consumers. ©2007 by Saunders, an imprint of Elsevier, Inc. Thus, the female described by CBPO Edwards could be an adult. In any case, a description of a nude female, who is possibly an adult, standing nude on a beach, covered in mud, certainly does not provide probable cause to believe that the computer on which it is found will contain contraband child pornography.

B. Other facts known to CBPO Edwards add nothing to the probable cause analysis.

The image that CBPO Edwards viewed during the border search, one adolescent female standing nude, covered in mud, on an unidentified beach, did not alone provide probable cause for further searches of Mr. XXXX's computer. None of the other evidence observed by CBPO Edwards combined with that innocent picture of an unidentified, possibly adult female, to provide probable cause.
CBPO Edwards reported that Mr. XXXX declared that he had come from South Korea, where he had been employed by Global Kids International teaching English to Korean children aged five years and up. The officer's suspicion was additionally aroused by observation of Mr. XXXX's "nervousness", as well as the discovery of a bag full of condoms and a bottle of pills that Mr. XXXX identified as over the counter male enhancement pills. CBPO Edwards thus faced facts analogous to those held by the Supreme Court not to give rise even to reasonable suspicion to conduct a Terry stop, in Reid v. Georgia, 448 U.S. 438, 439 (1980):
In Reid, a DEA agent based the suspicion on the facts that the petitioner arrived early in the morning, when law enforcement activity is diminished, that the petitioner and his traveling companion did not check luggage, that they each carried a single, similar bag, that the petitioner appeared to try to distance himself from his traveling companion while walking through the inspection area, that he was only staying for one day, and that he appeared nervous. Id. at 439-440.
Like the petitioner in Reid, the locale from which Mr. XXXX arrived, as well as his stated purpose for being there, gave rise to the officer's suspicion. Also as in Reid, the officer observed behavioral and physiological indicators of nervousness. Finally, where in Reid, the officer observed otherwise innocent behavior from which he was able to infer the likelihood of drug-smuggling activity - that is, the petitioner's apparent attempt to separate himself from a traveling companion - here, Officer Edwards noted the presence of otherwise innocent items in Mr. XXXX's luggage from which an inference was made about the possible presence of child pornography on Mr. XXXX's computer.
The Reid Court supported its decision by the following reasoning:

Of the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse relates to their particular conduct. The other circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. Nor can we agree, on this record, that the manner in which the petitioner and his companion walked through the airport reasonably could have led the agent to suspect them of wrongdoing. Although there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot, [Cite], this is not such a case. The agent's belief that the petitioner and his companion were attempting to conceal the fact that they were traveling together, a belief that was more an "inchoate and unparticularized suspicion or 'hunch,'" [Cite], than a fair inference in the light of his experience, is simply too slender a reed to support the seizure in this case.

The same reasoning applies here. It can only be left to the imagination to estimate the number of travelers who have crossed international borders carrying condoms and male enhancement pills.² Surely some of those persons had taken teaching positions overseas. Certainly, if such information did not even give rise to reasonable suspicion to conduct a Terry stop, analogous information known by CBPO Edwards did not give rise to probable cause to conduct much more intrusive forensic searches of Mr. XXXX's computer.
Mr. XXXX's case is also analogous to United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008, a case in which the Second Circuit held that a warrant application to search a petitioner's home and computers for evidence of child pornography was deficient, because it only identified him as a person who appeared to have gained access or attempted to gain access to a child pornography website, without any information that he had actually downloaded any pictures from the website, and noted that he had an eighteen year old misdemeanor conviction for sexually abusing a seven year old girl.
As the Falso Court noted, "'It is an inferential fallacy of ancient standing to conclude that, because members of group A' (those who collect child pornography) 'are likely to be members of group B' (those attracted to children), 'then group B is entirely, or even largely composed of, members of group A.'" Quoting United States v. Martin, 426 F.3d 68, 82 (2d Cir. 2005). Here, even if Mr. XXXX's return from teaching children in Korea, his bag of condoms and his Viagra provided some indication that he was attracted to children, any such indication adds no weight to the inference that, because Officer Edwards saw one image of a nude adolescent, child pornography would be found on Mr. XXXX's computer.
In short, the facts about Mr. XXXX's whereabouts overseas, the contents of his luggage, and his behavioral and physiological indications did not create probable cause to believe that child pornography would be found on Mr. XXXX's computer, even after CBPO Edwards conducted a border search of Mr. XXXX's computer and discovered one image of a nude adolescent female on a beach, covered in mud. Therefore, CBPO Edwards did not have probable cause to seize Mr. XXXX's computer.

V.
ARNOLD IS WRONGLY DECIDED

The Defendant recognizes that the Ninth Circuit decided in United States v. Arnold, supra, that no reasonable suspicion is required to conduct a secondary border inspection of a person's computer. The Defendant contends that Arnold is wrongly decided, and raises the issue to preserve it should another Circuit decide that reasonable suspicion is required.

VI.
CONCLUSION

CBPO Edwards directed forensic investigators to search the computer seized from Mr. XXXX after he arrived at the San Francisco International Airport on a flight from South Korea. Mr. XXXX maintained an objectively reasonable expectation of privacy in the computer and its contents, which gives him standing to object to the searches. Those searches were conducted without probable cause to believe the computer held contraband or evidence of an offense. In addition, they were illegally conducted contrary to the warrant requirement of the Fourth Amendment. Because the searches were conducted in violation of the Fourth Amendment, the defendant respectfully requests that all evidence obtained from those searches be suppressed.

Dated: March ___, 2010

Respectfully Submitted,

UNITED DEFENSE GROUP

By: /s/ Eric A. Chase
Eric A. Chase, Esq.
Attorneys for Defendant