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Judge limits DHS warrantless laptop searches

'Extended border search' - Not!

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A federal judge has thrown out key evidence in a child pornography trial because the laptop alleged to contain more than 1,000 illegal images wasn't searched until about five months after US customs officials seized it at a US border crossing.

The ruling by US District Judge Jeffrey S. White of the Northern District of California is a rebuke to the federal government's controversial search and seizure practices at US borders. Two years ago, a federal appeals court ruled customs officers had the right to rummage through electronic devices even when there was no reason to suspect the hardware held illegal contents. Last week's ruling suggests the government's latitude isn't without limit.

The government seized the laptop on January 27, 2009 when its owner arrived at the San Francisco International Airport from South Korea. After a customs officer found an image of a nude adolescent on the man's hard drive, the laptop was seized and sent to a US Customs laboratory. A warrantless search was conducted on February 13, but it wasn't until a forensic analysis four months later – also conducted without a warrant – that investigators uncovered “over 1,000 images of child pornography,” according to court records.

Attorneys for defendant Andrew Samuel Hanson moved to suppress the evidence, arguing that investigators violated his Fourth Amendment right against unreasonable searches and seizures. White partially granted the motion, arguing that the February probe could properly be considered an “extended border search” – which must be supported by reasonable suspicion – but the June search could not.

“For the reasons set forth above regarding the January search, the court concludes that the discovery of the additional images in February did not so frustrate Hanson's reasonable expectation of privacy in his laptop that the warrantless search in June was justified,” White wrote. “Accordingly, because the court concludes that June search required a warrant, and because it is undisputed that the search was conducted without a warrant, Hanson's motion is granted in part on this basis.”

The judge rejected arguments by Obama administration prosecutors that even though Hanson was cleared to enter the country, his laptop was not, and therefore investigators were at liberty to search it some five months after it was seized without a warrant.

“The court finds this argument unpersuasive,” he wrote.

The ruling is largely based on the facts of the case, chief among them the fact that Hanson is a US citizen. That means it's unlikely to have much of an effect on seizures of laptops belonging to non US citizens. But it nonetheless places some limits on customs officials, who have repeatedly asserted they can seize laptops brought into the country and hold them for an unlimited amount of time.

CNET's Declan McCullagh, who reported on the ruling earlier, has more here. ®

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